Irawan v. Gonzales ( 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Not for Publication in West's Federal Reporter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. 05-1337
BUDI IRAWAN,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Lynch and Howard, Circuit Judges,
and Restani,* Judge.
_____________________
Haian Lin on brief for petitioner.
Robbin K. Blaya, Attorney, Office of Immigration Litigation,
Peter Keisler, Assistant Attorney General, Civil Division, and
Terri J. Scadron, Assistant Director, on brief for respondent.
_____________________
November 21, 2005
_____________________
*
Chief Judge of the United States Court of International
Trade, sitting by designation.
Per Curiam. Petitioner, Budi Irawan, is a twenty-seven-
year-old citizen of Banyuwangi, Indonesia, who entered the United
States on February 4, 2001, as a non-immigrant visitor for
pleasure. He remained in the United States after his visa expired
on August 3, 2001, and was detained by the Immigration and
Naturalization Service, now part of the Department of Homeland
Security, on June 20, 2002, for violating 8 U.S.C. § 1227(a)(1)(B)
(West Supp. 2004). Prior to his removal hearing, the Petitioner
conceded that he was subject to removal, and the Immigration Judge
(“IJ”) ordered his return to Indonesia. The Board of Immigration
Appeals (“BIA”) adopted the IJ’s opinion, in which the IJ found
that omissions and inconsistencies in Petitioner’s testimony
rendered incredible his claim that he would face an objective
threat of persecution or torture justifying withholding of removal.
Petitioner appeals the BIA’s dismissal of his application
for asylum under 8 U.S.C. § 1158 (2000), withholding of removal
under 8 U.S.C. § 1231(b)(3) (2000), and withholding of removal
under the Convention Against Torture (the “Convention”).1 We
affirm the judgment of the BIA.
I.
Because the BIA adopted the IJ’s decision, we review the
1
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented by the Foreign Affairs Reform and Restructuring Act
of 1998, Pub. L. 105-277, 112 Stat. 2681 (codified at 8 U.S.C. 1231
(2000)).
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IJ’s decision as the BIA’s final decision. Hernandez-Barrera v.
Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004). The factual
determinations of the BIA’s adopted decision may be overturned only
if “any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). Legal
determinations of the BIA are reviewed de novo, but with some
deference to the BIA’s interpretation of the INA. Da Silva v.
Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005).
II.
Absent changed or extraordinary circumstances, a foreign
national may not apply for asylum more than one year after arriving
in the United States. 8 U.S.C. § 1158(a)(2)(B). Petitioner
concedes that he did not file a claim for asylum within one year
after his arrival in the United States. The IJ advised Petitioner
that his application for asylum would not be accepted without a
special motion showing why he failed to apply within one year of
his arrival. The IJ found that no such motion was filed, and
therefore dismissed Petitioner’s application. 8 U.S.C.
§ 1158(a)(3) provides that “[n]o court shall have jurisdiction to
review any determination of the Attorney General under paragraph
[(a)](2),” which includes the IJ’s determination regarding the
timeliness of Petitioner’s asylum application and the existence of
changed or extraordinary circumstances justifying waiver of the
one-year time limitation. We lack jurisdiction to review this
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determination and therefore do not consider Petitioner’s claim for
asylum under 8 U.S.C. § 1158. Sharari v. Gonzales, 407 F.3d 467,
473 (1st Cir. 2005).
III.
An otherwise removable non-citizen may avoid removal to
a country by showing that it is more likely than not that his “life
or freedom would be threatened in that country because of [his]
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The non-
citizen has the burden of persuasion to “show either that (i) he
has suffered past persecution on account of one of the five
protected grounds (thus creating a rebuttable presumption that he
may suffer future persecution), or (ii) it is more likely than not
that he will be persecuted on account of a protected ground upon
his return to his native land.” Da Silva, 394 F.3d at 4; see 8
C.F.R. § 208.16(b) (2005).
Petitioner claims he is the victim of past persecution in
the form of harassment of himself and the murder of two family
members. Specifically, he alleges that he and his deceased
relatives were identified as “dukun santets” (a type of mystic or
sorcerer) in their home area of Banyuwangi and marked for death.
Petitioner claims that his grandfather was murdered in Banyuwangi
in January 2000, and that his cousin was also murdered there
shortly after Petitioner arrived in the United States.
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In support of his application Petitioner submitted as
exhibits three news articles describing a wave of violence against
dukun santets in East Java and particularly Banyuwangi between
February and October of 1998, resulting in the reported deaths of
143 people. According to Petitioner’s oral testimony, in or around
November 1999, Petitioner and his family became aware that people
in the area surrounding Banyuwangi suspected Petitioner’s
grandfather of being a dukun santet. Shortly thereafter,
Petitioner “managed to flee my grandfather out of town” by taking
him from Banyuwangi to the city of Jember, which is also located in
East Java. For an unstated reason, Petitioner claimed that “the
effort failed and they still wanted my grandfather.” Petitioner
claims he returned his grandfather to Banyuwangi. Petitioner
claims that after returning to Banyuwangi, he witnessed a mob beat
and kill his grandfather on January 14, 2000.
