Yulius Langi v. Atty Gen USA ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1443
___________
YULIUS LANGI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-266-979)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 2, 2011
Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges
(Opinion filed: March 9, 2011)
___________
OPINION
___________
PER CURIAM
Yulius Langi petitions for review of a final order of the Board of Immigration
Appeals (BIA) affirming the decision of the Immigration Judge (IJ) denying asylum,
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withholding of removal, and relief under the Convention Against Torture (CAT). We
will deny the petition for review.
Langi is a citizen of Indonesia, who arrived in the United States in September
2001 on a B-2 visa to compete in a whitewater-rafting competition on behalf of the
Indonesian national team. He was entitled to stay until October 20, 2001, but stayed
beyond that period without authorization. The Department of Homeland Security (DHS)
charged Langi with removability under section 237(a)(1)(B) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1227(a)(1)(B), and Langi applied for asylum,
withholding of removal, and CAT relief.
At his administrative hearing in 2007, Langi testified that he wished to remain in
the United States because he believed that, as a practicing Christian, he would be subject
to religious persecution in Indonesia. He said that while living in the small town of
Sukabumi, his house was repeatedly stoned, and that in November 1998, a mob of
militant Muslims attacked him and broke his nose. After the attack, Langi was jailed
without explanation for two or three days. Soon thereafter, he and his family moved to
Jakarta. In Jakarta, Langi did not suffer any personal persecution, but there were frequent
bombings and he did not feel safe. In 2000, he moved to Manado. As noted, Langi came
to the United States in September 2001. Langi’s family remained in Jakarta, and has
been free from harassment since the November 1998 incident.
The IJ concluded that Langi was removable, finding that the asylum application
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was untimely and that Langi failed to meet his respective burdens of proof for
withholding of removal and for CAT relief. The BIA then dismissed Langi’s appeal.
The BIA agreed with the IJ that Langi’s asylum application was untimely. The BIA
further affirmed the IJ’s denial of withholding of removal because Langi failed to
demonstrate past persecution or a clear probability of future persecution if he returned to
Indonesia. The BIA concluded that while the attack on Langi was disturbing, it was not
sufficiently serious to qualify as past persecution, and that even if it did, the presumption
of future persecution was rebutted because Langi could avoid persecution by relocating to
Jakarta or Manado. The BIA also ruled that Langi had failed to establish either that he
would be singled out for future persecution or that there was a pattern or practice of
persecution of Christians in Indonesia. Langi then filed this petition for review.
We have jurisdiction over the BIA’s final order of removal pursuant to section
242(a). Where, as here, the BIA has issued a decision on the merits and not simply a
summary affirmance, we review the BIA’s decision. See Gao v. Ashcroft, 299 F.3d 266,
271 (3d Cir. 2002). We must uphold the BIA’s factual findings if they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks omitted). We
will reverse a finding of fact only if “any reasonable adjudicator would be compelled to
conclude to the contrary.” INA § 242(b)(4)(B).
At the outset, we note that although Langi originally sought asylum, withholding
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of removal, and CAT relief, we have jurisdiction over only the withholding-of-removal
claim. As Langi acknowledges, the BIA concluded that his asylum claim was untimely.
Our jurisdiction over claims concerning the timeliness of an asylum application is
limited: we may consider only constitutional or legal issues. See INA § 208(a)(3);
Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). Langi has raised no such
issue, and accordingly, we may not upset the BIA’s order denying the claim as untimely.
Further, while Langi sought relief under CAT before the IJ, he did not appeal the IJ’s
denial of that claim to the BIA. Therefore, he did not administratively exhaust that claim,
and we lack jurisdiction to review it. See INA § 242(d)(1); Abdulrahman v. Ashcroft,
330 F.3d 587, 594-95 (3d Cir. 2003).
To obtain withholding of removal, an alien must establish that it is more likely
than not that his life or freedom would be threatened in the country of removal on
account of his race, religion, nationality, membership in a particular social group, or
political opinion. See INA § 241 (b)(3)(A); Tarrawally v. Ashcroft, 338 F.3d 180, 186
(3d Cir. 2003). To make this showing, the alien must demonstrate either past persecution
(which creates a rebuttable presumption that the alien would be persecuted upon return to
that country) or a likelihood of future persecution. See 8 C.F.R. § 208.16(b).
Here, Langi presents only a claim that he will face future persecution.1 Such a
1
In his statement of issues on appeal, Langi listed issues that concern both
past persecution and future persecution. However, Langi has presented no argument
whatsoever in support of any past-persecution claim, and we therefore conclude that “he
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claim requires the applicant to demonstrate a subjective fear of persecution and that that
fear is objectively reasonable. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).
The objective prong can be satisfied by showing either that (1) the alien “would be
individually singled out for persecution” or (2) there is a “pattern or practice” in the
country of persecuting individuals who are similarly situated to the alien. Id. Even
assuming that Langi possesses a subjective fear of persecution, we conclude that
substantial evidence supports the BIA’s conclusion that he has failed to show that his fear
is objectively reasonable.
We agree with the BIA that Langi has failed to establish that he has a reasonable,
individualized fear of persecution. The record shows that Langi did not suffer any
persecution in either Jakarta or Manado while living there after being attacked in
Sukabumi in 1998 — in fact, he was selected to represent his nation as a member of
Indonesia’s whitewater-rafting team. Further, as the BIA noted, “his Christian practicing
family has not been attacked by Muslim extremists since his departure from Indonesia.”
We therefore conclude that substantial evidence supports the BIA’s denial of this claim.
See Lie, 396 F.3d at 537 (rejecting Indonesian national’s claim that he would face future
prosecution on account of his Christianity where his family had remained in Indonesia
without being harmed).
We also agree with the BIA that the evidence in the record does not show that
has abandoned and waived that issue on appeal.” Mitchell v. Cellone, 389 F.3d 86, 92
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there is a pattern or practice of persecuting Christians in Indonesia. Langi presented only
scattered articles from 2000 through 2002, which provide little information about the
likelihood that Langi would be persecuted if forced to return to Indonesia almost a decade
later, and various State Department reports, which we have previously held do not
support a pattern-or-practice claim. See Wong v. Attorney General, 539 F.3d 225, 235
(3d Cir. 2008); Lie, 396 F.3d at 537. Langi urges us to follow the Fifth Circuit’s decision
in Eduard v. Ashcroft, 379 F.3d 182, 192 (5th Cir. 2004), where the court held that “there
was a pattern of persecution of Christians in Indonesia.” Langi’s invocation of Eduard is
unavailing: we have recently refused to rely on Eduard because it is predicated on
“outdated” evidence and fails to reflect Indonesia’s improved conditions. See Wong, 539
F.3d at 235. Thus, while Langi has presented evidence that some anti-Christian violence
persists in Indonesia, we conclude that substantial evidence supports the BIA’s
conclusion that it does not rise to the level of a pattern or practice.
Accordingly, we will deny the petition for review.
(3d Cir. 2004) (internal quotation marks omitted).
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