Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-6-2009
Gunawan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3365
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3365
___________
POLIEN S. GUNAWAN;
DJINAEDI NJOTOWIDJAJA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A98-586-373; A98-586-374)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 5, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: January 6,2009)
___________
OPINION
___________
PER CURIAM
Petitioners seek review of an order of the Board of Immigration Appeals (“BIA”)
dismissing their appeal from the Immigration Judge’s (“IJ”) order of removal. For the
following reasons, we will deny the petition for review.
I.
Petitioners, Polien S. Gunawan and her husband, Djinaedi Njotowidjaja, are
natives and citizens of Indonesia. They entered the United States in October 2003 as non-
immigrant visitors for pleasure and remained in the country beyond their authorized date.
In October 2005, Petitioners were served with a Notice to Appear charging them with
overstaying their visas. See INA § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)]. Petitioners
sought asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”), claiming that they had been persecuted in the past, and feared persecution in the
future, because they are Chinese Christians.
In support of their application, Gunawan submitted an affidavit describing her
Christian upbringing and the hardships that she and her husband faced in Indonesia on
account of their ethnicity and religion. Gunawan stated that her father is a pastor and
founder of several Christian churches in East Java. Gunawan herself was raised as a
Christian and has been very active in the Christian church throughout her life. In 1980,
Gunawan married Njotowidjaja, who was also a member of the church. In September
2000, Gunawan and her family moved to Sapikerep, East Java, Indonesia, where her
father was establishing a new church.
Once in Sapikerep, Gunawan’s family began to encounter harassment from their
Muslim neighbors. Gunawan recounted that, whenever they attended services at her
father’s church, the neighbors would broadcast Muslim music to drown out their prayers.
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When Gunawan complained to the police, the police told her that there was nothing they
could do to protect her family. Gunawan claimed that, in August 2002, her Muslim
neighbors approached their home in the early morning and banged on tins and
kettledrums to intimidate them. Later that month, a group of Muslims vandalized her
father’s church, destroying the altar and writing “Allah Akhbar” on the walls. The police
told Gunawan that there was nothing they could do and advised the family to flee the
area. The next day, Gunawan and her husband took their children and moved to Malang.
Gunawan’s father stayed in Sapikerep with his congregation.
Gunawan stated that, after moving to Malang, she and Njotowidjaja opened a
small textile factory. In April 2003, one of their employees stole money from the factory,
leaving the business “practically bankrupt.” They reported the incident to the police, and
were told that the theft would be investigated. Instead, the police began coming to their
home periodically to demand money and household possessions. When Gunawan asked
one of the officers why they were targeting her family, the officer said that it was because
the “Chinese were all rich.” According to Gunawan, her youngest son, who had heart
problems, often cried when the officers came. Gunawan stated in her affidavit that her
son died later that year from an “uncertain” cause. Soon thereafter, she and her family
left for the United States.
At the removal hearing before Immigration Judge Miriam K. Mills, Petitioners
relied on the statements that Gunawan made in her affidavit and declined to testify.
3
Petitioners submitted into evidence several reports on current conditions for Chinese
Christians in Indonesia, including the 2004 Country Report on Human Rights Practices,
the 2004 International Religious Freedom Report, and the affidavits of two expert
witnesses, Jeffrey Winters and Jana Mason.
Following the hearing, IJ Mills found that the Petitioners had failed to establish
either past persecution or a well-founded fear of future persecution. Accordingly, the IJ
denied their applications for asylum, withholding of removal, and relief under the CAT.
The BIA subsequently dismissed Petitioners’ appeal. Gunawan and Njotowidjaja now
seek review of the BIA’s decision.
II.
We have jurisdiction to review the BIA’s order of removal under 8 U.S.C. §
1252(a)(1). When, as here, the BIA issues a decision on the merits and not simply a
summary affirmance, this Court reviews the BIA’s, not the IJ’s, decision. Gao v.
Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The BIA’s conclusions regarding evidence
of past persecution are findings of fact, and this Court therefore reviews these conclusions
under the deferential substantial evidence standard. Abdille v. Ashcroft, 242 F.3d 477,
483-84 (3d Cir. 2001). This Court will not disturb the BIA’s decision “unless the
evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft,
333 F.3d 463, 471 (3d Cir. 2003).
III.
4
In their petition for review, Petitioners first claim that the BIA violated their due
process rights by failing to make an individualized determination of their case.
Specifically, Petitioners allege that the BIA failed to review the 2004 State Department
Reports and each of their expert witness affidavits. A review of the BIA’s opinion,
however, reveals that it clearly considered Petitioners’ submissions. The BIA specifically
addressed the 2004 State Department Reports in its analysis. Furthermore, although the
BIA did not specifically discuss both of the expert affidavits, it is evident that the Board
conducted a detailed review of the record before reaching its conclusion that Petitioners
were not entitled to relief. Accordingly, we conclude that this claim is without merit. See
Wang v. Bd. of Immig. Appeals, 437 F.3d 270, 275 (2d Cir. 2006) (internal quotation
omitted) (“[W]here the BIA has given reasoned consideration to the petition, and made
adequate findings,” it is not required to “expressly parse or refute on the record each
individual argument or piece of evidence offered by the petitioner.”); Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir.2001) (explaining that, to satisfy due process, the
BIA must provide “sufficient indicia” that it made an individualized determination).
Next, Petitioners claim that the BIA erred in denying their applications for asylum.
