Andri v. Mukasey , 303 F. App'x 1 ( 2008 )


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  •                   Not for Publication in West's Federal Reporter
    United States Court of Appeals
    For the First Circuit
    _______________________
    No. 07-1717
    ANDRI FNU,
    Petitioner,
    v.
    MICHAEL B. MUKASEY, ATTORNEY GENERAL,
    Respondent.
    ____________________
    PETITION FOR REVIEW OF AN ORDER OF THE BOARD
    OF IMMIGRATION APPEALS
    ____________________
    Before
    Boudin and Dyk,* Circuit Judges,
    and Dominguez,**** District Judge.
    ____________________
    William A. Hahn with whom Hahn & Matkov was on brief for
    petitioner.
    Jeffrey S. Bucholtz, Acting Assistant General, Civil Division,
    James E. Grimes, Senior Litigation Counsel, and Thankful T.
    Vanderstar, Trial Attorney, Office of Immigration Litigation, Civil
    Division, on brief for respondent.
    December 16, 2008
    *
    Of the Federal Circuit, sitting by designation.
    **
    Of the District of Puerto Rico, sitting by designation.
    Dominguez,     District    Judge.       Andri    Fnu,   hereinafter
    referred to as “Andri and/or         Petitioner,” a native and citizen of
    Indonesia, seeks judicial review of a decision of the Board of
    Immigration    Appeals     (“BIA”)    denying     his   requests    for   asylum,
    withholding of removal and           protection under the United Nations
    Convention Against Torture (“CAT”).             Andri contends that the BIA
    erred (1) in determining that the Petitioner did not establish harm
    rising to the level of persecution, (2) by failing to properly take
    into consideration the country conditions of record, and (3) by
    failing to take into account the totality of the circumstances for
    purposes of both past persecution and well founded fear of future
    persecution.     For     the   reasons   stated     below,    we    dismiss   the
    petition.
    I.    BACKGROUND
    Andri arrived in the United States on a visa which he
    admitted was fraudulently obtained, misrepresenting himself as a
    Boy Scout organizer.        He was admitted on January 16, 2001, with
    permission to remain in the United States for three months until
    April 15, 2001. Andri filed an application for asylum, withholding
    of removal, and protection under the Convention Against Torture
    (CAT), which was received by the Immigration and Naturalization
    Service on July 10, 2002.
    Petitioner was interviewed on September 19, 2003 in
    connection    with   his   application      and   was   referred     to   removal
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    proceedings after his interview via a Notice to Appear dated
    September 25, 2003.       Andri was charged with being removable from
    the   United   States,    pursuant     to    INA   §237(a)(1)(B),       
    8 U.S.C. §1227
    (a)(1)(B), as an alien who overstayed in the United States
    longer than permitted.
    Represented    by    counsel,      Andri       appeared    before   an
    immigration    judge   (“IJ”)    for    a    hearing   on    January    8,   2004.
    Petitioner admitted the allegations in the Notice to Appear and
    conceded the charge of removability.           A second hearing was held on
    September 21, 2005, wherein Andri presented evidence and testimony
    in support of his asylum application.
    In support of his application, Andri testified before the
    IJ that he was bullied as a child in school and in his neighborhood
    for being of Chinese ethnicity.         In 1990 Petitioner and his family
    moved within Indonesia from Jakarta to Solo. Nevertheless, in 1995
    Andri moved back to Jakarta in order to administer a bakery
    business which he owned.        Petitioner testified that approximately
    in 1993, a group of people presumed to be Muslims by Petitioner,
    went to his father’s pig farm and killed almost half of his
    family’s    livestock,     at    the    time       being     about     200   pigs.
    Nevertheless, Andri admitted that he learned about the incident
    through his father as he was not living at home when the incident
    occurred.   Furthermore, Petitioner testified that on May 13, 1998,
    while he was running his own bakery business, a group of about
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    fifteen people, who Andri alleged were of Muslim extraction,
    stopped him and coerced him to show his national ID card which
    identified   his religion.      After that they made him undress and
    proceeded to turn over his car.         Petitioner stated that, fearing
    for his life, he had to walk six miles back to his house, without
    wearing any clothes.       He stated that after that incident he was
    emotionally stressed for weeks, and that he was unable to eat or
    sleep.
