Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-26-2008
Tjio v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3860
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3860 / 07-1785
ANIK TJIO;
TJANDRA HENDRO SOESANTO
Petitioners
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency Nos. A79-347-324 and A79-347-325)
Submitted pursuant to Third Circuit LAR 34.1(a)
February 8, 2008
Before: McKEE, AMBRO,
and ALDISERT, Circuit Judges
(Filed: March 26, 2008)
___________________
OPINION
____________________
McKEE, Circuit Judge:
Tjandra Soesanto and Anik Tjio (husband and wife) petition for review of a
decision of the Board of Immigration Appeals.1 For the reasons that follow, we will deny
the petition.2
I.
Inasmuch as we write primarily for the parties who are familiar with this case, we
need not set forth the factual or procedural history except insofar as may be helpful to our
brief discussion.
On July 24, 2006, the BIA dismissed Petitioners’ appeal of the Immigration
Judge’s order denying their applications for asylum, withholding of removal and
protection under the Convention Against Torture (the “CAT”). On February 13, 2007, the
BIA issued a second decision in which it vacated the IJ’s finding that Petitioners’ asylum
application was frivolous, but reaffirmed the IJ’s denial of relief. We now hold that
substantial evidence supports the BIA’s decision.
1
Petitioner Soesanto initially claimed eligibility for relief as a derivative of Tjio’s
application for asylum and withholding of removal. He subsequently filed his own application
and the IJ held joint hearings on their applications.
2
Petitioners argue that the Board erred in failing to consider a Motion to Hold Decision
in Abeyance “that has not been included in the Administrative Record.” Petitioners’ Br. at 10.
Our review is limited to the administrative record, and we may not consider the Board’s failure to
rule on a motion that is not included in that record. Dia v. Ashcroft, 353 F.3d 249 (3d Cir. 2003)
(en banc).
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We apply an “extremely
deferential” substantial evidence standard to the BIA’s findings of fact. Chen v. Ashcroft,
376 F.3d 215, 223 (3d Cir. 2004). Accordingly, we will reverse the BIA’s determinations
on issues like past persecution, the likelihood of future persecution, and the likelihood of
torture only if “the evidence not only supports a contrary conclusion, but compels it.”
Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001).
We uphold an IJ's adverse credibility determinations “if they are supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005). Where an IJ makes an adverse
credibility finding, he/she must supply specific, cogent reasons for concluding that the
petitioner is not credible. Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.
2006). In addition, the IJ's conclusions must be based on the record, not on “conjecture or
speculation.” Dia v. Ashcroft, 353 F.3d 228, 249-250 (3d Cir. 2003).
III.
Petitioners claim that they will be harmed and persecuted in Indonesia on account
of their religion and ethnicity. They offered evidence relating to a sexual assault on Tjio in
a shopping mall in Indonesia. They also testified to subsequent threats and attempts to
extort money from Petitioners by a security guard and a police officer.
The IJ dismissed Petitioners’ application for asylum because it was not filed within
3
one year of their entering the United States and neither Petitioner could establish changed
or extraordinary circumstances. See 8 U.S.C. § 1158(a)(2). The IJ also denied
withholding of removal and relief under the CAT. In doing so, he noted several
inconsistencies and contradictions between Tjio’s written applications, her affidavit, and
her hearing testimony, as well as other perceived problems with both Petitioners’
testimony. The IJ found that both Tjio and Soesanto were “totally incredible” and ruled
that they had submitted a frivolous application. Alternatively, the IJ held that even if their
testimony was believed, they had not established past persecution or a “clear probability of
[future] persecution.” Finally, the IJ held that the country reports and other materials
submitted by Petitioners did not establish a pattern or practice of persecution of Chinese
Christians in Indonesia.
The BIA initially upheld all of the IJ’s findings in a two-paragraph per curiam
order dated July 24, 2005. On February 13, 2007, the BIA issued a second opinion and
order addressing Petitioners’ motion to reopen and reconsider.3 Therein, the BIA
addressed their challenge to the adverse credibility finding and Petitioners’ argument that
their due process rights had been violated by the IJ’s conduct of their hearings.4 The BIA
3
In the meantime, Petitioners sought review of the BIA’s first order. Their Petitions have
been consolidated.
