Biyanto v. Attorney General , 263 F. App'x 204 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-30-2008
Biyanto v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3787
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3787
NUR BIYANTO,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A97 149 842)
Immigration Judge: Donald Vincent Ferlise
Submitted pursuant to Third Circuit LAR 34.1(a)
December 11, 2007
Before: MCKEE, CHAGARES, and HARDIMAN, Circuit Judges.
(Filed: January 30, 2008)
OPINION OF THE COURT
CHAGARES, Circuit Judge:
Nur Biyanto petitions for review of a final order of removal issued by the Board of
Immigration Appeals (BIA). The BIA affirmed, without opinion, the decision of the
Immigration Judge (IJ). The IJ found that Biyanto was not credible and denied his
application for withholding of removal and relief under the Convention Against Torture
(CAT).1 Because substantial evidence supports the adverse credibility determination and
denial of withholding of removal and CAT relief, we will deny the petition for review.
I.
We have jurisdiction to review the BIA’s final orders of removal. 8 U.S.C. §
1252(a). Where the BIA affirms without opinion, we review the decision of the IJ. See
Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005). Whether an alien has
demonstrated past persecution, a likelihood of future persecution, or a likelihood of
torture are reviewed under the substantial evidence standard, as are adverse credibility
findings. See Wang v. Ashcroft, 368 F.3d 347, 349-50 (3d Cir. 2004); Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001); Xie v. Ashcroft, 359 F.3d 239, 243 (3d
Cir. 2004). Under this standard, the IJ’s findings of fact are conclusive “unless the
evidence not only supports a contrary conclusion, but compels it.” Abdille, 242 F.3d at
483-84. Minor inconsistencies regarding events central to an alien’s petition do not
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Biyanto conceded that, because his asylum application had not been timely filed, he was
ineligible for asylum, and therefore sought only withholding of removal and protection under the
CAT.
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provide an adequate basis for an adverse credibility finding. Xie, 359 F.3d at 243.
II.
The Attorney General must grant withholding of removal if he “decides that the
alien’s life or freedom would be threatened” in the country of removal “because of the
alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of proving that he will
more likely than not face persecution on account of a protected ground. See INS v.
Stevic, 467 U.S. 407, 429-30 (1984). If the alien can demonstrate past persecution, then
that finding will raise a rebuttable presumption that the alien’s “life or freedom would be
threatened in the future . . . .” 8 C.F.R. § 1208.16(b)(1)(i). Past persecution requires
proof of “(1) one or more incidents rising to the level of persecution; (2) that is ‘on
account of’ one of the statutorily-protected grounds; and (3) is committed either by the
government or by forces that the government is either unable or unwilling to control.”
Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Under our cases, “persecution is
an extreme concept that does not include every sort of treatment our society regards as
offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir.1993). It encompasses only grave
harms such as “threats to life, confinement, torture, and economic restrictions so severe
that they constitute a threat to life or freedom.” Id. at 1240.
An applicant for relief under the CAT bears the burden of establishing “that it is
more likely than not that he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 208.16(c)(2). The standard for relief “has no subjective
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component, but instead requires the alien to establish, by objective evidence that he is
entitled to relief.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (internal
quotation marks and citation omitted). Torture is an act done “by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an
official capacity,” by means of which “severe pain and suffering, whether physical or
mental, is intentionally inflicted” for purposes such as obtaining confessions, punishment,
intimidation, or coercion. 8 C.F.R. § 208.18(a)(1). We have held that “even cruel and
inhuman behavior by government officials may not implicate the torture regulations,”
Sevoian, 290 F.3d at 175, because “[t]orture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.” 8 C.F.R. § 208.18(a)(2).
III.
As we write only for the parties, our summary of the facts is brief. Nur Biyanto is
a native and citizen of Indonesia. He is also a Buddhist of Chinese descent. Biyanto
claims to have suffered persecution in Indonesia on account of his ethnicity. In particular,
he contends that four specific incidents compel findings of past persecution and a
likelihood of future persecution.
The first incident occurred in July of 1997. Biyanto testified that he was driving
his car and was rear-ended by a motorcycle driven by the son of a “jihad commando”
leader. The police determined that Biyanto was not at fault, but a few members of the
motorcycle driver’s family came to Biyanto’s home asking for money for medical
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treatment of the young man’s injuries. Biyanto agreed to give the family three million
rupiah, but the family later demanded an additional two million rupiah for repair of the
motorcycle. When Biyanto refused to pay this additional sum, a family member insulted
and hit him; Biyanto eventually paid the money at the suggestion of the police.
