Koe v. Atty Gen USA

163 F. App'x 128
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 19, 2006
Docket04-3894
StatusUnpublished

This text of 163 F. App'x 128 (Koe v. Atty Gen USA) 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
Koe v. Atty Gen USA, 163 F. App'x 128 (3d Cir. 2006).

Opinion

OPINION

ALDISERT, Circuit Judge.

Yulia Koe, a native and citizen of Indonesia, files a petition for review from a final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s order pursuant to 8 U.S.C. § 1252. We will deny the petition.

*130 I.

The parties are familiar with the facts and proceedings before the BIA and the IJ, so we will only briefly revisit them here. Koe is an Indonesian of Chinese ethnicity who testified that she had been repeatedly subject to harassment, allegedly because of her ethnicity. In support of this contention she recited both general and specific instances of abuse directed towards her and other ethnic Chinese. She testified to several events of violence occurring on various Indonesian islands that she either read about or saw on television where ethnic Chinese were treated poorly by ethnic Indonesians. She stated that these events, which occurred sporadically over the course of a decade, made her feel bad and occasionally scared. Koe testified that she had trouble obtaining the required identification card that people in Indonesia are required to carry, and believes this difficulty stemmed from her Chinese ethnicity. She also stated that people would touch her buttocks if she wore pants, call her a dirty Chinese, and yell ‘You eat pork” at her, all of which she found to be offensive.

In addition, she described four specific incidents of alleged persecution that occurred either to her or her family. First, she testified to a 1997 incident where she was robbed at knife point while she sat in her car at a traffic light. Second, she testified that a beauty salon that she owned was burned during a 1998 riot. Third, she stated that her family’s store was looted by ethnic Indonesians in another riot that same year. Finally, she described an incident occurring in December 1998, where a group of homeless men entered a taxi in which she was riding, held a knife to her throat, robbed her and then touched and kissed her.

Following a brief visit to her family in Singapore in 1999, Koe was admitted to the United States on November 9,1999, on a non-immigrant visa with authorization to remain in the country until May 8, 2000. Koe remained past that date, and on March 26, 2001, the INS commenced the present deportation proceedings against her by serving her with a Notice to Appear. The IJ rejected all of Koe’s claims for relief, finding that Koe failed to provide any evidence of torture or persecution sufficient to merit withholding of removal or relief under CAT. 1 The BIA affirmed the IJ without opinion. This petition for review followed.

II.

Because the BIA adopted and affirmed the IJ’s decision without additional comment, we review the decision of the IJ. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). Whether a petitioner has demonstrated past persecution or a clear probability of future persecution is a factual determination subject only to the highly deferential substantial evidence standard. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Under the substantial evidence standard, this Court will uphold the findings of the BIA unless the evidence “not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-484 (3d Cir.2001).

III.

Notwithstanding the contentions made by Koe to this Court that the IJ *131 erred in denying CAT relief, we lack jurisdiction to review the IJ’s denial of this claim. In her brief to the BIA, Koe only argued that the IJ erred in its denial of withholding of removal and never addressed why the adverse CAT ruing was in error. 2 The BIA was therefore never able to consider any arguments other than those relating to the withholding of removal claim. Because Koe did not exhaust this claim before the BIA, it was not preserved for our review and we therefore lack jurisdiction to review it. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.”); Zheng v. Gonzales, 422 F.3d 98, 107-108 (3d Cir.2005) (“The failure to exhaust this claim before the BIA ‘bars consideration of particular questions not raised in an appeal to the [BIA].’ ”).

Similarly, we lack the ability to review Koe’s claim that the IJ erred in not granting asylum relief. For this matter, it is not a question of whether she exhausted her remedies before the BIA; rather, Koe never received a final ruling from the IJ on her asylum petition. Koe withdrew the asylum application as untimely during the hearing and acknowledged that there were no extraordinary circumstances that could excuse her dilatory application. “To exhaust a claim ... an applicant must first raise the issue before the BIA or IJ.” Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005). Because Koe withdrew her asylum application and never received a final ruling from the IJ, regardless of the timeliness of the application, we therefore lack jurisdiction to review any claims on appeal contending that a denial of asylum relief was in error.

IV.

We do possess jurisdiction to review Koe’s claims with respect to withholding of removal. Nonetheless, we conclude that her contentions on appeal are without merit. First, we are satisfied that the incidents of which Koe complains do not “rise to the level of persecution because the harm suffered was not sufficiently severe.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (holding that petitioner, a Chinese Indonesian, did not qualify for asylum relief, a less onerous standard than withholding of removal, when petition was based upon two isolated incidents of robbery by native Indonesians).

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163 F. App'x 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koe-v-atty-gen-usa-ca3-2006.