                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-13-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4131




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-4131


     ZULKARNAINI AS; AMALIA ZULKARNAINI; DION FAUZAN; HOERRY
             SATRIO; HADY THOYYIB; FITHRA FAUZANA,
                                     Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent


                     On Petition for Review of an Order of the
                          Board of Immigration Appeals
 (Agency Nos. A72-372-248, A97-188-563, A97-188-564, A97-188-565, A97-188-566,
                                  A97-188-567 )
                  Immigration Judge: Honorable Miriam K. Mills


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 12, 2008

              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                          (Opinion filed: November 13, 2008)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Zulkairnaini As (“petitioner”) and his wife and four children, natives and citizens

of Indonesia, petition for review of the BIA’s decision denying them withholding of
removal. For the foregoing reasons, we will deny the petition for review.

       Petitioner entered the United States on an F-1 student visa on May 14, 1994. On

October 24, 1994, the government approved petitioner’s application for a J-1 visa,

available to certain foreign students, scholars, and researchers. 8 U.S.C. § 1101(a)(15)(J).

Petitioner’s wife and children were admitted on November 30, 1994, on J-2 visas.

Petitioner filed an affirmative application for asylum on March 18, 2003. The

government issued a Notice to Appear on February 5, 2004, charging petitioner as

removable under INA § 237(a)(1)(C)(i), for overstaying his J-visa and charging

petitioner’s family as removable under INA § 237(a)(1)(A) for having been inadmissible

at the time of entry. Petitioner and his family sought asylum, withholding of removal and

protection under the Convention Against Torture (“CAT”) based on petitioner’s 2003

asylum application. The Immigration Judge determined that petitioner’s asylum

application was time-barred because he failed to file within one year of April 1, 1998,1

and he did not qualify for an exception. The IJ also determined that petitioner had not

met his burden of proof for withholding of removal or for CAT relief. The BIA denied

petitioners’ appeal, and petitioners timely filed a petition for review.

       In their petition for review, petitioner and his family challenge the BIA’s

determination that petitioner had failed to meet his burden of proof on his claim for



   1
   Under regulations establishing the one-year filing deadline, anyone seeking asylum
who had entered the U.S. on or before April 1, 1997, was required to file his or her
application by April 1, 1998. See 8 C.F.R. § 1208.4(a)(2)(ii).

                                              2
withholding of removal and raise a number of due process issues. Petitioner asserts that

he managed the Indonesian government’s family planning programs under the Suharto

regime, and that, while in Indonesia, he espoused moderate Muslim beliefs through the

MDI, or Counsel of Islamic Beliefs. Petitioner asserts that he fears for his safety because

of the rise of extreme Muslim terrorist organizations, and his identity as a moderate

Muslim and former Suharto official in charge of family planning programs. Specifically,

petitioner notes that an organization known as Jemaah Islamiyah has bombed various

locations in an effort to transform Indonesia into an Islamic theocracy, and that it has

claimed responsibility for detonating a bomb in Bali in 2002, which killed many people.

        We have jurisdiction over final orders of removal. 8 U.S.C. § 1252(a)(1).

“Where the BIA renders its own decision and does not merely adopt the opinion of the IJ,

we review the BIA’s decision, not that of the IJ.” Wong v. Att’y Gen., 539 F.3d 225, 230

(3d Cir. 2008) (citation omitted). Under the substantial evidence standard, we will defer

to the BIA’s factual findings unless the evidence compels a contrary conclusion. Id. We

exercise de novo review over constitutional claims. 8 U.S.C. § 1252(a)(2)(D); Yusupov

v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008).

       Petitioner asserts that the BIA erred in concluding that he was not more likely than

not to face persecution by Muslim extremists on account of his identity as a moderate

Muslim ex-official in the Suharto regime. Petitioner submitted evidence of tension

between Muslim extremists and moderate Muslims in Indonesia and a number of news



                                              3
articles. Petitioner’s expert testified that petitioner had “some justification” for fearing

Muslim extremists, not on the basis of his moderate Muslim beliefs, but on the basis of

his involvement in the Suharto regime. (A.R. 179.) According to the expert witness, the

Suharto regime alienated many militant Islamic groups by restricting Islamic political

parties and preventing the implementation of Islamic law. (Id.)

