Kho v. Atty Gen USA ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-6-2004
Kho v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4185
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No.: 03-4185
FUI KIM KHO,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of Removal
from the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
BIA No.: A79 086 809
Submitted: November 12, 2004
Before: McKEE, CHERTOFF, Circuit Judges and BUCKWALTER Senior District
Judge.*
(Opinion filed: December 6, 2004)
OPINION
McKEE, Circuit Judge.
Fui Kim Kho petitions for review of the Board of Immigration Appeal’s Order
affirming the Immigration Judge’s Order of Removal.
I. JURISDICTION
*
Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
Before discussing the merits of Petitioner’s claim, we must address the
government’s contention that her failure to comply with the one year filing requirement
contained in INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(B) precludes our review absent
Petitioner establishing that she was prevented from complying with that requirement by
“extraordinary circumstances.” See Tarrawally v. Ashcroft, 338 F.3d 180, 184-5 (2d Cir.
2003).
The IJ found that Petitioner’s application for asylum was filed after the requisite
filing period and that the she had not demonstrated any “extraordinary circumstances” to
excuse the late filing. The BIA affirmed the IJ’s legal and factual conclusions, and
nothing on this record suggests that the BIA erred in doing so. Accordingly, pursuant to
our decision in Tarrawally and the dictates of 8 U.S.C. § 208(a)(2)(B), we lack
jurisdiction to now review the IJ’s decision. Although we need say nothing more of
Petitioner’s claim, given the nature of her harm she alleges she would suffer upon
removal, we think it preferable to also explain that Petitioner would not qualify for relief
even if she had filed a timely application for relief.
II. DISCUSSION
Kim Kho is a native and citizen of Indonesia. She alleges that she was raped and
persecuted in her native land because of her Chinese ethnicity and her Christian faith.
2
The Attorney General has discretion to grant asylum to an alien who qualifies as a
“refugee.” 8 U.S.C. § 1158(b). The Immigration and Naturalization Act defines a
“refugee” as:
any person who is outside any country of such person’s nationality or, in the
case of a person having no nationality, is outside any country in which such
person last habitually resided, and who is unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in particular social group,
or political opinion.
8 U.S.C. § 1101(a)(42(A). In order to meet this standard, an alien must show that he/she
has a subjective fear of persecution that is supported by objective evidence that
persecution is a reasonable possibility. Chang v. INS, 119 F.3d 1055, 1166 (3d Cir.
1997). The BIA concluded that Petitioner had not introduced sufficient evidence to
support a subjective fear of persecution, and we must affirm the denial of relief if it is
supported by “substantial evidence.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d
Cir. 1998). “Substantial evidence is more than a scintilla, and must do more than create a
suspicion of the existence of the fact to be established. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion. ...” N.L.R.B. v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939) (internal citations
omitted).
Petitioner alleges that she was raped in Indonesia in a part of town where she knew
no one, and that she had no identification with her. She nevertheless claimed that her
3
parents were notified by the hospital where she was being treated. She could not
articulate any specific injuries, and never reported the alleged rape to the Indonesian
police. Moreover, she “remained in Indonesia for two years after the most recent incident
without any further problems from the persons in her neighborhood who had purportedly
assaulted her.” A.R 2.
Moreover, although Petitioner alleges that she was raped because of her Chinese
ethnicity and Christian beliefs, the record does not support that conclusion. She admits
that she has never been baptized, and could not provide any evidence of her religious
affiliation despite being given an extension to obtain testimony from a local pastor.
Based upon this record, the Immigration Judge found her claims of persecution were not
credible and the BIA affirmed. That credibility determination is consistent with the
record, and we believe Petitioner therefore failed to satisfy her burden of proving that she
is a “refugee”.1
III.
Based on the foregoing analysis, we will affirm the Board of Immigration Appeals
September 30, 2003 Decision and Order.
1
Since petitioner’s claim for asylum fails, she can not satisfy the more demanding
standard for withholding of removal. See Shardan, 382 F.3d 318 (3d Cir. 2004).
4