Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-30-2008
Wibowo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1923
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1923
BUDI WIBOWO,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A 96-203-861)
Immigration Judge: Charles Honeyman
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 16, 2008
Before: AMBRO, FISHER, and JORDAN, Circuit Judges
(Opinion filed: April 30, 2008)
OPINION
PER CURIAM
Budi Wibowo, a native and citizen of Indonesia, petitions for review of a final
order of the Board of Immigration Appeals (“BIA”), in which the BIA affirmed the denial
by the Immigration Judge (“IJ”) of Wibowo’s application for asylum and withholding of
removal.1
Wibowo is Javanese and a Muslim. He bases his claims for relief on his fear of
returning to Indonesia. He claims that Muslim radicals who opposed a musical event that
he co-coordinated were responsible for a beating that resulted when he and others refused
to call off the event. He believes that these same Muslim radicals were later responsible
for an incident where his motorcycle tires were flattened and for the robbery of his cell-
phone store.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the IJ’s
decision and the BIA’s affirmance under the deferential “substantial evidence” standard.
Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). A finding is not supported
by substantial evidence only where “no reasonable fact finder could make that finding on
the administrative record.” Id.
First, we agree with the BIA that Wibowo failed to appeal from the IJ’s denial of
his request for protection under the CAT and, therefore, we lack jurisdiction to entertain
that claim. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (an alien
is required to raise and exhaust his remedies as to each claim or ground of relief if he is to
preserve the right of judicial review of that claim). We also lack jurisdiction to review
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The IJ and the BIA also determined that Wibowo’s application for asylum was time
barred. The BIA deemed Wibowo’s request for relief under the Convention Against
Torture waived. Wibowo does not challenge either finding.
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the timeliness of his asylum application where, as here, a petitioner has not alleged a
constitutional claim or raised a question of law. See 8 U.S.C. § 1158(a)(3),
1252(a)(2)(D); Tarrawally v. Ashcroft, 338 F.3d 180 (3d Cir. 2003); see also
Sukwanputra v. Gonzales, 434 F.3d 627, 634-35 (3d Cir. 2006).
Wibowo’s sole remaining claim is for withholding of removal. To obtain
withholding of removal, Wibowo bore the burden of establishing that it was more likely
than not that his life or freedom would be threatened in Indonesia on account of his race,
religion, nationality, membership in a particular social group, or political opinion. 8
U.S.C. § 1231(b)(3)(A); Romanishyn v. Att’y Gen., 455 F.3d 175, 178 n.1 (3d Cir. 2006);
Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001) (holding that “more likely than not” is the
standard to establish withholding of removal). Wibowo argues that he provided sufficient
evidence of past persecution, having testified that he was beaten up in 1997 by a group of
radical Muslims who opposed the concert he coordinated and who had unsuccessfully
tried to recruit him. Wibowo also points out in his brief that the 2002 International
Religious Freedom Report documents interreligious violence that occurred during 2002,
sometimes with official complicity.
Substantial evidence supports the IJ’s denial of Wibowo’s request for withholding
of removal. See; 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). The three incidents that Wibowo testified to having suffered—one instance of
physical violence by unidentified persons in 1997 at the concert event, the puncturing of
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his motorcycle tire by an unidentified person, and the robbery of his cell phone store—are
not serious enough to constitute persecution under the statute. See, e.g., Fatin v. INS, 12
F.3d 1233, 1240 (3d Cir. 1993) (persecution is an “extreme concept” that “does not
encompass all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional”).
Wibowo did not demonstrate either “a real threat to life or freedom” or that the
Indonesian government is “unable or unwilling to control” the individuals who allegedly
persecuted him. See Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001) (finding
that random street violence and criminal activity does not constitute persecution). First,
the beating Wibowo experienced resulted in black and blue bruises, but Wibowo did not
testify that he sought medical treatment after he was beaten, nor that he has suffered long-
term serious harm. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (noting the
minor injury suffered by the petitioner was not so severe as to constitute persecution).
Second, even if Wibowo could show that the harm he experienced was severe enough to
rise to the level of persecution, Wibowo has not provided sufficient evidence to compel
our conclusion that the alleged events he suffered were inflicted by the Muslim radicals’
desire to penalize him based on his religious beliefs. See Abdille, 242 F.3d at 495
(generalized evidence of hostility toward a group is insufficient to constitute persecution).
Under our deferential review standard, the BIA’s conclusion must be upheld.
Finally, there is no record evidence that the alleged persecution was perpetrated by
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the Indonesian government, or by forces the government is unwilling or unable to control.
See, e.g., Lie, 396 F.3d at 536 (noting that two isolated criminal acts, perpetuated by
unknown assailants, which resulted only in the theft of some personal property and a
minor injury, were not sufficiently severe to be considered persecution unless committed
by the government or forces the government is either “unable or unwilling” to control);
see also Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Wibowo relies on a general
statement in the 2002 Report on International Religious Freedom, which states that the
Indonesian government tolerates interreligious violence. However, Wibowo does not
claim that there is a pattern or practice of persecution against persons with his particular
political or religious beliefs by Muslim radicals or that the government specifically
tolerates the group that beat him up in 1996.
For the foregoing reasons, we will deny the petition for review.
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