Liem v. United States Attorney General

196 F. App'x 132
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 20, 2006
Docket05-4159
StatusUnpublished

This text of 196 F. App'x 132 (Liem v. United States Attorney General) 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
Liem v. United States Attorney General, 196 F. App'x 132 (3d Cir. 2006).

Opinion

OPINION

GARTH, Circuit Judge:

Alex Edy Liem petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his application for withholding of removal. We have jurisdiction per 8 U.S.C. § 1252. For the reasons stated below, we will deny the petition.

I

Liem is an Indonesian native and citizen. He is Christian and of Chinese ethnicity.

In May 2000, Liem entered the United States on a temporary visitor’s visa. He remained in the country without permission after his visa expired in November 2000. On June 3, 2003, he was served with a Notice to Appear charging him with being removable under 8 U.S.C. § 1227(a)(1)(B) (alien present in violation of law). Liem conceded removability. On December 10, 2003, he filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). 1

Liem claims to have suffered persecution based on his religion and ethnicity in Indonesia throughout his life, culminating in several incidents that occurred in the wake of a failed business partnership. His account of this persecution is as follows:

Liem maintains he suffered periodic slurs as a child because he is Christian and Chinese. Then, in 1998, he entered into a business partnership with several other men, two of whom were native Indonesian and the remainder of whom were Chinese. One of the native Indonesian partners, Lieutenant Edward, was the chief of a local police station. When the other native Indonesian partner, Burhan, absconded with all the money the partners had invested in the business venture, Lieutenant Edward accused the remaining partners, Liem included, of conspiring with Burhan to steal his money. He summoned them by letter to the police station on two occasions. At the station, they were interrogated and forced to sign an agreement promising to repay Lieutenant Edward the money Burhan had taken. Lieutenant Edward also threatened them by saying: ‘You stupid Chinese, if you refuse to pay we will force you, we will strip off your clothes and take you to the city and humiliate you.” App. 241. A week later, seven “army soldiers” came to Liem’s house and took him and his wife to the police station, where Lieutenant Edward beat him. Liem’s wife was in the next room at the police station when Edward beat Liem.

Immediately thereafter, Liem and his wife fled to Jember, the hometown of his wife’s parents. They remained there until May 2000, when they left for the United States. Liem stated that Lieutenant Edward “chased” him to Jember and “tried to look for [him and his wife]” there, but conceded that Edward did not find them and that they did not “have any problems” living in Jember. App. 135-36.

*134 After a hearing, the Immigration Judge (“IJ”) denied Liem’s asylum application because Liem had filed it outside of the one-year filing deadline, and the IJ found that none of the circumstances that permit waiver of that deadline were present. App. 91-92; 8 U.S.C. §§ 1158(a)(2)(B) & (D).

The IJ also denied Liem’s withholding of removal claim. She reasoned that Liem had not suffered qualifying past persecution because not only had Lieutenant Edward not been exercising state power, but his motivations were also not religion and ethnicity but “a personal matter, a bad business venture.” App. 94. The IJ further found that Liem “failed to rebut that his relocation was not a safe haven from the police lieutenant.” 2 App. 93. Finally, the fact that Liem’s wife was present for the hearing but did not testify, despite Liem’s claim that she was in the waiting room of the police station and heard the beating, lead the IJ to take an “adverse inference on the credibility of respondent’s claim.” App. 94. The IJ had prompted the wife to testify and commented in the decision that because the alleged beating was “a core matter underlying [Liem’s] claim ... his failure to attempt to corroborate through his wife’s testimony is inexplicable.” App. 94.

Lastly, the IJ denied Liem’s CAT claim. She then granted Liem voluntary departure.

The BIA “adoptfed] and affirm[ed] the decision of the Immigration Judge,” agreeing with the reasoning set forth in that opinion. App. 2. In his petition for review, Liem challenges only the IJ’s ruling on his withholding of removal claim.

II

Because the BIA affirmed the IJ’s decision and adopted the IJ’s rationale, this court must review the IJ’s opinion. See, e.g., Korytnyuk v. Ashcroft, 396 F.3d 272, 286 (3d Cir.2005) (“where the BIA simply states that it affirms the IJ’s decision for the reasons set forth in that decision ... the IJ’s opinion effectively becomes the BIA’s, and, accordingly, a court must review the IJ’s decision.”) (quotation and citation omitted).

We review the IJ’s legal conclusions de novo. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). We review the IJ’s factual determinations, on the other hand, under a “substantial evidence” standard, which requires us to treat findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

To be eligible for a grant of withholding of removal to a country, an alien must show that it is more likely than not, that his or her “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) (emphasis added); see also Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003) (explaining that alien’s burden for withholding of removal is “clear probability,” meaning “more likely than not”). If the alien establishes that he suffered persecution in the past on account of one of those grounds, “it shall be pre *135 sumed that [the alien’s] life or freedom would be threatened in the future in the country of removal on the basis of the original claim.” 8 C.F.R. § 1208.16(b)(1)(i). An alien who has not established past persecution (or whose fear of future persecution is unrelated to his past persecution) may demonstrate his or her eligibility for withholding of removal by establishing that “it is more likely than not that he or she would be persecuted

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196 F. App'x 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liem-v-united-states-attorney-general-ca3-2006.