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


5-18-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4369




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                               Nos. 05-4369 and 05-4957


                                 AGUS PRAJOGA;
                               ALBERTA HARMINTO,
                                         Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES


                          Petitions for Review of Orders of the
                          United States Department of Justice
                             Board of Immigration Appeals
                       (BIA Nos. A96-258-016 and A95-462-283)
                      Immigration Judge: Honorable R. K. Malloy


                       Submitted Under Third Circuit LAR 34.1(a)
                                     May 8, 2007

                   Before: RENDELL and JORDAN, Circuit Judges,
                           and VANASKIE*, District Judge.

                                (Filed May 18, 2007 )


                              OPINION OF THE COURT




 *Honorable Thomas I. Vanaskie, Judge of the United States District Court for the
Middle District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

                                             I.

       Agus Prajoga and Alberta Harminto petition for review of the denial of their

applications for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). Petitioners are citizens of Indonesia who allege that they were

persecuted and have a well-founded fear of future persecution on account of their Chinese

ethnicity and Christian religion.

                                             II.

       Alberta Harminto arrived in the United States in June 2001. She applied for

asylum within one year of her arrival. Harminto alleges that, on account of her Chinese

ethnicity, she endured frequent name calling and solicitations for money, was touched

inappropriately while riding the bus on several occasions, and was forced to hide during

the May 1998 riots in Indonesia. She also alleges that she was persecuted on account of

her religion because one of the churches that she attended in Indonesia was bombed in

late 2000, although she was not attending the church on that date.

       Agus Prajoga arrived in the United States in January 2001. He applied for asylum

in February 2003. Prajoga alleges that, on account of his Chinese ethnicity, he was

mocked during high school by his teachers, robbed at knife point on two occasions,

humiliated by a public bus driver, and frightened during the May 1998 riots in Indonesia.

       The Immigration Judge (“IJ”) denied Prajoga’s application for asylum because he



                                             2
did not apply for asylum within one year of his arrival in the United States and failed to

demonstrate changed or extraordinary circumstances that would excuse the delay under 8

U.S.C. § 1158(a)(2)(D). The IJ then considered Prajoga’s applications for withholding of

removal and relief under the CAT. He concluded that the two robberies against Prajoga

do not rise to the level of persecution and, furthermore, that these incidents were not

condoned by the Indonesian government. He also found that Prajoga had failed to

demonstrate that it is more likely than not that he would be tortured if returned to

Indonesia. The IJ therefore denied Prajoga’s applications for withholding of removal and

relief under the CAT.

       The IJ deemed Harminto’s application for asylum to be timely, but concluded that

she failed to establish that she suffered persecution during the May 1998 riots or at any

other time in Indonesia. The IJ noted that Harminto did not suffer any physical harm

during the riots and that she remained in Indonesia for three years thereafter to continue

working and to complete annual reports for her employer. He also found that she did not

suffer persecution on account of her religion even though one of the churches she had

attended was bombed in 2000, and that she was able to attend her church without any

interference from the Indonesian government. Finally, he concluded that Harminto failed

to establish that it is more likely than not that she would be tortured if she returned to

Indonesia. The IJ therefore denied Harminto’s requests for asylum, withholding of

removal, and relief under the CAT. However, he granted both petitioners voluntary



                                               3
departure in lieu of removal.

       The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision without

opinion. Prajoga and Harminto then requested reconsideration of the BIA’s decision and

the BIA denied the request, noting that “[t]he record does not support a finding that either

of the respondents suffered mistreatment that cumulatively reached the level of

persecution or that they now possess a well-founded fear of persecution that is based even

in part on either ethnicity or religion.” App. 1-2. Petitioners filed timely petitions for

review in this court, seeking relief from their final orders of removal and the denial of

their motion for reconsideration by the BIA. These petitions were subsequently

consolidated.


                                               III.


       We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of

removal. When the BIA affirms the IJ’s decision without opinion, we review the IJ’s

decision. See Partyka v. Atty. Gen., 417 F.3d 408, 411 (3d Cir. 2005). The IJ’s findings

of fact are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary. 8 U.S.C. § 1252(b)(4)(B).

       In order to prove eligibility for asylum, a petition must show that he or she is

“refugee” within the meaning of 8 U.S.C. § 1101(a)(42). A “refugee” is “any person who

is outside any country of such person’s nationality . . . and is unable or unwilling to avail



                                                4
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.” § 1101(a)(42)(A). “A determination of

whether an asylum applicant has suffered from ‘persecution’ or whether that individual

has a ‘well-founded fear of persecution’ is factual and thus is entitled to deference.”

Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005).

       A petitioner’s burden to prove eligibility for a grant of withholding of removal is

higher than the burden to prove eligibility for asylum. The petitioner must establish a

“clear probability,” i.e., that it is more likely than not, that he would suffer persecution if

he returns to his country of nationality. See Ghebrehiwot v. Atty. Gen., 467 F.3d 344, 351

(3d Cir. 2006). Therefore, a petitioner who fails to establish his eligibility for a grant of

asylum is necessarily ineligible for withholding of removal. Id.

