Hartono v. Atty Gen USA ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-24-2005
Hartono v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1036
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1036
ANDI HARTONO,
Petitioner
v.
ALBERTO R. GONZALES,
Attorney General of the United States,*
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(No. A78-725-291)
Submitted Pursuant to Third Circuit LAR 34.1(a)
Date: October 21, 2005
Before: SCIRICA, Chief Judge, VAN ANTWERPEN and ALDISERT, Circuit Judges
(Filed October 24, 2005)
OPINION OF THE COURT
ALDISERT, Circuit Judge
*
Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney
General of the United States pursuant to Fed. R. App. P. 43(c)(2).
Andi Hartono, a native and citizen of Indonesia, files a petition for review from a
final order of the Board of Immigration Appeals (“BIA”), which adopted and affirmed the
decision of the Immigration Judge (“IJ”) denying his application for asylum and
withholding of removal. We must decide whether the BIA, in affirming the IJ, properly
denied Hartono’s applications for asylum and withholding of removal. We have
jurisdiction to review the BIA’s order pursuant to 8 U.S.C. § 1252. We will deny the
petition.
I.
Because we write only for the parties who are familiar with the facts, the
procedural history and the contentions presented, we will not recite them except as
necessary to the discussion.
II.
Hartono is a Christian Indonesian of Chinese ethnicity, who testified that he had
been subject to harassment by native Indonesians since junior high school on account of
his ethnicity. He testified to four separate instances of harassment and alleged
persecution. First, Hartono testified that in 1984, twelve Indonesians stopped him on a
road while he was riding a motorcycle, punched him and robbed him of a necklace.
Second, he testified also that during high school, students from another school
periodically stopped him and demanded money from him. Third, he complained of
general rioting at soccer games by “bad people” on or about May 1998 and that outbreaks
2
of rioting in the city of Balung degenerated into anti-Chinese violence against him.
Fourth, and finally, he said that ten Muslim Indonesians stopped him on a road while he
was riding a motorcycle, called him “Chinese” and demanded money from him. In this
altercation he testified that the men punched him, robbed him of his wallet, struck him
with a stick and broke his teeth.
As a result of this last incident, he said that he spent one week in the hospital.
Upon release from the hospital, in fear for his life, Hartono applied for a tourist visa at the
United States embassy in June 1998, and entered the United States on July 10, 1998. At
no time did he seek to extend this visa.
III.
Because the BIA adopted and affirmed the IJ’s decision with additional comment,
we review both the decision of the BIA and the IJ. Abdulai v. Ashcroft, 239 F.3d 542,
548-549 (3d Cir. 2001). Whether a petitioner has demonstrated past persecution or a
clear probability of future persecution is a factual determination subject only to the highly
deferential substantial evidence standard. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-484
(1992); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “The administrative findings
of fact are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (codifying Elias-Zacharias, 502 U.S. at 483-
484).
IV.
3
We do not have jurisdiction to review the BIA’s denial of Hartono’s application
for asylum as untimely. To be considered for asylum relief, an alien must “demonstrate
by clear and convincing evidence that the application has been filed within 1 year after
the date of the alien’s arrival in the United States.” 8 U.S.C. §1158(a)(2)(B).
Furthermore, courts lack jurisdiction to review determinations made by the Attorney
General as to the timeliness of such applications. 8 U.S.C. §1158(a)(3); Tarrawally v.
Ashcroft, 338 F.3d 180, 185-186 (3d Cir. 2003).
Hartono entered the United States on July 10, 1998, but did not apply for asylum
until November 24, 2000. The BIA noted, in its December 15, 2003 order, that
“[Hartono] was authorized to remain until January 10, 1999, but did not file an asylum
claim within a reasonable period of time following loss of authorized status.” It also
determined that Hartono “failed to file an application for asylum by April 1, 1998, or
within one year of his last entry, and failed to show extraordinary circumstances relating
to the delay or worsened country conditions.” 1 We therefore lack jurisdiction to review
the BIA’s denial of Hartono’s asylum petition as untimely.
V.
1
As Hartono did not arrive in the United States until July 10, 1998, the BIA evidently
misstated the deadline for his filing an asylum application. Hartono was entitled to file
for asylum for one year following July 10, 1998, or a reasonable period of time following
the loss of authorized status on January 10, 1999. The BIA’s misstatement was harmless
error, however.
4
We agree with the BIA and the IJ that Hartono is not entitled to withholding of
removal because he failed to show a clear probability that his life or freedom would be
threatened on account of persecution if he returned to Indonesia. See I.N.S. v. Stevic, 467
U.S. 407, 429-430 (1984). An alien is entitled to withholding of removal only if he can
demonstrate a “‘clear probability’ that his life or freedom would be threatened in the
proposed country of deportation” because of “race, religion, [or] nationality.” Tarawally,
338 F.3d at 186. “[C]lear probability means ‘more likely than not.’” Id. Under the
substantial evidence standard, this Court will uphold the findings of the BIA unless the
evidence “not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,
242 F.3d 477, 483-484 (3d Cir. 2001).
We are satisfied that the incidents of which Hartono complains do not “rise to the
level of persecution because the harm suffered was not sufficiently severe.” Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding that petitioner, a Chinese Indonesian,
did not qualify for asylum relief, a less onerous standard, when petition was based upon
repeated incidents of robbery by native Indonesians). The BIA and this Court have
adopted a narrow definition of persecution, which “include[s] threats to life, confinement,
torture and economic restrictions so severe that they constitute a threat to life or
freedom.” Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993). “[P]ersecution does not
encompass all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional.” Id.5
Even if we accept as true Hartono’s testimony that on numerous occasions he was
robbed, sometimes violently, on account of his Chinese ethnicity, the evidence in the
record does not compel us to find that these acts either rise to the level of persecution or
indicate a clear probability that Hartono’s life would be threatened on return to Indonesia.
Cf. Lie, 396 F.3d at 536 (“[Petitioner’s] account of two isolated criminal acts, perpetrated
by unknown assailants, which resulted only in the theft of some personal property and a
minor injury, is not sufficiently severe to be considered persecution.”). We therefore
agree that Hartono may have been the unfortunate victim of robbery by criminals, but we
are also in accordance with the BIA and the IJ that these actions do not rise to the level of
persecution or indicate a likelihood of future persecution.
VI.
We have considered all contentions presented by the parties and conclude that no
further discussion is necessary. The petition for review will be denied.
6