Liem v. United States Attorney General ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-20-2006
Liem v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4159
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-4159
__________
ALEX EDY LIEM,
Petitioner,
vs.
UNITED STATES ATTORNEY GENERAL,
Respondent.
__________
On Petition for Review of an Order of the
Board of Immigration Appeals
U.S. Department of Justice, Executive Office for Immigration Review
(BIA No. A96-203-954)
I.J. Miriam K. Mills
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 15, 2006
___________
Before: SLOVITER, WEIS and GARTH, Circuit Judges
(Opinion Filed September 20, 2006)
__________
OPINION
__________
Garth, Circuit Judge:
Alex Edy Liem petitions for review of an order of the Board of Immigration Appeals
(“BIA”) denying his application for withholding of removal. We have jurisdiction per 8
U.S.C. § 1252. For the reasons stated below, we will deny the petition.
I
Liem is an Indonesian native and citizen. He is Christian and of Chinese ethnicity.
In May 2000, Liem entered the United States on a temporary visitor’s visa. He
remained in the country without permission after his visa expired in November 2000. On
June 3, 2003, he was served with a Notice to Appear charging him with being removable
under 8 U.S.C. § 1227(a)(1)(B) (alien present in violation of law). Liem conceded
removability. On December 10, 2003, he filed an application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”).1
Liem claims to have suffered persecution based on his religion and ethnicity in
Indonesia throughout his life, culminating in several incidents that occurred in the wake of
a failed business partnership. His account of this persecution is as follows:
Liem maintains he suffered periodic slurs as a child because he is Christian and
Chinese. Then, in 1998, he entered into a business partnership with several other men, two
of whom were native Indonesian and the remainder of whom were Chinese. One of the native
Indonesian partners, Lieutenant Edward, was the chief of a local police station. When the
other native Indonesian partner, Burhan, absconded with all the money the partners had
invested in the business venture, Lieutenant Edward accused the remaining partners, Liem
1
Liem’s wife is a derivative applicant on Liem’s application for relief from removal.
Because we deny Liem’s petition for review, his wife is denied relief as well. See 8 U.S.C. §
1158(b)(3)(A).
2
included, of conspiring with Burhan to steal his money. He summoned them by letter to the
police station on two occasions. At the station, they were interrogated and forced to sign an
agreement promising to repay Lieutenant Edward the money Burhan had taken. Lieutenant
Edward also threatened them by saying: “You stupid Chinese, if you refuse to pay we will
force you, we will strip off your clothes and take you to the city and humiliate you.” App.
241. A week later, seven “army soldiers” came to Liem’s house and took him and his wife
to the police station, where Lieutenant Edward beat him. Liem’s wife was in the next room
at the police station when Edward beat Liem.
Immediately thereafter, Liem and his wife fled to Jember, the hometown of his wife’s
parents. They remained there until May 2000, when they left for the United States. Liem
stated that Lieutenant Edward “chased” him to Jember and “tried to look for [him and his
wife]” there, but conceded that Edward did not find them and that they did not “have any
problems” living in Jember. App. 135-36.
After a hearing, the Immigration Judge (“IJ”) denied Liem’s asylum application
because Liem had filed it outside of the one-year filing deadline, and the IJ found that none
of the circumstances that permit waiver of that deadline were present. App. 91-92; 8 U.S.C.
§§ 1158(a)(2)(B) & (D).
The IJ also denied Liem’s withholding of removal claim. She reasoned that Liem had
not suffered qualifying past persecution because not only had Lieutenant Edward not been
exercising state power, but his motivations were also not religion and ethnicity but “a
personal matter, a bad business venture.” App. 94. The IJ further found that Liem “failed to
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rebut that his relocation was not a safe haven from the police lieutenant.”2 App. 93. Finally,
the fact that Liem’s wife was present for the hearing but did not testify, despite Liem’s claim
that she was in the waiting room of the police station and heard the beating, lead the IJ to
take an “adverse inference on the credibility of respondent’s claim.” App. 94. The IJ had
prompted the wife to testify and commented in the decision that because the alleged beating
was “a core matter underlying [Liem’s] claim . . . his failure to attempt to corroborate
through his wife’s testimony is inexplicable.” App. 94.
