[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 28, 2005
No. 05-12793 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-190-847
WAHYUDI INGKIRIWANG,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(December 28, 2005)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Petitioner Wahyudi Ingkiriwang, a native and citizen of Indonesia, petitions,
through counsel, for review of the final order of the Board of Immigration Appeals
(BIA), which affirmed an immigration judge’s (IJ’s) determinations that
Ingkiriwang’s asylum claim was untimely, and that he had not established
eligibility for withholding of removal under the Immigration and Nationality Act
(INA) or withholding of removal under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT
relief), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c).
I. Jurisdiction to Consider Asylum Claim
Ingkiriwang argues on appeal that we have jurisdiction to hear his claims for
relief, that he is entitled to “Asylum/Withholding,” and is eligible for asylum under
“the Torture Convention.” However, he does not address the findings of the IJ and
the BIA that his asylum claim was time-barred.
When the BIA issues a decision, we review only that decision, except to the
extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Id. Here, the BIA expressly adopted the IJ’s
reasoning and briefly articulated its reasons for doing so. Thus, we should review
the decisions of both the IJ and the BIA.
“An asylum application must be ‘filed within 1 year after the date of the
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alien's arrival in the United States.’” Chacon-Botero v. U.S. Attorney Gen., 427
F.3d 954, 956 (11th Cir. 2005) (quoting 8 U.S.C. § 1158(a)(2)(B)). An untimely
application “may be considered . . . if the alien demonstrates . . . extraordinary
circumstances relating to the delay in filing an application.” INA § 208(a)(2)(D); 8
U.S.C. § 1158(a)(2)(D). The determination of whether an alien can apply for
asylum, however, is left exclusively to the Attorney General as “[n]o court shall
have jurisdiction to review any determination of the Attorney General under
paragraph (2).” INA § 208(a)(3); 8 U.S.C. § 1158(a)(3); see also Mendoza v. U.S.
Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (noting that 8 U.S.C.
§ 1158(a)(3) “divests our Court of jurisdiction to review a decision regarding
whether an alien complied with the one-year time limit or established extraordinary
circumstances that would excuse his untimely filing”); accord Chacon-Botero, 427
F.3d at 957.
Accordingly, we conclude from the record that we lack jurisdiction and
dismiss the petition for review to the extent that it seeks review of the denial of the
Ingkiriwang’s asylum claim.
II. Eligibility for Withholding of Removal
Ingkiriwang argues that he provided credible testimony to support his
withholding of removal and CAT relief claims because the IJ allegedly questioned
him in a biased manner, used overly restrictive criteria to measure his credibility,
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and did not consider Ingkiriwang’s answers that would have supported finding him
credible, such as his ability to define “baptism,” “communion,” and “Easter.” He
also argues that the IJ improperly considered his father’s return to Indonesia as safe
because his father did not return to Indonesia voluntarily, but was instead deported.
To the extent that the BIA’s decision was based on a legal determination, we
review the decision de novo. D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814,
817 (11th Cir. 2004). We review the BIA’s factual determinations under the
substantial evidence test, and “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted). “[W]e cannot engage
in fact-finding on appeal, nor may we weigh evidence that was not previously
considered below.” Id. at 1278. Therefore, we will reverse a finding of fact “only
when the record compels a reversal; the mere fact that the record may support a
contrary conclusion is not enough to justify a reversal . . . .” Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004), cert. denied, 125 S. Ct. 2245 (2005); see
also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary . . .”). We also review a credibility determination under the substantial
evidence test, and “may not substitute [our own] judgment for that of the BIA with
respect to credibility findings.” D-Muhumed, 388 F.3d at 818.
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An alien is entitled to withholding of removal under the INA if he can show
that his life or freedom would be threatened on account of his race, religion,
nationality, membership in a particular social group, or political opinion. Mendoza,
327 F.3d at 1287; see also INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). “An alien
bears the burden of demonstrating that he more-likely-than-not would be
persecuted or tortured upon his return to the country in question.” Mendoza, 327
F.3d at 1287. Although the INA does not expressly define “persecution,” we have
stated that “persecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Attorney Gen.,
401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted). In order to establish
the necessary causal connection between the protected ground and the feared
persecution, the alien must present “specific, detailed facts showing a good reason
to fear that he or she will be singled out for persecution on account of such
[protected group status].” See Al Najjar, 257 F.3d at 1287 (quotations omitted).
The alien can meet his burden by showing either (1) past persecution in his
country based on a protected ground, in which case a rebuttable presumption is
created that his life or freedom would be threatened if he returned to his country; or
(2) a future threat to his life or freedom on a protected ground in his country. 8
C.F.R. § 208.16(b)(1). To establish a future threat to life or freedom, the alien
need not show that he would be singled out individually for persecution; rather, he
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may sustain the burden of proof by showing a pattern or practice of persecution of
a group similarly situated to the applicant in which he is included or with which he
may be identified. 8 C.F.R. § 208.16(b)(2).
If credible,1 the alien’s testimony “may be sufficient to sustain the burden of
proof without corroboration.” Mendoza, 327 F.3d at 1287 (quoting 8 C.F.R.
