                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                  NOT PRECEDENTIAL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.




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