Filed: Dec. 15, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-15-2006 Sutrisno v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4654 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Sutrisno v. Atty Gen USA" (2006). 2006 Decisions. Paper 88. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/88 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-15-2006 Sutrisno v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4654 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Sutrisno v. Atty Gen USA" (2006). 2006 Decisions. Paper 88. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/88 This decision is brought to you for free and open access by the Opinions ..
More
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-15-2006
Sutrisno v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4654
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Sutrisno v. Atty Gen USA" (2006). 2006 Decisions. Paper 88.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/88
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 2006 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NOT PRECEDENTIAL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. 05-4654
RUDI SUTRISNO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A96-262-298)
Immigration Judge Donald V. Ferlise
Submitted Under Third Circuit LAR 34.1(a)
October 4, 2006
Before: McKEE, AMBRO, and NYGAARD, Circuit Judges.
(Filed: December 15, 2006)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
I.
Rudi Sutrisno, a native and citizen of Indonesia, was granted a visitor visa on
October 29, 1998. Sustrisno’s visa expired on January 28, 1999, but he nonetheless
remained in the United States. On April 16, 2003, the Government initiated removal
proceedings against him. He conceded removability, but applied for asylum, withholding
of removal, protection from removal pursuant to the Convention Against Torture1 or,
alternatively, permission to depart voluntarily.
In his applications for relief, Sutrisno alleged native Muslims subjected him to
racial and religious discrimination in Indonesia. In particular, he asserted three Muslim
men attempted to rape his sister, stoned his house and later set his house ablaze. Although
Indonesian authorities prosecuted and imprisoned the men, Sutrisno maintains he is
afraid they will retaliate against him should he return to his homeland.
At his appearance before Immigration Judge Donald V. Ferlise, Sutrisno testified
and submitted documentary evidence that indicated his father died from a stroke induced
by the attacks against the family. The IJ found Sutrisno’s application for asylum untimely
and concluded Sutrisno failed to establish changed or extraordinary circumstances
excused the delayed filing. The IJ also found Sutrisno “generally” not credible and
surmised that, even if credible, Sutrisno failed to produce substantial evidence of past
persecution or a reasonable fear of future persecution. The IJ ultimately denied Sutrisno’s
1. In his petition for review by this Court, Sutrisno does not contest the BIA’s subsequent denial
of his CAT claim.
2
applications for asylum, withholding of removal and Convention Against Torture relief,
but granted permission to depart voluntarily. The Board of Immigration Appeals
affirmed, adopted the IJ’s findings and denied Sutrisno’s appeal. We will deny review.
II.
A.
Even if an alien fails to meet the one-year filing deadline, he may still apply for
asylum if he demonstrates, “to the satisfaction of the Attorney General,” the existence of:
1) changed circumstances which materially affect his eligibility; or 2) extraordinary
circumstances relating to his delay in filing. 8 U.S.C. §1158(a)(2)(D) (2006).
The IJ found Sutrisno failed to establish “changed” or “extraordinary
circumstances” which might justify his failure to file his application in a timely manner.
Despite the changes implemented by the REAL ID Act, 8 U.S.C. §1158(a)(3) deprives us
of jurisdiction to review the IJ’s determination. Sukwanputra v. Gonzales, 434 F.3d 627,
635 (3d Cir. 2006).
B.
Next, we review adverse credibility determinations for substantial evidence.
Sukwanputra, 434 F.3d at 636 (citing Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002)).
Substantial evidence is relevant evidence a reasonable mind might accept as adequate to
support a conclusion. Ezeagwuna v. Ashcroft,
301 F.3d 116, 126 (3d Cir. 2002). We defer
3
to the IJ’s credibility determination, unless his findings are not reasonably grounded in
the record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).
The IJ did not base his adverse credibility determination upon “mere conjecture.”
Sukwanputra, 434 F.3d at 637. Rather, the IJ found material discrepancies between
Sutrisno’s affidavit and testimony, as well as between statements he made during the
hearing. Xie v. Ashcroft,
359 F.3d 239, 246 (3d Cir. 2004). Sutrisno gave inconsistent
accounts of the alleged targeting of his family and presented little or no other evidence to
substantiate his claims. The IJ reasonably concluded Sutrisno fabricated his story.
C.
“The Attorney General may not remove an alien to a country if the Attorney
General decides 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)(2006). To obtain relief under this section, an
alien must demonstrate that it is more likely than not – that there is a “clear probability” –
his life or freedom would be threatened in the country of deportation. Zubeda v. Ashcroft,
333 F.3d 463, 470 (3d Cir. 2003).
The IJ properly refused to grant Sutrisno withholding of removal. Sutrisno failed
to establish a “clear probability” his life or freedom would be jeopardized for racial,
religious or other reasons should he return to Indonesia. In fact, the record indicates his
family was targeted by vindictive criminals, and that the government duly responded by
4
prosecuting and punishing them. He has provided no evidence the attackers pose a
continuing threat to him or his family.
D.
Finally, Sutrisno contends the Immigration Judge erred by refusing to grant
discretionary relief pursuant to 8 C.F.R. §208.14(a). “Unless otherwise prohibited in
§208.13(c), an immigration judge may grant or deny asylum in the exercise of discretion
to an applicant who qualifies as a refugee under section 101(a)(42) of the Act.” 8 C.F.R.
§208.14(a) (2006). An applicant qualifies as a refugee if he demonstrates he has suffered
past persecution or has a well-founded fear of future persecution. 8 C.F.R. §208.13(b)
(2006).
Sutrisno argues “many equities” favor discretionary relief in his case. He posits he
has already resided in the U.S. for a significant period of time, obeys U.S. laws, possesses
good moral character and has a “well-founded fear of persecution.”
If Sutrisno could demonstrate past persecution, he would be entitled to a
presumption that his alleged fear of future persecution is well-founded. 8 C.F.R.
§208.13(b)(1) (2006). As explained supra, Sutrisno has not established he was persecuted
on account of his race, nationality, membership in a particular social group or political
opinion. Sutrisno must therefore demonstrate a subjective fear of future persecution
through credible testimony that his fear is genuine.
Sukwanputra, 434 F.3d at 637 (citing
Zubeda v. Ashcroft,
333 F.3d 463, 469 (3d Cir. 2003)). Sutrisno failed to meet this first,
5
subjective prong, because the IJ deemed his testimony not credible. As a result, we need
not consider whether he has met the second, objective prong of the refugee standard.
Sutrisno has failed to establish he is a qualified “refugee,” and therefore cannot be
granted discretionary relief.
III.
The IJ’s determination that Sutrisno failed to justify delay in filing his asylum
application is not subject to review. After reviewing the IJ’s other determinations, we
conclude Sutrisno is not eligible for withholding of removal or discretionary relief.
Accordingly, we deny Sutrisno’s petition for review.
6
