Jeane Lukas v. Attorney General of the United States

Honorable Paul R. Michel, Chief Judge, United States Court of Appeals for the*
Federal Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1959
JEANE LUKAS; HARPANI SETIO; JOSEPH KURNIADI SETIO;
BENEDICTUS SURYADI SETIO; MARTINUS MULIADI SETIO
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Miriam Mills
(Nos. A97-628-390/1/2/3/4)
Submitted Under Third Circuit LAR 34.1(a)
April 16, 2008
Before: AMBRO, FISHER, and MICHEL, Circuit Judges*
(Filed: April 18, 2008)
OPINION

-- 1 of 6 --

2
AMBRO, Circuit Judge
Jean Lukas, her husband, and their three children petition for review of a final
order of the Board of Immigration Appeals (“BIA”) that affirmed their removal to
Indonesia. Lukas is the lead petitioner and the claims of her husband and children derive
from her application. We have jurisdiction over the petition pursuant to 8 U.S.C.
§ 1252(a). For the reasons that follow, we deny the petition.
Lukas is an Indonesian citizen of Chinese ancestry. In Indonesia, she alleges that
she and her family were victims of harassment and violence on account of their ethnicity
and religion. Lukas entered the United States in July 2003 on a B2 visitor’s visa, which
she subsequently overstayed. In August 2003, Lukas filed an application for asylum. In
April 2004 Lukas was served with a Notice to Appear and charged with removal for
overstaying her visa under 8 U.S.C. § 1227(a)(1)(B). Lukas, through counsel, admitted
the allegations in the Notice to Appear and conceded removal as charged. In lieu of
removal, Lukas requested asylum, withholding of removal, and relief under the United
Nations Convention Against Torture. The Immigration Judge (“IJ”) denied her
application. The BIA affirmed, and issued a final order of removal. Lukas filed an
application for reconsideration, which the BIA denied. Lukas then filed a timely petition
for review in our Court.
Before the IJ, Lukas testified that she believed if she returned to Indonesia she
would continue to be a victim of the same persecution and discrimination that caused her

-- 2 of 6 --

3
to leave. Namely, she stated that she was persecuted at the hands of the Indonesian
government and by the Indonesian Malay, the majority ethnic group in Indonesia,
because she is a Chinese Christian. She introduced evidence that purported to
demonstrate a series of incidents illustrating this persecution, the first of which occurred
in county-wide riots in 1998 where Chinese Christians were targeted. Lukas’s first
affidavit, submitted in 2003, describes in general terms the violence perpetrated on people
in the Chinese Christian community. In 2005, Lukas submitted a second affidavit that
specifically claimed her pharmacy was looted and vandalized. The IJ held that the
inconsistencies between the two affidavits were not “reasonably explained” by Lukas
during her hearing testimony. Lukas testified that one year after the riots her brother-in-
law was killed and that one person was arrested for the murder. Lukas submitted a copy
of her brother-in-law’s autopsy report allegedly from the Greater Jakarta Health Service.
However, as the IJ noted, the document recorded the time of the death occurring after the
time of the autposy.
Lukas also testified that in 2001 as she was leaving church, her car was surrounded
by men in green bandanas with “Islamic writing” who broke the car windows and injured
her and her husband. Lukas’s 2003 affidavit stated that only she and her husband were in
the car at the time. Yet during the hearing she testified that her children were also in the
car during the attack. The IJ disbelieved that Lukas would have omitted the fact that her
children were in the car during such an event in her 2003 affidavit if it were true.

