Swandayani v. Attorney General

174 F. App'x 92
CourtCourt of Appeals for the Third Circuit
DecidedApril 4, 2006
Docket05-2845
StatusUnpublished
Cited by1 cases

This text of 174 F. App'x 92 (Swandayani v. 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
Swandayani v. Attorney General, 174 F. App'x 92 (3d Cir. 2006).

Opinion

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Lanny Swandayani is a Christian Chinese citizen of Indonesia and petitions for review of the Board of Immigration Appeals’s (“BIA”) Order of May 3, 2005, which Order affirmed the October 20, 2003, decision of an Immigration Judge (“IJ”) that denied her claims for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“Convention Against Torture”). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and for the reasons set forth below, we will deny the petition for review.

I.

Because we write solely for the benefit of the parties, we will set forth only those facts necessary to our analysis. Swanday-ani entered the United States in 1998, and on August 28, 2001, the Immigration and Naturalization Service served her with a Notice to Appear, charging her with being subject to removal under 8 U.S.C. § 1227(a)(1)(B) as an alien admitted to the United States as a non-immigrant who remained in the United States for a period longer than that which was authorized.

On March 19, 2002, Swandayani appeared before an IJ. She conceded her removability but sought asylum, withholding of removal, Convention Against Torture relief, and, in the event no relief was granted, voluntary departure. At a merits hearing before an IJ on October 20, 2003, Swandayani testified that after living in Taiwan from 1993 to 1996, she moved to Puri Indah Didoarjo, Indonesia in 1997. She left that town for the United States because of several incidents, which we detail below.

In the first of these incidents, Swanday-ani was intimidated by groups of people marching in the streets and throwing firecrackers during the month of Ramadan, a Muslim holiday. In a second incident, Swandayani was shouted at by a group of native Indonesians, who claimed that they wanted to rob her and her friends but did not ultimately do so. Swandayani testified to a third incident, in which a group of native Indonesians hurled stones at her and her son while driving in his car, yelling, “eat these stones, Chinese” as they threw the stones. One of these stones cut her son’s cheek. Swandayani reported the incident to the police but the police did not take any action. Finally, Swandayani testified that while with her son in his car in January, 1998, a group of native Indonesians on motorcycles revved their engines and that one of these individuals punched her son in the nose after he made eye contact with them. The police took no action when Swandayani told them of this incident.

After the January, 1998, incident, Swan-dayani felt threatened and decided to come to the United States. At that time, she went to the California home of her brother-in-law, a United States citizen. Swan-dayani testified that she feared returning to Indonesia because of problems between Catholics and Muslims, and testified to her belief that native Indonesians believed that Chinese fared better economically than did native Indonesians.

On cross-examination, Swandayani admitted that she did not fear returning to Indonesia in 1996 after her three years in *94 Taiwan. She also admitted that she was not harmed during either incident involving her son and his car. Finally, Swan-dayani admitted that two of her sons still live in Indonesia, as well as her brother, her brother’s two children, and five of her own grandchildren.

At the conclusion of the hearing, the IJ rendered an oral decision. In that decision, the IJ accepted Swandayani’s testimony as true, but denied Swandayani’s asylum application under 8 U.S.C. § 1158(a)(3) because she had filed the application more than one year after her arrival in the United States and there were no extraordinary circumstances that warranted tolling the one year limitations period. The IJ concluded that even had Swandayani’s asylum application been timely, it would have been denied because there was no evidence she had suffered past persecution or had a well-founded fear of future persecution if returned to Indonesia. The IJ next denied Swandaya-ni’s application for withholding of removal on the ground that there was no evidence that she would more likely than not suffer persecution if returned to Indonesia. Finally, the IJ denied her Convention Against Torture claim because there was no evidence that it was more likely than not that she would be tortured if returned to Indonesia. Swandayani appealed the IJ’s decision to the BIA, which affirmed the IJ.

II.

Pursuant to 8 U.S.C. § 1252(b)(4)(B), “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Determinations that an alien experienced persecution or has a well founded fear of persecution are findings of fact reviewed under the substantial evidence standard. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (holding that agency’s finding “must be upheld unless the evidence not only supports a contrary conclusion, but compels it”). With respect to a claim for withholding of removal, “[wjhether an asylum applicant has demonstrated past persecution or a well founded fear of future persecution is a factual determination,” and is reviewed for substantial evidence. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Under this standard, we will uphold the agency’s findings of fact to the extent that they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id.

III.

A. Asylum

We have held that we lack jurisdiction to review an IJ’s determination that an asylum petition was not filed within the one year limitations period and the limitations period was not tolled by extraordinary circumstances. Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). Accordingly, because the IJ determined that Swandayani’s asylum application was untimely under 8 U.S.C. § 1158(a)(3) because it was filed more than one year from the date of her arrival in the United States and the applicable limitations period was not tolled by extraordinary circumstances, we are without jurisdiction to review that decision. Id.

B. Withholding of Removal

An alien seeking withholding of removal must establish by a “clear probability” that his life or freedom would be threatened in his country of origin because of, inter alia, his race or religion. Chang v. INS,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Goryanto v. Atty Gen USA
181 F. App'x 183 (Third Circuit, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
174 F. App'x 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swandayani-v-attorney-general-ca3-2006.