                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1317




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-1317


                                   SINA DEVIDO,

                                      Petitioner,

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                     Respondent.


                          On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                 (BIA No. A79-303-202)




                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                 September 30, 2005

              Before: RENDELL, FUENTES, and WEIS, Circuit Judges

                               (Filed: October 7, 2005)
                              ______________________

                             OPINION OF THE COURT
                              _____________________


FUENTES, Circuit Judge.

      Sina Devido petitions for review of a decision by the Board of Immigration
Appeals (“BIA”) affirming the rejection by an Immigration Judge (“IJ”) of his application

for asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”). We find that there is substantial evidence to support the IJ’s and the BIA’s

decisions and accordingly deny the petition.

                            I. Facts and Procedural History

      As we write only for the parties, we recite only the essential facts. Devido is a

native and citizen of Indonesia. He lawfully entered the United States on or about

October 10, 2000, as a non-immigrant visitor for pleasure. He remained in the country

longer than he was authorized to stay, and the Immigration and Nationalization Service

(“INS”) commenced removal proceedings against him on May 29, 2001.1 Devido

conceded removeability under Section 237(a)(1)(B) of the Immigration and Nationality

Act, 8 U.S.C. § 1227(a)(1)(B), but filed an application for asylum, withholding of

removal, and protection under the CAT.

      Devido claims that he is Christian and of Chinese descent, and that he suffered

persecution in Indonesia from native Indonesians on account of his Chinese ethnicity.2 In

his testimony before the IJ, Devido, who was twenty-nine years old at the time of his

      1
         As of “March 2003, the INS ceased to exist as an independent agency within the
United States Department of Justice and its functions were transferred to the newly
formed United States Department of Homeland Security. The BIA, however, remains
within the Department of Justice.” Leia v. Ashcroft, 393 F.3d 427, 430 n.4 (3d Cir. 2005)
(citation omitted).
      2
       At Devido’s immigration hearing, the IJ noted that Devido did not indicate in his
testimony that he suffered persecution on account of his religion.

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hearing, stated that when he was in elementary school three or four native Indonesians

demanded money from him almost every day. On one occasion, the native Indonesians

knocked him down and beat him when he attempted to run away. According to Devido,

his friend’s mother found him lying on the ground and took him to the hospital for

treatment. Devido further testified that when he was attending university in 1997, a group

of native Indonesians, some of whom were carrying clubs and knives, approached him

while he was sitting in a truck with its engine running, got into the truck, took his money,

and demanded that he drive them to a political rally. Devido also testified that his father’s

bakery was destroyed by fire in 1998 after rioters threw Molotov cocktails into the shop,

and that, one year later, native Indonesians attacked and robbed the rebuilt bakery;

however, Devido was not present at the bakery when either of these incidents took place.

According to Devido, the mistreatment he and his family suffered occurred because they

are ethnic Chinese. Devido also stated that none of the incidents were reported to the

police. Devido testified that he believes more riots will occur in Indonesia and that he

cannot trust the police.

       The IJ found that the main reason for Devido’s trip to the United States was “to

seek employment and establish a life here in the United States.” The IJ also stated that

Devido “apparently” had no fear of remaining in Indonesia, and that although his parents

and siblings have remained there “they are not suffering in terms of their ethnicity or

religion.” The IJ referred to the State Department’s 2001 “Country Reports on Human



                                             3
Rights Practices: Indonesia,” and found that the Indonesian government is taking steps to

promote racial equality and ethnic tolerance. Accordingly, the IJ denied Devido’s

asylum application and his application for withholding of removal and CAT relief. The

BIA affirmed, and Devido filed a timely petition for review in this Court.3

                                       II. Discussion

       We review the decisions of the IJ and the BIA 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 BIA’s affirmance of it, are supported by the record.4

       Devido claims that the IJ relied on an adverse credibility determination to deny his

application for asylum. The IJ, however, did not enter an adverse credibility

determination against Devido; rather, the IJ found that the portion of Devido’s testimony

relating to the destruction of his father’s bakery in 1998 was not credible. In particular,

the IJ found that a photograph of the bakery that Devido submitted in support of his claim

appeared to have been altered, with the name of the business establishment apparently

blacked out. The IJ found Devido’s explanation that the marks were the result of the fire

that destroyed his father’s bakery not to be credible. The IJ’s refusal to credit Devido’s

testimony about his father’s bakery was reasonable and must be upheld. 8 U.S.C.

       3
        Respondent Attorney General of the United States moved to dismiss Devido’s
appeal to this Court for lack of subject matter jurisdiction. This Court denied the motion.
       4
        For this reason, this Court need not address Respondent’s argument that Devido’s
petition must be dismissed for failure to comply with Rule 28(a) of the Federal Rules of
Appellate Procedure.

                                              4
§ 1252(b)(4)(B); Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001).

       As the IJ and BIA determined, the incidents of discrimination, harassment, and

robbery described by Devido do not amount to persecution under the controlling law. 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”). Thus, Devido’s claim for asylum based on past persecution was properly

denied.

       Furthermore, the determination by the IJ and the BIA that Devido did not establish

a well-founded fear of future persecution is supported by substantial evidence. Although

the last incident that personally affected Devido occurred in June 1997, he continued

living in Indonesia until October 2000. In addition, Devido did not claim that he

attempted to escape further mistreatment by going into hiding or moving to a new

location within Indonesia. Nor has Devido shown that ethnic Chinese continue to be

subject to persecution in Indonesia such that he faces a reasonable probability of harm

upon his return. Cf. Lie, 396 F.3d at 537 (finding that petitioner “failed to establish either

that she faces an individualized risk of persecution or that there is a ‘pattern or practice’



                                               5
of persecution of Chinese Christians in Indonesia”). Aside from an incident in 2001

when one of Devido’s sisters was groped while riding in a badji (a three-wheeled bike

used like a taxi), Devido’s Christian and ethnically Chinese parents and siblings have

continued living in Indonesia without any problems since 1999. Moreover, the IJ

considered the current conditions in Indonesia and found that conditions for ethnic

Chinese Indonesians have improved greatly since 1998. Devido does not challenge this

finding by the IJ or the conclusions of the State Department’s 2001 “Country Reports on

Human Rights Practices: Indonesia,” which indicates that, although problems persist, the

Indonesian government promotes ethnic tolerance. Thus, Devido’s claim for asylum

based on a well-founded fear of future persecution was properly denied.

       Devido’s withholding of removal and CAT claims fail for reasons similar to those

discussed above.

                                     III. Conclusion

       For the foregoing reasons, we will deny Devido’s petition for review.




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