Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-11-2008
Kuswadi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2668
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"Kuswadi v. Atty Gen USA" (2008). 2008 Decisions. Paper 1765.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2668
HELEIANA KUSWADI;
SOEPENI SUHADA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of
The Board of Immigration Appeals
Immigration Judge: Honorable Donald V. Ferlise
(Nos. A96-257-860 / A96-257-861)
Submitted Under Third Circuit LAR 34.1(a)
November 9, 2007
Before: SCIRICA, Chief Judge, AMBRO, and JORDAN, Circuit Judges
(Opinion filed: January 11, 2008)
OPINION
AMBRO, Circuit Judge
This case involves Heleiana Kuswadi and Soepeni Suhada, a married couple, who
are natives and citizens of Indonesia, though their ancestry is Chinese. Rejecting their
claim for asylum, an Immigration Judge ordered both of them removed from the United
States. Kuswadi and Suhada petitioned our Court for review, specifying Kuswadi as lead
petitioner and consolidating Suhada’s case as a derivative claim. We deny their petition.
Kuswadi and Suhada previously lived in Jakarta, where Kuswadi ran a grocery-
supply business in connection with her sister’s supermarket business. She alleges that
four incidents of past persecution give rise to a well-founded fear of persecution should
she return to Indonesia. First, rioters destroyed her sister’s supermarkets, and the supply
business’s inventory with them, in 1998. Second, a bomb exploded outside her family’s
Roman Catholic church on Christmas Eve of 2000. Third, following an anonymous
phone call, unknown assailants shot and wounded her sister in February 2001. Fourth, on
an unspecified date, a distant relative of hers had to dodge stones thrown at his car while
driving.
In May 2001, Suhada entered the United States; Kuswadi joined her husband in
October 2002. Kuswadi timely applied for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”), with her husband as a
derivative applicant. (Suhada did not file a separate application.) In April 2003, the
Department of Homeland Security initiated removal proceedings against Kuswadi. An IJ
denied her claims at a hearing in January 2005. The Board of Immigration Appeals
affirmed without opinion, and Kuswadi filed a timely petition for review.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed the
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IJ’s order without opinion, we review his order. Partyka v. Att’y Gen., 417 F.3d 408, 411
(3d Cir. 2005). Under our standard of review, we must uphold the IJ’s findings “unless
the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,
242 F.3d 477, 483–84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 &
n.1).
To succeed on her asylum claim, Kuswadi must establish that she is “unable or
unwilling” to return to Indonesia “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “A showing of past persecution
gives rise to a rebuttable presumption of a well-founded fear of future persecution.” Lie
v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005) (citing 8 C.F.R. § 1208.13(b)(1)). Without
that presumption, Kuswadi must demonstrate both a subjective fear of persecution, see
Lie, 396 F.3d at 535, and an objectively reasonable possibility of persecution, see Zubeda
v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).
The IJ found Kuswadi’s testimony credible, which supports her claim of subjective
fear. But substantial evidence supports the IJ’s conclusion that the four incidents
Kuswadi described do not establish that she, in particular, was persecuted in the past.1
Kuswadi lost property but did not personally experience bodily harm or lose her freedom
1
We take no notice of the additional affadavit attached to Kuswadi’s opening
brief, which is not part of the administrative record. See 8 U.S.C. § 1252(b)(4)(A).
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in any of the four incidents to which she testified.2 (We also agree with the IJ that
nothing in the record demonstrates a religious or ethnic motivation for the supermarket,
shooting, and stoning incidents.) With this backdrop, there is no presumption of future
persecution.
As an ethnically Chinese Catholic, Kuswadi might face challenging conditions in
Indonesia. But she has not shown that conditions have changed since our decision in Lie,
which held that no pattern or practice of persecution exists in Indonesia with respect to
ethnically Chinese Christians. 396 F.3d at 537–38. Thus, she has not established an
objectively reasonable possibility of future persecution.
In sum, substantial evidence supports the IJ’s finding that Kuswadi has not
demonstrated a well-founded fear of persecution on account of a protected ground.
Since withholding of removal requires demonstrating a higher probability of
persecution than asylum, Kuswadi’s claim on that theory must also fail. Janusiak v. INS,
947 F.2d 46, 47–48 (3d Cir. 1991). Finally, we agree with the IJ that nothing in the
record suggests that Kuswadi is more likely than not to experience torture upon her return
to Indonesia.
For these reasons, we deny the petition for review.
2
Kuswadi’s situation does not rise to the level of economic deprivation
experienced by the petitioner in Li v. Attorney General. 400 F.3d 157 (3d Cir. 2005).
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