Siella Priscilla Radius v. Attorney General of the United States

*The Honorable Joseph E. Irenas, Senior United States District Judge for the *
District of New Jersey, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No.06-3428
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SIELLA PRISCILLA RADIUS,
Appellee,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Appellant
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA File No. A95-850-833
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Submitted Under Third Circuit LAR 34.1(a)
February 4, 2008
Before: McKEE, AMBRO, Circuit Judges and
IRENAS , Senior District Judge*
(Opinion Filed: April 15, 2008)
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OPINION
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MCKEE, Circuit Judge.
Siella Priscilla Radius petitions for review of an order of the Board of
Immigration Appeals affirming the Immigration Judge’s denial of her request for
asylum, withholding of removal, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
(the “CAT”). For the reasons that follow, we will deny the petition for review.
I.
As we are writing primarily for the parties, we need not set forth the factual
or procedural background of this case except insofar as may be helpful to our brief
discussion. The government correctly notes that Radius did not raise the denial of
her CAT claim on appeal to the BIA. Accordingly, we do not have jurisdiction to
review the IJ’s denial of that claim. See 8 U.S.C. § 1252(d)(1). See also
Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir. 2003).
Similarly, we do not have jurisdiction to review the IJ‘s determination that
Radius’ asylum claim is untimely. “[T]he language of 8 U.S.C. § 1158(a)(3)
clearly deprives [this court] 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. Tarrawally v. Ashcroft, 338
F.3d 180, 185 (3d Cir. 2003) (citing 8 U.S.C. § 1252(a)(1)). Thus, the only issue
before us is whether the IJ and BIA erred in affirming the IJ’s denial of Radius’
application for withholding of removal.

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When the BIA both discusses and adopts the IJ’s decision, we review the
decision of the IJ and the BIA. See He Chun Chen v. Ashcroft, 376 F.3d (3d Cir.
2004). We review adverse credibility rulings to determine if they are supported by
substantial evidence. That is a deferential standard requiring us to uphold the
credibility rulings unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Our review of the
interpretation and application of legal principles is de novo. Ezeagwuna v.
Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003).
II.
In order to obtain withholding of removal, Radius must establish that she is
a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). To qualify as a refugee
she must establish that she is “unable or unwilling” to return to Indonesia “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).
To qualify for withholding of removal, Radius must establish not only that
she is a refugee, but also that there is a “clear probability” that her “life or freedom
would be threatened upon her removal.”Xia Yue Chen v. Gonzales, 434 F.3d 212,
216 (3d Cir. 2005). We agree that she has not satisfied this burden.

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The IJ concluded the Radius was not credible. The IJ went further and
ruled that even assuming arguendo that Radius’ testimony was truthful, she has
still not established that she is eligible for withholding of removal. We agree.
Before explaining why the record supports the denial of relief, we note that
the vast majority of Radius’ discussion in her brief details the horrendous and
abusive relationship between her and her father as she was growing up in
Indonesia. We have no idea why counsel thought that supplying us with that
background in any way advanced Radius’ burden of establishing the governmental
involvement that is required to establish persecution. See Silva-Rengifo v.
Attorney General, 473 F.3d 58 (3d Cir. 2006). Nor does counsel even attempt to
relate the mistreatment Radius received at the hands of her father to the protected
class of ethnicity that Radius appears to base her claim for relief. See Petitioner’s
Br. At 10 (mentioning Department of State Country Reports statements about the
relationship between the government of Indonesia and ethnic Chinese.).
As we explained in Fatin v. I.N.S., 12 F.3d 1233, 1241 (3d Cir. 2003), and
have frequently repeated since,
the concept of persecution does not encompass all
treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional. If persecution were
defined that expansively, a significant percentage of
the world’s population would qualify for asylum in this
country-and it seems most unlikely that Congress
intended such a result.

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We do not wish to belittle the hardships Radius has had to endure.
However, on this record, we agree that she did not establish that the harassment
and mistreatment rose to the level required to establish the “prosecution” required
for relief, or that the government perpetrated or acquiesced in the mistreatment.
In Lie v. Ashcroft, 396 F.3d 530, 537-538 (3d Cir. 2005), we confronted
similar claims except that the alien there did not include claims of parental abuse.
We rejected the claim, explaining:
Petitioners argue, with some force, that anti-Chinese
violence persists [in Indonesia] citing evidence in the
record of widespread attacks on Chinese Christians . . .
. Nevertheless, such violence does not appear to be
sufficiently widespread . . . to constitute a pattern or
practice . . . . Moreover, this violence seems to have
been primarily wrought by fellow citizens and not the
result of governmental action or acquiescence. Given
these considerations, we are not compelled to find that
such attacks constitute a pattern or practice of
persecution against Chinese Christians.
Radius’ claim for withholding is not as strong as the claim we denied in Lie.
II.
For the reasons set forth above, we conclude that the BIA did not abuse its
discretion by denying the motion to reopen. Accordingly, we will affirm the
decision of the BIA, and deny the petition for review.

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