Lastly, the IJ denied Liem’s CAT claim. She then granted Liem voluntary departure.
The BIA “adopt[ed] and affirm[ed] the decision of the Immigration Judge,” agreeing
with the reasoning set forth in that opinion. App. 2. In his petition for review, Liem
challenges only the IJ’s ruling on his withholding of removal claim.
II
Because the BIA affirmed the IJ’s decision and adopted the IJ’s rationale, this court
must review the IJ’s opinion. See, e.g., Korytnyuk v. Ashcroft, 396 F.3d 272, 286 (3d Cir.
2005) (“where the BIA simply states that it affirms the IJ's decision for the reasons set forth
in that decision . . . the IJ's opinion effectively becomes the BIA's, and, accordingly, a court
must review the IJ's decision.”) (quotation and citation omitted).
2
Because we find that substantial evidence supports the IJ’s determination that any
persecution here was not due to Liem’s ethnicity or religion, it is unnecessary for us to explore
whether substantial evidence supports the IJ’s finding that Lieutenant Edward was not exercising
state power and thus whether the burden of showing the possibility and reasonableness of
internal relocation was placed on the proper party. See 8 C.F.R. §§ 1208.16(b)(3)(i) & (ii).
4
We review the IJ’s legal conclusions de novo. Borges v. Gonzales, 402 F.3d 398, 404
(3d Cir. 2005). We review the IJ’s factual determinations, on the other hand, under a
“substantial evidence” standard, which requires us to treat findings of fact as “conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§1252(b)(4)(B).
To be eligible for a grant of withholding of removal to a country, an alien must show
that it is more likely than not, that his or her “life or freedom would be threatened in that
country 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) (emphasis added); see also Zubeda
v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003) (explaining that alien’s burden for
withholding of removal is “clear probability,” meaning “more likely than not”). If the alien
establishes that he suffered persecution in the past on account of one of those grounds, “it
shall be presumed that [the alien’s] life or freedom would be threatened in the future in the
country of removal on the basis of the original claim.” 8 C.F.R. § 1208.16(b)(1)(i). An alien
who has not established past persecution (or whose fear of future persecution is unrelated to
his past persecution) may demonstrate his or her eligibility for withholding of removal by
establishing that “it is more likely than not that he or she would be persecuted on account of
race, religion, nationality, membership in a particular social group, or political opinion
upon removal to that country.” 8 C.F.R. § 1208.16(b)(2) (emphasis added).
III
5
We find that the IJ’s determination that any past persecution Liem suffered by
Lieutenant Edward was not on account of his race or ethnicity–but was instead caused by
money lost in a business deal gone bad–to be supported by substantial evidence. As we have
recognized, “[a] persecutor may have multiple motivations for his or her conduct, but the
persecutor must be motivated, at least in part, by one of the enumerated grounds.” Lie v.
Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005) (quotation and citation omitted). The only
evidence Liem presented to show that Lieutenant Edward was motivated by Liem’s race or
ethnicity is that Lieutenant Edward called him and the other business partners “stupid
Chinese.” Considering the other evidence the IJ recounted as to Lieutenant Edward’s
motivation–that Edward chose to enter into a business relationship with another native
Indonesian and five ethnic Chinese; that the native Indonesian stole the money and fled; that
only after this theft did Edward seek out the remaining business partners (all of whom were
ethnic Chinese); that Edward’s threats were directed at being reimbursed for his stolen
money–we cannot find that “any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. §1252(b)(4)(B); see also Lie, 396 F.3d at 535-36 (finding that
substantial evidence supported the BIA’s determination that attackers who used “a single
ethnic slur” were not motivated by ethnicity when significant evidence indicated motivation
was money).
As we have determined that substantial evidence supported the IJ’s finding that any
past persecution by Lieutenant Edward is not the sort of persecution the withholding statute
is designed to address, any threat to Liem in the future by Lieutenant Edward cannot provide
6
the basis for withholding of removal either for the same reason. Consequently, we find that
substantial evidence supports the IJ’s finding that Liem did not show that it is more likely
than not that he would be persecuted on account of his ethnicity or religion if he returns to
Indonesia.
For the foregoing reasons, we will deny Liem’s petition for review of the denial of his
withholding of removal claim.
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