Oktavia v. Atty Gen USA

128 F. App'x 849
CourtCourt of Appeals for the Third Circuit
DecidedMarch 17, 2005
Docket03-4536
StatusUnpublished
Cited by3 cases

This text of 128 F. App'x 849 (Oktavia 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
Oktavia v. Atty Gen USA, 128 F. App'x 849 (3d Cir. 2005).

Opinion

*850 OPINION

BARRY, Circuit Judge.

Evi Oktavia (“Oktavia”) petitions for review of a decision by the Board of Immigration Appeals (“BIA”). The BIA dismissed her appeal, adopting and affirming the decision of the Immigration Judge (“IJ”), with two “corrections.” For the reasons discussed below, we will deny the petition for review.

I.

We write exclusively for the benefit of the parties and will only recount those matters relevant to the issues before us. Oktavia is a native and citizen of Indonesia who entered the United States on or about December 7, 1999 as a non-immigrant visitor with authority to remain until June 6, 2000. On April 16, 2001, the then-immigration and Naturalization Service (“INS”) executed a Notice to Appear (“NTA”) charging Oktavia as an alien who remained in the United States for a time longer than permitted under 8 U.S.C. § 1227(a)(1)(B). At a hearing before the IJ, Oktavia admitted the factual allegations contained in the NTA and conceded removability. The IJ designated Indonesia as the country to which she would be removed.

Meanwhile, on February 14, 2001, Okta-via had applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). During the hearing before the IJ, Oktavia testified that she is an Indonesian of Chinese heritage and is a Buddhist. 1 She testified that living in Indonesia was difficult. As a child, she was mistreated by other students because she was ethnic Chinese and Buddhist. Some Indonesian children would ask her and other ethnic Chinese students for money because the Indonesian children did not like them. Additionally, she claimed that sometimes Indonesian teachers would ask questions but not let the ethnic Chinese students answer.

This alleged mistreatment extended beyond her childhood. Oktavia testified that, as an adult, she was violently attacked on three occasions. In December of 1995, Indonesian men approached her car, which was stopped at a red light. The men threatened her with a knife, broke her car windows, stole property inside her car, and cut her arm with the knife. The men also told her that she should go back to her own country. When the light turned green, Oktavia sped away. She did not report this crime to the police. Three years later, Oktavia was dragged from her car during a riot. She fled the scene, but the rioters chased after her, raped her, and burned her car. She passed out and awoke in a hospital, but, again, did not report the incident to the police. A third attack occurred three months later. Okta-via and her fiancee were riding together on a motorcycle. Four men approached the couple and kicked her fiancee off the motorcycle. He fell to the ground, hit his head on the pavement, and was rendered unconscious. Oktavia took him to the hospital and reported the assault to the police.

The IJ considered Oktavia’s testimony, the affidavits, and the State Department’s 2000 “Country Report on Human Rights Practices: Indonesia” which concludes, inter alia, that: the Indonesian government “embraces” Buddhism; the Indonesian Constitution provides for freedom of religion; rape is a punishable offense; and Indonesia promotes racial and ethnic tolerance. The Report did observe that resentment of Sino-Indonesian prosperity led to attacks and riots in 1998.

The IJ rejected Oktavia’s claims. The IJ denied asylum, finding the application *851 untimely because it was filed more than a year after Oktavia’s arrival and that exceptional circumstances did not exist to excuse a late filing. The IJ also denied the withholding of removal and CAT claims because he did not believe that Oktavia’s mistreatment rose to the level of persecution. In addition, the IJ found “a total lack of credibility” in her testimony and that of her husband and found that “they have intentionally and deliberately attempted to deceive this Court by giving false testimony, trying to mislead this Court, and attempting to have the Court grant them benefits under the Act based on their perjured testimony.” Op. at 12-13.

The BIA dismissed the appeal. Oktavia did not appeal the denial of the CAT claim to the BIA, nor does she raise it now. She does, however, seek review of the final order of the BIA as to asylum and withholding of removal.

II.

We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). In cases in which the Board merely adopts the IJ’s opinion, we review the IJ’s decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). Our scope of review is extremely narrow: we will affirm any finding of fact supported by substantial evidence. Abdille v. Ashcroft, 242 F.3d 477, 483-484 (3d Cir.2001) (citations omitted). This means that we must uphold the IJ’s factual findings if they are “supported by reasonable, substantial and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Furthermore, we are bound by the findings of fact unless a reasonable adjudicator would be compelled to conclude to the contrary. Abdille, 242 F.3d at 484 (citations omitted).

III.

Oktavia raises two main issues on appeal. First, she argues that the IJ erred in not granting her asylum or withholding of removal. Second, she argues that the IJ’s adverse credibility determination was based on speculation and conjecture.

A. Asylum Claim

Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to an alien who is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). Generally speaking, to qualify as a refugee, an applicant must show that he or she is unable or unwilling to return to his or her country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular group, or political opinion. 8 U.S.C. § 1101(a)(42)(A); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 423 (3d Cir.2005) (citations omitted). In addition, to qualify for asylum, an alien must “demonstrate by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).

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128 F. App'x 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oktavia-v-atty-gen-usa-ca3-2005.