Koe v. Atty Gen USA

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

1-19-2006

Koe v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3894

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 04-3894

YULIA KOE,

Petitioner

v.

ALBERTO R. GONZALES,
Attorney General of the United States*

Respondent

Petition for Review of an Order
of the Board of Immigration Appeals
(No. A79-296-443)

Submitted Under Third Circuit LAR 34.1(a)
January 13, 2006

Before: BARRY, AMBRO and ALDISERT, Circuit Judges

(Filed January 19, 2006)

OPINION

ALDISERT, Circuit Judge.

*
Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of
the United States pursuant to Rule 43(c)(2), Federal Rules of Appellate Procedure.
 Yulia Koe, a native and citizen of Indonesia, files a petition for review from a final

order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s

(“IJ”) denial of her application for asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s order

pursuant to 8 U.S.C. § 1252. We will deny the petition.

I.

The parties are familiar with the facts and proceedings before the BIA and the IJ,

so we will only briefly revisit them here. Koe is an Indonesian of Chinese ethnicity who

testified that she had been repeatedly subject to harassment, allegedly because of her

ethnicity. In support of this contention she recited both general and specific instances of

abuse directed towards her and other ethnic Chinese. She testified to several events of

violence occurring on various Indonesian islands that she either read about or saw on

television where ethnic Chinese were treated poorly by ethnic Indonesians. She stated

that these events, which occurred sporadically over the course of a decade, made her feel

bad and occasionally scared. Koe testified that she had trouble obtaining the required

identification card that people in Indonesia are required to carry, and believes this

difficulty stemmed from her Chinese ethnicity. She also stated that people would touch

her buttocks if she wore pants, call her a dirty Chinese, and yell “You eat pork” at her, all

of which she found to be offensive.

In addition, she described four specific incidents of alleged persecution that

2
occurred either to her or her family. First, she testified to a 1997 incident where she was

robbed at knife point while she sat in her car at a traffic light. Second, she testified that a

beauty salon that she owned was burned during a 1998 riot. Third, she stated that her

family’s store was looted by ethnic Indonesians in another riot that same year. Finally,

she described an incident occurring in December 1998, where a group of homeless men

entered a taxi in which she was riding, held a knife to her throat, robbed her and then

touched and kissed her.

Following a brief visit to her family in Singapore in 1999, Koe was admitted to the

United States on November 9, 1999, on a non-immigrant visa with authorization to

remain in the country until May 8, 2000. Koe remained past that date, and on March 26,

2001, the INS commenced the present deportation proceedings against her by serving her

with a Notice to Appear. The IJ rejected all of Koe’s claims for relief, finding that Koe

failed to provide any evidence of torture or persecution sufficient to merit withholding of

removal or relief under CAT.1 The BIA affirmed the IJ without opinion. This petition for

review followed.

II.

Because the BIA adopted and affirmed the IJ’s decision without additional

comment, we review the decision of the IJ. Tarrawally v. Ashcroft, 338 F.3d 180, 184

1
Koe’s asylum application was never ruled upon by the IJ because she voluntarily withdrew it
from consideration, admitting that it was untimely and that extraordinary circumstances did not
exist to excuse its untimeliness. She thereafter proceeded before the IJ only upon her
withholding of removal and CAT claims.

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(3d Cir. 2003). Whether a petitioner has demonstrated past persecution or a clear

probability of future persecution is a factual determination subject only to the highly

deferential substantial evidence standard. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-484

(1992); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under the substantial

evidence standard, this Court will uphold the findings of the BIA unless the evidence “not

only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477,

483-484 (3d Cir. 2001).

III.

Notwithstanding the contentions made by Koe to this Court that the IJ erred in

denying CAT relief, we lack jurisdiction to review the IJ’s denial of this claim. In her

brief to the BIA, Koe only argued that the IJ erred in its denial of withholding of removal

and never addressed why the adverse CAT rulng was in error.2 The BIA was therefore

never able to consider any arguments other than those relating to the withholding of

removal claim. Because Koe did not exhaust this claim before the BIA, it was not

preserved for our review and we therefore lack jurisdiction to review it. See 8 U.S.C. §

1252(d)(1) (“A court may review a final order of removal only if . . . the alien has

2
In her brief to the BIA, Koe does state in her introductory sentence that she is appealing the IJ’s
denial of asylum, withholding of removal and relief under CAT. Nowhere in her brief, however,
does she develop her argument on why the IJ erred in denying relief under CAT. We find such a
perfunctory mention of an unsupported contention to be insufficient to consider it raised on
appeal to the BIA. Cf. Dillinger v. Caterpillar, Inc., 959 F.2d 430, 447 (3d Cir. 1992) (stating
that a passing reference to a claim in an appellate brief without further development is
insufficient to preserve it for appeal).

