                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2007

Kusnaidy v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1345




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                                            NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 06-1345



                  KUSNAIDY,

                               Petitioner

                         v.

ATTORNEY GENERAL OF THE UNITED STATES,

                               Respondent



     On Petition for Review of an Order of the
         Board of Immigration Appeals
           (Agency No. A97-152-960)


    Submitted under Third Circuit LAR 34.1(a)
               on March 29, 2007


Before: FISHER, JORDAN and ROTH, Circuit Judges

          (Opinion filed: June 28, 2007)



                    OPINION
ROTH, Circuit Judge:

       Kusnaidy1 petitions us for review of the order of the Board of Immigration Appeals

(BIA or Board) affirming and adopting the Immigration Judge’s (IJ) denial of Kusnaidy’s

petition for withholding of removal under the Immigration and Nationality Act (INA) and

his application for protection under the Convention Against Torture (CAT). We will deny

the petition because substantial evidence in the record supports the IJ’s conclusions that

Kusnaidy had not suffered past persecution and is not more likely than not to face future

persecution should he be returned to Indonesia.

I. Procedural History

       Kusnaidy, a citizen of Indonesia of Chinese descent, entered the United States on

October 22, 2000, as a non-immigrant visitor, with permission to stay until June 2, 2001. On

April 7, 2003, he filed an application for asylum and withholding of removal.2 Hearings

were held before an IJ on September 30, 2003, and November 15, 2004. Kusnaidy conceded

removability and applied for relief in the form of asylum, withholding of removal under the

INA, and protection of removal under the CAT; in the alternative, he sought voluntary

departure.

       The IJ denied Kusnaidy’s petition for his withholding of removal under the INA and


       1
        It is not unusual for Indonesians to use only one name. In the petitioner’s affidavit,
he refers to himself only as Kusnaidy, without any last name.
       2
       Respondent’s brief notes the date of application for asylum as April 22, 2003.
However, the IJ’s Oral Decision states that Kusnaidy’s I-589 application for asylum was filed
on April 7, 2003.

                                              2
protection from removal under the CAT based on the merits, and denied his petition for

asylum both as untimely filed and on the merits. The request in the alternative for voluntary

departure was granted, and Kusnaidy was given sixty days to leave the country.

       Kusnaidy appealed the denials. In December 2005, the BIA affirmed and adopted the

IJ’s decision, and extended the period of voluntary departure an additional 45 days.

Kusnaidy filed a timely petition for review in this Court. His argument is limited to the

denial of withholding of removal under the INA and the denial of protection under the CAT.

By order dated April 5, 2006, we denied his Motion for Stay of Removal and Stay of the

Period of Voluntary Departure, finding that he had failed to demonstrate a likelihood of

success on the merits.

II. Jurisdiction and Standard of Review

       This court has jurisdiction to review a final order of removal by the BIA under 8

U.S.C. § 1252(b)(2). Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).

       When the BIA affirms and adopts the decision of an Immigration Judge, this court

reviews the IJ’s decision as if it were the decision of the Board. Dia v. Ashcroft, 353 F.3d

228, 245 (3d Cir. 2003). Board determinations are upheld if they are “supported by

reasonable, substantial, and probative evidence on the record considered as a whole.” INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We will reverse

only if “the evidence not only supports [a contrary] conclusion, but compels it.” Id. at 481

n. 1 (emphasis in original).

III. Discussion

                                             3
       A. Withholding of Removal Under the INA

       Under 8 U.S.C. § 1231(b)(3)(A), “the Attorney General may not remove an alien to

a country if the Attorney General decides that the alien’s life or freedom would be threatened

in that country because of the alien’s race, religion, nationality, membership in a particular

social group, or political opinion.” In order to qualify for withholding, Kusnaidy must

demonstrate a “clear probability”of persecution, i.e., that it is more likely than not that he

would be persecuted if forced to return to Indonesia. Gabuniya v. Attorney General, 463

F.3d 316, 320-321 (3d Cir. 2006).

       Kusnaidy sought withholding of removal because of alleged past persecution in

Indonesia and a fear of future persecution if he returns. Kusnaidy supports his claim with

testimony of two incidents where he was harassed and physically assaulted in Indonesia. The

first incident occurred on May 13, 1998, during that year’s riots. Kusnaidy testified that he

was at work when the riots began. His boss, knowing of the potential danger, allowed

Kusnaidy to leave work early. Kusnaidy stated that while riding his motorcycle home from

his office, he noticed people burning tires. Eventually three men stopped him and asked him

to remove his helmet. Once they saw his face, they shouted ‘Chinese, Chinese,” and began

hitting him and beating him. Kusnaidy further testified that he was able to flee on foot.

While attempting to escape, another man with a metal rod tried to stop him. The man

slammed the rod at Kusnaidy’s head. Kusnaidy testified that he was able to parry the blow




                                              4
to his head by lifting his arms, which resulted in some swelling of his hands.3 He eventually

escaped through the alleyways and knocked on the door of an individual who opened it and

allowed him to enter. Kusnaidy testified that he stayed there for five days, and the wife of

the individual treated his wounds.

