Silanno v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-1-2008
Silanno v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1604
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 05-2923
GRACESIANA SILANNO;*
TEJO HANDOKO;*
MEGANOVIANTI SILANNO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
*(Petitions dismissed per Court’s order of 9/13/06)
(Agency Nos. A96-252-508, A96-252-509, A96-253-128)
No. 05-4923
GRACESIANA SILANNO;*
TEJO HANDOKO;*
MEGANOVIANTI SILANNO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
*(Petitions dismissed per Court’s order of 9/13/06)
(Agency Nos. A96-252-508, A96-252-509, A96-253-128)
No. 06-1604
MEGANOVIANTI SILANNO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
(Agency No. A96-253-128)
On Petition for Review from an Order of the
Board of Immigration Appeals
Immigration Judge: Hon. R.K. Malloy
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 9, 2008
BEFORE: SMITH, HARDIMAN and COWEN, Circuit Judges
(Filed: May 1, 2008)
OPINION
COWEN, Circuit Judge.
Petitioner, Meganovianti Silanno, asks this Court to review the BIA’s finding that
she failed to show a pattern or practice of persecution against ethnic Chinese Christians in
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Indonesia. Second, she petitions us to review whether the BIA erred in denying her
motion to reopen and reconsider based on ineffective assistance of counsel. For the
reasons that follow, we will deny her petitions for review.
I.
Silanno is an ethnic Chinese and a Christian. She is a native and citizen of
Indonesia. After overstaying her allotted time in the United States, she filed an
application for asylum and for withholding of removal based on her religion. She also
filed an application for relief under the Convention Against Torture (“CAT”). During
testimony before the immigration judge (“IJ”), Silanno noted an incident where a bomb
exploded at her school while she was attending classes. Additionally, she testified to an
incident where a bomb went off while she was attending Christmas eve church services in
2000.
The IJ did not make an explicit adverse credibility determination with respect to
Silanno. The IJ ultimately found that she failed to establish that she suffered past
persecution or that she would suffer future persecution on account of her religion. The IJ
noted that the incidents which Silanno described did not rise to the level of persecution.
The IJ concluded by also explaining that Silanno failed to show that it would be more
likely than not that she would be persecuted if she returned to Indonesia. On May 9,
2005, the BIA affirmed the IJ’s decision. Silanno timely filed a petition for review of the
May 9, 2005 order, C.A. No. 05-2923.
Subsequently, Silanno filed a motion to reopen with the BIA. She argued that her
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counsel provided ineffective assistance. On October 12, 2005, the BIA denied the motion
to reopen. It determined that Silanno had failed to comply with the requirements of
Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). Specifically, Silanno failed to indicate
that she had informed her previous attorney of the allegations against him. Silanno filed a
petition for review of that order, C.A. No. 05-4923. She also moved for reconsideration
of the BIA’s October 12, 2005 order. On January 26, 2006, the BIA denied Silanno’s
motion for reconsideration. It found that she failed to demonstrate prejudice.1 Silanno
filed a petition for review of the January 26, 2006 order as well, C.A. No. 06-1604. The
three petitions for review were consolidated for purposes of briefing and disposition.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252. “When the BIA’s decision substantially relies upon the decision of the IJ, this
Court has jurisdiction to consider the IJ’s decision, as well as the BIA’s decision.” See
Kaita v. Att’y Gen. of United States, – F.3d –, 2008 WL 879052, at *6 (3d Cir. Apr. 3,
2008) (citing Xie v. Ashcroft, 259 F.3d 239, 242 (3d Cir. 2004)). Whether the applicant
has met her burden of establishing eligibility for asylum is a factual determination
1
In the proceedings before the IJ and the BIA, Silanno’s applications and motions
were considered along with those of her sister, Gracesiana Silanno and Tejo Handoko,
Gracesiana Silanno’s husband. In a separate January 26, 2006 order, the BIA granted
their motion for reconsideration and motion to reopen. It noted that the IJ had previously
stated that Handoko had a much stronger asylum claim than his wife. He was only
previously included in the asylum application of his wife, and she failed to state a claim
for asylum.
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reviewed under the substantial evidence standard. See Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002). If substantial evidence supports the decision below, we will affirm
“unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B); Dia v. Ashcroft, 353 F.3d 228, 247-48 (3d Cir. 2003) (en banc).
When reviewing “‘the BIA’s application of legal principles to undisputed facts, rather
than its underlying determination of those facts or its interpretation of governing statutes,
our review is de novo.’” Chen v. Att’y Gen. of United States, 491 F.3d 109-10 (3d Cir.
2007) (quoting Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir. 2007)). We review an order
denying a motion to reopen or a motion for reconsideration under the highly deferential
abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).
The BIA’s discretion will not be disturbed unless it is found to be arbitrary, irrational or
contrary to law. See id.III.
Silanno asserts that the BIA erred in ruling on her asylum application by failing to
find that there was a pattern or practice of persecution against Chinese Christians in
Indonesia.2 She asserts that the IJ’s finding on her pattern or practice claim did not follow
the correct legal standard. Furthermore, she asserts that the BIA and the IJ ignored
relevant evidence of country conditions. Second, she argues that the BIA erred in
2
Silanno does not contest the outcome on her application for relief under the CAT.
Therefore, any issue with respect to that claim is deemed waived. See Konan v. Att’y
Gen. of United States, 432 F.3d 497, 500 n.2 (3d Cir. 2005).
