Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4536




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 03-4536


                                      EVI OKTAVIA,
                                                 Petitioner

                                             v.

       ALBERTO GONZALES,* ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent


                PETITION FOR REVIEW FROM THE ORDER
         AND JUDGMENT OF THE BOARD OF IMMIGRATION APPEALS
                         Agency No. A79 302-395


                       Submitted Under Third Circuit LAR 34.1(a)
                                  February 7, 2005


               Before: BARRY, FUENTES, and BECKER, Circuit Judges


                             (Opinion Filed: March 17, 2005)


                                         OPINION




   *
   Attorney General Alberto Gonzales has been substituted for former Attorney General John
Ashcroft, the original respondent in this case. Fed. R. App. P. 43(c).
BARRY, Circuit Judge

          Evi Oktavia (“Oktavia”) petitions for review of a decision by the Board of

Immigration Appeals (“BIA”). The BIA dismissed her appeal, adopting and affirming the

decision of the Immigration Judge (“IJ”), with two “corrections.” For the reasons

discussed below, we will deny the petition for review.

                                                  I.

          We write exclusively for the benefit of the parties and will only recount those

matters relevant to the issues before us. Oktavia is a native and citizen of Indonesia who

entered the United States on or about December 7, 1999 as a non-immigrant visitor with

authority to remain until June 6, 2000. On April 16, 2001, the then-Immigration and

Naturalization Service (“INS”) executed a Notice to Appear (“NTA”) charging Oktavia

as an alien who remained in the United States for a time longer than permitted under 8

U.S.C. § 1227(a)(1)(B). At a hearing before the IJ, Oktavia admitted the factual

allegations contained in the NTA and conceded removability. The IJ designated Indonesia

as the country to which she would be removed.

          Meanwhile, on February 14, 2001, Oktavia had applied for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). During the hearing

before the IJ, Oktavia testified that she is an Indonesian of Chinese heritage and is a

Buddhist.1 She testified that living in Indonesia was difficult. As a child, she was



   1
       In her brief to us, Oktavia states that she is a Christian. Pet. Brief at 2.

                                                   2
mistreated by other students because she was ethnic Chinese and Buddhist. Some

Indonesian children would ask her and other ethnic Chinese students for money because

the Indonesian children did not like them. Additionally, she claimed that sometimes

Indonesian teachers would ask questions but not let the ethnic Chinese students answer.

       This alleged mistreatment extended beyond her childhood. Oktavia testified that,

as an adult, she was violently attacked on three occasions. In December of 1995,

Indonesian men approached her car, which was stopped at a red light. The men

threatened her with a knife, broke her car windows, stole property inside her car, and cut

her arm with the knife. The men also told her that she should go back to her own country.

When the light turned green, Oktavia sped away. She did not report this crime to the

police. Three years later, Oktavia was dragged from her car during a riot. She fled the

scene, but the rioters chased after her, raped her, and burned her car. She passed out and

awoke in a hospital, but, again, did not report the incident to the police. A third attack

occurred three months later. Oktavia and her fiancee were riding together on a

motorcycle. Four men approached the couple and kicked her fiancee off the motorcycle.

He fell to the ground, hit his head on the pavement, and was rendered unconscious.

Oktavia took him to the hospital and reported the assault to the police.

       The IJ considered Oktavia’s testimony, the affidavits, and the State Department’s

2000 “Country Report on Human Rights Practices: Indonesia” which concludes, inter

alia, that: the Indonesian government “embraces” Buddhism; the Indonesian Constitution



                                              3
provides for freedom of religion; rape is a punishable offense; and Indonesia promotes

racial and ethnic tolerance. The Report did observe that resentment of Sino-Indonesian

prosperity led to attacks and riots in 1998.

       The IJ rejected Oktavia’s claims. The IJ denied asylum, finding the application

untimely because it was filed more than a year after Oktavia’s arrival and that exceptional

circumstances did not exist to excuse a late filing. The IJ also denied the withholding of

removal and CAT claims because he did not believe that Oktavia’s mistreatment rose to

the level of persecution. In addition, the IJ found “a total lack of credibility” in her

testimony and that of her husband and found that “they have intentionally and deliberately

attempted to deceive this Court by giving false testimony, trying to mislead this Court,

and attempting to have the Court grant them benefits under the Act based on their

perjured testimony.” Op. at 12-13.

       The BIA dismissed the appeal. Oktavia did not appeal the denial of the CAT claim

to the BIA, nor does she raise it now. She does, however, seek review of the final order

of the BIA as to asylum and withholding of removal.

                                               II.

        We have jurisdiction to review a final order of removal under 8 U.S.C. §

1252(a)(1). In cases in which the Board merely adopts the IJ’s opinion, we review the

IJ’s decision. Gao v. Ashcroft, 

, 271 (3d Cir. 2002). Our scope of review is

extremely narrow: we will affirm any finding of fact supported by substantial evidence.



