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


7-18-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1349




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 04-1349

                                  ERWIN HIDAYAT

                                                 Petitioner

                                            v.

                              ATTORNEY GENERAL
                       OF THE UNITED STATES OF AMERICA,

                                                 Respondent

                  On Petition for Review of an Order of Removal from
                           the Board of Immigration Appeals
                                   File: A79-318-327
                                Judge: Anthony Moscato

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 19, 2005

                    Before: ALITO, MCKEE, SMITH, Circuit Judges

                             (Opinion Filed: July 18, 2005)

                                        OPINION

McKee, Circuit Judge

      Erwin Hidayat petitions for review of the Board of Immigration Appeals’ order

affirming the decision of an Immigration Judge denying relief from removal, but granting

voluntary departure. For the reasons that follow, we will deny the Petition for Review.



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                                               I

         Hidayat is a native and citizen of Indonesia. He entered the United States on May

14, 1999 on a visitor’s visa. Hidayat decided to remain in the United States after his

mother informed him that conditions for non-Muslims in Indonesia had deteriorated. He

thereafter applied for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”), claiming persecution on account of race, religion and ethnicity

(Chinese Catholic).

         Hidayat’s testimony at the removal proceedings included an account of being

assaulted in Indonesia in May, 1998, when a Muslim mob attacked his church, set it on

fire, and beat him. Hidayat also testified that he had suffered from prejudice and

harassment in Indonesia because of his race and he feared being beaten or killed if he

were to return.

         The IJ denied his applications for asylum, withholding of removal, and relief under

the C.A.T, but granted his application for voluntary departure. The IJ ruled that

Hidayat’s asylum request was time barred, and that he “failed to establish that his

untimely filing of his application was based on exigent circumstances, . . . [or] . . .

changed country conditions.” The BIA affirmed the IJ’s decision without opinion. This

Petition for Review followed. We review the IJ’s decision because the BIA summarily

affirmed the ruling of the IJ. See Abdulai v. Ashcroft, 

, 548-49 (3d Cir.

2001).



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                                             II.

       Pursuant to 8 U.S.C. § 1158(a)(2)(B), an alien may not apply for asylum unless

s/he “demonstrates 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.” This time

limitation does not apply “if the alien demonstrates to the satisfaction of the Attorney

General either 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). “Changed circumstances” may

include “changes in conditions in the applicant’s country of nationality.” 8 C.F.R. §

1208.4(a)(4). The IJ ultimately found that Hidayat failed to establish that his untimely

application resulted from exigent circumstances or changed country conditions in

Indonesia.

       Although we usually have jurisdiction to review a final order of removal, 8 U.S.C.

§ 1252(a)(1), we do not have jurisdiction to review the IJ’s determination regarding

Hidayat’s untimely asylum application. 8 U.S.C. § 1158(a)(3). Thus, although Hidayat

quotes extensively from the 2002 State Department Report regarding conditions in

Indonesia to support his asylum claim, we can not now review the IJ’s asylum ruling.

       We review the IJ’s findings of fact with respect to Hidayat’s withholding of

removal and C.A.T claim under the substantial evidence standard. We will affirm the IJ’s

findings if they are “supported by reasonable, substantial and probative evidence on the



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record considered as a whole.” Balasubramanrim v. INS, 

, 161 (3d Cir.

1998) (internal quotation marks and citation omitted).

       In order to obtain withholding of removal, an alien must establish by a clear

probability that his/her life or freedom would be threatened in the proposed country of

deportation or removal due to persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion. Chang v. INS, 119 F.3d

1055,1066 (3d Cir. 1997). “Clear probability” has been interpreted to mean “more likely

than not.” INS v. Cardozo-Fonseca, 

, 430 (1987). This imposes a higher

burden on the alien than the “well founded fear” standard required for asylum. Janusiak

v. INS, 

, 47 (3d. Cir 1991). Thus, if an alien cannot satisfy his/her burden for

asylum, s/he can not meet the burden for withholding of removal.

       An applicant for protection under the Convention Against Torture must show that

s/he is more likely than not to be tortured in the country of removal. 8 C.F.R. §

1208.16(c)(2) & (4).

       The IJ found that Hidayat failed to show that he suffered past persecution or that

he would suffer future persecution based on his race or religion. Therefore, he denied

Hidayat’s claim for withholding of removal. The IJ also rejected Hidayat’s claim for

relief under the C.A.T because Hidayat did not establish that it was more likely than not

that he would be tortured upon his return to Indonesia.

       Although Hidayat offered testimony regarding unemployed Indonesians harassing



                                             4
him on the street and demanding money, the IJ correctly concluded that this “harassment”

did not rise to the level of “persecution.” Moreover, the record suggests that the

harassment was “on account of” Hidayat’s perceived wealth, not his race or religion.

       More fundamentally, the IJ was not convinced that Hidayat was either a Catholic

or a member of any other Christian denomination, because he testified that he was still

“searching for religion.” He demonstrated little knowledge about the basic teaching of

Christianity and Catholicism, and the IJ was understandably reluctant to accept Hidayat’s

testimony about his religious persecution. Although the law certainly does not require

that an alien possess the knowledge of a sectarian scholar to claim persecution on account

of religion, the IJ could consider Hidayat’s lack of knowledge when evaluating his

testimony about religious persecution.

       Moreover, the single incident of the attack on the church and the beating in 1998,

though troubling, did not rise to the level of religious persecution. In addition, the IJ

could consider Hidayat’s testimony that he initially planned to return to Indonesia when

he came to the United States, in assessing his fear of future persecution.

       We believe the IJ adequately considered the conditions in Indonesia and her

findings are supported by substantial evidence. Hidayat argues that, since he submitted

sufficient background material to document a “widespread” persecution of Christians and

non-Muslims in Indonesia, he established a pattern or practice under 8 C.F.R. §

208.13(b)(2)(iii). He therefore claims that the IJ’s decision is not supported by substantial


                                              5
evidence.

       The regulations state that:

              the . . . immigration judge shall not require the applicant to
              provide evidence that there is a reasonable possibility he or
              she would be singled out individually for persecution if:
              (A) The applicant establishes that there is a pattern or practice
              in his or her country of nationality . . . of persecution of a
              group of persons similarly situated to the applicant on account
              of race, religion, nationality, membership in a particular social
              group, or political opinion; and
              (B) The applicant establishes his or her own inclusion in, and
              identification with, such group of persons such that his or her
              fear of persecution upon return is reasonable.


       The IJ explained that, although applicable regulations allow Hidayat to establish

his claims by relying upon a pattern or practice of persecution of similarly situated

persons, the evidence did not establish a pattern or practice regarding persecution of

Chinese. Moreover, assuming arguendo, a pattern or practice of persecution of

Christians, Hidayat’s claim would still fail because he did not establish that he was a

Christian.

       In order to obtain relief under the C.A.T an applicant must show that the torture

suffered was an intentional governmental act, meaning that it was 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. § 1208.18(a)(1).

       Hidayat states that he is more likely than not to be tortured because Christians have

been attacked in Indonesia and the Indonesian government has not effectively punished

                                              6
perpetrators. Regardless of the truth or falsehood of these assertions, they do not legally

suffice. Even if a country cannot guarantee a person’s safety - even if it cannot prosecute

and punish most criminals after they have inflicted harm- it does not mean that country’s

public officials are “acquiescing” to torture. The IJ found that Hidayat was accosted by

beggars and attacked by a mob of private citizens, not government agents, and the record

does not compel a different conclusion.

                                            III.

       For all of the reasons set forth above, we will deny the Petition for Review.




_______




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