Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-21-2006
Jana v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3829
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-3829
___________
Johan Jana,
Petitioner
v.
Attorney General of the United States,
Respondent
___________
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A95 433 947)
Immigration Judge: Donald V. Ferlise
___________
Submitted Under Third Circuit LAR 34.1(a)
November 7, 2006
Before: SLOVITER, CHAGARES, and NYGAARD, Circuit Judges.
(Filed December 21, 2006)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
I.
Johan Jana, a native and citizen of Indonesia, was admitted to the United States on
October 28, 2000. Jana overstayed his temporary visa, and the Immigration and
Naturalization Service brought removal proceedings against him on September 27, 2002.
During the proceedings, Jana conceded removability, but requested withholding of
removal pursuant to 8 U.S.C. §1231 and protection from removal pursuant to the
Convention Against Torture (CAT) and its implementing regulations. Jana claimed that,
should he return to Indonesia, native, Muslim Indonesians would persecute him because
of his Chinese ancestry and Christian religious beliefs. Jana presented documentary
evidence and testified that, in 1998, Muslim rioters threw stones at him, threatened to
burn him alive and chased him through the streets. He also asserted that he and his father
witnessed Muslim rioters burn area churches. In response, the Government presented
various State Department reports revealing improved treatment of ethnic and religious
minorities in Indonesia.
The Immigration Judge found Jana credible, but concluded his asylum application
was untimely and that his fears of persecution were no longer well-founded. The
Immigration Judge denied Jana’s requests for relief and ordered him removed. The BIA
affirmed the IJ’s findings and dismissed Jana’s appeal. Jana filed a timely petition for
review with this Court. For the reasons that follow, we will deny review.
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II.
A.
An alien may still apply for asylum beyond the one-year filing deadline if he
demonstrates, “to the satisfaction of the Attorney General,” 1) changed circumstances
which materially affect his eligibility; or 2) extraordinary circumstances relating to his
delay in filing. 8 U.S.C.A. §1158(a)(2)(D) (2006).
Before the IJ, Jana indicated he no longer wished to pursue his application for
asylum, and did not claim changed or extraordinary circumstances excused his failure to
meet the one-year deadline. Regardless, the IJ and BIA determined Jana’s application for
asylum was untimely. We lack jurisdiction to review that determination. 8 U.S.C.A.
§1158(a)(3) (2006); Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).
B.
The Attorney General may not remove an alien if he decides the alien’s life or
freedom would be threatened in the country of deportation because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion. 8
U.S.C.A. §1231(b)(3)(A) (2006). To obtain relief under this section, Jana must
demonstrate there is a clear probability his life or freedom would be threatened in
Indonesia. Zubeda v. Ashcroft, 333 F.3d 463, 470 (3d Cir. 2003).
We will affirm the BIA’s decision if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole. Zhang v. Gonzales, 405 F.3d
3
150, 155 (3d Cir. 2005). Substantial evidence supports the determinations made by the IJ
and BIA. The State Department’s International Religious Freedom Report for 2003
indicates the Indonesian government has reduced violence against religious minorities,
and effectively promotes reconciliation between Muslims and Christians. The State
Department Country Report on Indonesia’s human rights practices indicates that although
ethnic Chinese remain subject to instances of discrimination, the central government is
responsive to their complaints. The Report does not indicate ethnic Chinese remain
vulnerable to the sort of violence which plagued the country in 1998.
C.
Jana also seeks relief from removal under the Convention Against Torture and its
implementing regulations. To obtain CAT relief, Jana must demonstrate it is “more likely
than not” he would be tortured if removed to Indonesia. 8 C.F.R. §208.16(c)(2) (2006);
Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir. 2004). The alleged 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.” 8 C.F.R. §208.18(a)(1) (2006). In
reviewing such allegations, we consider “evidence of gross, flagrant or mass violations of
human rights” and “[o]ther relevant information regarding conditions” in Indonesia. 8
C.F.R. §208.16(c)(3) (2006).
The Government presented substantial evidence that Indonesia has made
significant improvements in its treatment of ethnic and religious minorities in recent
4
years. Jana presented no evidence to contradict the State Department reports, and failed
to present any evidence the Indonesian authorities remain engaged in, or acquiescent to,
torture of Chinese Christians. The BIA properly concluded Jana was not entitled to CAT
relief.
III.
We lack jurisdiction to review the BIA’s determination that Jana’s asylum
application was untimely and we will therefore dismiss that portion of his petition. We
will deny the remainder of his petition for review.
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