Taylor v. Atty Gen USA, (3rd Cir. 2007)
Linked as:
Text
NOT PRECEDENTIAL
U N IT E D STATES COURT OF APPEALS
F O R THE THIRD CIRCUIT
N o . 06-2590
J E M M I TAYLOR,
Petitioner
v. A T T O R N E Y GENERAL OF THE UNITED STATES,
Respondent
O n Petition for Review from an
O rd e r of the Board of Immigration Appeals
(B o a rd No. A79 141 363)
I m m ig r a tio n Judge: Donald Vincent Ferlise
S u b m itte d Under Third Circuit LAR 34.1(a)
S e p te m b e r 27, 2007
B e f o re : McKEE, BARRY and FISHER, Circuit Judges.
(F ile d : October 3, 2007
O P IN I O N OF THE COURT
F IS H E R , Circuit Judge. J e m m i Taylor petitions for review of the final decision of the Board of Im m ig ra tio n Appeals ("BIA") ordering his removal from the United States. He claims th a t the BIA, in affirming the decision of the Immigration Judge ("IJ"), erred by denying h is application for withholding of removal. We disagree and, for the reasons set forth b e lo w , will deny the petition.
I.
A s we write exclusively for the parties, who are familiar with the factual and p ro c e d u ra l history of this case, we will set forth only those facts necessary to our analysis.
Taylor is a native and citizen of Indonesia, of Chinese ethnicity and Christian religion.
He entered the United States on a visitor's visa on April 13, 1998, and remained in the U n ite d States after the visa expired. He was placed in removal proceedings on N o v e m b e r 10, 2002, when the Immigration and Nationality Service issued a Notice to A p p e a r.1 At his initial appearance in front of the IJ, Taylor conceded removability, but m a d e applications for asylum, withholding of removal, and protection under the C o n v en tio n Against Torture ("CAT").
A t a subsequent hearing, Taylor testified regarding his life in Indonesia prior to 1 9 9 8 . Taylor's testimony focused primarily on his childhood. He testified that when he w a s in the fourth grade some fellow students repeatedly took his money from him. The f o llo w in g year, his fifth grade teacher permitted other students to twist his ear when he w a s unable to complete the assignment of singing a song in front of the class. Taylor also te stif ie d that his high school refused to allow him to participate in a graduation ceremony b e c a u s e he was improperly dressed. He stated that all of these incidents occurred because h e was a Chinese Christian. As supporting evidence, he testified that the high school a llo w e d another non-Chinese Indonesian student to participate in the graduation c e re m o n y despite being improperly dressed.2 In addition to the harassment he suffered as a student, Taylor testified that he was ro b b e d twice in 1995 and 1997. Finally, Taylor testified that during the 1998 presidential c a m p a ig n , a group of native Indonesians overturned his vehicle while he was stopped at a re d light. He testified that both of these incidents were motivated by his religion and e t h n i c i t y.
F o llo w in g Taylor's testimony, the IJ issued its decision and ordered Taylor re m o v e d to Indonesia. The IJ found that Taylor's asylum application was untimely and that he had not presented extraordinary circumstances which would excuse late filing. In a d d itio n , the IJ denied Taylor's application for withholding of removal and protection u n d e r the CAT. While the IJ found Taylor's testimony credible, he found that there was n o t sufficient evidence to show past persecution or fear of future persecution should T a ylo r return to Indonesia. The IJ also found that it was not more likely than not that T a ylo r would be tortured in Indonesia. The BIA affirmed the decision of the IJ after T a ylo r filed an appeal. This timely petition for review followed.
II.
W e have jurisdiction to review a final order of removal from the BIA pursuant to 8 U .S .C . § 1252(a)(1). Where, as here, the BIA has adopted a portion of the IJ's decision, w e review the decisions of both the BIA and the IJ. Shehu v. Attorney Gen.,
I I I.
T a ylo r petitions for review of the IJ's denial of his application for withholding of re m o v a l.3 Pursuant to the Immigration and Nationality Act ("INA"), the Attorney G e n e ra l may not remove an alien to his country of origin if his "life or freedom would be th re a te n e d in that country because of [his] race, religion, nationality, membership in a p a rticu lar social group, or political opinion." 8U.S.C. § 1231(b)(3)(A). In order to q u a lif y for withholding of removal under § 1231, an alien must show the threat by a clear p ro b a b ility. INS v. Stevic, 467 U.S. 407, 430 (1984). "A clear probability means `more lik e ly than not.'" Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003) (quoting S tev ic , 467 U.S. at 429-30).
T h e IJ's determination that Taylor failed to show that his life or freedom would be th re a ten e d in Indonesia because of his race, religion or nationality by a clear probability is s u p p o rte d by substantial evidence. Taylor points to isolated incidents of cruelty by school c h ild re n and two instances of what may have been unfair treatment by a teacher. While th e se incidents were clearly unpleasant for Taylor, they do not rise to the level of "threats to life, confinement, torture, and economic restrictions so severe that they constitute a th re a t to life or freedom." Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Taylor's te s tim o n y regarding the two robberies and the overturning of his car, likewise, do not rise to the level of past persecution. Isolated criminal acts, even those that result in minor th e f t and injury, cannot support a finding of past persecution. Lie v. Ashcroft,
E v e n if the incidents Taylor described were sufficiently severe to rise to the level o f persecution, Taylor's application would still have to be denied. A petitioner may only b e granted withholding of removal if he is likely to be persecuted "by the government or f o rc e s the government is either unable or unwilling to control." Abdulrahman v. Ashcroft, 3 3
T h e re f o re , and for the reasons set forth above, we will deny Taylor's petition for re v ie w .
1 The INS ceased to exist in 2003. Pursuant to the Homeland Security Act of 2002, th e enforcement functions of the INS were transferred to the Department of Homeland S e c u rity, Bureau of Immigration and Customs Enforcement. See Homeland Security Act o f 2002, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192.
2 Taylor also testified that his tuition was higher than that of other high school s tu d e n t s and that he was hazed in college. However, he admitted at the hearing that these in c id e n ts did not appear to be related to his Chinese ethnicity or Christian religion.
3 It is unclear whether Taylor also petitions for review of the IJ's determination re g a rd in g his application for protection under the CAT. However, if Taylor is making s u c h a petition, we will deny it. In order to receive protection under the CAT, a petitioner m u st show that "it is more likely than not that he or she would be tortured if removed to th e proposed country of removal." 8 C.F.R. § 208.16(c)(2). The torture must be inflicted b y the government or with the consent or acquiescence of a public official. Id. Taylor h a s provided no evidence that would indicate that he would be tortured by the Indonesian g o v e rn m e n t if returned to Indonesia.
Sponsored links
This document cites
- U.S. Court of Appeals for the Third Circuit - Mohamed Abdille, Petitioner v. John Ashcroft, * Attorney General of the United States, Respondent, 242 F.3d 477 (3rd Cir. 2001)
- U.S. Court of Appeals for the Third Circuit - Aravinthan Balasubramanrim, Petitioner, v. Immigration and Naturalization Service, Respondent., 143 F.3d 157 (3rd Cir. 1998)
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 208.16 - Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture.
- U.S. Court of Appeals for the Third Circuit - Sulaiman Tarrawally, Petitioner v. John Ashcroft, Attorney General of the United States, Respondent., 338 F.3d 180 (3rd Cir. 2003)
- U.S. Supreme Court - INS v. Stevic, 467 U.S. 407 (1984)
See other documents that cite the same legislation
