Liwe v. Attorney General

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-6-2006
Liwe v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4495
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"Liwe v. Atty Gen USA" (2006). 2006 Decisions. Paper 128.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4495
STEVEN DRIVE LIWE,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
On Petition for Review of a Final Order of the Immigration Judge
(File No. A79 708 056)
Immigration Judge: Eugene Pugliese
Argued September 12, 2006
Before: FUENTES, FISHER, and BRIGHT,* Circuit Judges.
(Filed: December 6, 2006)
James Nichols (Argued)
1086 Livingston Avenue, Suite 1A
North Brunswick, NJ 08902
ATTORNEY FOR PETITIONER
Michael P. Lindemann
*
The Honorable Myron H. Bright, Senior Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
Christopher C. Fuller
Christopher T. Dong
Jonathan Potter (Argued)
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
ATTORNEYS FOR RESPONDENT
OPINION OF THE COURT
PER CURIAM.
Steven Liwe, a citizen of Indonesia, entered the United States in September 2001
but overstayed his visa. The former Immigration and Naturalization Service initiated
removal proceedings in February 2003. Liwe conceded removability, but applied for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”), alleging persecution on account of his religious and political affiliations. An
Immigration Judge (“IJ”) denied Liwe’s applications and his request for voluntary
departure. He appealed to the Board of Immigration Appeals (“BIA”), which affirmed
the decision of the IJ, and this petition followed. We will deny the petition.
Regarding his claim of political persecution, Liwe testified before the IJ that
Indonesian militants suspected him of supporting the government by using his position as
a tour guide to spy on the militants and report their locations. He explained that he and
his touring party had once been captured by militants, but the militants released them after
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three days. He also testified that he once escaped another plot to capture his tour group
by seeking an alternate route, and that he was aware that militants had killed other tour
guides. Finally, Liwe recounted an incident at a hotel when militants, attempting to evade
the Indonesian military, used him as a shield. Regarding his claim of religious
persecution, Liwe—who is Christian—testified that Christians are generally persecuted.
The IJ first ruled that Liwe’s asylum claim was barred by the one-year period of
limitations. See 8 U.S.C. § 1158(a)(2)(B). Liwe argued that he was unaware of the
requirement and that conditions had worsened in Indonesia since his departure, but the IJ
discounted his first argument and found that he failed to demonstrate exceptional
circumstances or changed country conditions sufficient to overcome the deadline. In the
alternative, the IJ found that Liwe did not demonstrate a well-founded fear of persecution.
In part, the IJ reasoned that Liwe’s subjective fears were based on his chosen profession
as a tour guide, rather than his political affiliation, and that his testimony regarding the
general persecution of Christians was undermined by his ability to remain in Indonesia
for twenty-seven years without suffering any alleged persecution. Consequently, the IJ
denied Liwe’s application for withholding of removal and, because he did not allege any
instances of torture, his CAT claim.
Here, Liwe principally argues that the IJ and BIA erred by denying his asylum
claim because they required him to demonstrate that he would “more likely than not”
suffer persecution in Indonesia, the standard applicable to withholding applications,
Toussaint v. Attorney General, 455 F.3d 409, 413 (3d Cir. 2006). He suggests that the
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“well-founded fear" standard, applicable to asylum applications, Obale v. Attorney
General, 453 F.3d 151, 161 (3d Cir. 2006), should have guided the IJ’s analysis.
But, we lack jurisdiction to review the denial of Liwe’s untimely asylum claim.
Gabuniya v. Attorney General, 463 F.3d 316, 320 n.4 (3d Cir. 2006) (Section 1158(a)(3)
clearly deprives us of jurisdiction "to review an IJ's determination that an asylum petition
was not filed within the one year limitations period, and that such period was not tolled
by extraordinary circumstances[.]"); Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d
Cir. 2003) (same). We therefore limit our review to Liwe’s withholding of removal
application and CAT claim.
Liwe, though, fails to provide a basis to undermine the denial of his withholding
application or CAT claim. He generally argues that his testimony provided an objective
basis for his fear of persecution, but his vague testimony of being mistreated by militants
does not show “a clear probability of persecution,” nor does he allege any instances of
torture sufficient to establish a CAT claim. Gabuniya, 463 F.3d at 321.
Accordingly, we will deny the petition for review.
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