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


3-23-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5204




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 05-5204
                                      ___________

                                   HENDRI TRISNO,

                                                            Petitioner,

                                             v.

               ATTORNEY GENERAL OF THE UNITED STATES;
           SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,

                                                           Respondents

                              ________________________

                              On Petition for Review from
                           the Board of Immigration Appeals
                                BIA No: A96-262-923
                          Immigration Judge: Miriam K. Mills
                              ______________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 15, 2007

             Before: FUENTES, GREENBERG, LOURIE,* Circuit Judges.


                            (Opinion Filed: March 23, 2007 )
                                     ___________

                                       OPINION
                                      ___________


      *
         Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.
FUENTES, Circuit Judge.

       Hendri Trisno, a native and citizen of Indonesia, petitions for review from a final

order of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s

(“IJ”) denial of his application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s order

pursuant to 8 U.S.C. § 1252. We will deny the petition.

                                             I.

       On September 20, 2002, Trisno left Indonesia and arrived in the United States

with a tourist visa. His visa expired on October 19, 2002, but Trisno remained in the

country past its expiration. On March 17, 2003, he filed an application for asylum. His

application was denied on May 13, 2003, at which time he was served with a Notice to

Appear charging him as removable under INA § 237(a)(1)(B). Trisno had his first

hearing before an IJ on May 22, 2003, at which time he conceded he was removable and

renewed his application for asylum, withholding of removal, and relief under the CAT.

On March 3, 2004, the day of Trisno’s hearing on these claims, the IJ issued an oral

opinion denying all of them. On October 25, 2005, the BIA adopted and affirmed the

IJ’s decision, without opinion.

       Trisno claims that he left Indonesia to escape persecution and violence inflicted on

him because he is ethnically Chinese and a practicing Christian. He claims that growing

up in Surabaya, Indonesia, he was regularly subjected to physical abuse and name-calling



                                             2
by native Indonesians, in his predominantly Muslim neighborhood. He claims that on

October 16, 1999 he was assaulted and robbed by a mob of ethnic Indonesians during a

large-scale, anti-Chinese riot. The assailants pulled Trisno off of his motorcycle, stole his

helmet and watch, and beat him. Trisno also claims that the police stood by and did

nothing to stop the riots or his assault. Trisno claims that on January 17, 2000, he again

found himself at the center of an anti-Chinese riot, but this time he escaped harm by

hiding in a nearby Christian hospital.

       About two and half years after the January 2000 riot, in July 2002, Trisno applied

for a tourist visa to come to the United States. Trisno testified before the IJ that because

of the prior incidents described, and a current pattern and practice of violence against

Chinese Christians in Indonesia, he fears harm or death if returned to Indonesia. The IJ

concluded that Trisno had failed to meet his burden of proof on any of his claims, but

granted Trisno’s request for voluntary departure. This petition for review followed.

                                             II.

       Where a BIA order adopts the opinion of the IJ, we review the latter. Gao v.

Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). The IJ’s “[f]actual findings, such as

credibility determinations, are ‘conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’” Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278

(3d Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). Thus, on appeal, we must determine

whether the IJ’s factual findings are supported by substantial evidence. Id.



                                              3
       Under certain circumstances, section 208(b) of the INA, 8 U.S.C. § 1158(b), gives

the Attorney General discretion to grant asylum to a “refugee.” Section 101(a)(42)(A) of

the INA defines “refugee,” generally, as

       any person who is outside any country of such person’s nationality . . . who
       is unable or unwilling to return to . . . [or] to avail himself or herself of the
       protection of, that country because of persecution or a well-founded fear of
       persecution on account of race, religion, nationality, membership in a
       particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). The applicant has the burden to show that he fits within this

definition. 8 C.F.R. § 1208.13(a). Applicants for asylum may be considered “refugees”

if they have been subject to past persecution or that they have a well-founded fear of

future persecution. See Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003). The

persecution, however, must be “on account of” one of the bases designated in the INA.

See 8 C.F.R. § 1208.13(b).

       An applicant who establishes that he has suffered past persecution is entitled to a

rebuttable presumption that he also has a well-founded fear of future persecution. See

Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004) (citing 8 C.F.R. § 1208.13(b)(1)).

The Government may rebut the presumption if it can “establish[] by a preponderance of

the evidence that the applicant could reasonably avoid persecution by relocating to

another part of his or her country or that conditions in the applicant’s country have

changed so as to make his or her fear no longer reasonable.” Id. (internal quotation marks

omitted).

       Even if the applicant establishes statutory eligibility, the Attorney General’s

                                               4
decision to grant or deny an asylum application is discretionary. But, with certain

exceptions, the government must grant withholding of removal to an applicant who

demonstrates a clear probability of persecution. INA § 241(b)(3)(A); 8 U.S.C. §

1231(b)(3)(A); INS v. Stevic, 467 U.S. 407, 430 (1984). Thus, for withholding of

removal, Trisno must show that it is more likely than not that he will be persecuted if he

returns to Indonesia. See Gabuniya v. Att’y Gen., 463 F.3d 316, 320 -21 (3d Cir. 2006).