§ 208.16(b)). Indications of reliable testimony include consistency on direct
examination, consistency with the written application, and the absence of
embellishment as the applicant repeatedly recounts his story. See In re B-, 21 I&N
Dec. 66, 70 (BIA 1995); see also Dailide v. U.S. Attorney Gen., 387 F.3d 1335,
1343 (11th Cir. 2004) (affirming the BIA's adverse credibility determination,
which was based upon its finding that the alien's testimony conflicted with his
answers to interrogatories, affidavit, deposition, and other documentary evidence).
“[A]n adverse credibility determination does not alleviate the [BIA's] duty to
consider other evidence produced by an asylum applicant.” Forgue v. U.S.
Attorney Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). If the alien produces
evidence beyond his own testimony, “it is not sufficient for the [BIA] to rely solely
1
The REAL ID Act of 2005 amended the law regarding credibility determinations by
adding INA §§ 208(b)(3)(B)(iii) , 1229a(c)(4)(C). Section 101(a)(3) and (d), Pub. L. No. 109-
13, 119 Stat. 321, 303, 304-305. The Act states, however, that these provisions “shall apply to
applications for asylum, withholding, or other relief from removal made on or after” the date of
enactment of the Act, May 11, 2005. Pub. L. No. 109-13, 119 Stat. at 305. Therefore, because
Ingkiriwang’s application for asylum was filed before May 11, 2005, these provisions do not
apply in this case.
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on an adverse credibility determination in those instances.” Id.
After reviewing the record, we conclude that substantial evidence supports
the IJ’s and the BIA’s findings that Ingkiriwang had failed to establish eligibility
for withholding of removal because he did not prove past persecution or a well-
founded fear of future persecution. See Mendoza, 327 F.3d at 1287. There is no
substantial evidence to compel reversing the IJ’s credibility finding where
Ingkiriwang was ignorant of certain religious terms and stated, “I’m not too big on
Christianity but I just come to church to be thankful to God and to receive the
teaching about (indiscernible),” he presented a baptismal certificate that listed his
date of birth incorrectly and lacked a specific date of issuance, and, even though
his family lived unharmed as practicing Christians in Indonesia, he was unable to
corroborate his testimony with medical records. See Adefemi, 386 F.3d at 1027;
Dalide, 387 F.3d at 1343.
Additionally, even if Ingkiriwang had been found credible, he failed to prove
that the acts of which he complained rose to the level of past persecution, or an
“extreme concept, requiring more than a few isolated incidents of verbal
harassment or intimidation.” Sepulveda, 401 F.3d at 1231 (quotations omitted).
Likewise, his testimony that his family lived unharmed in Indonesia for several
years undermines any claim that there is a pattern or practice of persecuting
similarly situated individuals in Indonesia. Cf. 8 C.F.R. § 208.16(b)(2). Thus,
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Ingkiriwang’s claim for withholding of removal must fail.
III. Eligibility for CAT Relief
As previously stated, we review the BIA’s legal determinations de novo, and
its factual determinations for substantial evidence. D-Muhumed, 388 at 817; Al
Najjar, 257 F.3d at 1283-84. We will reverse a finding of fact “only when the
record compels a reversal; the mere fact that the record may support a contrary
conclusion is not enough to justify a reversal . . . .” Adefemi, 386 F.3d at 1027; see
also 8 U.S.C. § 1252(b)(4)(B). We also review a credibility determination under
the substantial evidence test. D-Muhumed, 388 F.3d at 818.
To qualify for withholding of removal under Article 3 of the CAT, the
applicant must show that it is more likely than not that she will be tortured if
returned to the country of removal. 8 C.F.R. § 208.16(c)(2). Torture is defined as:
any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes
as obtaining from him or her or a third person information or a
confession, punishing him or her for an act he or she or a third
person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is 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). CAT relief carries a higher legal standard than asylum,
and is thus very difficult to meet. Al Najjar, 257 F.3d at 1303. “[F]or an act to
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constitute ‘torture’ under CAT, it must be: (1) an act causing severe physical or
mental pain or suffering; (2) intentionally inflicted; (3) for an illicit or proscribed
purpose; (4) by or at the instigation of or with the consent or acquiescence of a
public official who has custody or physical control of the victim; and (5) not
arising from lawful sanctions.” Cadet v. Bulger, 377 F.3d 1173, 1181 (11th Cir.
2004).
Ingkiriwang has not made any arguments to support his request for CAT
relief. Instead, he has simply entitled a section of his appellate brief, “Appellant’s
asylum eligibility under the Torture Convention.” Therefore, he has failed to
demonstrate that substantial evidence compels reversing the IJ’s and the BIA’s
conclusion that he had failed to demonstrate that it was more likely than not that he
would be tortured with the consent or acquiescence of the Indonesian government,
in a manner not pursuant to lawful sanctions. Adefemi, 386 F.3d at 1027; Cadet,
377 F.3d at 1181.2 Accordingly, Ingkiriwang’s claim for CAT relief must also
fail. Based on the foregoing, we dismiss the petition in part and deny it in part.
PETITION DISMISSED IN PART, DENIED IN PART.
2
Although Ingkiriwang argues in his appellate brief for stay of removal pending
disposition of this appeal, alleging that he has met the “clear and convincing evidence” standard
under 8 U.S.C. § 1252(f)(2), we previously denied Ingkiriwang’s motion for stay of removal,
noting that he had failed to meet 8 U.S.C. § 1252(f)(2)’s “clear and convincing evidence”
standard, or the traditional test for injunctive relief. Ingkiriwang has not shown good reason why
this issue should be reconsidered, and thus we do not consider his second request for stay of
removal.
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