-- 3 of 6 --

In her brief to our Court, Lukas makes two additional arguments. First, she1
argues that the IJ failed to consider the pattern or practice of persecution of Chinese
Christians in Indonesia as required by the Convention Against Torture. Secondly, she
4
Although Lukas’s son testified that he was in also in the car, the IJ concluded that his
testimony was “insufficient to clear up the contradictions.” The IJ further held that there
was insufficient evidence to establish that the 2001 attack demonstrated ethnic or
religious persecution.
Lukas’s testimony also described an incident in 2003 in which her pharmacy was
robbed and vandalized and she and her husband were beaten. The IJ believed that, based
on the testimony, the motive for the attack was stealing drugs and money and not for
ethnic or religious persecution. Additionally, the IJ determined that there was no
evidence that Lukas had ever been the victim of violence perpetrated by the Indonesian
government or agents for the government.
In making its credibility determination, the IJ also considered evidence that
Lukas’s application for asylum and withholding of removal Form I-589 was fabricated.
The IJ cited records from the Fairfax County, Virginia Police Department in which a
criminal defendant, Suriya Halim, admitted to falsifying Lukas’ application and creating a
fictitious story on her behalf. The IJ concluded that “[i]n light of [Lukas’] fraudulant
application . . . , and being a client of a convicted asylum fraud perpetrator, [she] has
failed to establish a reliable claim of relief.”
Lukas raises two principal issues to support her petition. First, she contends that1

-- 4 of 6 --

asserts that the BIA erroneously held that the Government proved that there was no such
pattern or practice. Neither Lukas’ brief nor notice of appeal to the BIA makes these
claims. Instead, Lukas argued that she was a victim of ethnically and religiously
motivated persecution, and that the IJ erroneously made an adverse credibility
determination.
We only have jurisdiction to review final orders of removal where an alien has
exhausted all administrative remedies available to her. 8 U.S.C. § 1252(d). Therefore,
we will not consider particular questions not raised in an appeal to the BIA (other than to
note that, had we considered these matters, our decision would remain unchanged).
5
the IJ wrongly concluded that she failed to establish a substantial likelihood of future
persecution in her asylum and withholding of removal claims. Secondly, Lukas argues
that the IJ erroneously made an adverse credibility finding.
To establish eligibility for asylum, an applicant must show by a reasonable
likelihood either that she experienced past persecution or that she has a well-founded fear
of future persecution. 8 U.S.C. § 1101(a)(42)(A) & § 1158(b)(1)(A). To establish a well-
founded fear of future persecution, Lukas must first “demonstrate a subjective fear of
persecution through credible testimony that her fear is genuine.” Lie v. Ashcroft, 396
F.3d 530, 537 (3d Cir. 2005). Then, she must make the objective showing that “‘a
reasonable person in the alien’s circumstances would fear persecution if returned to the
country in question.’” Id. (quoting Zubeda, 333 F.3d at 469).
To establish eligibility for withholding of removal, Lukas must show by a “clear
probability that her life or freedom would be threatened” in Indonesia. Zubeda v.
Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (internal quotation marks omitted). A “clear
probability” means that it is “more likely than not” that Lukas would be subject to

-- 5 of 6 --

6
persecution. Id. The “clear probability” standard required for withholding of removal is
a “more rigorous” standard than the “well-founded fear” standard for asylum. Id. Thus,
if Lukas failed to meet the latter standard, she will necessarily fail to meet the clear
probability standard required for withholding of removal. Id. at 470.
We review the BIA’s determination as to asylum and withholding of removal to
ensure they are supported by substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992); Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc). Likewise, the
credibility determinations of the IJ will be affirmed if they are supported by substantial
evidence, which is “more than a mere scintilla and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Senathirajah v. INS,
157 F.3d 210, 216 (3d Cir. 1998) (internal quotations omitted).
Here the IJ held, and the BIA affirmed, that Lukas failed to meet the subjective
prong of the well-founded fear standard, and accordingly the clear probability standard,
because her testimony was not credible. The IJ offered specific and cogent reasons for
holding that Lukas was not credible, among which were that a felon convicted of drafting
fraudulent asylum applications admitted fabricating a story for Lukas, inconsistencies in
the two affidavits, the inconsistencies between the affidavits and the testimony presented
during the hearing, and that the testimony offered was insufficient to rebut these
inconsistencies. This reasoning easily meets the substantial evidence test.
Accordingly, we deny the petition for review.

-- 6 of 6 --