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


10-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4303




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                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 05-4303


                              PUTU POLOS INDRA
                                            Petitioner

                                         v.

                            ATTORNEY GENERAL OF
                             THE UNITED STATES,
                                            Respondent


                       Petition for Review of an Order of the
                        United States Department of Justice
                           Board of Immigration Appeals
                              (BIA No. A79-331-393)
                         Immigration Judge: R.K. Malloy


                     Submitted Under Third Circuit LAR 34.1(a)
                                September 28, 1006

               Before: RENDELL, ROTH, GIBSON*, Circuit Judges.

                              (Filed: October 27, 2006)



                            OPINION OF THE COURT

__________________

   * Honorable John R. Gibson, Judge of the United States Court of Appeals for the
     Eighth Circuit, sitting by designation.
RENDELL, Circuit Judge.

       Petitioner Putu Polos Indra seeks review of the August 22, 2005 Order of the

Bureau of Immigration Appeals (“BIA”) affirming the Order of the Immigration Judge

(“IJ”) denying Petitioner’s applications for asylum, withholding of removal and

protection under the Convention Against Torture (“CAT”). We will dismiss Indra’s

appeal with respect to his asylum application for lack of jurisdiction. Though we have

jurisdiction over the remainder of Indra’s appeal under 8 U.S.C. § 1252, we will deny

Indra’s petition for review for the reasons set forth below.1

                                              I.

       Indra, a native and citizen of Indonesia, entered the United States on December 15,

1998 with a visitor’s visa that authorized him to remain until June 14, 1999. Indra

remained beyond his authorized stay and on June 18, 2001, filed an application for

asylum. An asylum officer rejected the application as untimely filed, and the matter was

referred to an IJ. Shortly thereafter, on August 7, 2001, Indra was placed in removal

proceedings by the issuance of a Notice to Appear, charging Petitioner removable under

Immigration and Nationality Act (“INA”) § 237(a)(1)(B), as an alien who has remained in

the United States longer than authorized.

       Before the IJ, Indra conceded the charge of removability but sought relief in the

form of asylum under INA § 208(a), withholding of removal under INA § 241(b)(3) and


  1
   Because we write only for the parties, we will include only those facts relevant to the
issues now before us.

                                              2
withholding of removal under CAT.2 Indra claimed that, as an ethnic Chinese and as a

Christian, he had been the victim of violence and harassment in Indonesia and feared

similar treatment if forced to return.

       The IJ found that Indra was statutorily ineligible for asylum because he failed to

file his application within one year of arrival and had not demonstrated that changed

country conditions or extraordinary circumstances merited waiver of the one-year

deadline. With respect to Indra’s applications for protection under CAT and withholding

of removal, the IJ found that Indra failed to show that he had suffered persecution or

torture in the past or that it was likely that he would suffer persecution or torture in the

future. Accordingly, the IJ denied Indra’s applications and ordered him removed to

Indonesia. The BIA adopted and affirmed the IJ’s decision.

       Indra argues on appeal that he is entitled to an exemption from the asylum statute’s

one-year filing requirement and that he qualifies for withholding of removal and

protection under CAT.




  2
   In the alternative, Petitioner sought voluntary departure under INA § 240B(b). The IJ
denied this relief and Petitioner did not appeal this ruling to the BIA or to us.

                                               3
                                              II.

       We are without jurisdiction to review the denial of Indra’s application for asylum.

As we have previously held, “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.” Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d. Cir. 2003). Here, Indra’s

appeal of the denial of his asylum application falls squarely within this rule, as it is

premised solely on a challenge to the IJ’s determination that no “extraordinary

circumstances” merited waiver of the one-year filing deadline. Therefore, we will

dismiss this portion of Indra’s appeal.

       With respect to the remainder of Indra’s appeal, we review the IJ’s decision

directly when, as here, the BIA has merely adopted the IJ’s rationale. Id. at 184. “Board

determinations are upheld if they are ‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” Guo v. Ashcroft, 386 F.3d 556, 561 (3d.

Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). We will reverse

only if “the evidence not only supports [a contrary] conclusion, but compels it.” Elias-

Zacarias, 502 U.S. at 481 n.1.

       Finally, we “review the ‘BIA’s legal decisions de novo, but will afford Chevron

deference to the BIA’s reasonable interpretations of statutes which it is charged with

administering.’” Romanishyn v. Attorney Gen. of the United States, 455 F.3d 175, 180

(3d. Cir. 2006) (quoting Francois v. Gonzales, 448 F.3d 645, 648 (3d. Cir. 2006).

