Andri v. Mukasey

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
_______________________
No. 07-1717
ANDRI FNU,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
____________________
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
____________________
Before
Boudin and Dyk,* Circuit Judges,
and Dominguez,**** District Judge.
____________________
William A. Hahn with whom Hahn & Matkov was on brief for
petitioner.
Jeffrey S. Bucholtz, Acting Assistant General, Civil Division,
James E. Grimes, Senior Litigation Counsel, and Thankful T.
Vanderstar, Trial Attorney, Office of Immigration Litigation, Civil
Division, on brief for respondent.
December 16, 2008
*
Of the Federal Circuit, sitting by designation.
**
Of the District of Puerto Rico, sitting by designation.
Dominguez, District Judge. Andri Fnu, hereinafter
referred to as “Andri and/or Petitioner,” a native and citizen of
Indonesia, seeks judicial review of a decision of the Board of
Immigration Appeals (“BIA”) denying his requests for asylum,
withholding of removal and protection under the United Nations
Convention Against Torture (“CAT”). Andri contends that the BIA
erred (1) in determining that the Petitioner did not establish harm
rising to the level of persecution, (2) by failing to properly take
into consideration the country conditions of record, and (3) by
failing to take into account the totality of the circumstances for
purposes of both past persecution and well founded fear of future
persecution. For the reasons stated below, we dismiss the
petition.
I. BACKGROUND
Andri arrived in the United States on a visa which he
admitted was fraudulently obtained, misrepresenting himself as a
Boy Scout organizer. He was admitted on January 16, 2001, with
permission to remain in the United States for three months until
April 15, 2001. Andri filed an application for asylum, withholding
of removal, and protection under the Convention Against Torture
(CAT), which was received by the Immigration and Naturalization
Service on July 10, 2002.
Petitioner was interviewed on September 19, 2003 in
connection with his application and was referred to removal
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proceedings after his interview via a Notice to Appear dated
September 25, 2003. Andri was charged with being removable from
the United States, pursuant to INA §237(a)(1)(B), 8 U.S.C.
§1227(a)(1)(B), as an alien who overstayed in the United States
longer than permitted.
Represented by counsel, Andri appeared before an
immigration judge (“IJ”) for a hearing on January 8, 2004.
Petitioner admitted the allegations in the Notice to Appear and
conceded the charge of removability. A second hearing was held on
September 21, 2005, wherein Andri presented evidence and testimony
in support of his asylum application.
In support of his application, Andri testified before the
IJ that he was bullied as a child in school and in his neighborhood
for being of Chinese ethnicity. In 1990 Petitioner and his family
moved within Indonesia from Jakarta to Solo. Nevertheless, in 1995
Andri moved back to Jakarta in order to administer a bakery
business which he owned. Petitioner testified that approximately
in 1993, a group of people presumed to be Muslims by Petitioner,
went to his father’s pig farm and killed almost half of his
family’s livestock, at the time being about 200 pigs.
Nevertheless, Andri admitted that he learned about the incident
through his father as he was not living at home when the incident
occurred. Furthermore, Petitioner testified that on May 13, 1998,
while he was running his own bakery business, a group of about
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fifteen people, who Andri alleged were of Muslim extraction,
stopped him and coerced him to show his national ID card which
identified his religion. After that they made him undress and
proceeded to turn over his car. Petitioner stated that, fearing
for his life, he had to walk six miles back to his house, without
wearing any clothes. He stated that after that incident he was
emotionally stressed for weeks, and that he was unable to eat or
sleep.
Petitioner further provided testimony relating to an
incident that occurred on a particular Friday night in February of
1999. He stated that during a home prayer at an evangelical
neighbor’s house, Muslims heaved rocks at the house and expressed
that if the occupants did not cease the praying, the house would be
torched.
Andri also testified about an incident that occurred the
night before Christmas in the year 2000. He alleged that while in
church, he heard a large explosion outside; he then saw that cars
were being overturned in the parking lot. Andri further stated
that he later observed in the news that other churches had been
bombed around that same time.
After the hearing had ended, the IJ issued an oral
decision denying all three of petitioner’s claims. The IJ
specifically concluded that Andri had failed to file his asylum
application within one (1) year of his arrival in the United States
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and had failed to establish extraordinary or changed circumstances
excusing the untimeliness of his application. In the alternative,
the IJ concluded that even if Petitioner’s application had been
timely filed, Andri had failed to establish eligibility for asylum.
Furthermore, the IJ concluded that Petitioner had also failed to
establish eligibility for withholding of removal or protection
under CAT. Nevertheless, the IJ granted Petitioner’s application
for voluntary departure.
