Filed: Jul. 15, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-15-2005 Itjie v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-1095 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Itjie v. Atty Gen USA" (2005). 2005 Decisions. Paper 843. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/843 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-15-2005 Itjie v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-1095 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Itjie v. Atty Gen USA" (2005). 2005 Decisions. Paper 843. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/843 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-15-2005
Itjie v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1095
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Itjie v. Atty Gen USA" (2005). 2005 Decisions. Paper 843.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/843
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-1095
ITJIE,
Petitioner
v.
ALBERTO GONZALES 1 , ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
On Appeal from Immigration & Naturalization Service
District No. A79-328-704
Submitted Pursuant to Third Circuit LAR 34.1(1)
March 8, 2005
2
Before: Nygaard , McKee & Rendell Circuit Judges
(Filed: July 15, 2005)
OPINION
McKee, Circuit Judge.
Itjie appeals the decision of the Board of Immigration Appeals affirming the
decision of an Immigration Judge denying her request for asylum and withholding of
removal. The BIA affirmed the IJ’s ruling without opinion; we therefore review the
Immigration Judge's decision. Dia v. Ashcroft,
353 F.3d 228, 245 (3d Cir. 2003) (en
1
Substituted pursuant to Federal Rule of Appellate Procedure 43(c)(2).
2
Judge Nygaard assume Senior Judge status on July 9, 2005.
banc). For the reasons that follow, we will deny the Petition for Review.
The BIA's determination must be sustained if it is supported by substantial
evidence on the record. Abdille v. Ashcroft,
242 F.3d 477, 483 (3d Cir. 2001).
"Substantial evidence” is more than a mere scintilla. It is that quantum of evidence a
reasonable mind might accept to support a conclusion. Senathirajah v. INS,
157 F.3d 210,
216 (3d Cir. 1998). We uphold the IJ’s adverse credibility determination unless "any
reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C.
§1252(b)(4)(b).
An asylum application must be filed within one year of the alien's arrival, 8 U.S.C.
§ 1158(a)(2)(B), unless the applicant is able to prove the "existence of changed
circumstances which materially affect the applicant's eligibility for asylum or
extraordinary circumstances relating to the delay in filing an application." 8 U.S.C. §
1158(a)(2)(D). The IJ dismissed Itjie’s asylum claim because it was not filed within one
year of her arrival. The IJ also concluded that Itjie failed to demonstrate that exceptional
circumstances prevented her from timely filing her application. A.R. 77-78.
We do not have jurisdiction to review either the IJ’s conclusion that Itjie’s
application is time barred, or the finding that she failed to establish exceptional
circumstances to avoid the time bar. Tarrawally v. Ashcroft,
338 F.3d 180, 185 (3d Cir.
2003).
The IJ also concluded that Itjie was not credible. Given the inconsistencies in her
2
testimony, asylum application, and supporting affidavits, that determination is supported
by substantial evidence on the record and must be affirmed. Therefore, we must also
agree that Itjie did not establish that she is entitled to withholding of removal. In order to
obtain that relief, she must show that she is a "refugee." 8 C.F.R. §208.13(a). A refugee
is:
Any person who is outside any country of such person's
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.
8 U.S.C. §1101(a)(42)(A).
In order to establish a “well founded fear," the alien must demonstrate both (1) a
subjectively genuine fear and (2) an objectively reasonable possibility of persecution
upon returning home. INS v. Cardoza-Fonseca,
480 U.S. 421, 430-31,
107 S. Ct. 1207,
94
L. Ed. 2d 434 (1987). Itjie must establish a "clear probability" that her life or freedom
would be threatened if she went back to Indonesia. Janusiak v. INS,
947 F.2d 46, 47 (3d
Cir. 1991). This requires proof that it is "more likely than not" that she will suffer
persecution upon return to her homeland. INS v. Stevic,
467 U.S. 407, 424.
Inasmuch as the IJ’s negative view of Itjie’s credibility is supported by the record,
we agree that she failed to establish that she is entitled to withholding of removal. Itjie’s
3
asylum application states that she was single and had no children. Itjie claimed that she
informed the asylum officer at her asylum interview that she has only one child. A.R.
161. However, at her hearing, she testified that she is widowed and has two children.
A.R. 108. Moreover, she admitted that the statements on her application regarding her
children and marital status were false.
Her supplemental affidavit details a robbery of a necklace and Bible that were not
mentioned in her asylum application or her asylum interview. A.R. 80. The IJ detailed
several inconsistencies between her account of the robbery in her affidavit, and the
account she testified to during her hearing.
Given our standard of review, see
Abdille, supra, we will affirm the denial of
withholding of removal, and since we have no jurisdiction to review the denial of asylum,
we will deny the Petition for Review.
4