Hindar Irianto v. Alberto Gonzales , 221 F. App'x 485 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1690
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Hindar Irianto, *
*
Petitioner, *
* Petition for Review of a Final
v. * Decision of the Board
* of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, * [UNPUBLISHED]
*
Respondent. *
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Submitted: March 16, 2007
Filed: March 23, 2007
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Before RILEY, BOWMAN, and ARNOLD, Circuit Judges.
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PER CURIAM.
Hindar Irianto (Irianto), a native and citizen of Indonesia, petitions this court
for review of the decision of the Board of Immigration Appeals (BIA), affirming the
Immigration Judge’s (IJ) denial of his requests for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). We deny the petition.
At his hearing before the IJ, Irianto testified he was born in Indonesia and his
wife and four children live in Indonesia. Irianto testified that in 1984 he became
affiliated with the Golput movement, a movement dissatisfied with the government
which advocates abstention from participation in general government elections by
discouraging others from voting and by invalidating election ballots and related
materials. Irianto testified he has been persecuted by the Golkar party, the ruling
political party.
Irianto specifically testified that, during the 1997 general elections, some
members of the Golkar party campaigned in front of his house and asked for Irianto’s
permission to use his pick-up truck. Irianto refused and, in retaliation, these Golkar
party members threw rocks at his house, breaking windows. Irianto stated these
individuals also made telephone calls threatening to harm him. Afraid of possible
harm, Irianto testified he stayed away from his home after that incident and lived with
friends until April 2000, when he entered the United States in Los Angeles, California,
as a non-immigrant visitor with authorization to remain in this country until October
2000.
The Department of Homeland Security commenced removal proceedings
against Irianto. At a hearing on November 15, 2004, Irianto sought asylum,
withholding of removal, and protection under the CAT, stating the Golkar party would
persecute him if he were forced to return to Indonesia. After the hearing, the IJ issued
an oral decision (1) finding Irianto’s application for asylum was untimely because he
had not applied within one year of his arrival to the United States and (2) denying all
of Irianto’s other claims for relief. Irianto appealed to the BIA. Although the BIA
disagreed with the IJ’s determination that there was no credible evidence indicating
the Golput movement existed, the BIA dismissed Irianto’s appeal and affirmed the IJ’s
decision in all respects. Irianto petitions for review, arguing the IJ and BIA erred in
denying his claims for asylum, withholding of removal, and protection under the CAT.
We review the BIA’s determination under the substantial evidence standard and
will reverse only if “it would not be possible for any reasonable fact-finder to come
to the conclusion reached by the administrator.” Menendez-Donis v. Ashcroft, 360
F.3d 915, 918 (8th Cir. 2004). Because the BIA adopted the IJ’s decision and added
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reasoning of its own, we review both decisions. Setiadi v. Gonzales, 437 F.3d 710,
713 (8th Cir. 2006).
The REAL ID Act of 2005, codified in relevant part at 8 U.S.C. § 1252(a)(2)(B)
and (D), permits judicial review under 8 U.S.C. § 1158(a)(2) where there is a claim
of a constitutional violation or question of law. Absent such a claim, however, we
lack jurisdiction to review the determination that an asylum application was barred as
untimely filed. See 8 U.S.C. § 1158(a)(3) (stating “[n]o court shall have jurisdiction
to review any determination of the Attorney General under [8 U.S.C. § 1158(a)(2)]”);
Ibarra-Terrazas v. Gonzales, 461 F.3d 1046, 1048 (8th Cir. 2006) (finding jurisdiction
to review questions of law); Ming Ming Wijono v. Gonzales, 439 F.3d 868, 871 (8th
Cir. 2006) (recognizing jurisdiction exists to address constitutional claims and
questions of law).
Here, Irianto does not dispute his asylum application was untimely. Irianto,
however, asserts a due process violation, alleging he was prejudiced by the court-
appointed interpreter’s inaccurate translations. To prevail on a due process claim, “an
alien must prove that he was actually prejudiced by the lack of process afforded to
him.” Briones-Sanchez v. Heinauer, 319 F.3d 324, 327 (8th Cir. 2003). No prejudice
has been shown. Irianto does not indicate: (1) what part of the proceedings he did not
understand because of an inaccurate translation (in fact, the record indicates Irianto
also had his own interpreter at the hearing); (2) which inaccurate translations were not
resolved; and (3) most importantly, what part of the proceedings, if translated
correctly, would have produced a different outcome. See Al Khouri v. Ashcroft, 362
F.3d 461, 466 (8th Cir. 2004) (holding prejudice occurs if the outcome of the
proceedings may well have been different had a due process violation not occurred).
Thus, Irianto’s due process claim fails.
Likewise, Irianto’s claims for withholding of removal and for protection under
the CAT fail. “To be eligible for withholding of removal, 8 U.S.C. § 1231(b)(3), the
standard is more demanding [than the standard for asylum].” Krasnopivtsev v.
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Ashcroft, 382 F.3d 832, 840 (8th Cir. 2004). “The alien must show a ‘clear
probability’ that he or she will face persecution in the country to which he or she will
be deported.” Id. (citation omitted). Here, the record does not support a clear
probability Irianto will face persecution if he returns to Indonesia, and Irianto fails to
present evidence of past persecution. The 1997 incident regarding his truck does not
amount to persecution. At best, this isolated incident reflects Irianto angered a few
local members of the Golkar party about ten years ago. Besides the truck incident,
Irianto does not allege any other attacks by the Golkar party. Furthermore, nothing
in the record indicates Irianto could not relocate to other parts of Indonesia or that the
Golkar party as a whole is targeting him. In fact, Irianto has been able to obtain a
passport and other official documents from the government without incident.
Moreover, Irianto’s wife and children currently live in Indonesia, and there is no
evidence they have suffered any harm. Id. at 839 (“The reasonableness of a fear of
persecution is diminished when family members remain in the native country
unharmed.”). Nothing in the record establishes either past persecution or a clear
probability of persecution if Irianto returns to Indonesia.
“To qualify for relief under [the CAT], the applicant must prove that it is more
likely than not that he would be tortured if returned to the proposed country of
removal, considering the testimony of the applicant as to past torture, the possibility
of relocation within the country, mass violations of human rights, or other relevant
information regarding conditions within the country.” Id. at 840 (citing 8 C.F.R.
§ 208.16(c)). “Torture is defined as an act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted, and it is an extreme form of cruel and
inhuman treatment; it does not include lesser forms of cruel, inhuman, or degrading
treatment.” Id. (citing 8 C.F.R. § 208.18(a)(1), (2)). We agree with the BIA and the
IJ that Irianto failed to show he would more likely than not be subjected to torture if
returned to Indonesia. Thus, Irianto’s claim under the CAT fails.
For these reasons, we deny Irianto’s petition.
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