                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-19-2006

Sukwanputra v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-3336




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                                       PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 04-3336


               ELLYANA SUKWANPUTRA;
                YULIUS SUKWANPUTRA,

                                               Petitioners

                              v.

      ALBERTO GONZALES, ATTORNEY GENERAL
           UNITED STATES OF AMERICA*

   *Caption amended pursuant to Rule 43(c), Fed. R. App. P.

                                               Respondent



         On Petition for Review from an Order of the
               Board of Immigration Appeals
             (D.C. No. 0313-2: A-79-312-251;
              D.C. No. 03-3-2: A-79-312-252)
       Immigration Judge: Hon. Donald Vincent Ferlise


                  Argued October 18, 2005

BEFORE: SCIRICA, Chief Judge, VAN ANTWERPEN and
            COWEN, Circuit Judges

                  (Filed: January 19, 2006 )

Joseph C. Hohenstein, Esq. (Argued)

                              1
Orlow and Orlow, P.C.
620 Chestnut Street
Suite 656
Philadelphia, PA 19106

Counsel for Petitioners

Jonathan Potter, Esq. (Argued)
United States Department of Justice
Office of Immigration Litigation
Civil Division
Ben Franklin Station
P.O. Box 878
Washington, DC

Stephen A. Sherman, Esq.
United States Department of Justice
Tax Division
Ben Franklin Station
P.O. Box 55
Washington, DC 20044

Counsel for Respondent


                           OPINION



COWEN, Circuit Judge.

       Ellyana and Yulius Sukwanputra petition for review of an
order of the Board of Immigration Appeals (“BIA”) which
adopted and affirmed an Immigration Judge’s (“IJ”) decision
denying the application for asylum and withholding of removal
pursuant to the Immigration and Nationality Act (“INA”), and
protection under the Convention Against Torture (“CAT”). For
the reasons stated below, we will grant the petition, vacate the
order of the BIA, and remand for further proceedings consistent
with this opinion.
                                I.

                               2
       Ellyana Sukwanputra and her husband, Yulius
Sukwanputra,1 are natives and citizens of Indonesia. Petitioner
claims persecution in Indonesia on account of her Chinese
ethnicity and Catholic religion. In support, she relates numerous
incidents of persecution spanning a twenty year period from her
childhood until the late 1990s. Three of the incidents are
relevant to our decision, which we discuss below.

       First, Petitioner alleges that in 1985, in her hometown of
Malang, a mob of native Indonesians burned down her father’s
store as part of widespread attacks on Chinese-owned stores.
Petitioner, who was a child at the time, allegedly remembers
hearing rioters say, “Burn it down, this belong to Chinese!”
Despite the widespread destruction and looting, the police and
army in Indonesia allegedly did nothing to stop the attacks.

       Petitioner claims that similar governmental inaction led to
the prolongation of riots in Unjung Pandang in September 1997.
Prompted by the prospect of marriage, Petitioner alleges that she
and her then-future husband traveled to the Island of Sulawesi,
Unjung Pandang, so that she could meet his parents who lived
there. Petitioner laments that during their visit, a group of native
Indonesians allegedly burned down her husband’s family
restaurant. Petitioner allegedly recalls hearing the rioters yell,
“Burn and kill the Chinese!” After escaping the restaurant,
petitioner and her husband stayed at the local police station for
two days until the riots ended.

        Third, petitioner cites to the massive riots that plagued
Jakarta in May 1998. Petitioner asserts that following her
graduation from college, she was living in Jakarta looking for
employment when massive riots broke out there. Petitioner
relates that during the riots many Indonesian women were raped
and killed. Petitioner allegedly hid with friends inside a house,
but could hear the voices of rioters on the streets and the sounds


       1
          The application, filed by Ellyana Sukwanputra, seeks
refugee status for her husband, Yulius Sukwanputra, as a derivative
applicant. Unless otherwise indicated, reference to the singular
"petitioner" refers to Ellyana Sukwanputra.

