Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3737




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                                                               NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                 No. 05-3737


                              FNU BUDIYONO,

                                                  Petitioner

                                       v.

                         ATTORNEY GENERAL OF
                          THE UNITED STATES,

                                                  Respondent




                     On Petition for Review of an Order of
                      The Board of Immigration Appeals
                 Immigration Judge: Honorable Miriam K. Mills
                              (No. A96-203-450)


                   Submitted Under Third Circuit LAR 34.1(a)
                                 June 7, 2006

          Before: AMBRO, FUENTES and GREENBERG, Circuit Judges

                         (Opinion filed June 28, 2006 )




                                  OPINION


AMBRO, Circuit Judge
       Fnu Budiyono petitions for review of an order of the Board of Immigration

Appeals (BIA) affirming the denial of his claims for asylum and withholding of removal.

For the reasons set forth below, we will affirm the decision of the BIA and deny the

petition for review.1

                                             I.

       Because we write principally for the parties, we note only those facts necessary to

our analysis. Budiyono is an ethnically Chinese Christian citizen of Indonesia who

entered the United States as a non-immigrant visitor, overstayed his visa, and was charged

with removal for remaining in the United States without authorization in violation of 8

U.S.C. § 1227(a)(1)(B). Budiyono conceded he was removable and applied for asylum,

withholding of removal, relief under the United Nations Convention Against Torture and

Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), and, in

the alterative, voluntary departure. He claimed he was persecuted in Indonesia on

account of his ethnicity and religion, and that he has a well-founded fear of future

persecution on the same grounds should he return.

       The immigration judge (IJ) found that Budiyono was not eligible for asylum

because his application was not filed within one year of his arrival in the United States. 8




       1
       The IJ had jurisdiction pursuant to 8 C.F.R. § 208.2. The BIA had jurisdiction
under 8 C.F.R. § 1003.1(b). We exercise appellate jurisdiction over this petition for
review under § 242(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1252(b).

                                             2
U.S.C. § 1158(a)(2)(B). Moreover, Budiyono had not demonstrated either changed

circumstances affecting his eligibility or extraordinary circumstances relating to the delay

that could allow for the consideration of an otherwise untimely application. 8 U.S.C. §

1158(a)(2)(D). The IJ further found that – although Budiyono’s testimony was credible –

the harm he feared was neither severe nor likely enough to satisfy the standards for

withholding of removal and relief under the CAT. See 8 U.S.C. § 1231(b)(3)(A)

(withholding of removal); INS v. Stevic, 

, 412 (1984) (withholding

appropriate only when there is a “clear probability” that the alien’s life or freedom would

be threatened upon removal); see also 8 C.F.R. §§ 208.16 and 208.18 (regulations

governing CAT claims); Abdulrahman v. Ashcroft, 

, 591 n.2 (3d Cir. 2003)

(for a CAT claim, alien must show it is more likely than not that s/he will be tortured by

the government or with its acquiescence). The IJ granted Budiyono voluntary departure.

       Budiyono appealed the IJ’s decision as to his asylum and withholding of removal

claims to the BIA.2 The BIA affirmed, concluding that there was no evidence to support

his contention that country conditions had changed such that his untimely asylum petition

should be considered, and the evidence was insufficient to prove eligibility for


       2
        As it does not appear that Budiyono raised his claim for CAT relief before the
BIA, we do not address it here. See Abdulrahman v. Ashcroft, 

, 594-95 (3d
Cir. 2003) (“[A]n alien is required to raise and exhaust his or her remedies as to each
claim or ground for relief if he or she is to preserve the right of judicial review of that
claim.”). In any event, Budiyono has not raised a CAT claim in his brief to our Court,
and therefore, even if he had raised it before the BIA, that claim would be waived. Lie v.
Ashcroft, 

, 532 n.1 (3d Cir. 2005).

                                             3
withholding. The BIA also affirmed the IJ’s grant of voluntary departure. Budiyono

petitions for review of the BIA’s decision.

                                              II.

       8 U.S.C. § 1158(a)(3) deprives us of jurisdiction to review the IJ’s determination

that Budiyono’s asylum petition was not filed within the one year limitations period, and

that the period was not tolled by extraordinary circumstances. 8 U.S.C. § 1158(a)(3);

Tarrawally v. Ashcroft, 

, 185 (3d Cir. 2003).

       We have jurisdiction, however, to review the IJ’s denial of withholding of

removal. Where, as here, the BIA adopts the findings of the IJ and discusses some of the

bases of the IJ’s decision, we review the decisions of both the IJ and the BIA. Chen v.

Ashcroft, 

, 222 (3d Cir. 2004). We review the determination of whether an

alien was subject to persecution or has a well-founded fear of future persecution under the

substantial evidence standard, “under which we may reverse only if a reasonable

adjudicator would be compelled to conclude to the contrary.” Toure v. Attn’y Gen., 

, 316 (3d Cir. 2006) (internal quotation marks and citations omitted); see also 8

U.S.C. § 1252(b)(4)(B).