       We do not believe that this testimony, or any other aspect of the record, compels a

conclusion that petitioner faced a clear probability of persecution. Petitioner cites news

articles about radical Islamic groups seeking to establish Islamic law in Indonesia;

however, the articles fail to demonstrate that these groups have targeted moderate

Muslims or former Suharto-regime officials as opposed to committing generalized

violence and creating chaos.2 We agree with the BIA that petitioner has not demonstrated

a clear probability that he would be recognized as an ex-Suharto official so many years

after the regime dissolved, nor has he demonstrated that the harm he would face would

constitute persecution. Therefore, substantial evidence supports the BIA’s decision.

       We also do not believe that the IJ improperly denied petitioner’s claim because of

general civil strife in Indonesia.3 Although petitioner correctly asserts that persecution


   2
    Petitioner also cites an article from Newsweek commenting on the tension between
Muslim extremists and other Muslims. (Pet. Br., 14.) However, the article focuses
narrowly on the Ahmadiyya sect of Islam. Petitioner’s reliance on this article to
demonstrate a large-scale assault by Muslim extremists on all moderates is misplaced.
(A.R. 1028-1030.)
   3
    Petitioner raised this argument before the BIA, but the BIA declined to address the
argument explicitly. Under these circumstances, we may examine the IJ’s opinion. See

                                               4
may exist even in the context of generalized violence, we also note that generalized

violence does not excuse the petitioner from demonstrating a nexus between the

persecutory acts and a protected category. See Vente v. Gonzales, 415 F.3d 296, 301 (3d

Cir. 2005) (asylum claim possible amidst general social unrest where applicant had

received specific threats from paramilitary organizations accusing him of collaborating

with guerillas). While petitioner construes the IJ’s statements as evidence of confusion

about whether petitioner was required to show he was “singled out” by Muslim

extremists, it appears that the IJ was principally concerned by petitioner’s failure to show

a nexus between the Bali bombing of 2002 and petitioner’s identity as a moderate Muslim

and ex-official of the Suharto regime. Put another way, the IJ determined that petitioner

had failed to show that the Bali bombing even partly targeted this group, let alone

demonstrated a “clear probability” that petitioner would be persecuted. We do not

believe that the record compels a contrary conclusion.

       Petitioner also contends that the IJ violated due process by exhibiting bias against

him and allegedly pre-judging the merits of his application. A non-citizen has a right to

due process in a removal hearing, which means an opportunity to reasonably present his

or her case. Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (citation omitted).

Such claims require a showing of “substantial prejudice” to the non-citizen. Id. (citation




Joseph v. Att’y Gen., 421 F.3d 224, 226 n.4 (3d Cir. 2005) (referring to IJ’s opinion to
“provide the proper context and background” for analysis of the BIA’s ruling).

                                              5
omitted). Upon reviewing the record, we do not believe that the IJ pre-judged the

timeliness of petitioner’s asylum application,4 nor did she exhibit bias against the

petitioner or impermissibly fail to consider the evidence. The IJ’s preliminary remarks

merely placed petitioner on notice as to her doubts regarding the timeliness of his asylum

application, as he filed the application almost nine years after arriving in the U.S., and

that petitioner would be expected to address her concerns. Although the IJ demonstrated

impatience with the petitioner at points during his testimony, we agree with the BIA that

the IJ’s frustration appears to have stemmed from petitioner’s insistence on testifying in

English alongside the court-appointed translator, who was appointed at petitioner’s

behest. We agree also with the BIA that the IJ’s confusion as to petitioner’s last

residence in Indonesia caused no prejudice to petitioner. Nor do we believe that

petitioner has raised any other meritorious issues.

       For the aforementioned reasons, the petition for review will be denied.




   4
   We note that the timeliness of petitioner’s asylum application is not before us, nor
would we have jurisdiction over the issue had petitioner raised it. Sukwanputra v.
Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).

                                              6