                                 3
of them beating on the house. Petitioner recalls that after the
riots she fled to Malang to stay with her parents.

       On May 17, 1999, petitioners entered the United States on
non-immigrant visitor’s visas. They were authorized to remain
in the United States until November 16, 1999, and both
overstayed their visas. On June 25, 2001, they were placed in
removal proceedings.

                                II.

        On or about May 4, 2001, petitioner filed an application
for asylum and withholding of removal under the INA, and
protection under CAT. The case was referred to Immigration
Judge Donald Ferlise, who conducted a hearing on the merits. In
addition to her own testimony, petitioner presented to the IJ
documentary evidence in support of her application. The IJ
admitted some of the documents into evidence, including
petitioner’s written application, her sworn affidavits, and a
country package which included the 2001 Department of State
Report on Human Rights Practices. However, the IJ refused to
give any weight to the following documents: petitioners’ birth
certificates, their marriage certificate, petitioner’s husband’s
Indonesia identification card, a death certificate for petitioner’s
brother, and their child’s birth certificate. The IJ reasoned that
the documents were not certified as required under 8 C.F.R. §
287.6.

       On October 28, 2002, the IJ issued a decision denying the
application for asylum, withholding of removal, and CAT
protection. The IJ found that the asylum application was
untimely and that petitioner had failed to establish changed
circumstances materially affecting her eligibility for asylum or
extraordinary circumstances relating to the delay. The IJ also
found that petitioner had not demonstrated entitlement to
withholding of removal or protection under CAT. The IJ
premised his finding, in part, on the purported implausibility that
petitioner was present “at all of these [three] major events even
though they were quite far apart in distance.” (Decision at 10.)
As to these three critical events, the IJ found petitioner’s
testimony not to be credible. (Decision at 10.)

                                 4
       On August 5, 2005, the BIA entered its order affirming
and adopting the IJ’s decision. The BIA rejected petitioner’s
claim that the IJ exhibited bias violating their due process rights.
The BIA concluded that while some of the IJ’s statements were
“injudicious,” there was insufficient evidence to show that the
IJ’s conduct prevented petitioner from fully presenting her
evidence.

                                III.

       The BIA’s jurisdiction arose under 8 C.F.R. §
1003.1(b)(3). We have jurisdiction to review the BIA’s final
order of removal under 8 U.S.C. § 1252(a)(1).

       Insofar as the BIA adopted the findings of the IJ, we must
review the decision of the IJ. Abdulai v. Ashcroft, 239 F.3d 542,
549 n.2 (3d Cir. 2001) (“When the BIA defers to an IJ, a
reviewing court must, as a matter of logic, review the IJ’s
decision to assess whether the BIA’s decision to defer was
appropriate.”). As to matters which the BIA issued its own
opinion and did not summarily adopt the findings of the IJ, we
must review the decision of the BIA. Li v. Attorney General,
400 F.3d 157, 162 (3d Cir. 2005).

                                IV.

                                 A.

        Petitioners argue that one-year statutory period of
limitations for filing an asylum application provided in 8 U.S.C.
§ 1158(a)(2)2 violates the Supremacy Clause of the United States


       2
         An alien may apply for asylum if he “demonstrates by
clear and convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the United
States.” 8 U.S.C. § 1158(a)(2)(B). A tardy application may be
considered if the alien demonstrates to the satisfaction of the
Attorney General the existence of either of the following
circumstances: “changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances

                                 5
Constitution and the Due Process Clause, and that the judicial
review bar provided in 8 U.S.C. § 1158(a)(3), which precludes
judicial review of determinations of the Attorney General made
under 8 U.S.C. § 1158(a)(2), also violates the Due Process
Clause. We consider each of these arguments below, under a de
novo review. Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96
(3d Cir. 2003).

                                1.