                                               4
Abdille v. Ashcroft, 

, 483-484 (3d Cir. 2001) (citations omitted). This means

that we must uphold the IJ’s factual findings if they are “supported by reasonable,

substantial and probative evidence on the record considered as a whole.” INS v. Elias-

Zacarias, 

, 481 (1992). Furthermore, we are bound by the findings of fact

unless a reasonable adjudicator would be compelled to conclude to the contrary. 

(citations omitted).

                                             III.

       Oktavia raises two main issues on appeal. First, she argues that the IJ erred in not

granting her asylum or withholding of removal. Second, she argues that the IJ’s adverse

credibility determination was based on speculation and conjecture.

A.     Asylum Claim

       Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to an alien

who is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). Generally speaking, to

qualify as a refugee, an applicant must show that he or she is unable or unwilling to return

to his or her country because of persecution or a well founded fear of persecution on

account of race, religion, nationality, membership in a particular group, or political

opinion. 8 U.S.C. § 1101(a)(42)(A); Yan Lan Wu v. Ashcroft, 

, 423 (3d Cir.

2005) (citations omitted). In addition, to qualify for asylum, an alien must “demonstrate

by clear and convincing evidence that the application has been filed within 1 year after

the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). This



                                              5
provision, however, does not apply if the applicant can show “extraordinary

circumstances” that justify the delay in filing the application. 8 U.S.C. § 1158(a)(2)(D);

Tarrawally v. Ashcroft, 

, 184 (3d Cir. 2003). Section 1158(a)(3) provides

that federal courts do not have jurisdiction to review the determination of the Attorney

General under 8 U.S.C. § 1158(a)(2).

         Pursuant to 8 U.S.C. § 1158(a)(2)(B) and (D), the IJ denied Oktavia’s application

for asylum as untimely. The IJ explained that the application was filed more than one

year after her arrival and found that no exceptional circumstances existed to excuse the

delayed filing. We lack jurisdiction to review this determination. 8 U.S.C. § 1158(a)(3);

.

B.       Withholding of Removal Claim 2

         The Attorney General may not remove an alien to a particular country if “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); 

. An applicant bears the burden of

establishing “that his life or freedom would be threatened in the proposed country of

deportation.” 

(citing INS v. Stevic, 

(1984)).




     2
     During the IJ’s discussion of Oktavia’s withholding of removal claim, he used the
terms “asylum” and “withholding of removal” interchangeably. Because the IJ had
already dismissed the asylum claim, we will assume that he was then intending only to
analyze the withholding of removal claim.

                                              6
Thus, to secure a withholding under the INA, the applicant must show that it is “more

likely than not” that he will be subject to future persecution. See 8 C.F.R. § 208.16(b)(2).

That persecution must be on account of race, religion, nationality, membership in a

particular social group, or political opinion. See 

merely cites general legal propositions and fails to specifically

identify any evidence the IJ overlooked in reaching his decision or explain how her life or

freedom would be threatened were she to return to Indonesia. That aside, our

independent review of the record satisfies us that substantial evidence supports the IJ’s

decision.

       As noted above, Oktavia’s testimony before the IJ essentially described three

isolated violent incidents over a period of three years, and recounted mistreatment she

suffered as a child at school. These events do not, however, rise to the level of

persecution. See Lie v. Ashcroft, 

, ___, 

, at *4 (3d Cir.

2005) (“two isolated criminal acts, perpetrated by unknown assailants, which resulted

only in the theft of some personal property and a minor injury, is not sufficiently severe to

be considered persecution.”) (citing Gormley v. Ashcroft, 

, 1177 (9th Cir.

2004)). Persecution, after all, is an extreme concept that “does not encompass all

treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”

Fatin v. INS, 

, 1240 & n.10 (3d Cir. 1993) (observing that “[i]f persecution

were defined that expansively, a significant percentage of the world's population would



                                              7
qualify for asylum in this country”). Because Oktavia did not establish that she had

suffered persecution or would be subject to persecution in Indonesia, she was not entitled

to withholding of removal.

C.     Adverse Credibility Determination

       Oktavia argues that the IJ’s adverse credibility determination rested on a

“speculative conclusion that the difference between Petitioner’s affidavit and testimony

suggests incredibility.” Pet. Brief at 3. Oktavia then observes, correctly, that speculation

and conjecture do not form a valid basis for making an adverse credibility determination.

See 

. But observations are not enough. Oktavia must show that the

evidence of credibility is so strongly in her favor that, in a civil trial, she would be entitled

to judgment on the credibility issue as a matter of law. INS v. Elias-Zacarias, 

, 481 n.1 (1992) (holding that credibility determinations can be reversed only where

petitioner’s evidence “compels” a reasonable factfinder to find in his favor).

       For one thing, Oktavia does not tell us which of the various credibility

determinations rests on speculation or conjecture. For another, it is clear that some of her

testimony regarding her assaults is contradictory, essential aspects of her testimony

regarding her rape and the burning of her car are not supported by her affidavit, and some

of her testimony conflicts with her husband’s testimony. A reasonable factfinder would

surely not be compelled to find in her favor.




                                                8
                                    IV.

The petition for review will be denied.




                                     9