       We conclude that substantial evidence supports the IJ’s and the BIA’s findings that

the incidents described and the harm feared by Budiyono do not rise to the level of

persecution. He described the generally hostile – and sometimes violent – conditions

experienced by ethnically Chinese and Christian Indonesians, and testified to his own



                                              4
direct experiences of being harassed and discriminated against on account of his ethnicity

and religion. However, “the concept of persecution does not encompass all treatment that

our society regards as unfair, unjust or even unlawful or unconstitutional.” Fatin v. INS,

, 1240 (3d Cir. 1993). Accordingly, we have defined “persecution as

including threats to life, confinement, torture, and economic restrictions so severe that

they constitute a real threat to life or freedom.” Lukwago v. Ashcroft, 

, 168

(3d Cir. 2003) (citation and internal quotations omitted). Moreover, “persecution”

requires either government involvement or the involvement of individuals the government

is “unable or unwilling to control.” Gao v. Ashcroft, 

, 273 (3d Cir. 2002).

Here, Budiyono did not demonstrate either “a real threat to life or freedom” or that the

Indonesian government is “unable or unwilling to control” the individuals who allegedly

persecuted him. In this light, we hold that there was substantial evidence to support the

denial of Budiyono’s withholding claim.

                                            III.

       We take a moment to comment on the wholly inadequate brief prepared by

Budiyono’s attorney, Eleanor Chen.3 As stated above, Budiyono’s asylum claim was

denied as untimely, and for failing to cite circumstances that could excuse the delay.




       3
        We note that our Court has recently made similar criticisms of Ms. Chen in
another unpublished opinion and referred her to the Third Circuit Court of Appeals’
Disciplinary Committee pursuant to Federal Rule of Appellate Procedure 46(c).
Agusalim v. Gonzales, 

, *2 n.2 (3d Cir., May 24, 2005).

                                              5
Because we do not have jurisdiction to review the timeliness determination, Budiyono’s

withholding claim represented his only viable claim for relief. Yet in her brief Ms. Chen

argues only Budiyono’s asylum claim and fails completely to make an argument for

withholding of removal. Moreover, even within her argument on the doomed asylum

claim Ms. Chen argues the merits of the claim, and ignores completely the timeliness

issue. In other words, she neglects the only issue we would be able to review if we were

able to exercise jurisdiction over the claim.

       The fatal mismatch between Budiyono’s claims and Ms. Chen’s argument may be

due in part to her apparent decision to cut and paste her asylum argument from previous

briefs. We have compared her brief in this case to a brief submitted in a another petition

for review (seeking relief on different grounds and in regard to a different country), and

cannot help but notice that whole sections are identical word for word.

       One of the identical sentences that Ms. Chen would have been advised to cut out

of Budiyono’s brief was the assertion that “[t]he Immigration Judge’s pure suspicion that

there are contradictions in the testimony of Petitioner, without more, is not an adequate

basis for a discretionary denial of asylum who will almost certainly face persecution in his

home country.” As we already observed, the claim Ms. Chen should have been asserting

was for withholding of removal, but more importantly, the IJ in this case found explicitly

that Budiyono was credible as to his claims of persecution. There was no “suspicion” and

there were no alleged “contradictions.”



                                                6
       Another boilerplate sentence, which was equally inappropriate in the earlier brief,

is the assertion that “[i]t is stipulated . . . [Budiyono] has a well-founded fear of

persecution in Indonesia.” A stipulation is a “voluntary agreement between opposing

parties concerning some relevant point.” Blacks’s Law Dictionary 1427 (7th ed. 1999).

Despite Ms. Chen’s confident declaration that the central question on appeal to our Court

has been resolved by the parties, the Government has submitted a brief defending the

BIA’s denial of relief, thus suggesting that it has not stipulated to the existence of

persecution.

       In addition, we observe that in the five pages devoted to Budiyono’s appeal, Chen

includes only two sentences that are specific to him. First, she begins by saying

“[p]etitioner is a 37 year old single male.” She goes on to state that “[p]etitioner has

suffered severe trauma right after the May 1998 civil riots in Jakarta in which ethnic

Chinese were targeted for brutality by native Indonesians.” In contrast, the Government’s

brief includes six pages discussing Budiyono’s specific experiences of harassment and

discrimination. Of course, the Government’s point is that these “previous hardships” and

“societal discrimination” do not amount to persecution, and we agree. Generally,

however, an “applicant must do more than rely on a general threat of danger arising from

a state of civil strife; some specific showing is required,” Al-Fara v. Gonzales, 

, 742 (3d Cir. 2005), and thus an attorney is well-advised to cite to specific examples

of persecution in order to support a claim for relief from removal.



                                               7
       In this context, Ms. Chen’s performance on appeal did not have a measurable

effect on Budiyono’s claim for relief, as we do not have jurisdiction to review his asylum

claim and the record is clear that there are no facts sufficient to meet the more stringent

standard for withholding. Lukwago v. INS, 

, 182 (3d Cir. 2003) (“The

standard for withholding of removal is higher than, albeit similar to, the standard for

asylum.”).

                                         * * * * *

       For the reasons stated herein, we deny Budiyono’s petition for review. We do not

disturb the grant of voluntary departure as provided in the order of the BIA.




                                              8