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exhausted all administrative remedies available to the alien as of right.”); Zheng v.

Gonzales, 422 F.3d 98, 107-108 (3d Cir. 2005) (“The failure to exhaust this claim before

the BIA ‘bars consideration of particular questions not raised in an appeal to the

[BIA].’”).

Similarly, we lack the ability to review Koe’s claim that the IJ erred in not granting

asylum relief. For this matter, it is not a question of whether she exhausted her remedies

before the BIA; rather, Koe never received a final ruling from the IJ on her asylum

petition. Koe withdrew the asylum application as untimely during the hearing and

acknowledged that there were no extraordinary circumstances that could excuse her

dilatory application. “To exhaust a claim . . . an applicant must first raise the issue before

the BIA or IJ.” Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005). Because Koe

withdrew her asylum application and never received a final ruling from the IJ, regardless

of the timeliness of the application, we therefore lack jurisdiction to review any claims on

appeal contending that a denial of asylum relief was in error.

IV.

We do possess jurisdiction to review Koe’s claims with respect to withholding of

removal. Nonetheless, we conclude that her contentions on appeal are without merit.

First, we are satisfied that the incidents of which Koe complains do not “rise to the level

of persecution because the harm suffered was not sufficiently severe.” Lie v. Ashcroft,

396 F.3d 530, 536 (3d Cir. 2005) (holding that petitioner, a Chinese Indonesian, did not

5
qualify for asylum relief, a less onerous standard than withholding of removal, when

petition was based upon two isolated incidents of robbery by native Indonesians). The

BIA and this Court have adopted a narrow definition of persecution, which “connotes

extreme behavior, including ‘threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.’” Ahmed v.

Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (quoting Fatin v. I.N.S., 12 F.3d 1233, 1240

(3d Cir. 1993)). “[P]ersecution does not encompass all treatment that our society regards

as unfair, unjust, or even unlawful or unconstitutional.” Fatin, 12 F.3d at 1240. We

accordingly agree with the IJ that Koe has not been the victim of persecution but rather

has unfortunately been, to quote the IJ, “in the wrong place at the wrong time” in her

repeated victimization by street crime, hoodlums and thugs.3

Moreover, in light of our determination that Koe has not been the victim of past

persecution, we also agree with the BIA and the IJ that Koe is not entitled to withholding

of removal because she failed to show a clear probability that her life or freedom would

be threatened on account of persecution if she returned to Indonesia. See I.N.S. v. Stevic,

467 U.S. 407, 429-430 (1984). An alien is entitled to withholding of removal only if she

can demonstrate a “‘clear probability’ that [her] life or freedom would be threatened in

3
Koe also argues that the IJ erroneously made a “speculative conclusion” when he found it
incredible that Koe would rather sit at a stoplight and be accosted by “knife wielding thugs” than
violate the traffic laws and escape in her automobile by running a red light. While the IJ’s
comments may appear speculative to some, we cannot say they are unreasonable in the context of
the situation described to him. The IJ, however, found all the other portions of Koe’s testimony
to be “basically . . . credible.”

6
the proposed country of deportation” because of “‘race, religion, [or] nationality.’”

Tarawally v. Ashcroft, 338 F.3d at 186 (quoting 8 U.S.C. § 1231(b)(3)(A); citations

omitted). “[C]lear probability means ‘more likely than not.’” Id. (quoting Stevic, 467 U.S.

at 429-430).

Finally, we find Koe’s attempt to link the culpability for these acts of violence to

the Indonesian government to be without merit. Notwithstanding the severity or the

reasons for the incidents of persecution, the petitioner must link the persecution either to

the government or groups that the government is unable or unwilling to control. Gao v.

Ashcroft, 299 F.3d at 272. Koe argues that she has been persecuted by “Nationalist

Indonesians” whom the government is unwilling or unable to stop. Here, however, the

record is entirely devoid of any evidence indicating that the Indonesian government was

unable or unwilling to control any group “persecuting” Koe on account of her race,

religion or nationality.

In sum, even if we accept as true Koe’s testimony that, on account of her Chinese

ethnicity, her beauty salon was burned in a 1998 riot, her family’s store was looted that

same year and on numerous occasions she was robbed, sometimes at knife point, the

evidence in the record does not compel us to find that these acts either rise to the level of

persecution, indicate a clear probability that Koe’s life would be threatened on return to

Indonesia or show that the deeds were linked to governmental action or purposeful

inaction.

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 V.

We have considered all contentions presented by the parties and conclude that no

further discussion is necessary. The petition for review will be denied.

8