Gunadi Ali Lay v. Attorney General of the United States

324 F. App'x 199
CourtCourt of Appeals for the Third Circuit
DecidedMay 5, 2009
DocketNo. 08-1443
StatusPublished

This text of 324 F. App'x 199 (Gunadi Ali Lay v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gunadi Ali Lay v. Attorney General of the United States, 324 F. App'x 199 (3d Cir. 2009).

Opinion

OPINION

PER CURIAM.

Petitioner Gunadi Ali Lay, a Chinese Christian native and citizen of Indonesia, entered the United States on September 17, 1998 as a non-immigrant visitor. He admittedly stayed without permission beyond the date authorized and thus is removable under Immigration & Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). On October 14, 2004, Lay filed his application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming that he will be persecuted on the basis of his ethnicity and religion if he is forced to return to Indonesia. Lay subsequently withdrew his CAT request.

After Lay waived examination at his merits hearing, the Immigration Judge read his affidavit into the record. His background materials, including affidavits from Dr. Jeffrey Winters, an associate professor of political science at Northwestern University, and Jana Mason, Deputy Director for Government Relations, International Rescue Committee, were made a part of the record. The 2005 State Department Country and International Religious Freedom Reports for Indonesia also were made a part of the record. Following the hearing, the IJ found that Lay’s asylum application was untimely, and that he failed to satisfy the changed or extraordinary circumstances standard for a late application.1 The IJ also found that Lay had failed to meet his burden of establishing a clear probability of future persecution due to his ethnicity or religion. He failed to make an individualized showing of persecution, and, according to the Country and Religious Freedom reports, the government of Indonesia has taken steps to eliminate discriminatory laws directed at Lay’s ethnic group. Moreover, the Indonesian government officially promoted racial and ethnic tolerance. Accordingly, Lay’s application for statutory withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), was denied.

Lay appealed to the Board of Immigration Appeals, challenging only the withholding of removal decision, and resting his pattern and practice argument on the 2005 Country Report, as well as two State Department Country Reports, from the years 2003 and 2004, that were not made a part of the record at the merits hearing. A.R. 8. Lay sought a re-examination of our decision in Lie v. Ashcroft, 396 F.3d 530 (3d Cir.2005) (addressing 1999 Country Report on Indonesia), based on these more recent reports.

On January 17, 2008, the Board dismissed Lay’s appeal and adopted the decision of the IJ, citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). The Board specifically affirmed the IJ’s finding that there were not changed or extraordinary circumstances sufficient to overcome his failure to timely file for asylum, and that he was not eligible for statutory withhold[201]*201ing of removal. Lay now seeks review of the Board’s decision.

We will deny the petition for review. We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1), (b)(1). Because the Board adopted the opinion of the IJ and then added its own brief reasoning, we review both its decision and the IJ’s decision. See, e.g., Jarbough v. Att’y Gen. of the U.S., 483 F.3d 184, 191 (3d Cir.2007). In his brief on appeal, Lay challenges only the Board’s determination that he failed to meet his burden of proof with respect to statutory withholding of removal. He does not challenge the untimeliness determination on any constitutional or legal basis that would give us jurisdiction.2 With respect to statutory withholding of removal, Lay contended that the IJ failed to consider whether there is a pattern or practice of persecution against ethnic Chinese Christians in Indonesia. The affidavit of Dr. Winters in particular, he argued, amply supported that ethnic Chinese Indonesians “face a real and substantial future likelihood of persecution in the form of intimidation, threats to personal safety and well being, and physical harm.” See Appellant’s Brief, at 7.

To establish entitlement to withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a “clear probability” of persecution, through the presentation of evidence, that it is more likely than not that he would be subject to persecution if removed to his native country. See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Persecution has a well-established meaning; it includes confinement, torture, and threats to life or freedom, including severe economic restrictions, but it does not include treatment that is merely unfair or unjust. See Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir.1993). Persecution is an extreme concept that is not defined expansively. Id.

The agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, the petitioner must establish that the evidence does not just support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).

Lay failed to show that the agency’s conclusion that he failed to demonstrate a “clear probability” of persecution is not supported by reasonable, substantial and probative evidence on the record considered as a whole. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. He did not establish that the incidents on which his application was based were the type of harm recognized as constituting persecution. Fatin, 12 F.3d at 1240. In his affidavit, Lay claimed that:

Ever since I was little until I reached adulthood, I experienced a lot of pressure, either physically or mentally from native Indonesian people, which majority of them are Muslims.
[202]

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324 F. App'x 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunadi-ali-lay-v-attorney-general-of-the-united-states-ca3-2009.