                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2153




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                          No. 07-2153


                                     FNU SUSANTO,
                                               Petitioner

                                              v.

                  ATTORNEY GENERAL OF THE UNITED STATES




                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A 96-203-863)
                  Immigration Judge: Honorable Charles M. Honeyman


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      July 2, 2008

                 Before: AMBRO, FISHER and JORDAN, Circuit Judges

                                (Opinion filed: July 7, 2008)


                                           OPINION


PER CURIAM

       Susanto petitions for review of an order of the Board of Immigration Appeals

(“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons

that follow, we will deny his petition.
       Susanto is a native and citizen of Indonesia and identifies himself as ethnic

Chinese. He was born a Buddhist and was baptized a Christian after his arrival in the

United States. He entered the United States as a non-immigrant visitor on August 20,

2001 and overstayed his visa. He was issued a Notice to Appear on May 13, 2003, and on

September 17, 2003, when appearing before the IJ, applied for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”).

       The IJ denied all relief save Susanto’s request for voluntary departure, holding that

his asylum application was time-barred and that he could not satisfy the standard for

withholding of removal or CAT relief. The BIA adopted and affirmed the IJ’s decision

with some modification and dismissed the appeal. Through counsel, Susanto filed a

petition for review. The Government opposes the petition.

       We have jurisdiction over this petition for review under 8 U.S.C. § 1252. We

review de novo Susanto’s claim that the BIA violated his right to due process. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir. 2003). We review the BIA’s

factual findings for “substantial evidence.” See Abdille v. Ashcroft, 242 F.3d 477, 483-

84 (3d Cir. 2001). Under this standard, we will uphold these findings unless the evidence

not only supports a contrary conclusion, but compels it. See id.

       In his petition for review, Susanto challenges the IJ’s denial of withholding of




                                             2
removal and CAT relief.1 To be entitled to withholding of removal to a specific country,

an applicant must demonstrate a clear probability that his “life or freedom would be

threatened in that country because of [his] race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3); Zubeda v. Ashcroft,

333 F.3d 463, 469 (3d Cir. 2003). An applicant can do so either by proving past

persecution, which creates a rebuttable presumption of future persecution, or by

demonstrating a well-founded fear of future persecution. See 8 C.F.R. § 1208.16(b). In

the event that the applicant cannot demonstrate past persecution or a likelihood of future

individualized persecution, he may still be eligible for withholding of removal by

demonstrating “that in that country there is a pattern or practice of persecution of a group

of persons similarly situated to the applicant” on account of a protected ground. See

8 C.F.R. § 1208.16(b)(2)(i). For relief under the CAT, an applicant must demonstrate that

it is more likely than not that he would be tortured if removed to his country of origin “by

or at the instigation of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” See 8 C.F.R. § 208.16(c)(2).

       In support of his application, Susanto testified that he was born a Buddhist, but in

2000 he began to attend services at an Indonesian Christian Church in Cimara. (A.R. 94-

95.) He was baptized a Christian after his arrival in the United States. (A.R. 111.) In



   1
    Because Susanto does not raise any argument regarding the BIA’s determination that
his asylum claim is time-barred, any such claims he might have raised are deemed
waived. See Voci v. Gonzales, 409 F.3d 607, 609 n.1 (3d Cir. 2005).

                                              3
March or April of 2001, he twice accompanied some of his neighbors to their mosque at

their request, after which they began asking him to go more often. (A.R. 95.) When he

declined, he claims that they became “not so nice to [him] and “used their religion to

press hard on [him].” (A.R. 94.) He testified that they wanted him to convert to Islam,

but he believed that if he did, he would be forced to join some type of jihad organization

and commit acts of violence. (A.R. 98.)

       Upon further questioning as to what he meant by his neighbors “pressing hard on

him,” Susanto explained that they were “very impolite” and threatened him by asking “Do

you want to live long in this country, or do you want us to kill you?”. (A.R. 108.) He

stated that he didn’t report their actions to the police due to the difficulty of proving his

accusations. (A.R. 108.) He then added that in addition to threatening his life, his

neighbors “threw stones, a big stone, at [his] house” and put some stones into the gasoline

tank of his motorcycle. (A.R. 109.) When asked why he didn’t include in his asylum

application any of this information regarding being threatened or having stones thrown at

his house and put in his motorcycle, he stated: “I felt the major part was their purpose to

get me into the Muslim group and to jihad group, but about their families and about how

they threw stones, how they put the stones into gasoline tank, are minor part. I felt it was

okay that they threw stones at my house. They put some stones into gasoline tanks, it was

okay with me, but the most, the most thing that concern me is they want to get me into

jihad group.” (A.R. 109.)



                                               4
       When asked about his ability to remain in his family home for six months after

these incidents began, he testified that he tried to avoid his neighbors, always went

directly home and was afraid to go out.2 (A.R. 99-100.) He testified that he and his wife

tried to sell their house so they could relocate, but that some of the “jihad groups” tried to

scare off the potential buyers by telling them that area was unsafe. (A.R. 102.) He stated

that his neighbors “still threaten [his] wife” and tell her that “if [he] comes back to

Indonesia, they would finish [him].” (A.R. 103-104.) In response to a query from the IJ

as to why he didn’t get a letter from his wife to corroborate his testimony regarding the

continued threats in his absence, Susanto stated that he didn’t understand that a letter

from his wife could be used to support his case. (A.R. 104.)