Andri filed a timely appeal before the BIA; on April 9,
2007 the Board dismissed Andri’s appeal. The BIA agreed with the
IJ’s determination. Petitioner was ruled ineligible for asylum
since he failed to file an asylum application within the one (1)
year filing deadline and failed to establish any changed
circumstances affecting his eligibility or any extraordinary
circumstances that would justify the delay in filing his asylum
application. The BIA further stated that Andri had failed to
address this finding with any specificity on appeal. Furthermore,
the BIA agreed with the IJ’s alternative finding, turning to the
merits of Andri’s application for asylum, that even though Andri’s
testimony was credible, he failed to establish harm rising to the
level of persecution. Moreover, the BIA found that the evidence of
record demonstrated a change in country conditions sufficient to
rebut a presumption of well-founded fear or clear probability of
future persecution in Indonesia based on Andri’s Chinese ethnicity
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or Christian religion. The BIA further concluded that the fact
that Andri’s family members had continued to reside in Indonesia
unharmed, properly rebutted any claimed fear of future harm.
Finally, the BIA stated that Petitioner failed to allege or
identify error in the denial of protection pursuant to the CAT.
Consequently, the BIA did not address said issue. The BIA further
ordered that pursuant to the IJ’s determination and conditioned
upon compliance with the conditions set forth by the IJ and the
statute, Petitioner was permitted to voluntarily depart from the
United States.
II. ANALYSIS
A. Standard of Review
The Court of appeals reviews BIA decisions under the
“substantial evidence” standard based “on the record as whole”, and
“reverse[s] only if ‘any reasonable adjudicator would be compelled
to conclude to the contrary.’” El-Labaki v. Mukasey, 544 F.3d 1,
*4-*5 (1st Cir. 2008)(emphasis ours)(quoting 8 U.S.C. §
1252(b)(4)(B)).
This standard requires us to uphold the
agency's findings of fact, including
credibility determinations, as long as they
are “supported by reasonable, substantial, and
probative evidence on the record considered as
a whole.” INS v. Elías-Zacarías, 502 U.S. 478,
481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see
also Long v. Gonzáles, 422 F.3d 37, 40 (1st
Cir.2005). We reverse only if “any reasonable
adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
also Chikkeur v. Mukasey, 514 F.3d 1381,
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1382-83 (1st Cir. 2008).
Id.Nevertheless, “[w]hen the BIA both adopts the decision of
an immigration judge and adds a new ground for upholding the
result, ‘this court reviews the IJ's decision as though it were the
BIA's to the extent of the adoption, and the BIA's decision as to
the additional ground.’” Singh v. Mukasey, 543 F.3d 1, *4 (1st
Cir. 2008) (emphasis ours) (quoting Berrio-Barrera v. Gonzales, 460
F.3d 163, 167 (1st Cir. 2006)).
B. Asylum Claim
Pursuant to 8 U.S.C. § § 1158(a)(2)(B), 1158(a)(2)(D), an
application for asylum must be “filed within 1 year after the date
of the alien's arrival in the United States”, unless “the alien
demonstrates to the satisfaction of the Attorney General either the
existence of changed circumstances which materially affect the
applicant's eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the period
specified...”. Nevertheless, this Court has no jurisdiction to
review the “agency's determination regarding the timeliness of the
asylum application or its application of the ‘extraordinary
circumstances’ exception, unless the petitioner identifies a legal
or constitutional defect in the decision.” El-Labaki, 544 F.3d at
*5 (quoting 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D)).
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In the instant case it is uncontested that Petitioner
failed to file his application for asylum within one (1) year of
his arrival in the United States. Furthermore, the BIA, in
agreement with the IJ stated that Andri had failed to establish any
“changed circumstances” affecting his eligibility or any
“extraordinary circumstances” that would warrant the delay in
filing his asylum application. Moreover, not only did the BIA find
that Andri had failed to address this issue with any specificity on
appeal before the BIA, but we find that he also failed to raise the
issue on appeal before this Court.
Petitioner also failed to raise any constitutional claims
or questions of law. Consequently, we lack jurisdiction to review
the BIA’s “determination regarding the timeliness of the asylum
application or its application of the ‘extraordinary circumstances’
exception.” Id.; see also Hayek v. Gonzalez, 445 F.3d 501 , 506
(1st Cir. 2006); Ly v. Mukasey, 524 F.3d 126, 130 (1st Cir.
2008)(“This court lacks jurisdiction to review a decision based on
the timeliness of an asylum application. 8 U.S.C. § 1158(a)(3);
Rotinsulu v. Mukasey, 515 F.3d 68, 71 (1st Cir.2008). The
government's argument that the issue of asylum was waived is
inapposite.”).
Nevertheless, we deem it necessary to emphasize that
Andri is not eligible for asylum because he failed to timely file
his asylum application and failed since the very inception of the
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case before the IJ, to establish any “changed circumstances”
affecting his eligibility or any “extraordinary circumstances” that
would excuse the delay in filing his asylum application. In other
words, Andri is not ineligible for asylum because he failed to
establish that he is a refugee within the meaning of INA, 8 U.S.C.