       Citing to the Supremacy Clause, petitioners argue that the
one-year statutory period of limitations provided in § 1158(a)(2)
conflicts with Article 34 of 1951 United Nations Convention
Relating to the Status of Refugees (“1951 Convention”). By
acceding to the 1967 United Nations Protocol Relating to the
Status of Refugees (“1967 Protocol”), the United States agreed
to comply with the substantive provisions of the 1951
Convention. INS v. Cardoza-Fonseca, 480 U.S. 421, 429
(1987); INS v. Stevic, 467 U.S. 407, 416 (1984). However,
Article 34 is not self-executing. See Stevic, 467 U.S. at 428 n.22.
As such, Article 34 provides no enforceable rights beyond those
granted by the INA. See id; Al-Fara v. Gonzalez, 404 F.3d 733,
743 (3d Cir. 2005). Accordingly, the one-year statutory period
provided in § 1158(a)(2) for filing an asylum application does
not violate the Supremacy Clause.3
                                 2.



relating to the delay in filing an application within the period
specified in subparagraph (B).” 8 U.S.C. § 1158(a)(2)(D).
       3
          In addition, the one-year statutory period withstands a
Supremacy Clause challenge based on the application of the “last
in time” rule. See Kappus v. Comm’r of Internal Revenue, 337
F.3d 1053, 1057 (D.C. Cir. 2003). Under this rule, “[w]hen a
statute conflicts with a treaty, the later of the two enactments
prevails over the earlier.” Id. (citing Whitney v. Robertson, 124
U.S. 190, 194 (1888)). Congress added § 1158(a) to the INA as
part of the 1980 amendments to that Act. Cardoza-Fonseca, 480
U.S. at 427. Thus, § 1158(a)(2) could not unconstitutionally
violate the 1967 Protocol, even if it was self-executing.

                                 6
        Petitioners’ claim that the statutory period of limitations
provided in § 1158(a)(2) violates the Due Process Clause is also
unavailing. Although the Fifth Amendment entitles aliens to the
“the opportunity to be heard at a meaningful time and in a
meaningful manner,” Dia v. Ashcroft, 353 F.3d 228, 238-239 (3d
Cir. 2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976)), “it d[oes] not violate due process for Congress to
impose a reasonable limitations period upon the filing of
naturalization petitions.” INS v. Pangilinan, 486 U.S. 875, 885
(1988). The state “may erect reasonable procedural
requirements for triggering the right to an adjudication, be they
statutes of limitations. . . [a]nd . . . certainly accords due process
when it terminates a claim for failure to comply with a
reasonable procedural or evidentiary rule.” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (internal
citations and quotations marks omitted) (emphasis in original).

       The one-year period of limitations for filing an asylum
application under 8 U.S.C. § 1158(a)(2)(B), which is tempered
by the tolling provisions of § 1158(a)(2)(D), provides an asylum
applicant an “opportunity to be heard at a meaningful time and
in a meaningful manner.” Eldridge, 424 U.S. at 333 (citation
and internal quotation marks omitted). The one-year period is
not an unreasonable requirement for triggering the right to an
adjudication, and, thus, an alien is not deprived of due process
when his or her asylum claim is denied for failure to comply
with the requirement. For these reasons, we conclude that the
one-year statutory limitations period provided in § 1158(a)(2)
does not violate the Due Process Clause.

                                  3.

       Petitioners’ contention that the judicial review bar of 8
U.S.C. § 1158(a)(3) violates the Due Process Clause likewise
lacks merit. “Deportation is not a criminal proceeding and has
never been held to be punishment . . .[, and thus] [n]o judicial
review is guaranteed by the Constitution.” Carlson v. Landon,
342 U.S. 524, 537 (1952). Rather, “[t]he power to expel aliens,
being essentially a power of the political branches of
government, the legislative and executive, may be exercised
entirely through executive officers, with such opportunity for

                                  7
judicial review of their action as congress may see fit to
authorize or permit.” Id. (internal quotation marks and citation
omitted) (emphasis added). As clearly indicated in 8 U.S.C. §
1158(a)(3), Congress did not authorize an opportunity for
judicial review of determinations made by the executive branch
regarding the timeliness of an asylum application. See
Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).
Because judicial review is not constitutionally guaranteed, the
judicial review bar of § 1158(a)(3) does not violate the Due
Process Clause.

