Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-18-2008
Peregina v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4175
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4175
YUDDY PEREGINA,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of an Order of
the Board of Immigration Appeals
Agency No. A96-427-281
Immigration Judge: Donald V. Ferlise
Submitted Under Third Circuit L.A.R. 34.1(a)
on March 11, 2008
Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges
(Filed: August 18, 2008)
OPINION
ALDISERT, Circuit Judge.
Yuddy Peregina, a native and citizen of Indonesia and a Christian of Chinese
ethnicity, petitions for review of the final decision of the Board of Immigration Appeals
(“BIA”) ordering his removal from the United States. He challenges the BIA’s denial of
his applications for asylum, withholding of removal and relief under the Convention
Against Torture (“CAT”). For the reasons set forth below, we will deny the petition.
I.
We lack jurisdiction to review the BIA’s denial of Peregina’s asylum application.
The denial was based on Peregina’s failure to timely file his application for asylum, and
we “lack[] jurisdiction to review an asylum petition that an Immigration Judge (‘IJ’) or
[the BIA] deems untimely.” Tarrawally v. Ashcroft, 338 F.3d 180, 182 (3d Cir. 2003).
To the extent Peregina alleges violation of due process, we lack jurisdiction to
address it as he failed to present the argument to the BIA. See Bonhometre v. Gonzales,
414 F.3d 442, 448 (3d Cir. 2005) (“[Petitioner]’s claims, though argued in the language of
procedural due process, essentially claim that the IJ failed in its duty to completely
develop this case . . . . [Because petitioner’s] procedural due process claims thus could
have been argued before the BIA, . . . his failure to do so is thus fatal to our jurisdiction
over this petition.”).
II.
We do have jurisdiction, however, to review the denial of Peregina’s applications
for withholding of removal and relief under the CAT. Where, as here, the BIA adopted
the decision of the IJ, we review the decisions of both the BIA and the IJ. Shehu v. Att’y
General, 482 F.3d 652, 657 (3d Cir. 2007). “We review the IJ and BIA’s findings for
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substantial evidence and, therefore, may not set them aside unless a reasonable factfinder
would be compelled to find to the contrary.” Id.
A.
“[T]he Attorney General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social group
or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “It is the applicant’s burden to establish
the threat to life or freedom by a ‘clear probability.’ This standard is satisfied if the
evidence establishes that it is more likely than not that the alien would be subject to
persecution on one of the specified grounds.” Jarbough v. Att’y General, 483 F.3d 184,
190-191 (3d Cir. 2007) (internal quotation marks and citations omitted). “A finding of
past persecution raises a rebuttable presumption that the applicant’s life or freedom would
be threatened in the future.” Id. at 191 (internal quotation marks and citations omitted).
Substantial evidence supports the IJ’s determination that Peregina did not establish
that he has suffered from past persecution. The IJ found that classmate demands for
money, an after-school fight and disputes relating to Peregina’s father’s store were
motivated by money and, regardless, were not sufficiently severe to rise to the level of
persecution. See Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005).
We detect no evidence that Peregina was harmed by the Indonesian government,
or that the government was unwilling or unable to protect him. In addition, Peregina has
failed to establish that there is a “pattern or practice” of persecution of Chinese Christians
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in Indonesia. Wong v. Att’y General, No. 06-3539, --- F.3d --- (3d Cir. 2008) (discussing
the U.S. State Department’s 2003 and 2004 Country Reports on Human Rights Practices
for Indonesia and the U.S. State Department’s 2003 and 2004 International Religious
Freedom Reports for Indonesia). Furthermore, because his parents and siblings remained
in Indonesia unharmed, the IJ reasonably concluded that Peregina failed to establish that
he would be persecuted if removed to Indonesia.
B.
“To qualify for relief under the CAT, an applicant . . . bears the burden of proving
through objective evidence that ‘it is more likely than not’ that s/he would be ‘tortured’ in
the country to which the applicant would be removed.” Obale v. Att’y General, 453 F.3d
151, 161 (3d Cir. 2006). Peregina offers no support for his contention that he will be
tortured should he return to Indonesia. Thus we will not reverse the denial of his
application for protection under the CAT.
*****
We have considered all contentions raised by the parties and conclude that no
further discussion is necessary.
The petition for review will be denied.
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