       Petitioners argue that the IJ erred in concluding that the attacks against petitioners

in Indonesia were not motivated, at least in part, by petitioners’ ethnicity or religion. See

Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005) (“We have recognized that ‘[a]

persecutor may have multiple motivations for his or her conduct, but the persecutor must

be motivated, at least in part, by one of the enumerated grounds.’”). They further contend

that the IJ erred in finding that the 1998 riots in Indonesia “had nothing to do with the

ethnic Chinese population, but were in response to economic conditions in Indonesia,

dissatisfaction with the president at that time and student demonstrations.” App. 28.


                                                5
They also maintain that the IJ erred in concluding that conditions are improving in

Indonesia for citizens of Chinese descent. App. 30.

       Finally, petitioners argue that the IJ erred in concluding that petitioners failed to

establish that they would be tortured if they returned to Indonesia. We do not address this

argument because petitioners did not appeal the IJ’s decision on their CAT claims to the

BIA and therefore failed to exhaust their administrative remedies as to this claim. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (“[A]n alien is required to

raise and exhaust his or her remedies as to each claim or ground for relief if he or she is to

preserve the right of judicial review of that claim.”).

                                       A. Agus Prajoga

       Prajoga concedes that we lack jurisdiction to review the IJ’s determination that he

failed to demonstrate changed or extraordinary circumstances that would excuse his delay

in filing for asylum under 8 U.S.C. § 1158(a)(2)(D) and that our review is therefore

limited to the denial of Prajoga’s other applications. See 8 U.S.C. § 11589(a)(3);

Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).

       In reviewing Prajoga’s claim for withholding of removal, the IJ found that the

robberies against Prajoga in Indonesia did not rise to the level of persecution and that

Prajoga failed to establish that it is more likely than not that he would suffer persecution

if he returns to Indonesia. We find no error in the IJ’s conclusion that these incidents,

although serious, do not amount to persecution. See Lie v. Ashcroft, 396 F.3d 530, 536

                                               6
(3d Cir. 2005) (finding that petitioner’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”).

“Persecution” includes “threats to life, confinement, torture, and economic restrictions so

severe that they constitute a threat to life or freedom.” Kibinda v. Atty. Gen., 477 F.3d

113, 119 (3d Cir. 2007). “[P]ersecution refers only to ‘severe’ conduct and ‘does not

encompass all treatment our society regards as unfair, unjust or even unlawful or

unconstitutional.’ Id. (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). Since

we find no basis to disturb the IJ’s finding that the harms Prajoga suffered do not amount

to persecution, we need not reach the IJ’s findings as to the cause of the 1998 riots in

Indonesia or the motivation for the attacks against petitioners in Indonesia.

                                    B. Alberta Harminto

       In considering Harminto’s claim for asylum, the IJ found that the incidents of fear

and embarrassment that Harminto suffered in Indonesia, including the 1998 riots, did not

rise to the level of persecution. The IJ noted that, although Harminto was afraid during

the riots, she was not harmed during these events and her home and business were not

damaged. The IJ further found that the bombing of a church in Harminto’s town did not

amount to persecution because Harminto did not regularly attend this church and the

government had no involvement in the bombing and, in fact, took steps to protect the

churches. We find no error in the IJ’s conclusion that the harms suffered by Harminto do



                                               7
not rise to the level of persecution. Since we find no basis to disturb the IJ’s denial of

Harminto’s request of asylum on the grounds that she was not persecuted, we need not

reach the IJ’s findings as to the cause of the 1998 riots in Indonesia or the motivation for

the attacks against petitioners in Indonesia.

       The IJ also concluded that Harminto failed to establish that she has a well-founded

fear of future persecution. The IJ found that Harminto traveled to Singapore in 1999 and

then voluntarily returned to Indonesia a few days later. She remained in Indonesia for

three years after the 1998 riots. The IJ concluded that “[t]hese are not the actions of

someone who is so fearful of their [sic] lives that they must flee a country for safety.”

App. 29.

       The IJ further found that, although there are still discriminatory laws on the books

in Indonesia, “conditions are certainly improving for citizens of Chinese descent.” App.

30. Harminto argues that this finding is erroneous. However, we do not agree that “any

reasonable adjudicator would be compelled to conclude” that conditions in Indonesia are

not improving for citizens of Chinese descent. See 8 U.S.C. § 1252(b)(4)(B). The IJ’s

finding is supported by substantial evidence, including the observation in the State

Department’s Report that Chinese cultural holidays are now openly celebrated in

Indonesia. App. 295. We therefore have no basis to disturb the IJ’s conclusion that

Harminto failed to establish that she suffered past persecution or has a well-founded fear

of future persecution.



                                                8
       Accordingly, we also find no error in the IJ’s conclusion that Harminto failed to

demonstrate her eligibility for withholding of removal. See Ghebrehiwot v. Atty. Gen.,

467 F.3d 344, 351 (3d Cir. 2006) (noting that, because standard for grant of withholding

of removal is higher than that for eligibility for asylum, an alien who fails to qualify for

asylum is necessarily ineligible for withholding of removal).

                                              IV.

       We review the BIA’s denial of petitioners’ motion for reconsideration for abuse of

discretion. I.N.S. v. Abudu, 485 U.S. 94, 110 (1988). As we find no error in the denial of

petitioners’ applications for relief, we have no reason to conclude that the BIA abused its

discretion in denying petitioners’ motion to reconsider the BIA’s decision affirming the

denial of petitioners’ applications.

                                               V.

       For the foregoing reasons, we will deny the petitions for review.




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