Moreover, to qualify for relief under the CAT, Lin must demonstrate that it is more likely

than not that he will be tortured if he is removed to Indonesia. See id. (citing 8 C.F.R. §

208.16(c)(2)).

                                             III.

       Based on our review of the record, we conclude that substantial evidence supports

the IJ’s determination that Trisno does not qualify for asylum, withholding of removal, or

relief under the CAT. At the outset, Trisno has not shown that he has suffered past

persecution, under the INA. We explained in Ahmed v. Ashcroft that

       persecution connotes extreme behavior, including threats to life,
       confinement, torture, and economic restrictions so severe that they
       constitute a threat to life or freedom. This definition does not include all
       treatment that our society regards as unfair, unjust, or even unlawful or
       unconstitutional.

341 F.3d 214, 217 (3d Cir. 2003) (internal quotation marks and citation omitted).

       The incidents that Trisno describes do not rise to the level of persecution. “While

this Court has not yet drawn a precise line concerning where a simple beating ends and

persecution begins, our cases suggest that isolated incidents that do not result in serious

                                              5
injury do not rise to the level of persecution.” Voci v. Gonzales, 409 F.3d 607, 615 (3d

Cir. 2005) (citing, among other cases, Chen v. Ashcroft, 381 F.3d 221, 234-35 (3d Cir.

2004)). Critically, as in Chen, Trisno has not alleged that he suffered serious injury, or

sought any medical attention after his beating in 1999. See also Lie v. Ashcroft, 396 F.3d

530, 536 (3d Cir. 2005) (finding no past persecution where Indonesian petitioner’s home

was robbed, petitioner was called “Chinese pig” and struck by the intruder with a knife,

but had no serious injury, and police did not answer her call for help).

       The IJ also found it significant that during cross examination, Trisno testified that

police were deployed for protection of the Christian hospital where he safely waited out

the January 2000 conflict. And Trisno further admitted at his hearing that he has never

been detained, arrested or tortured by any official, or anyone acting on the government’s

behalf. Based on the foregoing, we conclude that substantial evidence supports the IJ’s

conclusion that the isolated criminal acts Trisno claims are not sufficiently severe to be

considered past persecution.

       The IJ also found that Trisno failed to establish a well-founded fear of future

persecution if he were to return to Indonesia. “To establish a well-founded fear of future

persecution an applicant must first demonstrate a subjective fear of persecution through

credible testimony that her fear is genuine.” Lie, 396 F.3d at 536. “Second, the applicant

must show, objectively, that a reasonable person in the alien’s circumstances would fear

persecution if returned to the country in question.” Id. (internal quotations omitted). “To

satisfy the objective prong, a petitioner must show she would be individually singled out

                                              6
for persecution or demonstrate that ‘there is a pattern or practice in his or her country of

nationality . . . of persecution of a group of persons similarly situated to the applicant on

account of race, religion, nationality, membership in a particular social group, or political

opinion. . . . ’ ” Id. (quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)) (emphasis added).

       Our Court has explained that “to constitute a ‘pattern or practice,’ the persecution

of the group must be systemic, pervasive, or organized.” Lie v. Ashcroft, 396 F.3d 530,

537 (3d Cir. 2005) (internal quotation marks omitted). Acts of “violence or other harm

perpetrated by civilians against the petitioner’s group [do] not constitute persecution

unless such acts are committed by the government or forces the government is either

unable or unwilling to control.” Id. (internal quotation marks omitted).

       It appears that the IJ did not credit Trisno’s claim of subjective fear, in large part,

because there was no evidence that he ever reported the criminal acts he claimed to

police, and never explained why he believed he could not obtain protection from the

police. We find no evidence in the record that would compel us to disturb the IJ’s

conclusion that Trisno’s testimony failed to substantiate his subjective fear of future

persecution.

       We also have no reason to disturb the IJ’s assessment of Trisno’s objective

evidence. Trisno points to no evidence that he would be personally targeted for

persecution, and in the IJ’s view, Trisno’s evidence of a pattern of a pattern and practice

of violence against Chinese Christians in Indonesia—including 2003 State Department

Reports and news articles reporting incidents of violence against ethnic Chinese—did not

                                               7
support an objective fear of future persecution. The IJ concluded that although the record

showed ongoing violence between Muslims and Christians, it was largely limited to the

provinces of Molukus and Sulawesi, and that even in these areas, the State Department

Reports indicated improvement. She also noted that some of the violence reported was

perpetrated against Muslims and groups other than Chinese and Christians. These

conclusions are supported by substantial evidence in the record. Thus, although we do

agree that the evidence shows that religious violence in Indonesia remains a significant

problem, we do not agree that the record compels a conclusion that there is a pattern and

practice of persecution.

       For the same reasons that we deny Trisno’s asylum claim, we also conclude that

Trisno does not qualify for withholding of removal or protection under CAT. Trisno has

not demonstrated a “clear probability” of persecution if removed, and so he does not

qualify for withholding of removal. Nor has he shown any evidence that it is more likely

than not that he will be tortured if removed, and so he does not qualify for protection

under CAT

       We have considered the remainder of Trisno’s arguments, find them all to be

without merit, and conclude that no further discussion is necessary. For the foregoing

reasons, we will deny the petition for review.




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