Eva Sundari; Peter Santoso v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4324
EVA SUNDARI;
PETER SANTOSO,
Petitioners
v.
JOHN ASHCROFT,
Attorney General of the United States;
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES,
Respondents
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA Nos. A79-300-639 and A-79-300-640)
Submitted Under Third Circuit LAR 34.1(a)
November 29, 2004
Before: RENDELL, ALDISERT and MAGILL*, Circuit Judges
(Filed: November 30, 2004)
OPINION OF THE COURT
* Honorable Frank J. Magill, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.

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1Peter Santoso claims he is properly designated an Appellant along with his wife
because, although he did not file his own application for asylum, he was a derivative for
asylum on Sundari’s application to the Immigration Court. The Immigration Judge
considering Sundari’s application determined Santoso could not derive withholding of
removal from his spouse’s application.
2Though persuaded Sundari’s testimony regarding her claims for withholding of
removal and under the Convention Against Torture was not credible, the BIA did not
affirm the IJ’s finding that her application was frivolous.
2
RENDELL, Circuit Judge.
Appellants Eva Sundari and Peter Santoso, married natives of Indonesia, petition
for review of a decision by the Board of Immigration Appeals (“BIA”) denying their
application for political asylum, and claims for withholding of removal and protection
under the Convention Against Torture (“CAT”).1 In so ruling, the BIA summarily
affirmed the findings of the Immigration Judge (“IJ”) that Sundari’s untimely asylum
application was not justified because she had failed to show “exceptional circumstances”
or “changed country conditions,” and that she failed to establish that it was more likely
than not that she would be subjected to torture or persecution upon return to Indonesia.2
Where the BIA issues a summary affirmance, we essentially review the IJ’s
decision as if it were the decision of the BIA. See Dia v. Ashcroft, 353 F.3d 228, 247 (3d
Cir. 2003) (en banc). Our review is limited to ensuring that any findings are supported by
substantial evidence. See id. We may reverse the BIA’s decision only if “any reasonable
adjudicator [would] be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Furthermore, “[w]e will not disturb the IJ’s credibility determination and findings of fact

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if they are ‘supported by reasonable, substantial and probative evidence on the record
considered as a whole.’” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003)
(quoting Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)). We have
jurisdiction under 8 U.S.C. § 1252. For the reasons that follow, we will deny the petition
for review.
Sundari is a Pentecostal Christian native to Indonesia who believes herself to be
ethnic Chinese. She and her husband entered the United States on visitor visas on July
18, 1999 and December 16, 1998, respectively. Following an instructional presentation
by an immigration attorney at her church, Sundari filed an application for political
asylum on March 12, 2001 – more than a year after her arrival in the United States.
Because both Sundari and Santoso remained in the United States following the
expiration of their visas they were placed in removal proceedings in April, 2001. On
May 17, 2001, Appellant and her husband appeared in Immigration Court in Philadelphia
where they conceded removability. Sundari subsequently asserted claims for asylum,
withholding of removal, and protection under the Convention Against Torture, and her
individual hearing took place on February 25, 2002.
The Attorney General may grant asylum to any alien who is unable or unwilling to
return to his or her home country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The burden to prove a

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well-founded fear of persecution lies with the applicant, who must establish a genuine
fear of persecution and demonstrate that a reasonable person in the same circumstances
would similarly fear persecution. The applicant’s own testimony may be sufficient to
establish eligibility for asylum, as long as the testimony is credible. See 8 C.F.R. §
208.13(a).
Sundari concedes that she failed to file her asylum application within one year of
her arrival in the United States as required under 8 U.S.C. § 1158(a)(2)(B), but argues
that the IJ erred in pretermitting her application because she demonstrated “exceptional
circumstances” or “changed country conditions” which excuse her untimely filing, see 8
U.S.C. § 1158(a)(2)(D). Specifically, Sundari argues that the situation in Indonesia grew
better after her arrival in the United States, but then became markedly worse in the last
months of 2000 and into the early months of 2001, such that her March 2001 filing was
justified. Sundari also claims that until she attended a presentation at her church
regarding asylum, she was unaware such a form of relief existed.
The government responds, and we agree, that this Court lacks jurisdiction to
review the IJ’s determination regarding the tolling of the one-year time bar for filing. The
language of 8 U.S.C. § 1158(a)(3) divests courts of the power to review the Attorney
General’s decision regarding the timeliness of an asylum application, or whether the
extraordinary circumstance exception is applicable. See Tarrawally, 338 F.3d at 185
(joining several other courts of appeals in holding that “the language of 8 U.S.C. §