                                               4
                                            III.

       An alien is entitled to withholding of removal if he or she can demonstrate a “clear

probability of persecution” “on account of” race, religion, nationality, membership in a

particular social group or political opinion. Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d

Cir. 2003) (discussing the statutory requirements for withholding, as governed by

8 U.S.C. § 1101(a)(42)(A)).

        In order to be eligible for relief under CAT, an alien must show that it is more

likely than not that he will be tortured if removed to his country of origin. 8 C.F.R.

§ 208.16(c)(2); Kamara v. Ashcroft, 420 F.3d 202, 213 (3d Cir. 2005). The regulations

implementing CAT define torture as

              any act by which severe pain or suffering, whether physical or
              mental, is intentionally inflicted on a person for such purposes
              as obtaining from him or her or a third person information or
              a confession, punishing him or her for an act he or she or a
              third person has committed or is suspected of having
              committed, or intimidating or coercing him or her or a third
              person, or for any reason based on discrimination of any kind,
              when such pain or suffering is inflicted by or at the instigation
              of or with the consent or acquiescence of a public official or
              other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1); Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). “The

standard for relief ‘has no subjective component, but instead requires the alien to

establish, by objective evidence’ that he is entitled to relief.” Sevoian, 290 F.3d at 175

(quoting In re J-E-, 23 I. & N. Dec. 291, 302 (BIA 2002) (en banc)).




                                              5
       Indra alleges three incidents that he argues establish his eligibility for withholding

of removal and protection under CAT.3 First, Indra alleges that in the course of operating

his used car dealership, a Moslem competitor came to Indra’s home, addressed him with

racial epithets, threatened him and severely damaged one of the cars on his lot in an

attempt to coerce Indra into closing his business. However, at his hearing and in his

affidavit, Indra also testified that the police arrived on the scene and “cooled down the

situation” and that, though the police did not arrest or otherwise pursue the perpetrator,

Indra did not suffer another incident of vandalism or violence against his business.

       Second, Indra alleges that while riding his motorcycle past a soccer stadium a

crowd identified him as Chinese, surrounded him and began hitting him on the head and

arm. As Indra describes it, he was only able to escape after shouting Moslem religious

phrases and denouncing the Chinese, apparently in an effort to “pass” as a non-Chinese

Moslem. Indra did not claim that he was injured, stating that his motorcycle helmet

protected him.

       Finally, Indra describes an incident in which he was robbed of his wallet and

motorcycle. Indra claimed that, while riding home from church services, a mob stopped

him, found his Bible and began physically attacking him while shouting anti-Christian

slogans. The attack ended once the mob took Indra’s wallet and motorcycle. Indra



  3
   At his hearing before the IJ, Indra waived direct examination and instead opted to rely
on the claims he made in two supporting affidavits. The following allegations are drawn
from Indra’s affidavits as well as his testimony on cross-examination.

                                              6
alleges that he reported this incident to the police but that they demanded money and,

ultimately, were unhelpful. Finally, though he claims that he was struck during the

course of this attack, Indra does not allege that the incident resulted in any serious

physical injury.

       Although the IJ noted some inconsistencies between Indra’s affidavits, his

testimony on cross-examination and his asylum office interview, the IJ ultimately did not

dispute the veracity of Indra’s allegations. Instead, the IJ held that, as a matter of law, the

alleged incidents did not rise to the level of persecution or torture and failed to establish a

likelihood that Indra would suffer persecution or torture in the future. In reaching this

conclusion, the IJ relied on three primary findings. First, the IJ found that the motive

behind at least two of the attacks appeared to be monetary and, therefore, that those

incidents were more properly characterized as “acts of criminals” rather than as instances

racially or religiously motivated violence. Second, the IJ found that Indra did not put

forward adequate evidence demonstrating that the police ignored the crimes because of

Indra’s race or religious beliefs.

       Finally, in regard to the probability of future persecution or torture, the IJ took note

of Indra’s testimony regarding his brother, a Chinese-Indonesian serving openly as a

Christian evangelist and living without difficulty on the Indonesian island of Bali. The IJ

noted that Indra’s testimony established that he was born and lived on Bali until the age

of fifteen, had family on the island and could live there without fear of harassment. The



                                               7
IJ held that these findings severely undermined Indra’s position that he would suffer

persecution or torture if removed to Indonesia.

       We believe that substantial evidence supports the IJ’s conclusion that Indra is

unlikely to suffer persecution or torture if returned to Indonesia. Additionally, to the

extent that the IJ’s ruling relies upon conclusions of law, we find no error.

       Accordingly, we will deny Indra’s petition for review with respect to his

applications for withholding of removal and protection under CAT, and we will dismiss

for lack of jurisdiction Indra’s appeal with respect to his asylum application.

____________________




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