2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-18-2008

Peregina v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4175

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"Peregina v. Atty Gen USA" (2008). 2008 Decisions. Paper 644.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-4175

 

YUDDY PEREGINA,

 Petitioner

v.

ATTORNEY GENERAL OF 

THE UNITED STATES,

 Respondent

 

On Petition for Review of an Order of 

the Board of Immigration Appeals

Agency No. A96-427-281

Immigration Judge: Donald V. Ferlise

 

Submitted Under Third Circuit L.A.R. 34.1(a)

on March 11, 2008

 

Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges

(Filed: August 18, 2008) 

 

OPINION

 

ALDISERT, Circuit Judge.

Yuddy Peregina, a native and citizen of Indonesia and a Christian of Chinese
2

ethnicity, petitions for review of the final decision of the Board of Immigration Appeals

(“BIA”) ordering his removal from the United States. He challenges the BIA’s denial of

his applications for asylum, withholding of removal and relief under the Convention

Against Torture (“CAT”). For the reasons set forth below, we will deny the petition.

I.

We lack jurisdiction to review the BIA’s denial of Peregina’s asylum application.

The denial was based on Peregina’s failure to timely file his application for asylum, and

we “lack[] jurisdiction to review an asylum petition that an Immigration Judge (‘IJ’) or

[the BIA] deems untimely.” Tarrawally v. Ashcroft, 338 F.3d 180, 182 (3d Cir. 2003). 

To the extent Peregina alleges violation of due process, we lack jurisdiction to

address it as he failed to present the argument to the BIA. See Bonhometre v. Gonzales,

414 F.3d 442, 448 (3d Cir. 2005) (“[Petitioner]’s claims, though argued in the language of

procedural due process, essentially claim that the IJ failed in its duty to completely

develop this case . . . . [Because petitioner’s] procedural due process claims thus could

have been argued before the BIA, . . . his failure to do so is thus fatal to our jurisdiction

over this petition.”).

II.

We do have jurisdiction, however, to review the denial of Peregina’s applications

for withholding of removal and relief under the CAT. Where, as here, the BIA adopted

the decision of the IJ, we review the decisions of both the BIA and the IJ. Shehu v. Att’y

General, 482 F.3d 652, 657 (3d Cir. 2007). “We review the IJ and BIA’s findings for
3

substantial evidence and, therefore, may not set them aside unless a reasonable factfinder

would be compelled to find to the contrary.” Id.

A.

“[T]he Attorney General may not remove an alien to a country if the Attorney

General decides that the alien’s 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). “It is the applicant’s burden to establish

the threat to life or freedom by a ‘clear probability.’ This standard is satisfied if the

evidence establishes that it is more likely than not that the alien would be subject to

persecution on one of the specified grounds.” Jarbough v. Att’y General, 483 F.3d 184,

190-191 (3d Cir. 2007) (internal quotation marks and citations omitted). “A finding of

past persecution raises a rebuttable presumption that the applicant’s life or freedom would

be threatened in the future.” Id. at 191 (internal quotation marks and citations omitted).

Substantial evidence supports the IJ’s determination that Peregina did not establish

that he has suffered from past persecution. The IJ found that classmate demands for

money, an after-school fight and disputes relating to Peregina’s father’s store were

motivated by money and, regardless, were not sufficiently severe to rise to the level of

persecution. See Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005). 

We detect no evidence that Peregina was harmed by the Indonesian government,

or that the government was unwilling or unable to protect him. In addition, Peregina has

failed to establish that there is a “pattern or practice” of persecution of Chinese Christians
4

in Indonesia. Wong v. Att’y General, No. 06-3539, --- F.3d --- (3d Cir. 2008) (discussing

the U.S. State Department’s 2003 and 2004 Country Reports on Human Rights Practices

for Indonesia and the U.S. State Department’s 2003 and 2004 International Religious

Freedom Reports for Indonesia). Furthermore, because his parents and siblings remained

in Indonesia unharmed, the IJ reasonably concluded that Peregina failed to establish that

he would be persecuted if removed to Indonesia.

B.

“To qualify for relief under the CAT, an applicant . . . bears the burden of proving

through objective evidence that ‘it is more likely than not’ that s/he would be ‘tortured’ in

the country to which the applicant would be removed.” Obale v. Att’y General, 453 F.3d

151, 161 (3d Cir. 2006). Peregina offers no support for his contention that he will be

tortured should he return to Indonesia. Thus we will not reverse the denial of his

application for protection under the CAT.

* * * * *

We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

The petition for review will be denied.