Munir v. Attorney General of the United States

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-18-2009
Munir v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4174
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4174
___________
NUR MUNIR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A76-024-012)
Immigration Judge: Donald Vincent Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 11, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed March 18, 2009)
___________
OPINION
___________
PER CURIAM
Nur Munir, a native and citizen of Indonesia, seeks review of a final order issued
by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny
the petition for review.
In February 1999, Munir was charged under 8 U.S.C. § 1182(a)(6)(A)(i) as being
removable as an alien present in the United States without being admitted or paroled. He
conceded removability and sought asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). He also requested voluntary departure, in the
alternative.
The Immigration Judge (“IJ”) held an evidentiary hearing. In summary, Munir
testified that after earning a university degree in Indonesia, in 1992, he traveled to Cairo,
Egypt, to continue his studies at Al-Azhar University. He was an editor of several
publications, and he was an active member of several student organizations, including
PPMI, which the Indonesian Embassy considered to be violent. He testified that the
embassy in Cairo employed him with the idea that the job would tame him. On May 10,
1998, then-President of Indonesia Soeharto visited the embassy and delivered a speech.
Although the community of Indonesian students in Cairo organized a boycott of the
event, Munir was required to attend as an embassy employee. The embassy maintained
an audio recording of Soeharto’s remarks, in which he expressed a willingness to step
down from power. Munir took the recording and, a few days later, shared it with other
students and journalists, including a journalist from Kompas, the largest daily newspaper
in Indonesia. Soeharto’s statement was published in Kompas, spurring violent student
protests in Indonesia calling for Soeharto’s resignation. Ultimately, Soeharto resigned on
May 21, 1998. Meanwhile, Munir did not report to work, and he received a letter
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ordering him to report to the military attache at the embassy. Fearful that he would be
connected to the release of the recorded speech to the press, he briefly went into hiding
and then fled Cairo. Leaving his wife behind in Egypt, Munir used an earlier-acquired
entry visa and arrived in the United States in June 1998. His wife arrived in the United
States in November 1998 on her own visa. Munir stated that he is afraid to return to
Indonesia because many of Soeharto’s supporters are still in positions of power, and he
fears persecution for his role in Soeharto’s overthrow.
Munir’s wife testified at the hearing and corroborated Munir’s story. She noted
that Munir’s friends came to their house in Cairo and informed her that the military
attache of the embassy was looking for him. Fearing for her husband’s safety, she stayed
at a friend’s house, then went to Damascus, Syria, wanting to distance herself physically
from the military attache in Cairo. When she joined Munir in the United States, he
appeared to be under stress, and she recounted that he left home for two months.
Andrew Stein, a practicing psychotherapist, also testified at the hearing. Stein
stated that when Munir first came to see him in May 1999, Munir was extremely confused
and was exhibiting behavioral ticks, which Stein attributed to extreme terror and anxiety.
Stein testified that Munir’s anxiety affected his ability to make decisions or act in his best
interests. When the anxiety was contained, Munir expressed strong fears about the
consequences to his family if they returned to Indonesia. Based on the eight and-a-half
months of treatment with Munir, Stein’s conclusion was that the trigger for Munir’s
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anxiety and terror was the event of having being summoned by Indonesian officials in
Cairo for releasing the audio tape.
After a hearing, the IJ made an adverse credibility finding, denied all relief, and
ordered Munir to be removed from the United States. The BIA affirmed, dismissing the
appeal. The Board also denied a motion to reconsider. In November 2004, on Munir’s
petitions for review of both the BIA’s orders, this Court granted the government’s motion
to remand the matter back to the BIA for reconsideration of the credibility finding. On
September 28, 2007, on remand, the Board re-evaluated the credibility determination and
found that Munir had testified credibly. However, the BIA again dismissed Munir’s
appeal, concluding that he had not met his burden of proof to show past persecution or a
well-founded fear of persecution for purposes of obtaining asylum relief, that he therefore
had not met the higher burden of proof for obtaining withholding of removal relief, and
that he had not shown that it is more likely than not that he would be subject to torture
with the Indonesian government’s acquiescence.1 This petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Whether an applicant has
demonstrated a well-founded fear of future persecution 2 is a factual determination
reviewed under the substantial evidence standard. Voci v. Gonzales, 409 F.3d 607, 613
1
The BIA conducted a de novo merits determination under the regulations in
effect at the time of Munir’s initial appeal.
2
Munir does not challenge the agency’s determinations regarding his eligibility for
withholding or for CAT relief, so we deem those issues waived and will not address them.
4
(3d Cir. 2005). We must affirm “unless the evidence not only supports a contrary
conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003)
(citations omitted). To establish a well-founded fear of future persecution, an applicant
must demonstrate both subjective and objective fears of persecution. Sukwanputra v.
Gonzales, 434 F.3d 627, 637 (3d Cir. 2006). The applicant may establish the subjective
fear prong through credible testimony that his fear is genuine. Id. To show objective fear
of persecution, the applicant must show that “a reasonable person in the alien’s
circumstances would fear persecution if returned to the country in question.” Id. (internal
quotation and citation omitted). The objective prong is satisfied if the petitioner either
shows he would be individually singled out for persecution or demonstrates that “there is
a pattern or practice in his or her country of nationality . . . of persecution of a group of
persons similarly situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion . . . .” Id. (quoting 8 C.F.R.
§ 208.13(b)(2)(iii)(A)).
There is record evidence that Munir’s subjective fear and anxiety of persecution is
genuine, and the government does not contest this assertion. However, the factor of
subjective fear does not compel a finding of objective fear. Munir surmises that the
embassy military attache summoned him for persecutory reasons after he failed to report
to work following Soeharto’s speech, but he does not establish that the attache or any
other officials were even aware of his involvement in disclosing the audio tape to the
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press. Munir points to nothing in the record that shows that other students or journalists
involved in publishing Soeharto’s remarks have been persecuted or are now targets for
persecution, and he points to nothing that establishes that he would be singled out for
persecution for his actions. The record supports the BIA’s conclusion that Munir failed to
meet his burden of proof.
Munir argues that the BIA violated his due process rights when it cited Janusiak v.
INS, 947 F.2d 46 (3d Cir. 1991), and considered the contents of the 2006 State
Department Country Report for Indonesia without giving him notice or opportunity to
rebut the potentially dispositive, administratively noticed facts. In particular, Munir takes
issue with the BIA’s comment that the current political environment is not hostile to those
who contributed to Soeharto’s resignation. We find Munir’s argument to be
unpersuasive. With or without the newer version of the country report, it was Munir’s
burden to demonstrate that his fear of persecution was well-founded, and Munir identifies
no record basis for the existence of an objective fear. The 2006 country report did not
affect the BIA’s decision in a dispositive way.
We have considered all of Munir’s arguments and find them to be unavailing. We
will deny the petition for review.
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