Luciana v. Attorney General of U.S.

• Decision Date: 17 September 2007
• Docket Number: No. 05-3544.,05-3544.
• Citation: 502 F.3d 273
• Parties: Wandayani LUCIANA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

502 F.3d 273

Wandayani LUCIANA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 05-3544.

United States Court of Appeals, Third Circuit.

Submitted pursuant to Third Circuit LAR 34.1(a) February 27, 2007.

September 17, 2007.

Lisa A. Baird, Philadelphia, PA, for Petitioner.

Peter D. Keisler, Assistant Attorney General Civil Division, Richard M. Evans, Mark L. Gross, Wonkee Moon, Department of Justice, Washington, DC, for Respondent.

Before: McKEE and ALDISERT, Circuit Judges, and RESTANI, Judge^*.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This petition by Wandayani Luciana for review of an order of the Board of Immigration Appeals ("BIA" or "Board") requires us to decide whether a single fabricated incident in Petitioner's time-barred asylum application renders the application frivolous and consequently renders her permanently ineligible for any and all benefits under the Immigration and Nationality Act. We conclude as a matter of law that Petitioner's petition was not frivolous, and we will grant this petition for review.

I.

Luciana is an Indonesian national of Chinese ancestry. She entered the United States as a nonimmigrant visitor on or about December 7, 2000, with authorization to remain here until June 6, 2001. She remained past that date and submitted an application for asylum and withholding of removal on November 2, 2002, approximately 23 months after her arrival in the United States. In her application, she asserted that she is ethnically Chinese and Christian, and alleged past persecution as well as a well-founded fear of future persecution based on her race and religion should she return to Indonesia.

The Asylum Officer denied her application, and referred her case to the immigration enforcement authorities. Luciana was served with a Notice to Appear charging that she was removable from the United States because, after admission as a non-immigrant under the Immigration and Nationality Act ("INA") § 101(a)(15), 8 U.S.C. § 1101(a)(15), she remained in the United States longer than permitted. She appeared before an immigration judge ("IJ") and conceded removability, but requested asylum, withholding of removal, relief under Article III of the Convention Against Torture ("CAT"), and, in the alternative, voluntary departure.

A hearing was held before the IJ on December 23, 2003. Luciana testified through an Indonesian interpreter that she is an Indonesian national of Chinese ancestry and that she entered the United States on December 10, 2000. She testified that, in Indonesia, she was a baptized member of the Pentecostal Christian Church from February 26, 1995, until her departure to the United States in December 2000. She testified that since her arrival here she has been a member of a number of Indonesian Christian churches.

She explained that, when living in Indonesia, she experienced problems because of her Chinese ancestry and religious beliefs. First, she testified about an incident in which she was dismissed from school "because there was an incident where a maid was beaten by her pastor who was Chinese." A.R. 194. She also testified that she was often mocked on the streets on her way to and from school because she was Chinese. She further recounted two incidents in 1998 during which groups of men looted her father's store while she was away. Her father reported one of the incidents to the police, but they told him they could not help. Lastly, Luciana testified that, because of riots targeting Christians of Chinese ancestry, her church in Indonesia was forced to meet in members' homes.

Luciana wanted to leave Indonesia because she was afraid. She said that people of Chinese descent were not protected in Indonesia, and that her life would be in danger if she returned to Indonesia because Muslims, who are the majority in Indonesia, hate Christians. She also testified that she believed that if she returned to Indonesia and opened a business, she would likely be robbed.

When the IJ asked why she did not apply for asylum during her first year in the United States, she said that she planned to file an asylum application in May 2001, but her father suffered an accident and she was forced to take care of him.¹ When the IJ asked her why her father's injury prevented her from filing her application, she testified that, as the oldest child, she was responsible for caring for her father and seeing to his medical needs. She testified that her father's accident occurred in May 2001, he had related surgeries through June 2001, and he underwent out-patient physical therapy until December 2001. The IJ noted that Luciana did not apply for asylum until November 2002-11 months after the end of her father's physical therapy. When government counsel asked why she could not file the application while caring for her father given that she knew the application needed to be filed within one year, Luciana explained that she "was not thinking that far ahead and continued to care for her father who was under stress." App. 20.

