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


9-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2661




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                                                    NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                         NO. 04-2661




      KUMALA DEWI KO; NOVI SULISTYOWATI HIE;
     HENDRY GUNAWAN HIE; BAMBANG BUDIANTO,
                                    Petitioners

                              v.

                   ATTORNEY GENERAL,
                                                Respondent


                Petition for Review of the Order
              of the Board of Immigration Appeals
                  (A78-692-061, A78-692-062,
                A78-692-063 and A78-692-064)


           Submitted Under Third Circuit LAR 34.1(a)
                      September 12, 2005

     Before: SLOVITER, BARRY and SMITH, Circuit Judges

                  (Filed: September 20, 2005)




                          OPINION
SLOVITER, Circuit Judge.

       Kumala Ko, her husband Bambang Budianto, and Ko’s two children from a

previous marriage, Hendry Hie and Novi Hie (hereafter collectively “Petitioners”), have

filed a petition for review from the decision of the Board of Immigration Appeals

(“BIA”) denying their motion to reconsider its prior decision rejecting their claims of

asylum, withholding of removal, and protection from removal under Article 3 of the

United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT”). This court has jurisdiction to review the final agency

order under 8 U.S.C. § 1252. See Nocon v. Immigration & Naturalization Serv., 

, 1032 (3d Cir. 1986) (“[W]e can review . . . orders denying motions to . . .

reconsider.”). For the reasons stated below, we will deny the petition for review.

                                             I.

       Petitioners are ethnic Chinese Indonesians who overstayed their non-immigrant

visitor visas. The former Immigration and Naturalization Service (“INS”),1 placed

Petitioners in removal proceedings by issuing a notice to appear on October 20, 2000.




                   1
                      As of “March 2003, the INS ceased to exist as an
            independent agency within the United States Department of Justice
            and its functions were transferred to the newly formed United
            States Department of Homeland Security. The BIA, however,
            remains within the Department of Justice.” Leia v. Ashcroft, 

, 430 n.4 (3d Cir. 2005) (citing, inter alia, Homeland
            Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116
            Stat. 2135 (2002)).

                                             2
An Immigration Judge (“IJ”) sitting in Philadelphia, Pennsylvania presided over their

joint removal proceedings. Petitioners conceded removability but applied for asylum,

withholding of removal, and relief under the CAT.

       Petitioners claimed that they had been persecuted in Indonesia on account of their

Chinese ethnicity, as well as their Christian faith. All four petitioners testified before the

IJ. Budianto testified, inter alia, that native Indonesians had ransacked his shrimp farm

and burglarized his home. Hendry testified that he had suffered several physical attacks

at the hands of native Indonesians and that he had been subjected to verbal assaults and

ethnic slurs. Novi testified that she had been sexually assaulted on several occasions in

Indonesia. Ko also testified about the violence visited upon her and her family; she

further informed the IJ of her experiences during the well-documented Indonesian race

riots of May 1998. See generally Lie v. Ashcroft, 

, 532-33 (3d Cir. 2005).

       In an oral decision issued November 1, 2002, the IJ rejected Petitioners’ claims for

asylum, withholding of removal, and relief under the CAT. In so doing, the IJ made an

adverse credibility determination, stating: “Considering the discrepancies, contradictions,

and lack of plausibility of [Petitioners’] case in chief, there is absolutely no way that this

Court can find that the [Petitioners] have been credible nor that [they] have presented a

credible case in chief to this Court.” App. at 15. Moreover, the IJ ruled alternatively that,

even assuming arguendo that he had believed the Petitioners’ version of events, he still

would have denied their applications because their asserted instances of persecution did



                                               3
not contain the requisite governmental nexus. See generally Gao v. Ashcroft, 

, 272 (3d Cir. 2002) (noting that “persecution” requires showing of government action

or actions by “forces the government is either unable or unwilling to control”) (citation

and quotations omitted).

       On February 26, 2004, the BIA affirmed the IJ’s decision by way of a per curiam

opinion. Specifically, after summarizing the various inconsistencies that the IJ had

identified, the BIA found that the IJ’s adverse credibility determination was fully

supported by the record.

       Instead of filing a petition for review of the BIA’s February 2004 decision with

this court, Petitioners filed a motion to reconsider with the BIA itself. See generally 8

C.F.R. § 1003.2(b). This motion “request[ed] that the Board reconsider its finding of

adverse credibility and grant [Petitioners’] appeal from the decision of the [IJ].” App. at

129. On May 10, 2004, however, the BIA denied Petitioners’ motion to reconsider. This

timely petition for review followed.

