Langitan v. Ashcroft , 146 F. App'x 512 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2184
DOROTHEA LANGITAN,
Petitioner,
v.
ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.*
ON PETITION FOR REVIEW OF AN ORDER AND DECISION
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Siler,** Senior Circuit Judge,
and Howard, Circuit Judge.
William A. Hahn and Hahn & Matkov for petitioner.
Michael J. Sullivan, United States Attorney and Shelbey D.
Wright, Assistant United States Attorney, on brief for respondent.
October 14, 2005
*
Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted
Attorney General Gonzales for John Ashcroft as the respondent.
See Fed. R. Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2).
**Of the Sixth Circuit, sitting by designation.
Per Curiam. Dorothea Langitan petitions for review of
the decision of the Board of Immigration Appeals ("BIA") to deny
her applications for asylum and withholding of removal. We dismiss
the asylum claim for a lack of jurisdiction and deny the remainder
of the petition.
Langitan is a native and citizen of Indonesia. She
entered the United States on March 7, 2001 under a non-immigrant
visitor's visa. On March 11, 2002, she filed applications for
asylum, withholding of removal, and relief under the United Nations
Convention Against Torture ("CAT"). In April 2002, the Immigration
and Naturalization Service ("INS") issued a notice of removal
charging Langitan with unlawfully remaining in the United States
beyond the terms of her visa and being subject to removal under 8
U.S.C. § 1227(a)(1)(B).1 A removal hearing before an immigration
judge ("IJ") was subsequently convened to consider Langitan's
applications for relief.
Langitan was the only witness at the removal proceeding.
She testified that she was subject to persecution by members of the
Muslim majority in Indonesia because of her Roman Catholic faith.
Langitan described four incidents to support her claim of
1
In March 2003, the relevant functions of the INS were
reorganized and transferred into the new Department of Homeland
Security.
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persecution.2 In November 2000, people who Langitan thought were
Muslim threw rocks at the church in which she was worshiping.
Nobody was hurt, the building was not damaged, and the authorities
were not notified. Around the same time, Langitan saw a flyer that
stated that it would be a "bloody Christmas," but she conceded that
she did not know the origin of the flyer.
The other two incidents occurred at the local Catholic
hospital where Langitan worked as a nurse. Langitan detailed two
incidents in which Muslims with critically ill relatives threatened
her with violence if the relatives died. Langitan admitted that
those making the threats did not mention her religion and that the
remarks could have been motivated by anxiety about the relative's
condition. Langitan further conceded that she has never suffered
anti-Catholic intimidation from any government official; that she
freely participated in the Indonesian political process; that her
Catholic church and hospital are currently operating without
substantial interference from government authorities; and that her
son still resides in Indonesia, attends Catholic school, and openly
practices Catholicism.
The IJ rejected Langitan's applications for relief on two
grounds: (1) Langitan's asylum application was time-barred; and
(2) Langitan had failed to demonstrate that she was likely to
2
In addition to these specific incidents, Langitan stated that
she had heard rumors about incidents of anti-Catholic violence in
other parts of Indonesia.
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suffer persecution on account of her religion if she returned to
Indonesia. Langitan appealed to the BIA which generally affirmed
and specifically endorsed the IJ's conclusion "that [Langitan] was
ineligible for asylum because of a failure to file for such relief
within the required time period." Langitan sought reconsideration,
which the BIA denied, and then petitioned this court for review.
Langitan raises three issues. First, she contends that
the BIA erred in determining that her asylum application was
untimely. Second, she claims that there was inadequate evidence to
support the IJ's ruling that she had not demonstrated a likelihood
of persecution on her return to Indonesia. Finally, she argues
that her removal proceeding was conducted in an unfair manner.
We lack jurisdiction to consider Langitan's claim
concerning the timeliness of her asylum application. An individual
applying for asylum must "demonstrate[] by clear and convincing
evidence that the application has been filed within 1 year after
the date of the [individual's] arrival in the United States." 8
U.S.C. § 1158(a)(2)(B). We may not review the BIA's conclusion
that an asylum application was filed outside the time period
specified in 8 U.S.C. § 1158(a)(2)(B). See 8 U.S.C. § 1158(a)(3);
see also Njenga v. Ashcroft, 386 F.3d 335, 339 (1st Cir. 2004).
While an asylum application is subject to a one-year
filing deadline, no such deadline applies to an application for the
withholding of removal. See Zheng v. Gonzales, 409 F.3d 804, 808
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(7th Cir. 2005). We therefore may consider the merits of this
claim.3 To establish eligibility for withholding of removal,
Langitan had to prove that "upon deportation she was more likely
than not to face persecution on account of . . . [her] religion .
. . ." Njenga, 386 F.3d at 339 (emphasis in original). We review
the determination that Langitan did not meet this standard for
substantial evidence. See id. at 339-40. Under the substantial
evidence test, we will reverse "only when the record evidence would
compel a reasonable factfinder to make a contrary determination."
Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999). Because
the BIA adopted the reasoning of the IJ in its entirety, we review
the decision of the IJ directly. See Njenga, 386 F.3d at 338.
Langitan contends that the IJ's rejection of her
withholding of removal claim was based on a selective reading of a
State Department Report concerning religious tolerance in
Indonesia. We disagree. The State Department Report contained
mixed conclusions about the situation in Indonesia. The Report
recognized that there had been reports of civil strife between
Muslims and Christians in certain parts of the country. But it
also noted that, during 2001, the Indonesian Government had worked
to end much of the Muslim-Christian violence. The IJ read the
3
Langitan also sought relief under the CAT but does not here
press any arguments relative to this claim. We therefore consider
the CAT claim waived. See Mediouni v. INS, 314 F.3d 24, 28 n.5
(1st Cir. 2002).
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Report as recognizing that religious violence was on the wane in
Indonesia, and his reading was not unreasonable.
In any event, Langitan's testimony amply supports the
IJ's conclusion that she was unlikely to face religious persecution
if she returned to Indonesia. Langitan testified to only a single
act of religiously motivated violence -- the rock throwing
incident. Cf. Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir.
2005) (stating that generally the violence required to demonstrate
an entitlement to asylum must be "systematic rather than reflective
of a series of isolated incidents"). Moreover, she acknowledged
that her son, a practicing Catholic, continues to reside in
Indonesia, and she did not indicate that he is in any danger.
See Aguilar-Solis, 168 F.3d at 573 ("[T]he fact that close
relatives continue to live peacefully in the alien's homeland
undercuts the alien's claim that persecution awaits his return.");
see also Khalil v. Ashcroft, 337 F.3d 50, 56 (1st Cir. 2003)
(finding no well-founded fear of persecution where petitioner's
sibling remained in country of origin without suffering
persecution). Finally, Langitan admitted that the Catholic
institutions with which she associated are currently operational.
These facts provide substantial evidence to support the conclusion
that Langitan is unlikely to face religious persecution upon her
return to Indonesia.
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Finally, Langitan contends that her removal proceeding
was unfair. She bases this claim on the questioning by the IJ
concerning her testimony about the hospital incidents --
questioning she describes as "aggressive." This argument was not
raised either before the IJ or the BIA so we will not consider it.
See Njenga, 386 F.3d at 338; Opere v. INS, 267 F.3d 10, 14 (1st
Cir. 2001).
The petition for review is dismissed in part and denied
in part.
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