§1101(a)(42); 8 C.F.R. §1208.13, he is ineligible because he failed
to timely file his application and failed to establish any “changed
circumstances” affecting his eligibility or any “extraordinary
circumstances” that would justify the delay. Therefore, we find
that the IJ’s on the merits alternative analysis regarding
Petitioner’s failure to establish that he is a refugee within the
meaning of INA, 8 U.S.C. §1101(a)(42); 8 C.F.R. §1208.13, was
performed arguendo, and as such we have no jurisdiction to review
the IJ’s nor the BIA’s determinations regarding said alternative
finding. See El-Labaki, 544 F.3d at *5. Hence, all of Petitioner’s
arguments pertaining to said alternative analysis are inapposite.
Andri argues before this Court that the BIA committed
clear error in ruling that the IJ had found that Petitioner did not
establish harm rising to the level of persecution, since the IJ
stated three times in her oral decision that Andri had suffered
persecution. Consequently, Petitioner argues that since the IJ did
make an explicit finding of past persecution, he is therefore
presumed to have a well-founded fear of future persecution.
Finally, Andri avers that the administrative agency failed to
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properly take into consideration the country conditions of record,
and failed to take into account the totality of the circumstances
for purposes of both past persecution and well founded fear of
future persecution.
After reviewing all of Petitioner’s arguments, we find
that these assertions all relate to the IJ’s alternative analysis
of his asylum claim, which as aforementioned, we lack jurisdiction
to review. See El-Labaki, 544 F.3d at *5.
C. Withholding of Removal and Convention Against Torture (CAT)
Claims
As to a claim for withholding of removal, the same
imposes “‘a more stringent burden of proof on an alien than does a
counterpart claim for asylum.’ Withholding of removal requires that
an alien establish a clear probability of persecution, rather than
merely a well-founded fear of persecution.”Ang v. Gonzalez, 430
F.3d 50, 58 (1st Cir. 2005)(internal citations omitted)(quoting
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005));
see also De Oliveira v. Mukasey, 520 F.3d 78, 79 (1st Cir. 2008)
(“In order to qualify for withholding of removal, [Petitioner]
would need to prove that it is more likely than not that he will
face persecution should he return to [Indonesia].”) (emphasis
ours)( citing INS v. Aguirre-Aguirre, 526 U.S. 415, 419, 119 S.Ct.
1439, 143 L.Ed.2d 590 (1999)); Journal v. Keisler, 507 F.3d 9, 13
(1st Cir. 2007). “This showing can be made by proving past
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persecution, which raises a rebuttable presumption of the
likelihood of future persecution.” De Oliveira, 520 F.3d at 79.
“An applicant for protection under Article III of CAT
must prove that it is more likely than not that he or she will be
tortured if removed to the country designated for removal.” El-
Labaki, 544 F.3d at *7 (quoting 8 C.F.R. §§ 1208.16-1208.18) .
Torture is defined as any act by which severe
pain or suffering, whether physical or mental,
is intentionally inflicted on a person ... by
or at the instigation of or with the consent
or acquiescence of a public official or other
person acting in an official capacity.” Id. §
1208.18(a)(1). The possibility of internal
relocation is relevant in determining whether
the applicant has shown that he is likely to
be tortured if removed. Id. §
1208.16(c)(3)(ii).
Tendean v. Gonzales, 503 F.3d 8, 12 (1st Cir. 2007). “Such torture
must be inflicted by, or at the instigation of, or with the consent
or acquiescence of, a public official or other person acting in an
official capacity.” El-Labaki, 544 F.3d at *7.
Although Andri applied for withholding of removal and
protection under the Convention Against Torture, he “devoted his
appellate brief exclusively to his asylum claim and has failed to
develop any argument supporting either his claim for withholding of
removal or his claim for protection under CAT. Consequently, we
deem those claims abandoned.” Nikijuluw v. Gonzales, 427 F.3d 115,
120 FN. 3 (1st Cir. 2005). Furthermore, “issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
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argumentation, are deemed waived.” United States v. Zannino, 895
F.2d 1, 17 (1st Cir.1990); see also Bonilla v. Mukasey, 539 F.3d 72,
75 FN 1(1st Cir. 2008)(citing Ramallo Bros. Printing, Inc., v. El
Dia, Inc., 490 F.3d 86, 90 (1st Cir. 2007); Bebri v. Mukasey, ___
F. 3d ___, 2008 WL 4603452 (1st Cir. 2008); Makhoul v. Ashcroft,
387 F.3d 75, 82 (1st Cir. 2004). Moreover, Petitioner also failed
to allege or identify any error in the denial of his CAT claim
before the BIA. Therefore, not only has he waived said claim, but
we lack jurisdiction to consider it. See Bollanos v. Gonzalez,
461 F.3d 82, 87 (1st Cir. 2006)(citing Makhoul v. Ashcroft, 387 F.3d
75, 82 (1st Cir. 2004).
For the foregoing reasons, the petition for judicial review is
dismissed.
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