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


10-17-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3654




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-3654


                              HENDRI SUKIANTO LIM,
                                           Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES;
                   SECRETARY OF HOMELAND SECURITY,
                                         Respondents


                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                (BIA No. A79-734-285)
                         U.S. Immigration Judge: R.K. Malloy


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 28, 2006

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

                               (Filed: October 17, 2006 )


                              OPINION OF THE COURT




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

       Petitioner Hendri Sukianto Lim petitions for review of the Board of Immigration

Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) order denying petitioner’s

applications for asylum and withholding of removal and for protection under the

Convention Against Torture (“CAT”) and granting voluntary removal. We have

jurisdiction over this appeal pursuant to 8 U.S.C. § 1252. For the reasons set forth below,

we will deny Lim’s petition for review.1

                                             I.

       Lim, a native and citizen of Indonesia, entered the United States on or about May

25, 2000 as a non-immigrant visitor. He remained in the United States beyond his

authorized stay, and on March 10, 2003, he was placed in removal proceedings. Lim then

filed an application for asylum and withholding of removal and a claim for protection

under the CAT, on the grounds that as a Chinese-Indonesian, he had been persecuted and

tortured in Indonesia and feared such treatment upon return. In the alternative, he

requested voluntary departure.

       Finding that Lim had not filed his petition for asylum within one year of arrival

and that he had demonstrated no extraordinary circumstances or changed country

conditions that would merit a waiver of the one-year requirement, the IJ determined that




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

                                             2
Lim was statutorily ineligible for asylum.

       The IJ further determined that Lim was not credible in his applications for

withholding of removal and protection under the CAT and that he had failed to

demonstrate any likelihood of persecution or torture if returned to Indonesia.

Accordingly, the IJ denied relief but granted Lim’s application for voluntary departure.

The BIA adopted and affirmed the IJ’s decision, specifically noting its agreement with the

IJ’s determinations regarding Lim’s untimely asylum petition, his failure to demonstrate

extraordinary circumstances, and his credibility with regard to his withholding and CAT

claims.

       Lim has not appealed the IJ’s determination that he is statutorily ineligible for

asylum.2 He argues on appeal that he is qualified for both withholding of removal and

relief under the CAT.

       This Court reviews the decision of the BIA unless, as here, the BIA has adopted

the reasoning of the IJ, in which case we review the IJ’s decision. Tarrawally v. Ashcroft,

338 F.3d 180, 184 (3d Cir. 2003). We review determinations of fact and credibility for

substantial evidence. Id. at 184. Such determinations must be upheld unless the evidence

presented would compel a reasonable factfinder to reach a contrary result. 8 U.S.C. §




  2
     Nor could Lim have appealed this determination; where either the IJ or the BIA
determines that appellant’s petition for asylum was untimely and that no extraordinary
circumstances tolled the time period, this Court has no jurisdiction to review that finding.
Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).

                                              3
1252(b)(4)(B); Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004) (citing INS v. Elias-

Zacharias, 502 U.S. 478, 481 & n.1 (1992)).

                                              II.

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

probability of persecution” “on account of” one of the enumerated classifications or

activities incorporated into the definition of “refugee”: race, religion, nationality,

membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A);

Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003).

        Specifically, Lim alleges that he was targeted by native Indonesians because he is a

Chinese Christian.3 He claims he was beaten by native Indonesians during riots which

took place in May, 1998 and that he was forced to close his store. Upon reopening the

store later that month, it was robbed by native Indonesians, who beat and tied up one of

his employees, forcing him to close his store again. Lim was not present during this

robbery.

        There were inconsistencies between Lim’s affidavit and his testimony, and within

his testimony, as to what, if any, incidents occurred between May and September of 1998.

Lim initially testified that no incident took place between May and September. However,

at one point he alleged that thieves attempted to enter the store in June 1998 through an

upstairs window. Lim testified that his employee heard the thieves entering and shouted,


  3
      Lim gave no testimony about his religious activities in Indonesia.

                                               4
so they left through the same entrance. Notably variant, his affidavit stated that two

“natives” entered through a back window and demanded the keys to the store from his

employee, beating him until he gave them the keys. The thieves then opened the door and

allowed five more enter. Lim, who was sleeping upstairs awoke when the thieves began

to kick open the door. They threatened him until he gave them “a ball of money,” after

which they threatened him again and fled.

       Lim further testified that on September 2, 1998, he was attacked by an individual

on a motorcycle who demanded money and tried to stab him. Upon interruption by a

neighbor, the motorcyclist warned Lim to “watch out” and drove away. Lim testified that

he thereafter closed the store and sold off the remaining inventory over the next year, and

he left Indonesia in May, 2000. However, Lim’s affidavit states that Lim was accosted by

two individuals on motorcycles who asked him for money to buy liquor. He gave them

some money, but they were unsatisfied and tried to stab him with a long knife. Lim

screamed for help and when the neighbors came out the men ran away. Lim testified that

the only concern he has about returning to Indonesia is that the September 2, 1998

incident with the motorcyclist(s) will happen again.

       The IJ determined that Lim was not credible and that he had failed to demonstrate

a clear probability of persecution. Lim did not allege any similar events occurred

between September 1998 and May 2000, when he finally left Indonesia. Moreover,

although it was clear that riots did take place in May 1998, during which “stores were



                                             5
looted and burned, [and] individuals were killed, . . . since that time, the Indonesian

government has taken steps to protect the Chinese citizens.”

       Lim’s affidavit and subsequent testimony on important facts varies significantly,

supporting the IJ’s determination that Lim is not credible. Although Lim alleged several

violent encounters took place between May and September, 1998, nothing is alleged to

have happened from September, 1998 and when he left Indonesia in May, 2000. We find

that substantial evidence supports the IJ’s determination that Lim is not eligible for

withholding of removal.

                                              IV.

       In order to be eligible for relief under the CAT, Lim must show, objectively, that it

is more likely than not that he will be tortured if removed to Indonesia. 8 C.F.R. §

208.16(c)(2); Kamara v. Ashcroft, 420 F.3d 202, 212-13 (3d Cir. 2005). “Torture” is

defined as any act intentionally inflicting “severe pain and suffering, whether physical or

mental, . . . 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 serving in an official

capacity,” for purposes such as obtaining a confession, punishment, intimidation, or

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

       The IJ found that Lim had provided no evidence that he or anyone he knows would

be tortured by anyone if he were removed to Indonesia. We agree with the IJ that Lim

has not met his burden of demonstrating it is more likely than not that he will be tortured



                                               6
if returned to Indonesia. The IJ’s determination is supported by substantial evidence, and

Lim has not demonstrated otherwise.

                                            V.

      Accordingly, we will deny Lim’s petition for review.




                                            7
