                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3188




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-3188


                         HANDY PRANATA SUTIOWIJONO,
                                                Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES


                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                                 BIA No. A96-426-977
                      (U.S. Immigration Judge: Frederic G. Leeds)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 20, 2009

     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

                                 (Filed: May 27, 2009)


                              OPINION OF THE COURT


PER CURIAM.

      Handy Pranata Sutiowijono petitions for review of an order of the Board of

Immigration Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s)

final removal order. We will deny the petition for review.
       Sutiowijono entered the United States as a crewmember in January 2001, with

authorization to stay until his ship left port, but not longer than twenty days. Sutiowijono

stayed longer than permitted, and was placed in removal proceedings. He conceded

removability and applied for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT). He argued that he had suffered and would suffer

persecution in Indonesia on account of his Chinese ethnicity and his Christian religion.

The IJ found that Sutiowijono’s asylum claim was untimely, as he had not applied for

asylum within one year of his arrival, and found no exception to the requirement for

timely filing applied. The IJ considered his claims for statutory withholding of removal

and relief under the CAT, but found that Sutiowijono had not established that the

problems he had experienced in the past were on account of his ethnicity or religion, and

that he had not established that there was a pattern or practice of persecution against

Chinese Christians in Indonesia.

       The BIA agreed with the IJ’s finding that Sutiowijono’s asylum claim was

untimely and that no exception applied. The BIA held that the incidents Sutiowijono

described from his past (being teased and once beaten by schoolmates, being attacked and

robbed once by a group of kids, having a window broken by drunken men) did not rise to

the level of persecution. The BIA also held that Sutiowijono had not shown that it was

more likely than not that he would be persecuted in the future. The BIA recognized the

problems with anti-Chinese discrimination and interreligious violence in Indonesia, but



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found that the current country conditions evidence did not establish a pattern or practice

of persecution of Chinese Christians. The BIA also held that Sutiowijono had not shown

that it was more likely than not that he would be tortured in Indonesia. Suitowijonofiled a

timely petition for review.

       In most cases, we have jurisdiction to review a final order of removal involving the

denial of asylum. 8 U.S.C. § 1252(a)(1). However, 8 U.S.C. § 1158(a)(3) provides that

no court shall have jurisdiction to review any determination regarding the timeliness of an

asylum application and the applicability of the exceptions. See Tarrawally v. Ashcroft,

338 F.3d 180, 185 (3d Cir. 2003). Although the subsequently enacted REAL ID Act

amended the Immigration and Nationality Act to allow constitutional claims or questions

of law to survive its jurisdiction-stripping provisions, see REAL ID Act

§ 106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D), this Court has held that claims of changed

or extraordinary circumstances to justify an untimely asylum application fall within the

Attorney General’s discretion and therefore do not present a constitutional claim or

question of law covered by the REAL ID Act’s judicial review provision. Sukwanputra

v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). Sutiowijono argues that we have

jurisdiction to review the denial of his asylum application because the IJ failed to apply

the proper legal standard in determining the timeliness of his application. Sutiowijono

concedes that he did not raise this issue in his brief to the BIA, but he argues that we have

jurisdiction to consider the issue, citing Lin v. Attorney General, 543 F.3d 114 (3d Cir.



                                              3
2008), because the BIA ruled on the timeliness issue in its decision. However, the BIA

here did not rule on whether the IJ applied the proper standard, because it had no way of

knowing that Sutiowijono believed that was an issue. The issue is thus unexhausted, and

we lack jurisdiction to consider Sutiowijono’s argument.1 See Abdulrahman v. Ashcroft,

330 F.3d 587, 594-95 (court lacked jurisdiction to consider alien’s burden of proof

argument where argument was not raised in notice of appeal or brief to BIA). Because

we lack jurisdiction to consider whether Sutiowijono’s asylum application was timely, our

review is confined to consideration of whether the BIA properly affirmed the denial of

withholding of removal.2

       To be eligible for withholding of removal, Sutiowijono must demonstrate that it is

more likely than not that his life would be threatened in Indonesia on account of race,

religion, nationality, membership in a particular social group, or political opinion.

Tarrawally, 338 F.3d at 186; 8 U.S.C. § 1231(b)(3)(A). We may reverse the BIA’s




   1
    In any event, Sutiowijono’s argument is without merit. He argues that the IJ should
have applied “the substantial evidence” standard in determining whether changed country
circumstances materially affected his eligibility for asylum, but cites no authority for his
argument. As the Government points out, the substantial evidence is a judicial review
standard rather than a standard for IJs to apply.
   2
    Sutiowijono’s brief contains only a conclusory statement that he is eligible for relief
under the CAT, and that the BIA and IJ erred in denying such relief. Such a statement is
not sufficient to bring the issue before the Court, and we deem the issue waived. De
Araujo v. Gonzales, 457 F.3d 146, 153 (1 st Cir. 2006); Voci v. Gonzales, 409 F.3d 607,
610 n.1 (3d Cir. 2005).

                                              4
decision only if the record would compel a reasonable factfinder to conclude that the

requisite fear existed. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

       Sutiowijono argues that he suffered past persecution on account of his Chinese

ethnicity and his Christian religion when he was (1) involved in several incidents where

he was harassed and/or beaten by native people when he was growing up, A.R. 125-30;

(2) he witnessed the attacks and riots against Chinese people in 1998, A.R. 130-35; and

(3) a 2000 incident where drunken native Indonesians broke windows in the house he was

in, A.R. 135-36. We conclude that Sutiowijono has not shown that the record compels a

finding that he suffered past persecution, as opposed to discrimination or harassment, on

account of his ethnicity or religion. Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993)

(“persecution does not encompass all treatment that our society regards as unfair, unjust,

or even unlawful or unconstitutional”).

       Sutiowijono also argues that there is a pattern or practice of persecution against

Chinese Christians in Indonesia. We have held that in order to constitute a “pattern or

practice,” the persecution of a group must be “systemic, pervasive, or organized.” Lie v.

Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005). In Wong v. Attorney General, 539 F.3d 225

(3d Cir. 2008), we held that the 2003 and 2004 Country Reports did not demonstrate a

pattern or practice of persecution against Chinese Christians. Id. at 233. We noted that

the 2005 and 2006 Country Reports documented improved treatment of Chinese

Christians in Indonesia. Id., 539 F.3d at 234. Here, Sutiowijono refers to the 2005



                                             5
Country Report. The report notes a reduction in inter-religious violence and a

government initiative to prosecute extremists.

       We conclude that Sutiowijono has not shown that the record compels a finding that

his life would be threatened if removed to Indonesia so as to entitle him to withholding of

removal. Tarrawally, 338 F.3d at 186. We further find that the BIA properly denied

Sutiowijono’s motion to remand, because Sutiowijono did not show that he is more likely

to be persecuted due to the birth of his U.S. citizen child.

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




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