Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-11-2006
Indrawati v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3647
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-3647
___________
HESTI INDRAWATI;
DJUNAEDI HERIANTO KUSUMO,
Petitioners,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A96-263-043/044)
Immigration Judge: Miriam K. Mills
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 1, 2006
Before: AMBRO, FUENTES, and GREENBERG, Circuit Judges.
(Opinion Filed: July 11, 2006)
________________________
OPINION
________________________
FUENTES, Circuit Judge:
Petitioners Hesti Indrawati (“Indrawati”) and Djunaedi Herianto Kusumo
(“Kusumo”), wife and husband, seek review of the Board of Immigration Appeals’
(“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of their applications for
asylum and Indrawati’s application for withholding of removal and protection under the
Convention Against Torture (the “CAT”).1 In so ruling, the BIA affirmed without
opinion the findings of the IJ that Indrawati and Kusumo did not have a well-founded fear
of future persecution. For the reasons that follow, we deny the petition for review.2
I. Facts
Because we write only for the parties, we recite only the essential facts. Indrawati
and Kusumo are an ethnically Chinese married couple who are natives and citizens of
Indonesia. They allege that, while in Indonesia, they suffered persecution by nationalist
Indonesians. Specifically, Indrawati alleges that in 1970 her father was stabbed for
refusing extortion, and was forced to hide in his home when natives sought to punish him
for shooting his attacker in self-defense. She alleges that in 1982 her father was attacked
1
“A grant of asylum allows an otherwise-removable alien to stay in the United States.”
Abdulai v. Ashcroft, 239 F.3d 542, 545 (3d Cir. 2001). On the other hand, withholding of
removal merely confers the right not to be deported to a particular country, as opposed to
the right to stay in this country. Id.
2
Where, as here, the final order of the BIA summarily affirms or defers to the decision
of the IJ, this Court “must review the IJ’s decision.” Abdulai v. Ashcroft, 239 F.3d 542,
549 n. 2 (3d Cir. 2001).
2
again in an extortion attempt. Although the perpetrator left her father’s store when her
father threatened to call the police, the attacker slapped her as he exited. She alleges that
police sitting in front of the store did nothing to help her family. In 1987, a motorcylist
stopped Kusumo’s car and proceeded to punch him in the face. In 1998, while their taxi
was stopped at a red light, the petitioners were approached by a man who demanded
money. Although Kusumo gave him money, the man attempted to enter the taxi. Others
joined him and began to rock the taxi. The petitioners escaped, but Kusumo sustained an
eye injury that resulted in surgery. In 2001, an Indonesian man entered their home and
began to undress. Neither of the petitioners was harmed in this incident.
Kusumo and Indrawati entered the United States as nonimmigrants on October 22,
2001, and June 30, 2002, respectively. They remained in the United States beyond their
authorized stay, and were placed in a removal proceeding. The petitioners applied for
asylum, and Indrawati also applied for withholding of removal and protection pursuant to
the CAT. Following a hearing, the IJ concluded that the facts alleged by the petitioners
did not amount to past persecution and did not establish a well-founded fear of future
persecution. The petitioners appealed the IJ’s decision to the BIA, who adopted and
affirmed without opinion the IJ’s decision. They petition for review to our Court.
II. Discussion
We review the IJ’s decision under the substantial evidence standard. See Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We conclude that the IJ’s decision and the
3
BIA’s affirmance are supported by the record.
Substantial evidence supports the IJ’s conclusion that the incidents of robbery and
harassment that the petitioners describe do not amount to persecution under the
controlling law. These five isolated incidents over more than thirty years do not rise to
the “extreme conduct” necessary to support an asylum claim under the Immigration and
Nationality Act. See Fatin v. INS, 12 F.3d 1233, 1240 & n.10 (3d Cir. 1993) (explaining
that persecution denotes “extreme conduct” that “does not encompass all treatment that
our society regards as unfair, unjust, or even unlawful or unconstitutional”); cf. Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding that ethnic Chinese Indonesian’s
“account of two isolated criminal acts, perpetrated by unknown assailants, which resulted
only in the theft of some personal property and a minor injury, is not sufficiently severe to
be considered persecution”). Furthermore, there is no evidence that compels a finding
that the incidents–which consist of random acts of robbery and one incident of a man
breaking into their home–were motivated by ethnic animus. Here the IJ found, the BIA
affirmed, and we agree, that the incidents described by the petitioners occurring between
1970 and 2001 did not amount to past persecution on account of “race, religion,
nationality, membership in a particular social group, or political opinion . . . .” 8 U.S.C. §
1101(a)(42)(A); see also Gao v. Ashcroft, 353 F.3d 228, 234 n.1 (3d Cir. 2002).
The petition for asylum based on past persecution and a well-founded fear of
future persecution were therefore properly denied. Indrawati’s petition for withholding of
4
removal and protection under the CAT also fail for reasons similar to those discussed
above.
III. Conclusion
For all of the foregoing reasons, the IJ’s decision was based upon substantial
evidence. Therefore, we will deny the petition for review.
5