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3Appellant testified that, to her knowledge, all of her relatives had been born in
Indonesia, but that she looked Chinese and therefore assumed she was.
5
1158(a)(3) clearly deprives us of jurisdiction to review an IJ's determination that an
asylum petition was not filed within the one year limitations period, and that such period
was not tolled by extraordinary circumstances”). We also agree with the IJ that, even if
we did have jurisdiction to review Sundari’s claims, she did not establish entitlement to a
statutory exception based on either “exceptional circumstances” or “changed country
conditions.”
With respect to her withholding of removal and CAT claims, Sundari bore the
burden of establishing that it was more likely than not that, upon return to Indonesia, her
life or freedom would be threatened, 8 U.S.C. § 1231(b)(3)(A) (withholding of removal),
and she would be tortured at the instigation or with the consent of a public official, 8
C.F.R § 208.18(a)(1) (CAT) based on, inter alia, her Christian beliefs or Chinese
ethnicity.3 She testified before the IJ, through a translator, that: 1) for a period of five
weeks during the summer of 1998, she had been afraid to attend church because of riots;
2) on June 6, 1998, several Indonesian Muslims from a mosque near her home had once
entered her residence, tied up her husband (but did not beat him) and attempted to
sexually assault her, but she managed to fight off at least six attackers and expel them
from her home by threatening them with a kitchen knife; and 3) the evening following
the attack on her and Santoso, Muslims returned and burned down their residence,

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burning Sundari and Santoso in the process and forcing her family to relocate and settle
with relatives approximately fifteen minutes away.
The IJ was troubled by, and found Sundari lacked credibility based on,
discrepancies between her asylum application and her hearing testimony. As noted in the
oral decision and order of the IJ, Sundari’s testimony regarding each of the three events
described above was inconsistent on several fronts with the affidavit she initially
submitted in support of asylum and which also recounted these events. For example,
with respect to the June 6 attack and attempted assault, Sundari’s affidavit states that her
husband was not only tied up but badly beaten, and that she was stripped naked by the
assailants, some of whom were removing their slacks to undertake sexual assault.
In Zubeda v. Ashcroft, 333 F.3d 463, 476–77 (3d Cir. 2003), we observed that an
IJ should be cautious before placing too much weight on a discrepancy between an
asylum application and subsequent testimony. Caution is required in light of the
numerous factors that might make it difficult for an alien to articulate her circumstances,
including language difficulties. Even so, Sundari’s testimony is at odds with her prior
statements contained in the asylum application. Though it is not clear, as the IJ found,
that she was “making this testimony up as she [went] along,” (IJ Order at 13-14) it is clear
that her testimony did not establish she or her husband were more likely than not to suffer
torture or political persecution on return to Indonesia. Assuming the worst of the June 6
attack against Sundari, she did not offer credible evidence that the attacks were motivated

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by racial or religious hatred. Sundari resided in a neighborhood with an approximately
even mix of Indonesian and Chinese families; she testified the men who burned down her
home likely knew it was the home of a Chinese family because of its caliber. Most
significantly, Sundari testified that her three children live with their aunt and uncle in
Indonesia, attend school there, and have never suffered any problems based on their
religion or apparent Chinese ethnicity.
Given Sundari’s failure to adequately explain inconsistencies in her testimony and
asylum application, and failure to offer additional evidence concerning the likelihood of
future persecution in Indonesia, we conclude that the IJ’s findings were based on
substantial evidence.
For the reasons stated above, we will DENY the petition for review of the IJ’s
decision.

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