Anam v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-9-2008
Anam v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2035
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"Anam v. Atty Gen USA" (2008). 2008 Decisions. Paper 1248.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 07-2035
________________
CHIOIRUL ANAM,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
________________
On Review of a Decision of the
Board of Immigration Appeals
Immigration Judge: Honorable Charles M. Honeyman
(No. A96-203-853)
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 23, 2008
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Filed May 9, 2008 )
___________________
OPINION
___________________
PER CURIAM
Chioirul Anam, an Indonesian native and citizen, petitions for review of a final
order of the Board of Immigration Appeals (“BIA”), affirming the denial by the
Immigration Judge (“IJ”) of Anam’s application for asylum, withholding of removal and
relief under the Convention Against Torture (“CAT”). Before the IJ, Anam, a Javanese
Muslim, testified that his store was looted and burned along with other surrounding
stores, which were predominantly Chinese-owned. The IJ denied Anam’s applications
because he did not find Anam’s testimony to be credible. We will deny Anam’s petition
for review because substantial evidence supports the IJ’s adverse credibility
determination. See Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004).
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where the BIA substantially
adopts the findings of the IJ, we review the decisions of both the IJ and the BIA. He
Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
The IJ found that Anam was ineligible for asylum as a result of his failure to file
his application within one year of the date of his arrival in the United States. See 8
U.S.C. § 1158(a)(2)(B).1 The IJ also found that Anam did not show extraordinary or
changed circumstances to excuse his untimely asylum application. See 8 U.S.C.
§ 1158(a)(2)(D). We will not disturb these findings because we lack jurisdiction to
review agency determinations of asylum-application untimeliness, see Tarrawally v.
Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003); we lack jurisdiction over these particular
untimeliness findings because Anam failed to challenge them before the BIA, see
Bonhometre v. Gonzales, 414 F.3d 442, 447-48 (3d Cir. 2005); and, in any case, Anam
does not challenge the findings in this petition for review.
To obtain withholding of removal, Anam bore the burden of establishing that his
life or freedom would be threatened in Indonesia on account of his race, religion,
nationality, political opinion, or membership in a particular social group. 8 U.S.C.
§ 1231(b)(3)(A); Romanishyn v. Att’y Gen., 455 F.3d 175, 178 n.1 (3d Cir. 2006). We
agree with the IJ and the BIA that Anam failed to establish past persecution; thus he is not
entitled to a rebuttable presumption of future persecution. See 8 C.F.R. § 108.16(b);
Gabuyina v. Att’y Gen., 463 F.3d 316, 321 (3d Cir. 2006). Even if Anam’s testimony
was credible, the burning of his store by rioters does not amount to past persecution.
Rather, as the IJ found, he was the victim of generally harsh conditions shared by all store
owners in the area. See Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993) (“[T]he
concept of persecution does not encompass all treatment that our society regards as
unfair, unjust or even unlawful or unconstitutional.”) Additionally, Anam did not
demonstrate that this incident occurred because of “his race, religion, nationality,
membership in a particular social group, or political opinion” as required under § 1231.
Anam also failed to show that he faced a clear probability of future persecution. A
1
Anam arrived in the United States in 2001 but did not file his asylum application
until 2004.
-2-
large portion of Anam’s appellate brief is devoted to describing the discrimination faced
by the ethnic Chinese and Christian populations in Indonesia.2 Anam’s contention
appears to be that during a riot, despite being a Javanese Muslim, he might be mistaken
for Chinese or Catholic and persecuted on that basis. Such a fear, however, is too
speculative. See Kratchmarov v. Heston, 172 F.3d 551, 555 (8th Cir. 1999). Moreover,
even if Anam could demonstrate that there is a pattern or practice of persecution of
Chinese Christians in Indonesia, he cannot “establish[] his . . . own inclusion in and
identification with such group of persons such that it is more likely than not that his or her
life or freedom would be threatened upon return to [Indonesia].” 8 C.F.R.
§ 1208.16(b)(2)(ii).
Because Anam relies on the same evidence to support his application for
protection under CAT, that application was also justifiably denied. See 8 C.F.R. §
208.16(c)(2).
For the above-stated reasons, we will deny the petition for review.
2
Anam has submitted several articles as “exhibits” documenting conditions in
Indonesia. Our consideration of Anam’s petition, however, is limited to the information
contained in the administrative record. See Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d
Cir. 2005).