Hendra Kristiono v. Attorney General of the United States

The Honorable Eugene E. Siler, Jr., Senior Judge for the United States Court of*
Appeals for the Sixth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-5188
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HENDRA KRISTIONO,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A 97-149-880)
Immigration Judge: R. K. Malloy
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 12, 2007
BEFORE: FUENTES, VAN ANTWERPEN, and SILER, Circuit Judges.*
(Filed: April 10, 2007)
OPINION OF THE COURT
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FUENTES, Circuit Judge.
Petitioner entered the United States in March 1999 and overstayed his visa. The
Department of Homeland Security issued him a notice to appear in June 2003 and on
April 17, 2003, he applied for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture. An immigration judge (“IJ”) denied relief
and the Board of Immigration Appeals (“BIA”) affirmed. We have jurisdiction to review
the BIA’s order under 8 U.S.C. § 1252, and we will deny the petition for the reasons that
follow.
I.
Kristiono is a citizen of Indonesia who testified to the following facts in his
application and at his hearing before the IJ. He has suffered humiliation and
discrimination his whole life because he is ethnically Chinese and Christian. In May
1998, rioters stopped his car and beat him and a friend because they were ethnically
Chinese. Police took Kristiono to the hospital where he stayed for three days, but his
friend died of injuries. Kristiono also testified that Muslims have called him an “infidel”
and that, on one occasion, Muslims threw rocks at him.
After noting that Kristiono did not seek relief until several years after his arrival in
the United States, the IJ denied his application for asylum because no extraordinary
circumstances justified the untimely filing. The IJ also determined that the May 1998
beating did not constitute persecution and that Kristiono had not demonstrated that it was
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more likely than not that he would be persecuted or tortured upon return to Indonesia.
The BIA adopted and affirmed the findings of the IJ, and so we review the decision of the
IJ. See Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir. 2006).
II.
We do not have jurisdiction to review the IJ’s finding that no extraordinary or
changed circumstances excused Kristiono’s failure to apply for asylum before the one-
year-deadline. See Sukwanputra, 434 F.3d at 635 (“[D]espite the changes of the REAL
ID Act, 8 U.S.C. § 1158(a)(3) continues to divest the court of appeals of jurisdiction to
review a decision regarding whether an alien established changed or extraordinary
circumstances that would excuse his untimely filing.”).
To qualify for withholding of removal, an applicant must demonstrate a “clear
probability” of persecution if removed; in other words persecution must be more likely
than not. INS v. Stevic, 467 U.S. 407, 413, 430 (1984). We review the IJ’s denial of
withholding of removal under a substantial evidence standard. “If a reasonable fact
finder could make a particular finding on the administrative record, then the finding is
supported by substantial evidence.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).
The IJ’s findings “must be upheld unless the evidence not only supports a contrary
conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
Substantial evidence supports the IJ’s conclusion that Kristiono did not meet the
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4
standard for withholding of removal. Kristiono worries that riots similar to those in 1998
will occur again and that he will suffer injury. This concern, however, is insufficient to
meet the clear probability standard, especially in light of country reports suggesting that
conditions have improved. In addition, his claim that Muslims threw rocks at him once
does not indicate that it is more likely than not that he will be persecuted upon removal.
Finally, Kristiono has not argued on appeal that he is entitled to relief under the
Convention Against Torture, though we note that substantial evidence supports the IJ’s
decision with regard to that claim as well.
III.
Kristiono has failed to demonstrate that the BIA or IJ erred in rejecting his
application for asylum, withholding of removal, and relief under the Convention Against
Torture. For the reasons discussed above, we will deny the petition.

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