Evah v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1001
___________
FNU EVAH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-703-347)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 16, 2012
Before: SMITH, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: June 21, 2012)
_________
OPINION
_________
PER CURIAM
Fnu Evah petitions for review of a Board of Immigration Appeals (BIA) decision
denying her application for asylum and withholding of removal and ordering her removed
to Indonesia. For the following reasons, we will deny the petition for review.
I.
Evah, a native and citizen of Indonesia, is a Christian of Chinese descent. As
developed in her affidavits and testimony, three separate incidents informed her eventual
flight from her home country. In May 1998, during an anti-Chinese riot in Jakarta, a mob
invaded and looted her store. One year later, during another disturbance, Evah and her
boyfriend were beaten by assailants (described as “Indonesian Muslims”), and their store
and house were burned down. In the aftermath, Evah and her children sought refuge in a
Buddhist temple; Evah later managed to find work in Taiwan. At the end of her time in
Taiwan, Evah returned to Indonesia. The final incident, in July 2006, involved an
episode of anti-Christian sentiment, accompanied by threats of future violence, directed
at a Christian prayer group.
Evah traveled to the United States, where she was admitted as a nonimmigrant
visitor for pleasure. She eventually came to the attention of authorities by working for
wages or other compensation without permission, in violation of 8 U.S.C.
§ 1227(a)(1)(C)(i). The Government commenced removal proceedings. The first
hearings in her case were held in 2007, at which time she conceded removability. Evah
eventually applied for asylum and withholding of removal based upon her mistreatment
in Indonesia. 1
1
Evah also applied for protection under the Convention Against Torture, but would later
abandon those claims. See, e.g., Administrative Record (A.R.) 137.
2
At the main merits hearing on July 13, 2010, Evah testified that she was afraid of
being “killed and raped” by “native Indonesians” if she were to return to her home
country. Administrative Record (A.R.) 147. During cross examination, counsel for the
Government emphasized the lack of record documentation in support of Evah’s story,
such as “any documentation to support [the] claim that [the] house and [the] store were
burned to the ground.” A.R. 147.
In an oral decision rendered after the close of testimony, the Immigration Judge
(IJ) declined to grant asylum and withholding of removal. While finding Evah to be
generally credible, A.R. 41, the IJ expressed concern that “there [wa]s virtually no
corroboration of any kind in this record of anything.” A.R. 41. He pointed out a
“number of areas where the Court believes it would have been reasonable to present some
degree of corroboration” in order to “paint at least a mosaic of what happened to the
respondent in Indonesia, separate and apart from whether or not that rises to the level of
past persecution.” A.R. 41. The IJ cited, as possible examples of corroborating evidence,
letters from family members, some documentation regarding ownership of the house or
store, letters from attendees at the interrupted 2006 prayer service, and so on. A.R. 42–
43. In sum, the IJ found that Evah had “not suffered with sufficient severity to establish
past persecution.” A.R. 43. Also, after “careful consideration of and analysis of all the
exhibits in the record, both individually and cumulatively,” he separately concluded that
Evah had not shown a likelihood of future persecution in Indonesia were she to return.
A.R. 47.
3
Evah appealed the decision to the BIA, arguing that the IJ erred in his past-
persecution finding and by “ignor[ing] the weight of the evidence on the record which
confirmed a pattern or practice of persecution against Chinese Christians.” A.R. 19
(adjusted to sentence case). The BIA dismissed the appeal, primarily on the basis of
corroboration; as Evah had “failed to sufficiently support her claim with corroboration as
requested by the Immigration Judge, [the BIA] agree[d] with the Immigration Judge that
[she] failed to meet her burden of proof.” A.R. 4. It also upheld the IJ’s pattern-or-
practice finding. A.R. 4. This counseled petition for review followed.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), reviewing primarily the
decision of the BIA, but looking to the decision of the IJ to the extent that the BIA
adopted or deferred to it. See Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011).
Our review is conducted under the substantial-evidence standard, which requires us to
uphold administrative findings of fact unless any reasonable adjudicator would be
compelled to conclude to the contrary. Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir.
2008); see also 8 U.S.C. § 1252(b)(4)(B). Because Evah’s asylum application was filed
after May 11, 2005, the provisions of the REAL ID Act of 2005 apply in this case. See
Dong v. Att’y Gen, 638 F.3d 223, 229 n.3 (3d Cir. 2011).
In an application for asylum or its derivative relief, the burden of proof is on the
alien to show that she is a refugee, defined as, inter alia, a person who is unwilling or
unable to return to her home country “because of persecution or a well-founded fear of
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persecution” based on an enumerated ground. 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(B). There are two independent pathways by which she may proceed. First,
upon a successful showing of past persecution, she would be entitled to a rebuttable
presumption of a well-founded fear of future persecution. Gomez-Zuluaga v. Att’y Gen.,
527 F.3d 330, 341 (3d Cir. 2008). Alternatively, “it is not necessary for a petitioner to
show past persecution if she can nonetheless show a well-founded fear of future
persecution without the benefit of such a presumption.” Id. at 345. In order to establish
eligibility for withholding of removal, an alien must demonstrate that it is more likely
than not that her life or freedom would be threatened in Indonesia on account of a
protected ground. 8 U.S.C. § 1231(b)(3)(A).
III.
a) Past Persecution
Evah argues that the BIA and IJ erred by requiring corroboration of her story. She
maintains, in addition, that the IJ and BIA failed to comply with the procedural
requirements for requesting and presenting corroborating evidence.
“[C]orroboration and credibility, although intuitively related, are distinct concepts
that should be analyzed independently.” Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.
