Sulimin v. Atty Gen USA , 139 F. App'x 448 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-19-2005
Sulimin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2194
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-2194
____________
LIDIANA SULIMIN,
Petitioner
v.
ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for review of an Order of the Board of Immigration Appeals
INS No. A79 318 381
____________
Submitted Under Third Circuit LAR 34.1(a) July 12, 2005
Before: SLOVITER, McKEE, and ROSENN, Circuit Judges
(Filed July 19, 2005)
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
Petitioner Lidiana Sulimin appeals a final order of removal by the Board of
Immigration Appeals (“BIA”).1 Petitioner is a forty-two-year-old native and citizen of
1
Because we write primarily for the parties, their counsel, and the BIA, we set forth
only the salient factual and procedural background of these proceedings.
Indonesia, where she claims that she was persecuted because she is of Chinese descent
and Catholic. Petitioner entered the United States lawfully in October 2000, but
overstayed her visa time limitations. She conceded removability and applied for asylum,
restriction on removal, and protection under the Convention Against Torture. After a
hearing on Petitioner’s application, at which she was represented by counsel and aided by
an interpreter, an immigration judge (“IJ”) denied relief. The IJ found that Petitioner’s
testimony was incredible and determined that she failed to demonstrate past persecution
or a well-founded fear of future persecution based on her ethnicity or religion. The IJ
also concluded that Petitioner filed a frivolous asylum application. The BIA adopted and
affirmed the IJ’s decision. On appeal, Petitioner challenges the denial of asylum and the
determination that her asylum application was frivolous.
We conclude that the denial of asylum is supported by substantial evidence, and
therefore affirm that aspect of BIA’s order. However, the IJ failed to make the important
and necessary findings to support a determination that Petitioner filed a frivolous asylum
application, as required by the regulations set forth in 8 C.F.R. § 208.20 (2000). We
therefore grant the petition for review relating to the frivolous asylum application issue.
I.
In support of her claim that she suffered persecution in her native Indonesia on
account of her ethnicity, Petitioner primarily claims that she was the victim of three
robberies or attempted robberies during which her assailants assaulted her and uttered
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ethnic slurs. The first incident occurred in May 1998, when riots erupted in Indonesia.
Petitioner testified that five men stopped the bajaj (a three-wheeled taxicab) in which she
was riding alone and demanded money. When she responded that she had no money, the
men told her to “go back to your country you Chinese!” and threatened to kill her.
Petitioner testified that the men grabbed her breasts, spit at her, and slashed her leg, which
required seven stitches.
The second incident occurred sometime in 1999, but Petitioner could not recall
the date or month. She alleges that ten men armed with knives and firearms hijacked the
bus in which she was riding with approximately thirty other passengers. She claims that
the robbers targeted the five ethnic Chinese passengers, demanding their money and that
they “go back to [their] country.” When she told the hijackers that she had no money,
they threatened to strip away her clothing. She claims that one man slapped her.
The third incident allegedly occurred in June 2000. Petitioner testified at her
hearing that, when the bajaj in which she was riding passed by a bank, two people on a
motorcycle rode along side her, pulled her from the vehicle, and robbed her. In her
second affidavit in support of her asylum application, Petitioner attested that one of the
robbers stuck a knife into her armpit, told her, “Chinese, you have to pay to live in my
country,” and forced her to withdraw money from an automated teller machine.
In support of her religious persecution claim, Petitioner testified that she was
often taunted by Muslims as she walked to her Roman Catholic church, which she
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attended once or twice a week. Petitioner also relies on two U.S. State Department
reports describing intolerance of religious minorities, including Catholics, in Indonesia.
Although Petitioner concedes that her hearing testimony was vague and
inconsistent, she challenges the IJ’s adverse credibility finding and determination that her
asylum application is frivolous. Petitioner argues that she has demonstrated her refugee
status under section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(42)(A), and thus qualifies for asylum.
II.
An alien is eligible for asylum if she demonstrates that she is a “refugee,” which
requires her to demonstrate an inability or unwillingness to return to her country of
nationality because of past persecution or a well-founded fear of future persecution on
account of race, religion, nationality, political opinion, or membership in a particular
social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). Persecution is marked by
“extreme behavior, including ‘threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft,
341 F.3d 214, 217 (3d Cir. 2003) (internal quotation marks and citation omitted). To
demonstrate past persecution, an asylum applicant must show that she experienced: (1)
an incident rising to the level of persecution; (2) that occurred “on account of one of the
statutorily-protected grounds”; and (3) was committed by the government or forces the
government is unwilling or unable to control. Gao v. Ashcroft, 299 F.3d 266, 272 (3d
4
Cir. 2002) (internal quotation marks and citation omitted). A well-founded fear of future
persecution is demonstrated by a “subjective fear of persecution that is supported by
objective evidence that persecution is a reasonable possibility” if the asylum applicant is
removed. Chang v. I.N.S., 119 F.3d 1055, 1066 (3d Cir. 1997). An applicant’s testimony
alone may be sufficient to support her claim, but it must be credible. Gao, 299 F.3d at
272.
Where, as here, the BIA affirms without opinion, the IJ’s decision becomes the
final agency determination for purposes of review. 8 C.F.R. § 1003.1(e)(4); Dia v.
Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003) (en banc). We review the IJ’s factual
findings, including adverse credibility determinations, under the substantial evidence
standard. Under this standard, we must uphold the IJ’s findings “unless the evidence not
only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477,
484 (3d Cir. 2001). However, we exercise de novo review of the conclusion that
Petitioner’s asylum application was frivolous under 8 U.S.C. § 1186(d)(6).
III.