                               B.

        Failing their constitutional arguments, petitioners next
challenge the IJ’s determination that petitioner did not qualify
for an exception to the one-year filing deadline for asylum
applications. Pursuant to 8 U.S.C. § 1158(a)(2)(B), an alien
must file an asylum application within one year of the date of the
alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). A
late-filed application may be considered if the alien demonstrates
either “changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application . . . .” 8 U.S.C. §
1158(a)(2)(D).

       Petitioner entered the United States on May 17, 1999, but
did not file her asylum application until May 4, 2001. The IJ
determined that the asylum application was untimely and that
petitioner had failed to establish changed circumstances
materially affecting her eligibility for asylum or extraordinary
circumstances relating to the delay, as required under 8 U.S.C. §
1158(a)(2)(D) to excuse a failure to meet the one-year deadline.
Petitioners contend that the IJ applied the wrong legal standard
in making his determination under § 1158(a)(2)(D) that
petitioner had failed to demonstrate such changed or
extraordinary circumstances. Petitioners posit further that the
record evidence reflects the existence of such changed or
extraordinary circumstances so as to warrant the late filing. The
government contends that pursuant to 8 U.S.C. § 1158(a)(3), this
Court does not have jurisdiction to review the IJ’s decision
relating to the untimeliness of the asylum application.

                                8
        The restriction on judicial review of determinations made
by the Attorney General regarding the timeliness of an asylum
application is addressed in 8 U.S.C. § 1158(a)(3). That
provision states that “[n]o court shall have jurisdiction to review
any determination of the Attorney General under paragraph (2),”
8 U.S.C. § 1158(a)(3), which paragraph includes the provision
relating to whether an asylum applicant has demonstrated the
existence of changed or extraordinary circumstances, 8 U.S.C. §
1158(a)(2)(D). In Tarrawally, this Court held that “the language
of 8 U.S.C. § 1158(a)(3) clearly deprives us of jurisdiction to
review an IJ’s determination that an asylum petition was not
filed within the one year limitations period, and that such period
was not tolled by extraordinary circumstances.” 338 F.3d at
185.
        Since our decision in Tarrawally, Congress enacted the
REAL ID Act of 2005 (“REAL ID Act”). The REAL ID Act
authorizes judicial review of constitutional claims and questions
of law, notwithstanding any other provision of the chapter which
eliminates or limits judicial review. See REAL ID Act §
106(a)(1)(A)(iii), adding 8 U.S.C. § 1252(a)(2)(D) (“Nothing in
subparagraph (B) or (C), or in any other provision of this chapter
(other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed
within an appropriate court of appeals in accordance with this
section.”).4 By virtue of § 1252(a)(2)(D), constitutional claims
or questions of law raised in a petition for review elude the
jurisdiction-stripping provisions of the INA. The effect of this
provision is to restore to the court of appeals jurisdiction to
review constitutional claims and questions of law.

       Despite the special treatment accorded constitutional


       4
          Section 106(a) of the REAL ID Act took effect on May
11, 2005, and applies to cases in which the final administrative
order of removal, deportation, or exclusion was issued before, on,
or after the date of the enactment. See REAL ID Act § 106(b).
Thus, even though the final administrative order of removal in this
case was issued before the date of the enactment, § 1252(a)(2)(D)
applies to this case.

