                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4557




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                                                     NOT PRECEDENTIAL

                      IN THE UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT

                                         No. 05-4557

                              HERU SUGIARTO SEWIDJAJA,

                                                    Petitioner

                                              v.

                    ATTORNEY GENERAL OF THE UNITED STATES,

                                                    Respondent

                           _________________________________

                            On petition for review of a final order
                            of the Board of Immigration Appeals
                                    File No: A75-513-390
                           _________________________________

                       Submitted pursuant to Third Circuit LAR 34.1(a)
                                   on September 29, 2006

                               Before: RENDELL, ROTH, and
                              JOHN R. GIBSON,* Circuit Judges

                                   (Filed: October 20, 2006)

                                  ______________________

                                 OPINION OF THE COURT
                                 _______________________



          *
1          The Honorable John R. Gibson, Senior Circuit Judge for the United States Court
2   of Appeals for the Eighth Circuit, sitting by designation.

                                              -1-
PER CURIAM.

       Petitioner Heru Sewidjaja appeals the Order of the Board of Immigration Appeals

affirming the Immigration Judge's opinion and order denying Sewidjaja's application for

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

Pursuant to 8 U.S.C. § 1252, we have jurisdiction over this petition for review of the

Board's final determination. We will deny the petition for review.

       Sewidjaja is a native of Indonesia, a Pentecostal Christian, an ethnic Chinese, and

a homosexual. He came to the United States in 2001 on a valid B-2 visa and applied for

asylum. At his March 2004 hearing before the IJ, Sewidjaja testified that he fears he will

suffer persecution on account of his race, religion, and sexual orientation if he returns to

Indonesia. He testified that he fears Muslim extremists in Indonesia will attack him

because of his sexual orientation and his ethnicity, although he did not testify to receiving

explicit threats. Sewidjaja also testified that an Indonesian police officer refused to

investigate his claim that his ex-boyfriend took money from him and that, after Sewidjaja

recovered part of the money and gave it to the officer as evidence, the officer refused to

return it. He had no evidence, however, that the officer's conduct was based on his race,

religion, or sexual orientation. Sewidjaja also testified that he has been bullied by his

Indonesian peers both as a child and as an adult and that he feels he must hide his sexual

orientation in Indonesia. The IJ denied Sewidjaja's claims for asylum, withholding of

removal, and protection under the Convention Against Torture. The Board affirmed the

IJ's decision based on Sewidjaja's failure to sustain his burden of proof.

                                             -2-
       Where, as here, the Board issued a decision on the merits, we review the Board's

decision rather than the IJ's. Lie v. Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005). We

uphold the Board's factual findings if they are "supported by reasonable, substantial, and

probative evidence on the record considered as a whole." Id. (quoting INS v. Elias-

Zacarias, 502 U.S. 478, 480 (1992)). The Board's findings are supported by substantial

evidence as long as Sewidjaja's evidence is not so compelling that any reasonable

factfinder would find him eligible for relief. See Lie, 396 F.3d at 534 n.3.

       The Board's findings are supported by substantial evidence in this case. To prevail

on a claim for asylum, Sewidjaja had to establish that he was unable or unwilling to

return to Indonesia 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. §§ 1158(b)(1)(B), 1101(a)(42)(A). To constitute persecution, the

harm suffered must be so severe as to be "a threat to life or freedom." Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993).

       Sewidjaja did not establish that he had suffered persecution in the past. The only

specific incidents of past mistreatment Sewidjaja testified about--the Indonesian police

officer's conduct and Sewidjaja's peers' harassment--do not rise to the level of being a

threat to life or freedom. Moreover, Sewidjaja produced no evidence that the police

officer's conduct was on account of any of the five statutory bases for asylum protection.



       Nor did Sewidjaja establish a well-founded fear of future persecution on account

                                             -3-
of being an ethnic Chinese, a Pentecostal Christian, or a homosexual. While he described

general fear and inhibition, he pointed to no specific threats that would show he is at an

"individualized" risk for persecution. See Lie, 396 F.3d at 537. Similarly, his evidence

that Indonesian society disfavors ethnic Chinese and harbors hostility toward

homosexuals, even when bolstered by the article he cites predicting "the emergence of

political homophobia" in Indonesia, falls short of the "systematic, pervasive, or

organized" persecution required to establish a "pattern or practice" of persecution in

Indonesia. See id. (quoting Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)). Thus,

Sewidjaja presented no compelling evidence that he has suffered past persecution or that

any fear he has of future persecution is well-founded, and the Board correctly denied his

asylum claim.

       Because Sewidjaja did not establish a well-founded fear of persecution, neither did

he establish the likelihood of future persecution necessary to obtain withholding of

removal. Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). He also produced no

evidence that he is likely to be subjected to torture in Indonesia, as required to obtain

relief under the Convention Against Torture. 8 C.F.R. § 1208.18(a)(1).

       Sewidjaja's additional argument that the Board improperly used Lie to establish his

likelihood of persecution in Indonesia is without merit. The Board drew relevant legal

standards from Lie and properly applied those standards to Sewidjaja's case.


       We will DENY the petition for review.


                                             -4-