A. Denial of Asylum Application
Citing to numerous inconsistencies, inaccuracies, and holes in Petitioner’s
testimony, the IJ concluded that she lacked credibility. However, assuming arguendo that
Petitioner’s testimony were credible, the IJ also concluded that she failed to proffer any
evidence of past persecution or a well-founded fear of future persecution on account of
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her ethnicity or religion. These findings are supported by the record.
Petitioner’s testimony is rife with inconsistencies and omissions of salient details.
For just one example, she could not recall the month in which the 1999 bus hijacking and
robbery occurred. She explained that she recalled the date when she was robbed and
assaulted in May 1998, because that incident transpired during rioting which “was a very
huge incident in Indonesia,” whereas the 1999 bus hijacking “wasn’t known worldwide.”
Attempting again to justify her memory lapse, Petitioner explained that the 1999 bus
hijacking “happened so quickly.” Yet, she also testified that the incident lasted for one-
and-a-half hours, or for what seemed to her to be “a long time.”
Even if Petitioner’s testimony were credible, she would nevertheless fail to
demonstrate past persecution on account of her ethnicity or religion. The incidents that
she describes do not amount to persecution. Though dismaying, the robberies and assaults
appear to be street crimes under a government temporarily out of control, and lack the
extremeness of persecution. Ahmed, 341 F.3d at 217. As the IJ observed, they are three
separate and apparently random crimes that occurred over the course of two years, not a
concerted course of criminal behavior directed at Petitioner. Lie v. Ashcroft, 396 F.3d
530, 536 (3d Cir. 2005). Further, these crimes were perpetrated by unknown individuals,
not government officials. Gao, 299 F.3d at 272. Furthermore, although Petitioner’s
assailants uttered ethnic slurs, there is insufficient evidence that the robberies and assaults
were motivated in any way by Petitioner’s ethnicity or religion. Lie, 396 F.3d at 535.
6
Likewise, the IJ properly concluded that Petitioner has failed to demonstrate a
well-founded fear of future persecution based on her Chinese ethnicity or Catholic
religion if she returns to Indonesia. Petitioner presented no evidence of her own
persecution or a pattern or practice of persecution of ethnic Chinese or Catholics in
Indonesia. Lie, 396 F.3d at 356- 58.
B. Frivolous Asylum Application
The IJ concluded that Petitioner’s asylum application was frivolous based on “the
contradiction in” her testimony, “the grave differences between” her testimony and her
second affidavit in support of her application, and her inability to recall when certain
events occurred. Although Petitioner concedes that her hearing testimony contained
inconsistencies, she argues the inconsistencies are too minor to satisfy the heightened
standard of a frivolous application finding. She contends that there is insufficient
evidence that she deliberately fabricated testimony. The Government’s brief to this Court
informs us that it “will not defend the IJ’s separate finding that petitioner submitted a
frivolous application.”
A finding that an alien’s asylum application is frivolous may render the alien
“permanently ineligible for any benefits under” the immigration laws. 8 U.S.C. §
1158(d)(6). Because the consequences of a finding of frivolousness are so severe, the
implementing regulation for § 1158(d)(6) requires a specific finding that the alien
“deliberately fabricated” a “material element” of her asylum application. Muhanna v.
7
Gonzales, 399 F.3d 582, 589 (3d Cir. 2005) (quoting 8 C.F.R. § 208.20). We have held
that an adverse credibility finding alone cannot support a finding of frivolousness. Id.(“[A] finding of frivolousness does not flow automatically from an adverse credibility
determination . . . . Inconsistencies between testimony and an asylum application, while
certainly relevant to a credibility determination that may result in the denial of an
applicant’s asylum claim, do not equate to a frivolousness finding under Section
1158(d)(6), which carries with it much greater consequences.”).
Here, the IJ apparently based the frivolousness determination solely on the
adverse credibility finding. The IJ failed to examine Petitioner’s asylum application and
make specific findings as to which material elements of her application were deliberately
falsified, as required by 8 C.F.R. § 208.20.2 Although the IJ noted that Petitioner’s
asylum application and initial affidavit contained some false statements, this finding was
not the basis for the determination that her application was frivolous.3 Because an
2
The IJ, however, provided Petitioner with ample opportunity to explain the
discrepancies and implausibilities in her claim. See 8 C.F.R. § 208.20.
3
Petitioner’s asylum application and initial affidavit falsely state that “young
native Indonesians” gang-raped her and killed her mother. Petitioner testified that she
paid $1,000 to a man named “Kenny” to prepare her asylum application and affidavit, and
that when she had someone translate these documents for her one day before her
interview with an immigration officer, she learned that they contained false statements. It
is unclear from the record whether Petitioner knew that Kenny would include false
statements in her application and initial affidavit. Petitioner testified that Kenny told her
beforehand: “the story, I make it for you,” but that she “didn’t understand what exactly”
Kenny was “saying.”
Subsequently, Petitioner submitted a second affidavit in support of her application,
which, she reiterated at her hearing, contains accurate statements. The IJ based his
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adverse credibility finding is not coextensive with a determination that an application is
frivolous, the IJ’s determination does not comply with the applicable regulations. See
Muhanna, 399 F.3d at 589; Lin v. Ashcroft, 83 Fed. Appx. 480, 486-88 (3d Cir. 2003).
IV.
For the foregoing reasons, we affirm the denial of Petitioner’s asylum application,
but vacate the determination that her asylum application was frivolous. Accordingly, we
grant the petition for review pertaining to the frivolous application issue.
frivolousness finding on the discrepancies between Petitioner’s hearing testimony and the
statements contained in her second affidavit.
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