Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-10-2008
Krestianti v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3642
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 06-3642
DEFIE KRESTIANTI; HENDRO SUTEDJA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(Agency File No. A97-479-776)
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 6, 2007
Before: McKEE, CHAGARES and HARDIMAN,
Circuit Judges.
OPINION
McKEE, Circuit Judge.
Hendro Sutedja and Defie Krestianti, husband and wife, petition for review of the
Board of Immigration Appeals’ summary affirmance of the Immigration Judge’s denial of
their request for asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (“CAT”). For the reasons that follow, we will deny the
petition.
Inasmuch as we write primarily for the parties who are familiar with this case, we
need not reiterate the factual or procedural background. In order to obtain asylum or
withholding of removal, Petitioners must establish that they are “refugees” as defined in 8
U.S.C. § 1101(a)(42)(A). That statute provides relief from removal if an alien can
establish “[1] persecution or [2] a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.” See
also 8 C.F.R. § 208.13(b); Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003).
Here, the government correctly notes that Krestianti did not raise the IJ’s denial of
her claim for relief based on Chinese ancestry and that Sutedja did not raise the IJ’s denial
of his claim based on religion as required by 8 U.S.C. § 1252(d)(1). They have therefore
failed to exhaust those claims and we do not have jurisdiction to review them.
Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). Accordingly, we can
only consider Sutedja’s petition for review of the IJ’s denial of his claim based on his
Chinese ethnicity.1
Our review is narrow. When the BIA adopts the decision of the IJ without opinion
pursuant to 8 C.F.R. § 1003.1(e), we review the decision of the IJ as the final agency
1
We note, however, based on our review of the IJ’s ruling, that the record is
sufficient to support the denial of Krestiani’s ethnically based claim as well as Sutedja’s
claim based on his religion. As the IJ correctly held, even assuming their testimony to be
true, the record does not contain sufficient evidence of governmental involvement or
acquiescence to support those claims. Accordingly, we would deny their challenge to
those claims even if they were before us.
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decision.2 We review the IJ’s factual determinations for substantial evidence. Dia v.
Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). “If a reasonable fact finder could
make a particular finding on the administrative record, then the finding is supported by
substantial evidence.” Id. Our review of the IJ’s conclusions of law is de novo, but we
afford the IJ deference pursuant to Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 844,
(1984).
Sutedja argues that the IJ erroneously interpreted 8 U.S.C. § 1158(b)(1)(B)(ii) as
requiring documentary corroboration of his testimony in order to establish “fear of
persecution” under 8 U.S.C. § 1101(a)(42)(A). In doing so, he mischaracterizes the IJ’s
ruling. Moreover, we agree that the evidence he offered falls woefully short of the
quantum of proof required to establish either past persecution, a well founded fear of
future persecution, or a likelihood of torture. In Fatin v. INS, 12 F.3d. 1233, 1239 (3d
Cir. 1993), we explained that “persecution” in the asylum context refers to “extreme
conduct[,]” it does not “encompass all treatment that our society regards as unfair, unjust,
or even unlawful or unconstitutional.” 12 F.3d at 1240 n.10. The most serious incident
was the bombing of a church Sutedja was attending. Insofar as his claim for relief based
on ethnicity is concerned, the following testimony is indicative of his claim:
2
We realize that Petitioners are challenging the validity of the “streamlining”
regulations that provide for summary affirmance of the IJ’s decision. See 8 C.F.R. §
1003.1. We have already rejected that argument in Dia v. Ashcroft, 353 F.3d 228 (3d Cir.
2003) (en banc), and need not address it here.
3
Q. Were you ever being physically harmed when you were in Indonesia?
A. Not too serious, but it happened so many times when I drove my bike - -
when I rode my bike and people would call me Chinese, Chinese, and
sometimes they hit me, but its’s not too serious. I do not understand why
they hit me, what’s the reason they did that to me.
4/8/2005 N.T. p. 64-5.
Although the mistreatment and harassment Sutedja received was certainly
unpleasant, he conceded that “it’s not too serious.” His testimony simply did not
establish persecution. Moreover, the IJ correctly noted that Petitioner’s family continues
to reside in Indonesia without incident. That, combined with Sutedja’s less than
compelling testimony about the incidents that occurred before he left Indonesia, supports
the IJ’s conclusion that he had not established his entitlement to relief by a preponderance
of the evidence. See Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003) (since the
test for withholding of removal is more demanding than the test for asylum, failure to
establish a claim for asylum is fatal to a claim for withholding of removal).
Similarly, the record is devoid of any evidence of the governmental involvement or
acquiescence required for relief under the CAT. See Silva-Rengifo v. Att’y Gen., 473 F.3d
58 (3d Cir. 2007). Although there is testimony that various individuals were hostile to
Petitioners, mistreated and harassed them, there is nothing to suggest the conduct of those
individuals is attributable to the government of Indonesia or its agents. To the extent that
there is evidence that police were informed of the mistreatment that Krestianti and
Sutedja were subjected to, the record shows only dereliction of duty and corruption. It
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does not suggest a likelihood of torture if either is returned to Indonesia.
Petitioners also argue that the IJ erred in excluding certain police reports and
documents pertaining to a robbery of Krestianti’s father. That claim, like Krestianti’s
claim for religious and ethnic persecution, has been waived because it was not presented
to the BIA. See Abdulrahman, 330 F.3d at 594-95.
Accordingly, for the reasons set forth above, we will deny the Petition for Review.
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