                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2720




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                          No. 07-2720


                                   FNU SUDARSONO,
                                              Petitioner

                                              v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent


                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                  BIA No. A96-203-448
                 (U.S. Immigration Judge: Honorable Donald V. Ferlise)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 9, 2008
     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

                                   (Filed: May 30, 2008)


                                OPINION OF THE COURT


PER CURIAM.

       Sudarsono petitions for review of an order of the Board of Immigration Appeals

(“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons

that follow, we will deny his petition.
       Sudarsono is a native and citizen of Indonesia and identifies himself as ethnic

Chinese and Christian. He entered the United States as a non-immigrant visitor in

November 1998 and, in May 2004, applied for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). He has a wife and two children,

all of whom reside in Bali, Indonesia.

       The IJ denied all relief save Sudarsono’s request for voluntary departure, holding

that his asylum application was time-barred and that he could not satisfy the standard for

withholding of removal or CAT relief. The BIA affirmed the IJ’s decision and dismissed

the appeal, noting that Sudarsono did not challenge on appeal the IJ’s finding that his

asylum claim was time-barred, that he had failed to establish either that he faced an

individualized risk of persecution or that there was a pattern or practice of persecution

directed against ethnic Chinese Christians in Indonesia, and that he failed to show that he

would more likely than not be tortured in Indonesia. Through counsel, Sudarsono filed a

petition for review. The Government opposes the petition.

       We have jurisdiction over this petition for review under 8 U.S.C. § 1252. We

review the BIA’s factual findings for “substantial evidence.” See Abdille v. Ashcroft,

242 F.3d 477, 483-84 (3d Cir. 2001). Under this standard, we will uphold the BIA’s

findings unless the evidence not only supports a contrary conclusion, but compels it. See

id.




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       To be entitled to withholding of removal to a specific country, an applicant must

prove that it is more likely than not that his “life or freedom would be threatened in that

country because of [his] race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3); Zubeda v. Ashcroft, 333 F.3d 463,

469 (3d Cir. 2003). In the event that the applicant cannot demonstrate past persecution,

he may still be eligible for withholding of removal by demonstrating “that in that country

there is a pattern or practice of persecution of a group of persons similarly situated to the

applicant” on account of a protected ground. See 8 C.F.R. § 208.16(b)(2). For relief

under the CAT, an applicant must demonstrate that it is more likely than not that he

would be tortured if removed to his country of origin. See 8 C.F.R. § 208.16(c)(2).

       Sudarsono argues that the BIA erred in concluding that he had not demonstrated

that he would more likely than not suffer persecution if returned to Indonesia. 1 In support

of his application, Sudarsono testified that his car was vandalized in January 1997 while

he was attending church services and that his store was looted the following year. Then,

in June 1998, ten men with guns attacked him and his cousins at his store, took his

money, and smashed his face against the safe. His cousin died as a result of his injuries.

Sudarsono testified that he reported the incident to the police, but they did not respond.


   1
     To the extent Sudarsono addresses this argument to his asylum claim, we do not reach
it, as we lack jurisdiction to review the determination that an asylum application was not
filed within the one-year limitations period and that such period was not tolled by
extraordinary circumstances. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.
2003); 8 U.S.C. § 1158(a)(3).

                                              3
He then closed that store and opened a small store on the island of Bali, where he moved

with his wife and family. The IJ found that, even assuming all of his testimony was

credible, Sudarsono offered no proof that any of these actions were taken against him on

account of his religion or ethnicity. Furthermore, the IJ concluded that Sudarsono had

failed to offer any proof that he would be persecuted, much less tortured, upon his return

to Indonesia. The BIA agreed with these conclusions.

       Sudarsono now argues that while the incidents described above may not appear on

their face to be acts of persecution, when considered in light of “the political, social,

cultural and more importantly the factual milieu in Indonesia,” they clearly “take[] on the

nature of persecution on account of his membership in a group.” (At. Br. at 9-10.) As the

petitioner, it is Sudarsono’s burden to demonstrate an entitlement to relief. See Lie v.

Ashcroft, 396 F.3d 530, 535-38 (3d Cir. 2005). A thorough review of the record indicates

that Sudarsono failed to offer any evidence to demonstrate that the acts were “on account

of” a protected ground. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)

(“[Petitioner] must provide some evidence of [his persecutors’ motives], direct or

circumstantial. And if he seeks to obtain judicial reversal of the BIA’s determination, he

must show that the evidence he presented was so compelling that no reasonable factfinder

could fail to find the requisite fear of persecution.”); see also Lie, 396 F.3d at 535-36

(“We find that evidence of general ethnic difficulties would not compel a reasonable

factfinder to conclude that the intrusions were ‘on account of’ [petitioner’s] ethnicity or



                                               4
religion.”). Additionally, as noted by the BIA, Sudarsono’s wife and children continue to

live in Indonesia, which further undermines his claim to a well-founded fear of future

persecution. See id. at 537. Nor was the evidence cited by Sudarsono sufficient to

demonstrate a pattern or practice of persecution of Chinese Christians in Indonesia. See

id. (finding petitioner’s evidence of anti-Chinese violence in Indonesia insufficient to

demonstrate “pattern or practice” where violence was “primarily wrought by fellow

citizens and not the result of governmental action or acquiescence”). Accordingly, we

agree that Sudarsono has not demonstrated an entitlement to withholding of removal.

       Finally, Sudarsono failed to allege any incidents or likelihood of torture if removed

to Indonesia. Accordingly, the BIA properly denied his claim for relief under the CAT.

See 8 C.F.R. § 208.16(c)(2); Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir. 2003)

(holding that petitioner must demonstrate it is more likely than not that he will be tortured

upon his return).

       Based on the foregoing, we will deny the petition for review.




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