                                 9
claims and questions of law, § 1252(a)(2)(D) does not exempt
factual or discretionary challenges from the jurisdiction-stripping
provisions of the INA. Thus, § 1252(a)(2)(D) does not prohibit
a court of appeals from construing provisions which limit
judicial review, such as § 1158(a)(3), as precluding review of
factual or discretionary challenges. Accordingly, we join our
sister courts in concluding that despite the changes of the REAL
ID Act, factual or discretionary determinations continue to fall
outside the jurisdiction of the court of appeals entertaining a
petition for review. Accord Ramadan v. Gonzalez, 427 F.3d
1218, 1222 (9th Cir. 2005); Chacon-Botero v. U.S. Atty. Gen.,
427 F.3d 954, 957 (11th Cir. 2005); Vasile v. Gonzalez, 417 F.3d
766, 768 (7th Cir. 2005).

        Mindful of these jurisdictional concerns, we now turn to
the issues presented in this petition for review. Here, petitioners
first contend that the IJ applied the wrong legal standard in
making his determination under 8 U.S.C. § 1158(a)(2)(D)
whether petitioner had established changed or extraordinary
circumstances excusing her untimely application. Petitioners
posit that the IJ should have applied a “benefit of the doubt”
standard. As to this particular issue, we do not need to decide
whether this issue raises a “constitutional claim[ ] or question[ ]
of law” to which our jurisdiction extends under 8 U.S.C. §
1252(a)(2)(D), since, as explained below, we find the argument
to be wholly without merit.

        In support of their argument for a “benefit of the doubt”
standard, petitioners cite to the Handbook on the Procedures and
Criteria for Determining Refugee Status, issued by the Office of
the United Nations High Commissioner for Refugees (“UNHCR
Handbook”). The UNHCR Handbook, in relevant part,
describes the difficulty of proof inherent in an asylum seeker’s
situation. UNHCR Handbook ¶ 196. To account for this
difficulty, the Handbook advises that “if the applicant’s account
appears credible, he should, unless there are good reasons to the
contrary, be given the benefit of the doubt.” UNHCR Handbook
¶ 196 (emphasis added).

       Petitioners’ reliance on the “benefit of the doubt”
standard as set forth in the UNHCR Handbook is misguided for

                                10
several reasons. First and foremost, “the [UNHCR] Handbook is
not binding on the INS or American courts.” Abdulai v.
Ashcroft, 239 F.3d 542, 553 (3d Cir. 2001). Second, the
UNHCR Handbook sets forth procedures for determining
refugee status, not for assessing the circumstances surrounding
the late filing of an asylum application. Third, even if the
UNHCR Handbook were binding and relevant to the timeliness
determination, the “benefit of the doubt” standard has no
application to the facts of this case since the IJ found that
petitioner’s account was implausible and lacking in credibility.
See UNHCR Handbook ¶ 196 (“if the applicant’s account
appears credible, he should, unless there are good reasons to the
contrary, be given the benefit of the doubt.”) (emphasis added).
For these reasons, we conclude that petitioners’ claim that the IJ
applied the wrong legal standard does not raise a colorable claim
of legal error.5 As a consequence, we need not reach the
jurisdictional issue of whether their claim falls within the
judicial review provision of 8 U.S.C. § 1252(a)(2)(D).

       Petitioners’ remaining argument is that the evidence in
the record demonstrates changed circumstances materially
affecting asylum eligibility or extraordinary circumstances
relating to the delay, as required under 8 U.S.C. § 1158(a)(2)(D)
to excuse the late filing. We must first determine whether this
contention raises a “question[ ] of law” to which our jurisdiction
extends, 8 U.S.C. § 1252(a)(2)(D),6 or a factual or discretionary
matter outside of our jurisdiction, 8 U.S.C. § 1158(a)(3).