    Petitioner further provided testimony relating to an
    incident that occurred on a particular Friday night in February of
    1999.    He stated that during a home prayer at an evangelical
    neighbor’s house, Muslims heaved rocks at the house and expressed
    that if the occupants did not cease the praying, the house would be
    torched.
    Andri also testified about an incident that occurred the
    night before Christmas in the year 2000.       He alleged that while in
    church, he heard a large explosion outside; he then saw that cars
    were being overturned in the parking lot.         Andri further stated
    that he later observed in the news that other churches had been
    bombed around that same time.
    After the hearing had ended, the IJ issued an oral
    decision   denying   all   three   of   petitioner’s   claims.   The   IJ
    specifically concluded that Andri had failed to file his asylum
    application within one (1) year of his arrival in the United States
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    and had failed to establish extraordinary or changed circumstances
    excusing the untimeliness of his application.           In the alternative,
    the IJ concluded that even if Petitioner’s application had been
    timely filed, Andri had failed to establish eligibility for asylum.
    Furthermore, the IJ concluded that Petitioner had also failed to
    establish eligibility for withholding of removal or protection
    under CAT.   Nevertheless, the IJ granted Petitioner’s application
    for voluntary departure.
    Andri filed a timely appeal before the BIA; on April 9,
    2007 the Board dismissed Andri’s appeal.          The BIA agreed with the
    IJ’s determination.    Petitioner was ruled ineligible for asylum
    since he failed to file an asylum application within the one (1)
    year   filing   deadline    and    failed   to    establish   any   changed
    circumstances   affecting    his    eligibility    or   any   extraordinary
    circumstances that would justify the delay in filing his asylum
    application.    The BIA further stated that Andri had failed to
    address this finding with any specificity on appeal.           Furthermore,
    the BIA agreed with the IJ’s alternative finding, turning to the
    merits of Andri’s application for asylum, that even though Andri’s
    testimony was credible, he failed to establish harm rising to the
    level of persecution. Moreover, the BIA found that the evidence of
    record demonstrated a change in country conditions sufficient to
    rebut a presumption of well-founded fear or clear probability of
    future persecution in Indonesia based on Andri’s Chinese ethnicity
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    or Christian religion.        The BIA further concluded that the fact
    that Andri’s family members had continued to reside in Indonesia
    unharmed, properly rebutted any claimed fear of future harm.
    Finally,   the    BIA    stated   that    Petitioner   failed    to   allege    or
    identify error in the denial of protection pursuant to the CAT.
    Consequently, the BIA did not address said issue.               The BIA further
    ordered that pursuant to the IJ’s determination and conditioned
    upon compliance with the conditions set forth by the IJ and the
    statute, Petitioner was permitted to voluntarily depart from the
    United States.
    II. ANALYSIS
    A. Standard of Review
    The   Court    of     appeals   reviews     BIA   decisions      under    the
    “substantial evidence” standard based “on the record as whole”, and
    “reverse[s] only if ‘any reasonable adjudicator would be compelled
    to conclude to the contrary.’”           El-Labaki v. Mukasey, 
    544 F.3d 1
    ,
    *4-*5   (1st     Cir.    2008)(emphasis        ours)(quoting     
    8 U.S.C. § 1252
    (b)(4)(B)).
    This standard requires us to uphold the
    agency's    findings   of   fact,    including
    credibility determinations, as long as they
    are “supported by reasonable, substantial, and
    probative evidence on the record considered as
    a whole.” INS v. Elías-Zacarías, 
    502 U.S. 478
    ,
    481, 
    112 S.Ct. 812
    , 
    117 L.Ed.2d 38
     (1992); see
    also Long v. Gonzáles, 
    422 F.3d 37
    , 40 (1st
    Cir.2005). We reverse only if “any reasonable
    adjudicator would be compelled to conclude to
    the contrary.” 
    8 U.S.C. § 1252
    (b)(4)(B); see
    also Chikkeur v. Mukasey, 
    514 F.3d 1381
    ,
    -6-
    1382-83 (1st Cir. 2008).
    
    Id.
