Ketut Prawira v. John Ashcroft ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1467
___________
Ketut Wira Prawira, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States, *
*
Respondent. *
___________
Submitted: December 15, 2004
Filed: April 22, 2005 (Corrected: 04/28/05)
___________
Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and RILEY, Circuit
Judges.
___________
LOKEN, Chief Judge.
Ketut Wira Prawira, an ethnic Chinese citizen of Indonesia, entered the United
States in 1998 and overstayed his nonimmigrant visitor visa. When the Immigration
and Naturalization Service commenced removal proceedings, Prawira conceded
removability and applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). After a hearing, the Immigration Judge (IJ)
denied his application. The Board of Immigration Appeals affirmed without opinion,
making the IJ’s decision the final agency action. See 8 C.F.R. §§ 1003.1(a)(7)(iii),
(e)(4).1 Prawira petitions for review of the denial of political asylum, withholding of
removal, and CAT relief. We deny the petition.
To be eligible for asylum, Prawira must prove either past persecution or a well-
founded fear of future persecution on any of five protected grounds. 8 U.S.C.
§§ 1101(a)(42), 1158(b)(1); 8 C.F.R. § 208.13. To be entitled to withholding of
removal, Prawira must prove it is more likely than not that he would be persecuted
if removed to Indonesia, a more stringent burden of proof. See Yacoub v. INS, 999
F.2d 1296, 1298 (8th Cir. 1993); 8 U.S.C. § 1231(b)(3). To be eligible for CAT
relief, Prawira must prove that it is more likely than not that he would be tortured if
removed to Indonesia. 8 C.F.R. § 208.16(c)(2).
Prawira based all three claims on his alleged fear of persecution because he is
Chinese, an ethnic minority that is widely disliked by ethnic Indonesians because of
its wealth and economic power. At the hearing, Prawira testified that a group of
ethnic Indonesians once stopped his car and banged on his window, demanding
money. When Prawira refused to pay, the men broke the window, causing Prawira
minor cuts from the broken glass. He further testified that an ethnic Indonesian co-
worker occasionally harassed and threatened him, his brother’s house was burned
down after anti-Chinese riots, and his sister was attacked.
The IJ found Prawira’s testimony not credible, primarily because he admitted
that he lied when he claimed on his initial asylum application that his cousin had been
raped during ethnic riots, and because the application failed to mention either of the
two alleged incidents of persecution that he emphasized at the hearing. The IJ also
noted evidence that Prawira’s main reason for entering the United States was
economic in nature, he was well-educated in Indonesia and was able to obtain
1
Prawira’s challenge to the affirm-without-opinion procedure is contrary to the
settled law of this circuit. Hasalla v. Ashcroft, 367 F.3d 799, 803-04 (8th Cir. 2004).
-2-
government documents such as passports and driver’s licences, and he conceded he
would be able to get a good job should he return to Indonesia. The IJ concluded that
Prawira had “exaggerated his fears of returning to Indonesia, and what happened to
him in the past.”
After a careful review of the record, we conclude that these are sufficiently
cogent and specific reasons to support an adverse credibility finding. “While minor
inconsistencies and omissions will not support an adverse credibility determination,
inconsistencies or omissions that relate to the basis of persecution are not minor but
are at the heart of the asylum claim.” Kondakova v. Ashcroft, 383 F.3d 792, 796 (8th
Cir. 2004), cert. denied, 125 S. Ct. 894 (2005). The properly supported finding that
the core of Prawira’s persecution testimony was not credible provides substantial
evidence supporting the IJ’s ultimate determination that Prawira is not eligible for
asylum or withholding of removal. See Kondakova, 383 F.3d at 796-98. Because
Prawira’s CAT claim was based upon the same evidence as his asylum and
withholding of removal claims, the IJ’s adverse credibility finding is fatal to the CAT
claim as well. Aden v. Ashcroft, 396 F.3d 966, 969 (8th Cir. 2005).
Prawira argues that the IJ erred by admitting the asylum officer’s written notes
and a status report on a pending overseas investigation into the authenticity of
Prawira’s documents. As to the former, the IJ properly considered the factual
information given the asylum officer and ignored the officer’s credibility findings.
See Prokopenko v. Ashcroft, 372 F.3d 941, 944-45 (8th Cir. 2004). As to the status
report, the IJ gave it little or no probative weight “because it does not deal with
[Prawira’s] case or documents specifically.” The traditional rules of evidence do not
apply in immigration proceedings. Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir.
2004). Here, the IJ’s evidentiary rulings were neither unfair nor prejudicial.
For the foregoing reasons, we deny the petition for review.
______________________________
-3-