Luciana testified that she asked an attorney to help her in filing an asylum application, but that he refused to help after learning that she had been in the United States for longer than one year. Subsequently, she got help from a man named "Tony Tju" who prepared the application for her. She gave him written information about her experiences in Indonesia for use in preparing the asylum application. When the IJ asked if the information in her asylum application was consistent with the information she provided to Tju, Luciana testified that she did not provide Tju with information about the December 1999 incident that was included in her asylum application. In her asylum application, Luciana alleged that she had been assaulted and cut with a knife by native Indonesians because of her religious beliefs on the way to church. Luciana testified that Tju made up the incident because he believed it would strengthen her application. She testified that she attended her asylum interview with Tju but without an interpreter. She further testified that although she did not affirmatively discuss the made-up December 1999 incident and knew that it did not occur, when the asylum officer asked her about it, she described the incident as written in her application. Luciana testified that she lied about this incident because Tju told her that if she told the truth about it, he would tell the asylum officer that the lie was entirely hers and that he had nothing to do with it. She said that because she was not very familiar with the asylum process, she was fearful.

The IJ issued an oral decision in which he found that Luciana was statutorily ineligible for asylum because she failed to file an asylum application within the one-year limitation period without demonstrating exceptional circumstances or changed country conditions to excuse the delay. Additionally, the IJ stated that if one of the exceptions to the one-year bar were to apply, he "would also have serious problems with regard to the respondent's claim . . . ." App. 25. Although the IJ found her assertions that she is a Christian and a native of Indonesia credible, he stated that, were he to reach the merits of the asylum application, he would find her testimony not credible insofar as it pertained to past persecution. The IJ then considered Luciana's requests for withholding of removal and relief under the CAT. He found that she presented no evidence of past persecution. In addition, he concluded that she had not demonstrated that it was more likely than not that she would be persecuted or tortured because of her race or religion by, or with the consent or acquiescence of any agent of, the Indonesian government. Therefore, the IJ denied Luciana's application for asylum, withholding of removal, relief under the CAT, and, in the alternative, voluntary departure.² In addition, because of the fabrication of the December 1999 incident, the IJ found that Luciana "knowingly filed an asylum application which is frivolous in part, thereby triggering the lifetime bar to benefits pursuant to Section 208(d)(6) and 8 C.F.R. § 208.20 et seq." App. 32-33.

Luciana filed a Notice of Appeal to the BIA on January 14, 2004. On August 7, 2004, Luciana married a United States citizen, William T. Hughes, Jr. Thereafter, on February 2, 2005, the Department of Homeland Security approved the Petition for Alien Relative (Form I-130) that Hughes filed for Luciana, and authorized Luciana to apply to adjust her status to permanent resident (Form I-485). Luciana and Hughes testified that their son, Evan, was born on June 14, 2005. On March 17, 2005, Luciana filed a motion with the BIA to overturn the IJ's frivolousness finding and remand her case to the IJ for consideration of her application to adjust status to lawful permanent resident.

On June 24, 2005, the BIA affirmed the IJ's decision "based upon and for the reasons set forth therein." App. 3. The BIA agreed that Luciana did not file her asylum application in a timely fashion or demonstrate circumstances preventing her from filing for asylum within the allotted time. The BIA also agreed that she did not establish that it is more likely than not that she would be persecuted or tortured if returned to Indonesia, and it affirmed the IJ's "finding that [Luciana] filed a frivolous asylum application." Id. The BIA also held Luciana ineligible for adjustment of status because her asylum application had been found frivolous. Therefore, it denied her motion for remand to the IJ for an adjustment of status.

Luciana then filed a timely petition for review.

II.

A.

We begin by reviewing the relevant provisions of asylum law. Under 8 U.S.C. § 1158(a)(1), "[a]ny alien who is physically present in the United States . . . may apply for asylum . . . ." This provision, however, "shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1...