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denying her motion to reopen and reconsider based on her claim of ineffective assistance
of counsel.
The Respondent filed a motion to dismiss Silanno’s petitions for review. It argued
that Silanno failed to assert her claim of a pattern or practice of persecution to the BIA,
and that she waived any claim with respect to the BIA’s denial of her motion to
reopen/reconsider. Notwithstanding Respondent’s arguments to the contrary, Silanno did
raise her pattern or practice claim to the BIA. (See A.R. 588.) Additionally, she did not
waive her argument that the BIA erred in denying her motion to reopen and motion for
reconsideration. (See Pet’r Br. 19-20.) Therefore, Respondent’s motion to dismiss is
denied.
A. Asylum
For asylum, an applicant must show that he or she
is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of [the country of
such person’s nationality or habitual residence], because of
persecution or a well founded fear of persecution on account
of race, religion, nationality, membership in a particular social
group, or political opinion.
8 U.S.C. §1101(a)(42)(A). With respect to establishing a well-founded fear of future
persecution, “an applicant must first demonstrate a subjective fear of persecution through
credible testimony that her fear is genuine.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.
2005) (citing Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003)). Next, an applicant
must objectively show “that ‘a reasonable person in the alien’s circumstances would fear
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persecution if returned to the country in question.’” Id. (quoting Zubeda, 333 F.3d at
469). In satisfying the objective prong, the applicant “must show that she would be
individually singled out for persecution or demonstrate that ‘there is a pattern or practice
in his country of nationality . . . of persecution of a group of persons similarly situated to
the applicant on account of race, religion, nationality, membership in a particular social
group, or political opinion. . .’” Id. (quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)). “[T]o
constitute a pattern or practice, the persecution of the group must be systematic,
pervasive, or organized.” Id. Additionally, “as with any claim of persecution, the acts
must be committed by the government or forces the government is either unable or
unwilling to control.” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006) (citing
Lie, 396 F.3d at 537).
The IJ set forth the applicable standard for evaluating a claim for future
persecution by noting:
In evaluating a claim of future persecution, the Immigration
Judge does not have to require the alien to provide evidence
he will be singled out individually for persecution if the alien
establishes that there is a pattern or practice in his home
country of persecution of groups of persons similarly situated
to the applicant on one of the five enumerated grounds, and
that the alien is included or identified with such group.
(App. 20.) Silanno asserts that her well-founded fear of persecution is based upon the
pattern or practice of persecution faced by Christians in Indonesia. Silanno relies on the
2001 country report and 2002 religious report on Indonesia as well as our decision in
Sukwanputra to support her pattern/practice argument.
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In this case, the administrative record contained the 2001 country report and 2002
religious freedom report. They stated that the Indonesian government respected the
Christian faith, promoted ethnic and religious tolerance, and that the attacks against ethnic
Chinese Christians continued to drop since 1998. See Wijono v. Gonzales, 439 F.3d 868,
874 (8th Cir. 2006) (noting that the 2001 country report on Indonesia indicates a sharp
decline in violence against Chinese Christians, and that the government officially
promotes ethnic and religious tolerance); see also Lie, 396 F.3d at 537-38 (holding that
there was no pattern or practice of persecution against ethnic Chinese Christians in
Indonesia based in part on the 1999 country report showing a sharp decline in violence).
Additionally, to the extent that Silanno relies on our opinion in Sukwanputra in her
attempt to establish a pattern or practice of persecution, that reliance is misplaced.
Indeed, in Sukwanputra, we were careful to explain that:
Significantly, we do not hold that a pattern or practice of
persecution in Indonesia in fact exists, nor do we hold that the
Lie decision establishes that a pattern or practice does not
exist since the record in this case contains a 2001 country
report whereas the record in Lie contained an earlier 1999
country report.
434 F.3d at 636 n.10 (citing Lie, 396 F.3d at 537). Substantial evidence supports the
decision below, and we are not compelled to conclude to the contrary.3 See Dia, 353 F.3d
at 247-48.
3
Because Silanno failed to satisfy the standard for asylum, she necessarily fails to
meet the standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157,
182 (3d Cir. 2003).
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B. Motion to Reopen and Reconsider
Appellant asserts that the BIA erred in denying her motion to reopen. Specifically,
she asserts that her previous counsel failed to argue that the bombing at her school
established her claim of past persecution. (See Pet’r Br. 20.) The BIA determined that
Silanno was not prejudiced. We agree. Indeed, the IJ specifically noted the bombing
incident in the oral decision, but found that the incidents described by Silanno failed to
establish that she suffered past persecution on a protected ground.
IV.
For the foregoing reasons, Respondent’s motion to dismiss is denied. Silanno’s
petitions for review are denied. Silanno also filed a motion to stay the voluntary
departure period on July 1, 2005. On July 7, 2005, we granted an administrative stay of
the voluntary departure period and the motion was referred to this panel to decide whether
Reynoso-Lopez v. Ashcroft, 369 F.3d 275 (3d Cir. 2004), extended to stays of unexpired
voluntary departure periods. In Obale v. Attorney General of United States, 453 F.3d 151(3d Cir. 2006), we concluded that we do have jurisdiction to grant a stay of an unexpired
voluntary departure period. In light of our disposition of Silanno’s petitions for review,
we deny the motion to stay the voluntary departure period. Accordingly, the
administrative stay on the voluntary departure period is vacated. The period remaining in
which Silanno may voluntarily depart shall begin to run with the issuance of the mandate
in this appeal.
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