Biyanto also testified that in September of 1997, the same group of individuals
came to Biyanto’s store, along with the injured motorcycle driver, and demanded that
Biyanto support the injured young man with a monthly stipend. When Biyanto refused,
the family members again insulted and hit him.
The next incident took place in October of 1997. Biyanto testified that he was the
victim of an attempted robbery while on the way to his bank to deposit money. He
alleged the two assailants included one of the individuals who had come to his store
looking for money for the injured motorcycle driver.
Finally, Biyanto testified that during the widespread riots in Indonesia in May of
1998, his store was burned down and he had to hide and run away from the rioters,
including individuals from the motorcycle driver’s family, who chanted anti-Chinese
slogans.
On cross-examination, Biyanto testified that he had not seen the motorcycle driver
or the group of persons who came to his house in July 1997 before that point in time, and
told the Court that he believed they were from a “jihad commando” group due only to
their representations to him. He stated that he lived with his parents from May 1998 until
December 1999, and that in 2001 his parents informed him that the accident victim was
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still looking for him. The IJ determined that (1) Biyanto was not a credible witness and
therefore failed to demonstrate his eligibility for withholding and protection under the
CAT; and (2) even if his testimony was deemed credible, Biyanto nevertheless failed to
demonstrate past persecution or that it was more likely than not he would be subject to
persecution or torture if removed to Indonesia.
Because we find that there is no reason to compel a contrary conclusion, we will
uphold the IJ’s adverse credibility finding. The IJ deemed Biyanto’s testimony not
credible based on various inconsistencies and contradictions. In particular, the IJ found it
highly implausible that, as Biyanto claimed, the motorcycle victim and his family would
again start looking for Biyanto in 2001, four years after the accident, when they had no
contact with Biyanto or his parents from May 1998 through the beginning of 1999 and
Biyanto did not explain why he never mentioned that the victim was still looking for him
in his affidavit. Other inconsistencies and contradictions included Biyanto’s account of
where he lived after the May riots and before departing for the United States in 1999 and
what contact he had with the alleged jihad commandos during that time. Based on these
significant inconsistencies, the IJ concluded that Biyanto was not “a credible witness, nor
that he [] submitted a credible case in chief,” Appendix (App.) 50, and we will decline to
find differently.
Moreover, even if we assume, arguendo, that Biyanto was a credible witness,
substantial evidence supports the IJ’s denial of relief. The record does not show past
persecution based on Biyanto’s ethnicity, nor compel the conclusion that there is a clear
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probability of persecution if he returns to Indonesia. As unfortunate as the demands for
money and attempted robbery were, Biyanto did not offer substantial evidence tending to
show that the injured motorcycle driver or his family members were motivated by an anti-
Chinese animus. To the contrary, Biyanto appears to have been the victim of harassment
intended to induce monetary compensation and reparation for the traffic accident.
Similarly, Biyanto did not demonstrate that the attempted robbery was on account of his
race instead of the fact that he was transporting a large bag of money. We therefore
conclude that these incidents do not compel a finding of ethnic persecution. Moreover,
while Biyanto maintains that he experienced vandalism during the 1998 riots, he cannot
point to personal incidents of persecution or torture beyond the general civil unrest at that
time, and this Court has not held that there is a pattern or practice of persecution against
ethnic Chinese in Indonesia. See Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir. 2005).
Likewise, we find that Biyanto’s allegations that the motorcycle victim and his family
may still be looking for Biyanto do not establish a clear probability of future persecution.
Biyanto also claims that the human-rights abuses detailed in the State Department
Country Reports indicate that Biyanto will likely face persecution on account of his
ethnicity. In our view, nothing in these reports compels such a finding.
Biyanto’s brief does not provide any separate analysis of his CAT claim. Based on
our review of the record, substantial evidence supports the IJ’s determination that Biyanto
does not face a likelihood of torture upon his return to Indonesia. See Lukwago v.
Ashcroft, 329 F.3d 157, 182-83 (3d Cir. 2003). Accordingly, we will deny the petition
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for review.
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