                                             II.

       As an initial matter, we must make clear precisely what we can review. As noted

above, Petitioners did not file a petition with this court to review the BIA’s February 26,

2004 opinion denying their appeal from the IJ’s decision; instead, they filed a motion to

reconsider with the BIA itself. The Supreme Court of the United States has held that the

filing of a motion to reconsider a final order with the issuing administrative agency does



                                              4
not toll the period for seeking judicial review of the underlying order and does not render

the underlying order non-final. Stone v. Immigration & Naturalization Serv., 

, 394 (1995). Thus, we do not have jurisdiction to review the BIA’s February 26,

2004 order; rather, the only order before us is the BIA’s May 10, 2004 order denying

Petitioners’ motion to reconsider. See Nocon v. Immigration & Naturalization Serv., 

, 1032-33 (3d Cir. 1986).2

       We review a decision by the BIA to deny an alien’s motion to reconsider for an

abuse of discretion, 

, mindful of the broad deference that the

Supreme Court would have us afford. See Immigration & Naturalization Serv. v. Abudu,

, 110 (1988). Under the abuse of discretion standard, the BIA’s decision will

not be disturbed unless it is found to be “‘arbitrary, irrational, or contrary to law.’” Tipu

v. Immigration & Naturalization Serv., 

, 582 (3d Cir. 1994)).

       In its February 26, 2004 opinion affirming the IJ, the BIA recounted the numerous

discrepancies between Ko’s testimony before the IJ, the affidavit Ko had filed in support

of her asylum claim, and the testimony of Hendry and Novi. For instance, the BIA noted




                    2
                       Moreover, considering that the IJ’s adverse credibility
             determination was the only issue raised by Petitioners in their
             motion to reconsider, we do not have jurisdiction over the other
             issues raised in Petitioners’ brief, such as their contention that the
             IJ ignored evidence of country conditions in Indonesia, that the IJ
             erroneously concluded that Petitioners’ submitted instances of
             persecution lacked a governmental nexus, and that the IJ had failed
             to develop the record. We thus will not discuss those matters.

                                               5
that Ko’s affidavit averred that her brother-in-law’s house was looted during the May

1998 riots; during her testimony before the IJ, however, she stated that her brother-in-

law’s house had not been harmed during that event. The BIA further noted the

discrepancies between Ko’s statements and those of her children recounting a robbery

that they all claimed to have endured on a bus. Due to these and other discrepancies, the

BIA affirmed the IJ’s adverse credibility determination.

       In its May 10, 2004 order denying Petitioners’ motion to reconsider, the BIA stated

in pertinent part:

       The [IJ’s] decision and our [February 26, 2004] affirmance of that decision
       were based upon an adverse credibility finding. In her motion to
       reconsider, . . . [Ko] contends that we erred in affirming the [IJ’s] adverse
       credibility finding. . . . because it was based upon minor discrepancies. We
       disagree. The numerous discrepancies were indeed present in the record of
       proceeding and were central to the . . . claim of past persecution. . . .
       Considered in the aggregate, they were a sufficient basis upon which to find
       [Ko] not credible. Furthermore, [Ko] failed to provide a convincing
       explanation for those discrepancies. Based on the foregoing, we cannot
       conclude that [Ko] identified any error of fact or law in our prior decision.

App. at 140. On this record, this decision cannot be said to be “‘arbitrary, irrational, or

contrary to law.’” 

. Rather, the record fully supports the BIA’s

finding that Petitioners’ testimony and submissions were plagued by inconsistencies and

implausibilities.

       Petitioners claim that many of the inconsistencies in their testimony occurred as a

result of “shoddy translation.” Petitioners’ Br. at 16. The BIA did not find this

explanation convincing as a matter of fact. Furthermore, the BIA concluded that

                                              6
Petitioners’ ineffective translation argument was, in reality, an ineffective assistance of

counsel claim. See generally Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). For

these reasons, the BIA rejected Petitioners’ explanation both in its February 2004 opinion

affirming the IJ and in its May 2004 order declining reconsideration. We find no error in

the BIA’s actions.

       In sum, it follows that the BIA did not abuse its discretion in its May 10, 2004

order refusing to reconsider its February 26, 2004 decision.

                                             III.

       For the reasons stated above, we will deny Petitioners’ petition for review.