    Nevertheless, “[w]hen the BIA both adopts the decision of
    an immigration judge and adds a new ground for upholding the
    result, ‘this court reviews the IJ's decision as though it were the
    BIA's to the extent of the adoption, and the BIA's decision as to
    the additional ground.’”       Singh v. Mukasey, 
    543 F.3d 1
    , *4        (1st
    Cir. 2008) (emphasis ours) (quoting Berrio-Barrera v. Gonzales, 
    460 F.3d 163
    , 167 (1st Cir. 2006)).
    B.    Asylum Claim
    Pursuant to 8 U.S.C. § § 1158(a)(2)(B), 1158(a)(2)(D), an
    application for asylum must be “filed within 1 year after the date
    of the alien's arrival in the United States”, unless “the alien
    demonstrates to the satisfaction of the Attorney General either the
    existence of changed circumstances which materially affect the
    applicant's eligibility for asylum or extraordinary circumstances
    relating to the delay in filing an application within the period
    specified...”.       Nevertheless, this Court has no jurisdiction to
    review the “agency's determination regarding the timeliness of the
    asylum   application     or   its   application   of   the   ‘extraordinary
    circumstances’ exception, unless the petitioner identifies a legal
    or constitutional defect in the decision.”        El-Labaki, 544 F.3d at
    *5 (quoting 
    8 U.S.C. §§ 1158
    (a)(3), 1252(a)(2)(D)).
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    In the instant case it is uncontested that Petitioner
    failed to file his application for asylum within one (1) year of
    his arrival in the United States.                 Furthermore, the BIA, in
    agreement with the IJ stated that Andri had failed to establish any
    “changed    circumstances”       affecting    his       eligibility   or    any
    “extraordinary circumstances” that would warrant the delay in
    filing his asylum application. Moreover, not only did the BIA find
    that Andri had failed to address this issue with any specificity on
    appeal before the BIA, but we find that he also failed to raise the
    issue on appeal before this Court.
    Petitioner also failed to raise any constitutional claims
    or questions of law.       Consequently, we lack jurisdiction to review
    the BIA’s “determination regarding the timeliness of the asylum
    application or its application of the ‘extraordinary circumstances’
    exception.”        Id.; see also Hayek v. Gonzalez, 
    445 F.3d 501
     , 506
    (1st Cir. 2006);         Ly v. Mukasey, 
    524 F.3d 126
    , 130 (1st Cir.
    2008)(“This court lacks jurisdiction to review a decision based on
    the timeliness of an asylum application. 
    8 U.S.C. § 1158
    (a)(3);
    Rotinsulu     v.    Mukasey,   
    515 F.3d 68
    ,    71   (1st   Cir.2008).   The
    government's argument that the issue of asylum was waived is
    inapposite.”).
    Nevertheless, we deem it necessary to emphasize that
    Andri is not eligible for asylum because he failed to timely file
    his asylum application and failed since the very inception of the
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    case before the IJ, to establish any “changed circumstances”
    affecting his eligibility or any “extraordinary circumstances” that
    would excuse the delay in filing his asylum application.                In other
    words, Andri is not ineligible for asylum because he failed to
    establish that he is a refugee within the meaning of INA, 
    8 U.S.C. §1101
    (a)(42); 
    8 C.F.R. §1208.13
    , he is ineligible because he failed
    to timely file his application and failed to establish any “changed
    circumstances” affecting his eligibility or any “extraordinary
    circumstances” that would justify the delay.                Therefore, we find
    that   the   IJ’s    on       the   merits   alternative   analysis   regarding
    Petitioner’s failure to establish that he is a refugee within the
    meaning of INA, 
    8 U.S.C. §1101
    (a)(42); 
    8 C.F.R. §1208.13
    , was
    performed arguendo, and as such we have no jurisdiction to review
    the IJ’s nor the BIA’s determinations regarding said alternative
    finding. See El-Labaki, 544 F.3d at *5. Hence, all of Petitioner’s
    arguments pertaining to said alternative analysis are inapposite.
    Andri argues before this Court that the BIA committed
    clear error in ruling that the IJ had found that Petitioner did not
    establish harm rising to the level of persecution, since the IJ
    stated three times in her oral decision that Andri had suffered
    persecution. Consequently, Petitioner argues that since the IJ did
    make an explicit finding of past persecution, he is therefore
    presumed     to   have    a    well-founded    fear   of   future   persecution.
    Finally, Andri avers that the administrative agency failed to
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    properly take into consideration the country conditions of record,
    and failed to take into account the totality of the circumstances
    for purposes of both past persecution and well founded fear of
    future persecution.