       An untimely application for asylum may be considered


       5
         Petitioners also claim that the untimely filing should be
excused because there was no evidence of intentional delay in the
record. However, the absence of intentional conduct on the part of
the asylum applicant in creating the circumstances which caused
the delay is merely one element that the asylum applicant must
prove to excuse a failure to file within the one-year deadline. 8
C.F.R. § 208.4(a)(5).
       6
          Petitioners do not raise a constitutional challenge relating
to the IJ’s determination of untimeliness.

                                 11
only “if the alien demonstrates to the satisfaction of the Attorney
General” that she qualifies for an exception to one-year filing
deadline. 8 U.S.C. § 1158(a)(2)(D). This language requiring an
asylum applicant to make a demonstration to the Attorney
General’s “satisfaction” implies that the Attorney General’s
determination entails an exercise of discretion. See Vasile, 417
F.3d at 768. Petitioners’ claim that she met her burden of
demonstrating changed circumstances materially affecting
asylum eligibility or extraordinary circumstances relating to the
delay challenges that exercise of discretion. Such a claim does
not raise a constitutional claim or question of law covered by the
REAL ID Act’s judicial review provision. We therefore agree
with our sister courts that, despite the changes of the REAL ID
Act, 8 U.S.C. § 1158(a)(3) continues to divest the court of
appeals of jurisdiction to review a decision regarding whether an
alien established changed or extraordinary circumstances that
would excuse his untimely filing. Ramadan, 427 F.3d at 1222;
Chacon-Botero, 427 F.3d at 957; Vasile, 417 F.3d at 768-69.
Therefore, we conclude that we do not have jurisdiction to
review petitioners’ challenge.

                                C.

       Petitioners also argue that the IJ erroneously excluded
evidence under 8 C.F.R. § 287.6, and that the evidence would
have corroborated petitioner’s testimony. The authentication
regulation of 8 C.F.R. § 287.6 provides, in pertinent part, as
follows:

       In any proceeding under this chapter, an official
       record or entry therein, when admissible for any
       purpose, shall be evidenced by an official
       publication thereof, or by a copy attested by an
       officer so authorized.... The attested copy, with the
       additional foreign certificates if any, must be
       certified by an officer in the Foreign Service of the
       United States, stationed in the foreign country
       where the record is kept.

8 C.F.R. § 287.6. In Liu v. Ashcroft, 372 F.3d 529 (3d Cir.
2004), we declared that “8 C.F.R. § 287.6 is not an absolute rule

                                12
of exclusion, and is not the exclusive means of authenticating
records before an immigration judge.” Id. at 533. In doing so,
we adopted the government’s reading of the authentication
regulation, reasoning that while the government’s reading might
not have been the most obvious one, it was not plainly erroneous
and, moreover, “asylum applicants can not always reasonably be
expected to have an authenticated document from an alleged
persecutor.” Id. at 532 (internal citation and quotation marks
omitted).

        In this case, the IJ refused to give any weight to
unauthenticated documentary evidence on the basis of section
287.6 alone, and failed to afford petitioner an opportunity to
authenticate the documents through other means. In addition,
the documentary evidence, if found to be genuine, would
corroborate petitioner’s testimony. For example, the address on
petitioner’s husband’s identification card and the 1999 marriage
certificate support petitioner’s testimony that the reason she was
in Unjung Pandang in September 1997 when the riots broke out
was to meet her husband’s family in anticipation of their
eventual marriage. Because the documentary evidence, if
considered, might have resulted in a favorable credibility
determination, we find that remand is appropriate so that the
authenticity of the documents7 may be reconsidered, and, if
found genuine, the credibility of the petitioner reevaluated for
purposes of the withholding of removal claim.8


       7
           See list of documents supra Part II. Based upon our
review of the hearing transcript, it does not appear that petitioner’s
diploma, her husband’s baptismal certificate, the religious marriage
certificate, or their child’s social security card was found
inadmissible under 8 C.F.R. § 287.6, see R. at 70, although
petitioners have indicated to the contrary on appeal. Our ruling
herein would apply equally to those documents if they had been
found inadmissible under 8 C.F.R. § 287.6.
       8
         Petitioners do not specifically challenge the IJ’s denial of
relief under CAT, beyond mentioning in a footnote that the claim
differs from claims for asylum and withholding of removal
regarding burdens of proof and levels of harm required to merit