An applicant may demonstrate eligibility for asylum by showing either past persecution or
a well-founded fear of future persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A);
8 U.S.C. § 1158. To establish past persecution, an applicant must show: “(1) one or more
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incidents rising to the level of persecution; (2) that is ‘on account of’ one of the
statutorily-protected grounds; and (3) is committed either by the government or by forces
that the government is either unable or unwilling to control.” Toure v. Att’y Gen., 443
F.3d 310, 316-17 (3d Cir. 2006) (quoting Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d
Cir. 2003)). Our definition of persecution is narrow; it includes “threats to life,
confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Thus, “persecution
does not encompass all treatment that our society regards as unfair, unjust, or even
unlawful or unconstitutional.” Id.
To establish a “well-founded fear” of future persecution, an applicant must show
both a “subjectively genuine fear of persecution and an objectively reasonable possibility
of persecution.” Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006). To satisfy
the objective prong, an applicant must show that she would be individually singled out for
persecution, or that there is a “pattern or practice” of persecution of similarly situated
persons. 8 C.F.R. § 208.12(b)(2)(iii)(A). To qualify as a “pattern or practice,” the
persecution must be “systemic, pervasive, or organized.” Lie v. Ashcroft, 396 F.3d 530,
537 (3d Cir. 2005).
In this case, Petitioners attempted to demonstrate eligibility for asylum by showing
both past persecution and a well-founded fear of future persecution. Upon review of the
record, we conclude that substantial evidence supports the BIA’s finding that Petitioners
6
failed to demonstrate eligibility on either basis. With respect to their claim of past
persecution, the BIA correctly concluded that none of the incidents described above is
sufficiently severe to rise to the level of persecution under the INA. See Voci v.
Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (“[O]ur cases suggest that isolated incidents
that do not result in serious injury do not rise to the level of persecution.”); Lie, 396 F.3d
at 536 (holding that “two isolated criminal acts, perpetrated by unknown assailants, which
resulted only in the theft of some personal property and a minor injury, [are] not
sufficiently severe to be considered persecution”).
We also conclude that substantial evidence supports the BIA’s finding that
Petitioners failed to prove that they have a well-founded fear of future persecution, as
they failed to establish either that they face an individualized risk of persecution, or that
there is a “pattern or practice” of persecution of Chinese Christians in Indonesia. See 8
C.F.R. § 208.13(b)(2)(iii)(A). Petitioners did not present any evidence that they would be
singled out for persecution if forced to return to Indonesia. Moreover, as the BIA
explained, the fact that Gunawan’s father has remained in Indonesia without meeting
harm undercuts her argument that she reasonably should fear returning to Indonesia.
See Lie, 396 F.3d at 537 (holding that the reasonableness of a petitioner’s fear of future
persecution is diminished when family members remain in the petitioner’s native country
without meeting harm).
Substantial evidence also supports the BIA’s finding that Petitioners failed to show
7
that there is a pattern or practice of persecution of Chinese Christians in Indonesia. To
support their claim, Petitioners primarily relied on the 2004 Country Report on Human
Rights Practices and the 2004 International Religious Freedom Report. We recently held,
however, that these reports do not document a pattern or practice of persecution of ethnic
Chinese Christians in Indonesia. See Wong v. Attorney General, 539 F.3d 225, 234 (3d
Cir. 2008) (“Although the 2003 and 2004 State Department reports document ongoing
harassment of Chinese Indonesians and isolated incidents of anti-Christian violence, . . .
the reports do not indicate that such violence is widespread or systemic.”). Petitioners
argue that the BIA failed to give sufficient weight to their expert affidavits in addressing
this issue. We have reviewed those documents, however, and cannot conclude that they
show that there currently is “systemic, pervasive, or organized” persecution against
Chinese Christians in Indonesia. Lie, 396 F.3d at 537.1 Therefore, we find that the BIA
acted within is discretion in choosing to give greater weight to the State Department’s
own assessments.
1
Petitioners submitted a 2005 report by Dr. Jeffrey Winters, a Northwestern
University professor specializing in human rights in Indonesia, who opined that Chinese
Christians face increased risks in Indonesia due to “worsening country conditions, a
societal failure to deal with racism against ethnic Chinese, instabilities and weaknesses in
the government’s legal and security apparatus, and a marked increase in Islamic
fundamentalism that has resulted in outbursts of violence.” (A.R. 000152.) Petitioners
also submitted an affidavit by Jana Mason, Deputy Director for Government Relations at
the International Rescue Committee, who attested to widespread acts of violence
committed against Christians in Indonesia. (A.R. 000160.) As stated above, we do not
believe that these reports show that there currently is “systemic, pervasive, or organized”
persecution against Chinese Christians in Indonesia. Lie, 396 F.3d at 537.
8
Given that Petitioners have failed to establish either past persecution or a well-
founded fear of future persecution, the BIA correctly determined that they necessarily
failed to meet the higher burden required for withholding of removal. See Gomez-
Zuluaga v. Att’y Gen., 527 F.3d 330, 348-49 (3d Cir. 2008). The BIA also correctly
determined that Petitioners did not meet the criteria for relief under the CAT because
they failed to establish that it was more likely than not that they would be tortured if
removed to Indonesia. See 8 C.F.R. § 208.16(c)(2).2
IV.
For the foregoing reasons, we will deny the petition for review.
2
Petitioners’ remaining arguments are without merit and do not warrant further
discussion.
9