    After reviewing all of Petitioner’s arguments, we find
    that these assertions all relate to the IJ’s alternative analysis
    of his asylum claim, which as aforementioned, we lack jurisdiction
    to review.     See El-Labaki, 544 F.3d at *5.
    C. Withholding of Removal and Convention Against Torture (CAT)
    Claims
    As to a claim for withholding of removal, the same
    imposes “‘a more stringent burden of proof on an alien than does a
    counterpart claim for asylum.’ Withholding of removal requires that
    an alien establish a clear probability of persecution, rather than
    merely a well-founded fear of persecution.”Ang v. Gonzalez, 
    430 F.3d 50
    , 58 (1st Cir. 2005)(internal citations omitted)(quoting
    Rodriguez-Ramirez v. Ashcroft, 
    398 F.3d 120
    , 123 (1st Cir. 2005));
    see also De Oliveira v. Mukasey, 
    520 F.3d 78
    , 79 (1st Cir. 2008)
    (“In order to qualify for withholding of removal, [Petitioner]
    would need to prove that it is more likely than not that he will
    face persecution should he return to [Indonesia].”) (emphasis
    ours)( citing INS v. Aguirre-Aguirre, 
    526 U.S. 415
    , 419, 
    119 S.Ct. 1439
    , 
    143 L.Ed.2d 590
     (1999)); Journal v. Keisler, 
    507 F.3d 9
    , 13
    (1st   Cir.   2007).   “This   showing   can   be   made   by   proving   past
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    persecution,   which   raises    a     rebuttable   presumption   of   the
    likelihood of future persecution.”          De Oliveira, 
    520 F.3d at 79
    .
    “An applicant for protection under Article III of CAT
    must prove that it is more likely than not that he or she will be
    tortured if removed to the country designated for removal.” El-
    Labaki, 544 F.3d at *7 (quoting 
    8 C.F.R. §§ 1208.16-1208.18
    ) .
    Torture is defined as any act by which severe
    pain or suffering, whether physical or mental,
    is intentionally inflicted on a person ... by
    or at the instigation of or with the consent
    or acquiescence of a public official or other
    person acting in an official capacity.” 
    Id.
     §
    1208.18(a)(1). The possibility of internal
    relocation is relevant in determining whether
    the applicant has shown that he is likely to
    be    tortured     if    removed.     Id.    §
    1208.16(c)(3)(ii).
    Tendean v. Gonzales, 
    503 F.3d 8
    , 12 (1st Cir. 2007).        “Such torture
    must be 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.”    El-Labaki, 544 F.3d at *7.
    Although Andri applied for withholding of removal and
    protection under the Convention Against Torture, he “devoted his
    appellate brief exclusively to his asylum claim and has failed to
    develop any argument supporting either his claim for withholding of
    removal or his claim for protection under CAT.          Consequently, we
    deem those claims abandoned.” Nikijuluw v. Gonzales, 
    427 F.3d 115
    ,
    120 FN. 3 (1st Cir. 2005).      Furthermore, “issues adverted to in a
    perfunctory manner, unaccompanied by some effort at developed
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    argumentation, are deemed waived.”     United States v. Zannino, 
    895 F.2d 1
    , 17 (1st Cir.1990); see also Bonilla v. Mukasey, 
    539 F.3d 72
    ,
    75 FN 1(1st Cir. 2008)(citing Ramallo Bros. Printing, Inc., v. El
    Dia, Inc., 
    490 F.3d 86
    , 90 (1st Cir. 2007); Bebri v. Mukasey, ___
    F. 3d ___, 
    2008 WL 4603452
     (1st Cir. 2008);     Makhoul v. Ashcroft,
    
    387 F.3d 75
    , 82 (1st Cir. 2004).   Moreover, Petitioner also failed
    to allege or identify any error in the denial of his CAT claim
    before the BIA.   Therefore, not only has he waived said claim, but
    we lack jurisdiction to consider it.     See   Bollanos v. Gonzalez,
    
    461 F.3d 82
    , 87 (1st Cir. 2006)(citing Makhoul v. Ashcroft, 
    387 F.3d 75
    , 82 (1st Cir. 2004).
    For the foregoing reasons, the petition for judicial review is
    dismissed.
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