       The second incident to which Kusnaidy testified occurred over two years later, on

August 28, 2000. He and two friends were on a bus when five to six native Indonesians

boarded the bus and held out knives and swords. One man stated that they only intended to

rob the Chinese. Kusnaidy testified that the men robbed him and his friends, then exited the

bus at the traffic light. Kusnaidy did not testify to any injuries incurred. Kusnaidy further

testified that he had never had any problems on account of his religion, and that he left

Indonesia because he did not feel it was safe for ethnic Chinese to remain after his two

incidents.

       These two incidents are not enough to establish eligibility for withholding of removal.

There are three reasons for our decision. First, Kusnaidy testified that his mother, older

sister, and two brothers still remain in Indonesia unharmed. The reasonableness of a

petitioner’s well-founded fear of future persecution is diminished when family members

remain unharmed in the petitioner’s native country. Lie v. Ashcroft, 396 F.3d 530, 537 (3d



       3
       There were minor discrepancies between the petitioner’s asylum application and
statements made in his affidavit. In the asylum application, petitioner alleged that he had
been struck in the head, while the affidavit did not. The oral transcript of petitioner’s
testimony seems to indicate these differences were due to petitioner’s unfamiliarity with
English more than anything else.

                                              5
Cir. 2005). Although Kusnaidy testified to an incident involving his younger sister during

the chaos of the 1998 riots in which she was verbally harassed, there is no other evidence in

the record that alleges any of his family members remaining in Indonesia have ever suffered

ethnic or religious persecution.

       Second, the Department of State’s country reports upon which the parties have relied

belie Kusnaidy’s claim that the current situation in Indonesia reaches the level of persecution.

The record indicates that the situation in Indonesia has not worsened, and may have

improved since the 1998 riots.4 Moreover, even shortly after those riots, the authors of the

1999 Country Report concluded that the civil unrest did not amount to a pattern or practice

of persecution.

       Finally, the record reveals that Kusnaidy’s fear of returning to Indonesia is

speculative; he assumes that because there is a problem with unemployment, at some point

in the future there might again be riots targeting ethnic Chinese. Such speculation is

insufficient for him to meet his burden of showing a well-founded fear of future persecution.

Furthermore, his brief alleges religious persecution for his Christian beliefs. Based on

Kusnaidy’s testimony that he had no problems as a Christian and that he did not attend

church since leaving Indonesia, the IJ properly determined that Kusnaidy did not suffer past



       4
        According to the 2003 Country Report, the Indonesian government has become more
tolerant and officially promotes religious and ethnic freedom. The report notes that there are
no restrictions on religious or ethnic minorities in politics, the Chinese New Year recently
became a national holiday, and magazines and journals, as well as television and radio shows
can be seen, heard and read in Chinese.

                                               6
religious persecution, nor would he experience future religious persecution.

       In sum, the IJ correctly concluded that although Kusnaidy may have suffered physical

and mental harassment based on his ethnicity in the past, none of those acts rose to the level

of persecution. In Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993), we defined persecution

as “threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom.” Further, the IJ noted that the two incidents to which

petitioner testified, while unfortunate, were nothing more than two occasions of criminal

activity. The IJ also noted that in no way were these two assaults condoned or carried out

by any members of the Indonesian government. Nothing in the record would compel any

reasonable factfinder to hold that Kusnaidy was subjected to persecution in the past or that

he is more likely than not to face persecution if returned to Indonesia. See Abdille v.

Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001) (holding that “evidence of generalized

lawlessness does not compel a conclusion that an alien has been subjected to persecution on

account of ethnicity or religion”).

       B. Withholding of Removal Under the Convention Against Torture

       An alien may obtain withholding of removal pursuant to the CAT if he shows it is

“more likely than not that he or she would be tortured if removed to the prosed country of

removal.” 8 C.F.R. § 208.16(c)(2).5 The standard for relief under the Convention “has no


       5
        The CAT defines “torture” as “any act by which severe pain, or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as obtaining. . .
information or a confession, punish[ment] . . . , or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or with the

                                              7
subjective component, but instead requires the alien to establish, by objective evidence, that

he is entitled to relief.” See Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002).

       Substantial evidence in the record supports the IJ’s finding that Kusnaidy did not meet

his burden. Not only did he fail to implicate the government in his torture claim, he also

failed to produce any evidence that would suggest he was or would be tortured in Indonesia

at all. Kusnaidy presented no “[e]vidence of gross, flagrant or mass violations of human

rights,” inflicted or more likely than not to be inflicted “by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official capacity.”

Tarrawally v. Ashcroft, 338 F.3d 180, 187-88 (3d Cir. 2003) (internal quotation marks and

citations omitted). See also Zubeda v. Ashcroft, 333 F.3d 463, 478 (3d Cir. 2003) (holding

that “reports of generalized brutality within a country” are not enough to qualify for relief

under the CAT).

IV. Conclusion

       For the above reasons, we will deny the petition for review.




consent or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 208.18(a)(1).

                                                8