       While the IJ did not explicitly make an adverse credibility determination, he did

find that the omission of certain details from Susanto’s asylum application and initial

testimony, in addition to the lack of corroboration, raised some credibility issues. He

found that Susanto failed to meet his burden of establishing past persecution or a

likelihood of future persecution based on his reliance on translations of documents

without providing the original foreign language versions, his failure to provide a letter or

affidavit from his wife describing the events which occurred after Susanto’s departure

from Indonesia, and his failure to include the corroborating details to which he testified in



   2
    In his brief, Susanto claims that he did relocate to two different cities during this time.
(Pet. Br. 27.) However, neither the record cites offered by petitioner nor an independent
review of the transcript bears this out.

                                               5
his original affidavit. The IJ further concluded that the case law in this Circuit is that

there is no pattern and practice of persecution of ethnic Chinese Christians in Indonesia,

see Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir. 2005); In re A-M, 23 I. & N. Dec. 737,

741 (BIA 2005). Finally, the IJ held that Susanto had not shown that he is more than

likely to be tortured upon his return to Indonesia, and therefore was not entitled to relief

under the CAT.

       The BIA adopted and affirmed the IJ’s decision with certain modifications. The

BIA held that Susanto failed to demonstrate that he was subject to past persecution during

the six months prior to his departure for the United States, as he was able to work and

reside in his home without being harmed, and he offered no indication that he had

reported these threats or sought police protection after receiving them. Because he was

therefore not entitled to a presumption of future persecution, the BIA went on to consider

whether he had demonstrated such a likelihood. The BIA held that his testimony and

written asylum statements regarding this claim lacked sufficient specificity to satisfy the

higher standard required to demonstrate an entitlement to withholding of removal, and

concluded that it was reasonable for the IJ to have expected Susanto to obtain an affidavit

from his wife corroborating his claim that his neighbors have continued to threaten him

during the past five years while he has been in the United States. With respect to his

pattern and practice claim, the BIA clarified that while a petitioner could offer evidence

that was not before this Court in Lie to demonstrate that there is currently a pattern and



                                               6
practice of persecuting ethnic Chinese Christians in Indonesia, the evidence submitted by

Susanto failed to do so.

       In his petition for review, Susanto first argues that the BIA failed to conduct an

individualized determination of his interests in violation of his right to due process.

However, Susanto merely cites case law in support of the proposition that he is entitled to

such a determination and fails to state with any specificity the shortcomings of the BIA’s

opinion. A review of the BIA’s opinion reveals that it clearly considered Susanto’s

testimony and submissions, as well as his arguments on appeal regarding the IJ’s

decision. Accordingly, we conclude that this claim is without merit. See Abdulai v.

Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001) (BIA decision must provide “sufficient

indicia” that an individualized determination has been made).

       Next Susanto claims that he has demonstrated both past persecution and a

likelihood of future persecution and that the BIA therefore erred in denying his claim for

withholding of removal. He claims that he received multiple death threats over a six

month period “on account of his refusal to convert to Islam and his political opposition to

the mosques terrorist jihadi group” and that this demonstrates past persecution. (Pet. Br.

17.) However, Susanto failed to identify this “jihadi group” with any specificity or to

offer any evidence that the government was unable or unwilling to control it. Throughout

his testimony, he simply referred to his alleged persecutors as “friends,” “neighbors,” or

“they.” He argues that the BIA failed to make a finding as to why a corroborating



                                              7
affidavit from Susanto’s wife was necessary as required by our case law. See Voci v.

Gonzales, 409 F.3d 607, 616-17 (3d Cir. 2005). However, the BIA clearly considered

this issue, “agree[ing] with the Immigration Judge’s assessment that it would be

reasonable to expect him to at least attempt to secure a letter from his wife corroborating

and detailing the claimed threats against his life since his departure 5 years ago,

particularly given that she alone is the source of this information.” (A.R. 3.) He

maintains that the BIA overlooked the evidence he submitted in support of his claim that

there is a pattern and practice of discrimination against Chinese Christians in Indonesia.

However, a review of the BIA’s opinion belies this assertion. Finally, he claims that he

“has established a clear probability that he will be subject to conduct amounting to torture

in Indonesia with the acquiescence of Indonesian public officials.” (Pet. Br. 29.) He

describes this as “a general and continuous threat of physical attacks from his Muslim

extremist neighbors, Muslim society in general, and the Indonesian government.” (Id.)

As the Government correctly argues, Susanto did not testify, nor does he point to any

evidence in the record, that he would be tortured with the consent or acquiescence of the

Indonesian government upon his return. See Shehu v. Attorney General, 482 F.3d 652,

658 (3d Cir. 2007).

       Susanto is unable to demonstrate that the evidence compels a conclusion contrary

to that reached by the BIA. See Abdille, 242 F.3d at 483-84. Accordingly, we will deny

the petition for review.



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