Liwe v. Attorney General ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    12-6-2006
    Liwe v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 05-4495
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    Recommended Citation
    "Liwe v. Atty Gen USA" (2006). 2006 Decisions. Paper 128.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/128
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 05-4495
    STEVEN DRIVE LIWE,
    Petitioner,
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent.
    On Petition for Review of a Final Order of the Immigration Judge
    (File No. A79 708 056)
    Immigration Judge: Eugene Pugliese
    Argued September 12, 2006
    Before: FUENTES, FISHER, and BRIGHT,* Circuit Judges.
    (Filed: December 6, 2006)
    James Nichols (Argued)
    1086 Livingston Avenue, Suite 1A
    North Brunswick, NJ 08902
    ATTORNEY FOR PETITIONER
    Michael P. Lindemann
    *
    The Honorable Myron H. Bright, Senior Judge, United States Court of Appeals
    for the Eighth Circuit, sitting by designation.
    Christopher C. Fuller
    Christopher T. Dong
    Jonathan Potter (Argued)
    United States Department of Justice
    P.O. Box 878, Ben Franklin Station
    Washington, D.C. 20044
    ATTORNEYS FOR RESPONDENT
    OPINION OF THE COURT
    PER CURIAM.
    Steven Liwe, a citizen of Indonesia, entered the United States in September 2001
    but overstayed his visa. The former Immigration and Naturalization Service initiated
    removal proceedings in February 2003. Liwe conceded removability, but applied for
    asylum, withholding of removal, and relief under the Convention Against Torture
    (“CAT”), alleging persecution on account of his religious and political affiliations. An
    Immigration Judge (“IJ”) denied Liwe’s applications and his request for voluntary
    departure. He appealed to the Board of Immigration Appeals (“BIA”), which affirmed
    the decision of the IJ, and this petition followed. We will deny the petition.
    Regarding his claim of political persecution, Liwe testified before the IJ that
    Indonesian militants suspected him of supporting the government by using his position as
    a tour guide to spy on the militants and report their locations. He explained that he and
    his touring party had once been captured by militants, but the militants released them after
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    three days. He also testified that he once escaped another plot to capture his tour group
    by seeking an alternate route, and that he was aware that militants had killed other tour
    guides. Finally, Liwe recounted an incident at a hotel when militants, attempting to evade
    the Indonesian military, used him as a shield. Regarding his claim of religious
    persecution, Liwe—who is Christian—testified that Christians are generally persecuted.
    The IJ first ruled that Liwe’s asylum claim was barred by the one-year period of
    limitations. See 8 U.S.C. § 1158(a)(2)(B). Liwe argued that he was unaware of the
    requirement and that conditions had worsened in Indonesia since his departure, but the IJ
    discounted his first argument and found that he failed to demonstrate exceptional
    circumstances or changed country conditions sufficient to overcome the deadline. In the
    alternative, the IJ found that Liwe did not demonstrate a well-founded fear of persecution.
    In part, the IJ reasoned that Liwe’s subjective fears were based on his chosen profession
    as a tour guide, rather than his political affiliation, and that his testimony regarding the
    general persecution of Christians was undermined by his ability to remain in Indonesia
    for twenty-seven years without suffering any alleged persecution. Consequently, the IJ
    denied Liwe’s application for withholding of removal and, because he did not allege any
    instances of torture, his CAT claim.
    Here, Liwe principally argues that the IJ and BIA erred by denying his asylum
    claim because they required him to demonstrate that he would “more likely than not”
    suffer persecution in Indonesia, the standard applicable to withholding applications,
    Toussaint v. Attorney General, 
    455 F.3d 409
    , 413 (3d Cir. 2006). He suggests that the
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    “well-founded fear" standard, applicable to asylum applications, Obale v. Attorney
    General, 
    453 F.3d 151
    , 161 (3d Cir. 2006), should have guided the IJ’s analysis.
    But, we lack jurisdiction to review the denial of Liwe’s untimely asylum claim.
    Gabuniya v. Attorney General, 
    463 F.3d 316
    , 320 n.4 (3d Cir. 2006) (Section 1158(a)(3)
    clearly deprives us of jurisdiction "to review an IJ's determination that an asylum petition
    was not filed within the one year limitations period, and that such period was not tolled
    by extraordinary circumstances[.]"); Tarrawally v. Ashcroft, 
    338 F.3d 180
    , 185-86 (3d
    Cir. 2003) (same). We therefore limit our review to Liwe’s withholding of removal
    application and CAT claim.
    Liwe, though, fails to provide a basis to undermine the denial of his withholding
    application or CAT claim. He generally argues that his testimony provided an objective
    basis for his fear of persecution, but his vague testimony of being mistreated by militants
    does not show “a clear probability of persecution,” nor does he allege any instances of
    torture sufficient to establish a CAT claim. 
    Gabuniya, 463 F.3d at 321
    .
    Accordingly, we will deny the petition for review.
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