                                 13
                                  D.

       Petitioners also contend that the IJ’s adverse credibility
determination was not supported by substantial evidence.
Adverse credibility determinations are reviewed under the
substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002). “We look at an adverse credibility
determination to ensure that it was appropriately based on
inconsistent statements, contradictory evidence, and inherently
improbable testimony . . . in view of the background evidence on
country conditions.” Dia, 353 F.3d at 249 (internal citation and
quotation marks omitted). An adverse credibility determination
based on speculation or conjecture, rather than on evidence in
the record, will be reversed. Gao, 299 F.3d at 272. “Where an
IJ bases an adverse credibility determination in part on
‘implausibility’ as the IJ did here, such a conclusion will be
properly grounded in the record only if it is made against the
background of the general country conditions.” Dia, 353 F.3d at
249.

        In this case, the IJ made an adverse credibility
determination with respect to three incidents of alleged
persecution.9 The IJ found incredible petitioner’s presence “at
all of these major events even though they were quite far apart in
distance.” (Decision at 10.) However, the IJ’s adverse
credibility determination was not based upon any evidence in the
record, Dia, 353 F.3d at 249, but upon speculation and
conjecture. Furthermore, as noted above, the evidence which the
IJ erroneously excluded under 8 C.F.R. § 287.6, if found to be
genuine, would corroborate petitioner’s testimony. Accordingly,
remand is appropriate so that the credibility issue bearing upon
the withholding of removal claim may be reconsidered.

                                  E.




relief. We will therefore not entertain the CAT claim. See Nagle
v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993).
       9
           See factual recitation supra Part I.

                                  14
       Next, petitioners assert that the IJ failed to consider
whether there was a pattern or practice of persecution against
Chinese and/or Christians in Indonesia. This issue was properly
raised before the BIA, and, thus, the Court has jurisdiction to
review it. See 8 U.S.C. § 1252(d)(1).

        To establish a well-founded fear of persecution, an
applicant must first demonstrate a subjective fear of persecution
through credible testimony that her fear is genuine. Zubeda v.
Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). Second, the
applicant must show, objectively that “a reasonable person in the
alien’s circumstances would fear persecution if returned to the
country in question.” Id. To satisfy the objective prong, a
petitioner must show he or she would be individually singled out
for persecution or demonstrate that “there is a pattern or practice
in his or her country of nationality . . . of persecution of a group
of persons similarly situated to the applicant on account of race,
religion, nationality, membership in a particular social group, or
political opinion . . .” 8 C.F.R. § 208.13(b)(2)(iii)(A). Although
the INA regulations do not define what conditions constitute a
“pattern or practice of persecution,” this Court has held that, “to
constitute a pattern or practice, the persecution of the group must
be systematic, pervasive, or organized.” Lie v. Ashcroft, 396
F.3d 530, 537 (3d Cir. 2005) (citation and internal quotation
marks omitted). In addition, as with any claim of persecution,
the acts must be committed by the government or forces the
government is either unable or unwilling to control. Id. (citation
and internal quotation marks omitted).

       Here, the IJ found that petitioner had not established a
well-founded fear of persecution, without specifically addressing
whether a pattern or practice of persecution existed in Indonesia.
Accordingly, on remand, petitioners’ claim that there is a pattern
or practice of persecution of Chinese Christians in Indonesia
must be considered.10


       10
          Significantly, we do not hold that a pattern or practice of
persecution in Indonesia in fact exists, nor do we hold that the Lie
decision establishes that a pattern or practice does not exist since
the record in this case contains a 2001 country report whereas the

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                                 F.

