2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-9-2008

Anam v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2035

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 07-2035

________________

CHIOIRUL ANAM,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES

________________

On Review of a Decision of the 

Board of Immigration Appeals 

Immigration Judge: Honorable Charles M. Honeyman

(No. A96-203-853)

_______________

Submitted Under Third Circuit LAR 34.1(a)

April 23, 2008

Before: AMBRO, FISHER and JORDAN, Circuit Judges

(Filed May 9, 2008 )

___________________

OPINION

___________________

PER CURIAM

Chioirul Anam, an Indonesian native and citizen, petitions for review of a final

order of the Board of Immigration Appeals (“BIA”), affirming the denial by the
Anam arrived in the United States in 2001 but did not file his asylum application 1

until 2004.

-2-

Immigration Judge (“IJ”) of Anam’s application for asylum, withholding of removal and

relief under the Convention Against Torture (“CAT”). Before the IJ, Anam, a Javanese

Muslim, testified that his store was looted and burned along with other surrounding

stores, which were predominantly Chinese-owned. The IJ denied Anam’s applications

because he did not find Anam’s testimony to be credible. We will deny Anam’s petition

for review because substantial evidence supports the IJ’s adverse credibility

determination. See Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004).

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where the BIA substantially

adopts the findings of the IJ, we review the decisions of both the IJ and the BIA. He

Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

 The IJ found that Anam was ineligible for asylum as a result of his failure to file

his application within one year of the date of his arrival in the United States. See 8

U.S.C. § 1158(a)(2)(B). The IJ also found that Anam did not show extraordinary or 1

changed circumstances to excuse his untimely asylum application. See 8 U.S.C.

§ 1158(a)(2)(D). We will not disturb these findings because we lack jurisdiction to

review agency determinations of asylum-application untimeliness, see Tarrawally v.

Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003); we lack jurisdiction over these particular

untimeliness findings because Anam failed to challenge them before the BIA, see

Bonhometre v. Gonzales, 414 F.3d 442, 447-48 (3d Cir. 2005); and, in any case, Anam

does not challenge the findings in this petition for review. 

To obtain withholding of removal, Anam bore the burden of establishing that his

life or freedom would be threatened in Indonesia on account of his race, religion,

nationality, political opinion, or membership in a particular social group. 8 U.S.C.

§ 1231(b)(3)(A); Romanishyn v. Att’y Gen., 455 F.3d 175, 178 n.1 (3d Cir. 2006). We

agree with the IJ and the BIA that Anam failed to establish past persecution; thus he is not

entitled to a rebuttable presumption of future persecution. See 8 C.F.R. § 108.16(b);

Gabuyina v. Att’y Gen., 463 F.3d 316, 321 (3d Cir. 2006). Even if Anam’s testimony

was credible, the burning of his store by rioters does not amount to past persecution. 

Rather, as the IJ found, he was the victim of generally harsh conditions shared by all store

owners in the area. See Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993) (“[T]he

concept of persecution does not encompass all treatment that our society regards as

unfair, unjust or even unlawful or unconstitutional.”) Additionally, Anam did not

demonstrate that this incident occurred because of “his race, religion, nationality,

membership in a particular social group, or political opinion” as required under § 1231.

Anam also failed to show that he faced a clear probability of future persecution. A
Anam has submitted several articles as “exhibits” documenting conditions in 2

Indonesia. Our consideration of Anam’s petition, however, is limited to the information

contained in the administrative record. See Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d

Cir. 2005). 

large portion of Anam’s appellate brief is devoted to describing the discrimination faced

by the ethnic Chinese and Christian populations in Indonesia. Anam’s contention 2

appears to be that during a riot, despite being a Javanese Muslim, he might be mistaken

for Chinese or Catholic and persecuted on that basis. Such a fear, however, is too

speculative. See Kratchmarov v. Heston, 172 F.3d 551, 555 (8th Cir. 1999). Moreover,

even if Anam could demonstrate that there is a pattern or practice of persecution of

Chinese Christians in Indonesia, he cannot “establish[] his . . . own inclusion in and

identification with such group of persons such that it is more likely than not that his or her

life or freedom would be threatened upon return to [Indonesia].” 8 C.F.R.

§ 1208.16(b)(2)(ii).

Because Anam relies on the same evidence to support his application for

protection under CAT, that application was also justifiably denied. See 8 C.F.R. §

208.16(c)(2). 

For the above-stated reasons, we will deny the petition for review.