Purwantono v. Gonzales

• Decision Date: 17 August 2007
• Docket Number: No. 06-2083.,06-2083.
• Parties: Herik PURWANTONO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

498 F.3d 822

Herik PURWANTONO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.

No. 06-2083.

United States Court of Appeals, Eighth Circuit.

Submitted: April 9, 2007.

Filed: August 17, 2007.

Gregory S. Bachmeier, Minneapolis, MN, for appellant.

John W. Blakeley, Peter D. Keisler, and Emily Anne Radford, USDOJ, Washington, D.C., for appellee.

Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

Herik Purwantono petitions for review of an order of the Board of Immigration Appeals (BIA), which adopted and affirmed the decision of an immigration judge (IJ) denying Purwantono's application for asylum and withholding of removal. Insofar as we have jurisdiction to consider his claims, we deny the petition for review.

Purwantono is a native of Indonesia and a Muslim. His claims for relief rest on his contention that members of a militant Muslim group, Laskar Jihad, subjected him to persecution, and that they are likely to persecute or torture him if he is returned to Indonesia.

On July 31, 1999, Purwantono arrived in the United States on a non-immigrant crewman visa. He failed to file an application for asylum within the one-year period prescribed by statute, 8 U.S.C. § 1158(a)(2)(B), and he is therefore precluded from seeking asylum unless he meets one of the limited statutory exceptions to the timeliness requirement. Section 1158(a)(2)(D) provides that an asylum application "may be considered . . . if the alien demonstrates to the satisfaction of the Attorney General . . . extraordinary circumstances relating to the delay in filing an application within the one year period." Purwantono contends that he showed "extraordinary circumstances" sufficient to excuse his tardiness. The government responds that we have no jurisdiction to review the BIA's determination that his application was untimely.

As we have recognized, 8 U.S.C. § 1158(a)(3) provides that no court shall have jurisdiction to review a determination of the Attorney General that an applicant has failed to demonstrate extraordinary circumstances relating to the alien's delay in filing an application for asylum. Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir. 2001). There is a statutory exception to this jurisdictional bar in section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 323, which provides that § 1158(a)(3) shall not "be construed as precluding review of constitutional claims or questions of law raised upon a petition of review filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D) (emphasis added).

We look to the nature of the argument advanced in the petition to determine whether an alien is raising a constitutional claim or question of law, over which we have jurisdiction, or asserting a dispute with the BIA's factual findings or discretionary judgments, which are insulated from judicial review. Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 332 (2d Cir.2006). Here, Purwantono argues that his poor understanding of English and ignorance of the asylum procedures constitute "extraordinary circumstances" that should excuse his untimely filing. These contentions amount to a quarrel with the BIA's discretionary factual determination. Whatever the precise scope of the "constitutional claims or questions of law" under the terms of the REAL ID Act, the statute's conferral of jurisdiction does not extend to review of the agency's findings of fact or its discretionary decision that extraordinary circumstances have not been demonstrated to the "satisfaction" of the BIA. Yakovenko v. Gonzales, 477 F.3d 631, 635 (8th Cir.2007); Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir.2005). Accordingly, we lack jurisdiction to review the BIA's decision that Purwantono had not demonstrated a satisfactory reason to file an application for asylum outside the one-year time limit.

To the extent Purwantono argues that the statutory time limit on applications for asylum cannot be enforced because it conflicts with the United Nations Convention Relating to the Status of Refugees, we do have jurisdiction to address this question of law, but the argument is without merit. The United States acceded to the Refugee Protocol in 1968, and thereby undertook obligations under the Convention. The Protocol, however, is not self-executing, INS v. Stevic, 467 U.S. 407, 428 n. 22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); Sukwanputra v. Gonzales, 434 F.3d 627, 632 (3d Cir.2006), and it is "not judicially enforceable law in the United States." Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003). The statutory time bar, moreover, was enacted in 1980 after the United States signed the Convention in 1967, so the statute would take precedence in any event, under "the last in time" rule. Sukwanputra, 434 F.3d at 632 n. 3; see Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam).

We also have jurisdiction to review the IJ's determination that Purwantono is ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3). To obtain relief under this provision, an alien must establish that it is more likely than not that he would be persecuted upon return to his native country on account of race, religion, nationality, membership in a particular social group, or political opinion. Stevic, 467 U.S. at 429-30, 104 S.Ct. 2489; 8 C.F.R. § 1208.16(b). The IJ's decision will be upheld unless the evidence on the record considered as a whole compels the conclusion that the alien has established a likelihood of persecution. 8 U.S.C. § 1252(b)(4); Bartolo-Diego v. Gonzales, 490 F.3d 1024, 1027-28 (8th Cir.2007).

We conclude that the IJ reasonably rejected Purwantono's claim for withholding of removal. His allegations of past persecution are limited to a few encounters with members of Laskar Jihad, in which they pressured him to join their group. After Purwantono refused them a second time, members of the group struck him on the head with a stick and knocked him unconscious. He required sixteen stitches as a result of the incident. Purwantono testified that since then, his family has reported further recruiting attempts by Laskar Jihad near his hometown, including an attempt to recruit his brother. The IJ noted a decline in activity by Laskar Jihad activity since Purwantono's departure from Indonesia, and observed that the group stated publicly...