4
Relying in part on cases in which we have criticized Judge Ferlise’s conduct. See Cham
v. Attorney General, 445 F.3d 683 (3d Cir. 2006); Shah v. Attorney General, 446 F.3d 429 (3d
Cir. 2006); Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006); Fiadjoe v. Attorney General,
411 F.3d 135 (3d Cir. 2005), Petitioners argued to the BIA that Immigration Judge Ferlise had
acted improperly.
4
ruled that Judge Ferlise had not acted improperly. Specifically the BIA noted that the IJ’s
“decision focused on inconsistencies and was often repetitive in describing the credibility
problems he saw; however, this does not rise to a violation of due process nor does it
establish clear error.” Supp. App. at 3. The BIA also found that even though the IJ took
“a direct role in questioning,” there was no evidence of “badgering or bullying” such as we
have previously noted. Id. The BIA acknowledged that Judge Ferlise had been
reprimanded in several cases, but observed that “one cannot simply assume that he lacked
decorum in every case before him.” Id.
The BIA also found that the IJ’s adverse credibility determination was not based on
speculation or conjecture, but rather “involved conflicting statements in [Tjio]’s written
statements and her testimony about the specifics surrounding [her] claim of persecution.”
Id.
The BIA agreed with the IJ’s finding that Petitioners’ asylum claim was time-
barred, and the Board reaffirmed the IJ’s denial of withholding of removal and relief under
the CAT. The BIA explained that, regardless of Petitioners’ credibility, the incidents they
described “do not establish past persecution and are insufficient to establish that it is more
likely than not the respondents will be persecuted or tortured if returned to Indonesia.” Id.
at 4. (citing Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). The BIA did, however,
vacate the IJ’s finding that Petitioners’ asylum application was frivolous.
IV.
5
As a threshold matter, we do not have statutory authority to review the findings that
the asylum application is time-barred. 8 U.S.C. § 1158(a)(3). See also Bonhometre v.
Gonzales, 414 F.3d 442 (3d Cir. 2005) (aliens cannot seek review of a claim not presented
to the Board).
The BIA’s denial of Petitioners’ application for withholding is supported by
substantial evidence. Petitioners bear the burden of proving that they will more likely than
not face persecution on account of a protected ground. See INS v. Stevic, 467 U.S. 407,
429-30 (1984). As noted by the BIA, persecution “connotes extreme behavior” such as
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” Supp. App. at 4 (quoting Fatin v. INS, 12 F.3d
1233, 1240 (3d Cir. 1993)).
The BIA did not clearly err in finding that the incidents described by Tjio and
Soesanto do not establish past persecution and are insufficient to establish that it is more
likely than not that the respondents will be persecuted or tortured if returned to Indonesia.
Moreover, our independent review of their due process claim confirms the BIA’s
conclusion that the IJ’s behavior fell short of “badgering and bullying” the Petitioners. We
agree, however, that his conduct of the hearing was certainly not a model of decorum.
Nevertheless, the BIA correctly concluded that “most of the discrepancies on which the
Immigration Judge relied to find the respondents incredible were revealed during cross-
6
examination when the Immigration Judge was less interruptive.” 5
Even assuming that Petitioners’ testimony is credible, there is still substantial
evidence to support the BIA’s affirmance of the IJ’s holding that they did not establish a
pattern or practice of persecution. See also Lie v. Ashcroft, 396 F.3d 530, 536–38 (3d Cir.
2005) (substantial evidence supported findings that harms to an ethnic Chinese citizen of
Indonesia were not so severe as to constitute persecution, and that a pattern or practice of
persecution was not established). They certainly underwent hardships, harassment and
discrimination. Their plight was aggravated by official corruption on the part of the
police. However, we explained in Fatin v. I.N.S., 12 F.3d 1233, 1239 (3d Cir. 1993), that
much more is needed to sustain a claim for withholding of removal.
Petitioners’ brief does not provide any separate analysis of their CAT claim.
However, it is clear from the record that their CAT claim is far weaker than the
withholding of removal claim and that it was properly rejected. The mistreatment that they
described falls woefully short of “torture.” See Lukwago v. Ashcroft, 329 F.3d 157, 182-
83 (3d Cir. 2003).
Accordingly, we will deny the Petition for Review.
5
The transcript of direct examination reveals that a majority of the questions came from
the IJ rather than Petitioners’ attorney. At times the transcript reads more like an interrogation
than a hearing. Nonetheless, the BIA’s decision to uphold the adverse credibility finding is
supported by substantial evidence in this instance. Moreover, as we have explained, the record
would not support relief even if we accept Petitioners’ testimony.
7