[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
APR 28, 2011
No. 10-13989 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A095-914-322
HERYANTO KUSNADI KWEE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 28, 2011)
Before MARCUS, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Heryanto Kusnadi Kwee, a native and citizen of Indonesia, petitions this
Court to review the denial of his application for asylum and withholding of
removal under the Immigration and Nationality Act. 8 U.S.C. §§ 1158(a),
1231(b)(3). The Board of Immigration Appeals agreed with the findings of the
immigration judge that Kwee’s application for asylum was untimely and that
Kwee had failed to prove that changed or extraordinary circumstances would
except him from the one-year deadline or that he was entitled to withholding of
removal. We dismiss in part and deny in part Kwee’s petition.
We lack jurisdiction to review Kwee’s application for asylum. An
application for asylum must be “filed within 1 year after the date of the alien’s
arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). Although an untimely
application “may be considered ... if the alien demonstrates to the satisfaction of
the Attorney General either the existence of changed circumstances . . . or
extraordinary circumstances relating to the delay in filing an application,” id. §
1158(a)(2)(D), “[n]o court . . . ha[s] jurisdiction to review” that determination, id.
§ 1158(a)(3). Because section 1158(a)(3) “divests our Court of jurisdiction to
review a decision regarding whether an alien . . . established extraordinary
circumstances that would excuse his untimely filing,” Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003), we dismiss that part of Kwee’s petition
challenging the finding that his application for asylum was untimely.
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Substantial evidence supports the decision to deny Kwee’s application for
withholding of removal. Kwee failed to prove that he suffered past persecution or
would likely face persecution in Indonesia on account of his Chinese heritage or
his Christian faith. Kwee testified that he was frightened when indigenous
Indonesians rioted and destroyed stores owned by Chinese residents in 1998, but
neither Kwee nor his family were harmed. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1231 (11th Cir. 2005) (“‘[P]ersecution’ is an ‘extreme concept,’
requiring ‘more than . . . intimidation.’”). Kwee argues that his testimony about
being beaten severely and robbed by fellow teenage students who referred to him
as “Chinese” supports an inference that he was mistreated on account of his race,
but his testimony equally supports the inference that Kwee was a victim of an
ordinary crime. See Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004)
(“[E]ven if the evidence could support multiple conclusions, we must affirm the
agency’s decision unless there is no reasonable basis for that decision.”). Because
Kwee failed to prove that he suffered past persecution, the Board could rely
heavily on information in recent reports issued by the State Department about the
treatment of Christians and ethnic Chinese in Indonesia. See Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1354 (11th Cir. 2009). The reports stated that there
was a sizable minority of Christians in Indonesia who ordinarily were able to
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worship freely and that ethnic Chinese ordinarily were able to work and exercise
political freedom, particularly when they, like Kwee, shared Chinese and
Indonesian ancestry and assimilated easily into Indonesian culture.
We DISMISS the petition for review of the denial of asylum and DENY the
petition for review of the denial of withholding of removal.
PETITION DISMISSED IN PART, DENIED IN PART.
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