2006). Hence, the IJ’s conclusion that Evah testified credibly is not the end of the
inquiry. While “[t]he testimony of the applicant may be sufficient to sustain the
applicant’s burden without corroboration,” the trier of fact may determine “that the
applicant should provide evidence that corroborates otherwise credible testimony.” 8
5
U.S.C. § 1158(b)(1)(b)(ii). If the agency decides that corroboration is appropriate, “such
evidence must be provided unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.” Id.; see also Dong, 638 F.3d at 229 n.3. The
corroboration process contemplates a three-part inquiry: “(1) an identification of the
facts for which it is reasonable to expect corroboration; (2) an inquiry as to whether the
applicant has provided information corroborating the relevant facts; and, if he or she has
not, (3) an analysis of whether the applicant has adequately explained his or her failure to
do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) (internal quotation marks
omitted). “It is reasonable to expect corroboration where the facts are central to the
applicant’s claim and easily subject to verification.” Chukwu v. Att’y Gen., 484 F.3d
185, 192 (3d Cir. 2007)
In his opinion, the IJ lamented the general lack of corroboration in the record. We
agree with Evah that some of his observations, such as Evah’s failure to corroborate her
church attendance in Indonesia, A.R. 37, arguably pertained to aspects of her claim that
were not “central” to her story. Nevertheless, we conclude that the agency properly held
that Evah failed to meet her burden of proof due to the paucity of corroborating
information in the record. Both the IJ and BIA followed the three-part Abdulai test,
identifying areas where it would be reasonable to expect corroboration and examples of
such corroboration—for example, any evidence or third-person account of the 1999
destruction of her home, an incident that was undoubtedly central to her application for
6
relief. See A.R. 3, 38, 42. 2 They noted that Evah had not presented such evidence and
had offered no real explanation for her failure to do so. Moreover, several years passed
between her initial apprehension by authorities and her eventual merits hearing, and
while we recognize that not all of the material identified by the agency may have been
obtainable, the bare minimum of what was requested by the IJ, such as letters from
family members, was well within reach. See, e.g., A.R. 146 (showing that the petitioner
was in contact with her children as of 2010). This is not a case in which the agency
demanded corroboration above and beyond what the petitioner had already provided, but
rather a case where no corroboration of any essential elements was put forward. Hence,
we cannot find error in the agency’s decision. See also 8 U.S.C. § 1252(b)(4)
(establishing stringent standard for reversal based on availability of corroborating
evidence).
Evah also argues that the IJ failed to provide her with an opportunity to present the
corroborating documents that he had requested. See Pet’r’s Br. 25; see also Chukwu, 484
F.3d at 192. This claim was not raised below, and we therefore lack jurisdiction to
consider it. See 8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir.
2
Through counsel, Evah argues that her children “could not corroborate that [her] home
was burned to the ground where she testified they were not present when the home was
burned.” Pet’r’s Br. 24. However, the page she cites appears to suggest to the contrary.
See A.R. 320 (“In May of 1999, my family and I were in the house . . . .”). Nothing in
Evah’s testimony supports her current argument that the children were not present when
the house was burned.
7
2012). 3
b) Future Persecution
Evah maintains that her submissions to the agency, as well as her testimony,
“established a pattern and practice of persecution of Christians in Indonesia,” and accuses
the IJ of failing “to meaningfully consider the evidence submitted in this particular
record, including the expert affidavits relating to the persecution of ethnic Chinese
Christians throughout Indonesia.” Pet’r’s Br. 33. However, we agree with the BIA that
the IJ’s decision reflects a careful review of the evidence. See A.R. 4; see also A.R. 29
(revealing that the IJ considered “the contents of Dr. Winter’s affidavit . . . along with the
affidavit from Jana Mason”). The IJ acknowledged ongoing problems that “Christians
continue to face in various areas of Indonesia,” but held that the turmoil did not rise to a
level constituting a pattern or practice of persecution—that is, a level reflecting
“systemic, pervasive, or organized” persecution. Wong v. Att’y Gen., 539 F.3d 225, 233
(3d Cir. 2008) (citations omitted). 4 While a reasonable observer could plausibly draw a
3
The BIA’s decision to address generally the matter of corroboration, which was
sufficient to grant us jurisdiction over that broader question, see Valdiviezo-Galdamez v.
Att’y Gen., 663 F.3d 582, 593 (3d Cir. 2011), did not serve to exhaust the specific matter
of whether all procedural requirements were complied with. This is of particular import
in situations where the agency could have easily corrected its error by remanding for
further fact-finding or reopening proceedings. As the record demonstrates no attempt by
Evah to “place the [BIA] on notice of a straightforward issue being raised on appeal,” Lin
v. Att’y Gen., 543 F.3d 114, 121 (3d Cir. 2008) (quotations, citations omitted), and as the
BIA did not consider the matter on its own, we may not reach the issue.
4
We note that Evah has explicitly stated that she is not pursuing relief based on her
potential for being singled out for harm if returned to Indonesia. See Pet’r’s Br. 20; see
also Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010).
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different conclusion from the record evidence, “[w]here the record supports plausible but
conflicting inferences in an immigration case, the . . . choice between those inferences is,
a fortiori, supported by substantial evidence.” De Hincapie v. Gonzales, 494 F.3d 213,
219 (1st Cir. 2007). In sum, substantial evidence supports the agency’s finding on future
persecution.
c) Withholding of Removal
Because Evah failed to qualify for asylum, she is necessarily ineligible for
withholding of removal. Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006).
IV.
In sum, and for the foregoing reasons, we will deny Evah’s petition for review.
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