        Finally, petitioners contend that the IJ’s conduct during
the removal hearing violated their due process rights. As
judicial officers, immigration judges have the “‘responsibility to
function as neutral and impartial arbiters’ and ‘must assiduously
refrain from becoming advocates for either party.’”
Abdulrahman, 330 F.3d at 596 (citations and internal quotation
marks omitted). This requirement of neutrality is “especially
important where, as in this class of cases, the determination of
the trier of fact are subject to particularly narrow appellate
scrutiny.” Id. at 599.

        In this case, in derogation of his responsibility to appear
neutral and impartial, the IJ interjected intemperate and bias-
laden remarks. While petitioner was testifying on cross-
examination regarding her desire for her sister to come to the
United States to obtain further education and a better job here,
the IJ stated:

       Look for a better job. Ma’am she has no right to
       be here. You have no right to be here. All of the
       applicants that are applying for asylum have no
       right to be here. You don’t come to the United
       States to look for a job! That’s not the purpose of
       asylum. You don’t come here to look for a job, or
       look for a house, or look for a better car, and than
       as an afterthought say, well, the only way I’m
       going to be able to stay here is if I can convince a
       Judge that I’m going to be persecuted. It’s not the
       way the law works. Now, if you’re telling your
       sister to come to the United States to pretend to be
       a student to have her come here, you’re guilty of
       visa fraud. That is a felony. You can go to jail for
       that! You have to understand, the whole world
       does not revolve around you and the other
       Indonesians that just want to live here because they


record in Lie contained an earlier 1999 country report. Lie, 396
F.3d at 537.

                                 16
       enjoy the United States better than they enjoy
       living in Indonesia. It is not a world that revolves
       around you and your ethnic group.

       We are deeply troubled by the IJ’s remarks, none of
which had any basis in the facts introduced, or the arguments
made, at the hearing. There was no evidence adduced at the
hearing that petitioner was seeking asylum only because she
enjoyed the quality of life here better than that in Indonesia, nor
was there any basis for the IJ’s remarks that petitioner might be
guilty of visa fraud. In particular, the IJ’s statement that the
“whole world does not revolve around you and the other
Indonesians that just want to live here because they enjoy the
United States” gives the appearance that the IJ has a
predisposition to find against petitioner.11

        “[E]ven if the IJ was not actually biased -- and we do not
speculate here as to h[is]state of mind -- the mere appearance of
bias on h[is] part could still diminish the stature of the judicial
process []he represents.” Wang v. Attorney General, 423 F.3d
260, 269 (3d Cir. 2005) (citation and internal quotation marks
omitted). As stated by the Supreme Court, “justice must satisfy
the appearance of justice.” Offutt v. United States, 348 U.S. 11,
13 (1954). Thus, although we need not reach the due process
issue, in order to ensure fairness and the appearance of
impartiality, we strongly encourage that on remand, the BIA
assign any further proceedings to a different IJ. See Korytnyuk
v. Ashcroft, 396 F.3d 272, 287 n.20 (3d Cir.2005) (“[W]hile we
recognize that the assignment of an [IJ] is within the province of
the Attorney General, if on remand an IJ’s services are needed,
we believe the parties would be far better served by the
assignment to those proceedings of a different IJ.”) (citations and


       11
          This is not the first time we have been troubled by the
conduct of the IJ who presided over the proceedings in this case.
In Fiadjoe v. Attorney General, 411 F.3d 135 (3d Cir. 2005), we
reversed an adverse credibility determination made by Judge
Donald Ferlise, finding that his questioning amounted to “bullying”
and was “extreme[ly] insensitiv[e],” and his tone was “hostile and
at times became extraordinarily abusive.” 411 F.3d at 144, 154.

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internal quotation marks omitted).

        For the foregoing reasons, the petition for review will be
granted, the order of the BIA vacated, and this case remanded
for further proceedings consistent with the dictates of this
opinion.




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