Petitioner claims that shortly thereafter he relocated to
another town for an undisclosed period of time, but eventually
returned to Banyuwangi. Upon his return, Petitioner states that he
was attacked and sustained injuries requiring hospitalization.
Petitioner then fled to Jakarta in April 2000. Finally, Petitioner
claimed in oral testimony that his cousin was killed as a suspected
dukun santet approximately one month after Petitioner left for the
United States.
While a petitioner’s testimony alone may be enough to
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establish a right to withholding under certain circumstances, 8
C.F.R. § 208.16(b), testimony that is vague and inconsistent does
not support a claim for asylum or withholding. See Diab v.
Ashcroft, 397 F.3d 35, 40 (1st Cir. 2005).
The IJ exposed a number of vague or inconsistent points
in Petitioner’s testimony. First and foremost, Petitioner could
provide no clear reason why he decided to return his grandfather to
Banyuwangi in 2000. The IJ also noted other discrepancies between
Petitioner’s application and his oral testimony that undermined his
credibility. For example, Petitioner’s application states that his
family lives in Jakarta, but at his hearing, Petitioner insisted
that they live in Banyuwangi.2 Petitioner’s application claims
that his brother was murdered shortly after Petitioner escaped to
the United States, but in his oral testimony he denied having a
brother and claimed that his cousin was murdered instead. Although
minor inconsistencies in an application do not necessarily
undermine a petitioner’s credibility, see Chebchoub v. INS, 257
F.3d 1038, 1043 (9th Cir. 2001), the composition and location of
the Petitioner’s family is particularly important because
Petitioner’s claim for withholding hinges on the details
surrounding the alleged mistreatment of his family members.
2
Petitioner’s application for asylum actually lists his parents
as living in “Barhuwamgi,” Indonesia, his written statement claims
that “all my family go to the Jakarta City to looking for
peacefully and safety.”
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Petitioner failed to provide a convincing explanation for these
discrepancies, and we cannot conclude that the record compels a
decision different from that of the IJ.
The record also demonstrates that Petitioner’s claimed
threat of persecution is confined to only part of Indonesia. If a
non-resident can relocate without a probability of persecution,
withholding should be denied. 8 C.F.R. § 208.16(b)(3). Petitioner
admits that he worked outside of Banyuwangi as a carpenter from
July of 1999 to July of 2000 without incident. Petitioner also
admits that he resided in Jakarta without incident from December
2000 to January 2001. The IJ found sufficient evidence to conclude
that Petitioner would not be subject to persecution in Jakarta and
other areas of Indonesia where he has stayed in the past. The
evidence on the record does not compel otherwise. Accordingly, we
have no reason to overturn the determination of the IJ adopted by
the BIA and deny Petitioner’s request for withholding under 8
U.S.C. § 1231(b)(3).
IV.
In order to satisfy the requirements of the Convention,
the Petitioner bears the burden of showing that he will be tortured
if returned to Indonesia. See 8 C.F.R. § 208.16(c)(2). As with
withholding and asylum, “[t]he testimony of the [petitioner], if
credible, may be sufficient to sustain the burden of proof without
corroboration.” Id.-7-
A petitioner must show five elements to qualify for
withholding under the Convention. Petitioner must show that, more
likely than not, he will be subjected to “(1) an act causing severe
physical or mental pain and suffering; (2) intentionally inflicted;
(3) for a proscribed purpose; (4) by or at the instigation of or
with the consent or acquiescence of a public official who has
custody or physical control of the victim; and (5) not arising from
lawful sanctions.” Settenda v. Ashcroft, 377 F.3d 89, 94 (1st Cir.
2004), quoting Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.
2004).
In addition to the fact that Petitioner has failed to
show a likelihood that he will suffer severe physical or mental
pain and suffering, Petitioner’s claim under the Convention fails
because he was not, nor is he likely to be, harmed through the
actions or acquiescence of a public official. According to the
Petitioner, local villagers threatened him and murdered his family
members. There is no evidence on the record compelling the
conclusion that the state authorized or participated in these
activities. In fact, the IJ specifically found that the
Petitioner’s own evidence demonstrated that the Indonesian
government had intervened to stop such attacks in 1998, over a year
prior to the alleged death of Petitioner’s grandfather. Petitioner
did testify that the local police failed to issue a death
certificate for his grandfather’s murder; however, there is no
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evidence that the Indonesian authorities were aware of any planned
violence against Petitioner’s grandfather prior to the attacks and
failed to perform their lawful duty to prevent such attacks. We
therefore uphold the BIA’s adopted determination and deny
Petitioner withholding under the Convention.
V.
The record does not compel any conclusion different from
the BIA’s adopted findings in this case. Petitioner’s claim of
past persecution is both vague and inconsistent. Petitioner’s own
testimony establishes that he does not face a threat of persecution
everywhere in Indonesia. Moreover, any claim for withholding under
the Convention fails because Petitioner has not demonstrated that
the state would promote or acquiesce in the torture of Petitioner
upon his return to Indonesia.
Thus, the petition for review is DENIED.
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