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


7-31-2007

Setiawan v. Dept Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1362




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                                      NOT PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT



                     No. 06-1362


           PETRUS EFFENDI SETIAWAN,

                       Petitioner

                           v.

     DEPARTMENT OF HOMELAND SECURITY


            Petition for Review of an Order
          of the Board of Immigration Appeals
                    No. A96-264-440
          Immigration Judge: Miriam K. Mills


       Submitted Under Third Circuit LAR 34.1(a)

                     July 12, 2007

Before: SLOVITER, ALDISERT and ROTH, Circuit Judges.

                 (Filed: July 31, 2007)



              OPINION OF THE COURT
ALDISERT, Circuit Judge.

       Petrus Setiawan, a native and citizen of Indonesia, petitions for review of a final

order of the Board of Immigration Appeals (“BIA”). The BIA affirmed the 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 final order pursuant to 8 U.S.C. § 1252. We will deny the petition.

                                             I.

       The parties are familiar with the facts and proceedings before the BIA and the IJ,

so we will revisit them only briefly. Setiawan is a Christian and an ethnically Chinese

citizen of Indonesia. On January 27, 2002, he entered the United States for an authorized

six-month stay. On March 10, 2003—eight months after the expiration of his legal

status—Setiawan filed an application for asylum, withholding of removal and relief under

the CAT. In support of his application, Setiawan argued that he suffered persecution in

Indonesia on account of his religion and ethnicity. He asserted persecution based on an

alleged assault and robbery he suffered during a 1998 riot that resulted from tensions

between native Indonesians and ethnically Chinese Indonesians. Setiawan also argued

that the alleged failure of certain native Indonesians to repay money he had lent them

constituted persecution.

       The IJ who considered Setiawan’s case rejected all three applications. As to

asylum, the IJ determined that Setiawan was ineligible because his application was not

filed in a timely manner. See 8 U.S.C. § 1158(a)(2)(B). The IJ also found that neither

                                             2
extraordinary circumstances nor changes in country conditions tolled the filing period.

See 8 U.S.C. § 1158(a)(2)(D). With regard to withholding of removal, the IJ decided that

Setiawan did not qualify because he had failed to establish past persecution or that it was

more likely than not that he would suffer future persecution. See 8 C.F.R. § 1208.16

(governing withholding of removal). Specifically, the IJ determined that the incidents

alleged were not sufficient to support a finding of past persecution on account of ethnicity

or religion. The IJ also found that recent reports on country conditions in Indonesia

undercut Setiawan’s argument that he would suffer future persecution if he was returned.

Turning to the application for relief under the CAT, the IJ determined that Setiawan did

not qualify for protection because he had failed to prove it was more likely than not that

he would be tortured by, or with the acquiescence of, the government. See 8 C.F.R. §

1208.16 (governing the CAT).

       The BIA affirmed the IJ’s decision and adopted her findings. Specifically, the

BIA agreed with the IJ that Setiawan (1) did not demonstrate that he filed his asylum

application in a timely fashion, (2) did not demonstrate that extraordinary circumstances

or changed country conditions tolled the filing period, and (3) did not establish that it was

more likely than not that he would be persecuted or tortured upon return to Indonesia.

       Setiawan petitions this Court to review the decision of the Board.




                                              3
                                            II.

       We now turn to the standard of review for Setiawan’s petition. We must give

significant deference to the BIA’s decision. We review the Board’s decision under the

“substantial evidence” standard and may disrupt its findings only if the “evidence not

only supports a contrary conclusion, but compels it.” Kibinda v. Gonzales, 477 F.3d 113,

119 (3d Cir. 2007) (quoting Abdille v. Ashcroft, 242 F.3d 477, 483-484 (3d Cir. 2001)).

Although we generally review only the decisions of the BIA, where the BIA both adopts

the findings of the IJ and discusses some of the bases for the IJ’s decision, we review the

decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

                                            III.

       On petition to this Court, Setiawan has challenged the IJ’s denial of his asylum

application on grounds of untimeliness, a determination which we lack jurisdiction to

review. See 8 U.S.C. § 1158(a)(3). Under Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d

Cir. 2003) (interpreting 8 U.S.C. § 1158), we have no power to examine the BIA’s

determination that Setiawan’s asylum application was not filed within the one-year

period. We also lack the authority to review any judgment that the one-year limit was not

tolled by extraordinary circumstances or changed country conditions. Id. We therefore

review only the BIA’s rejection of Setiawan’s application for withholding of removal and

protection under the CAT.

                                            IV.


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       The law surrounding withholding of removal is well-settled. To be entitled to

withholding of removal, an alien must demonstrate that “‘it is more likely than not that

[he] would be subject to persecution’ in the country to which he would be returned.” INS

v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (quoting INS v. Stevic, 467 U.S. 407, 429-

430 (1984)). An alien can establish eligibility for withholding of removal either (1) by

creating a rebuttable presumption of future persecution by demonstrating past persecution

or (2) by showing that it is more likely than not that he will suffer future persecution. 8

C.F.R. § 1208.16(b). After review of the record, we conclude that substantial evidence

supports the BIA’s conclusion that Setiawan does not qualify for withholding of removal.

       Setiawan argues that the treatment he received at the hands of Muslim extremists

and ethnic Indonesians amounts to past persecution. Substantial evidence supports the

IJ’s decision to the contrary. This Court has defined persecution to include “threats to

life, confinement, torture, and economic restrictions so severe that they constitute a threat

to life or freedom.” Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) (citing Fatin

v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). Substantial evidence supports the IJ’s

finding that, viewed cumulatively, the events alleged by Setiawan—the assault and the

failure to pay back loans—do not rise to this level. See Lie v. Ashcroft, 396 F.3d 530,

536 (3d Cir. 2005) (holding that an assault and robbery were not sufficiently severe to rise

to the level of persecution when the only harms suffered were loss of property and minor




                                              5
injury); Ahmed v. Ashcroft, 341 F.3d 214, 217-218 (3d Cir. 2003) (holding that no

economic persecution existed because petitioner was able to earn a livelihood).

       We next turn to Setiawan’s contention that he will be subjected to future

persecution in Indonesia because he is an ethnically Chinese Christian. Once again,

substantial evidence supports the IJ’s holding that Setiawan cannot prove it is more likely

than not that he will suffer future persecution. To establish a future persecution claim, a

petitioner must demonstrate by clear probability either (1) that he would be singled out

for persecution on account of his race or religion, or (2) that there is a “pattern or practice

of persecution of a group of persons similarly situated to the applicant . . . .” 8 C.F.R. §

208.16(b)(2). Upon petition to this Court, Setiawan has not argued that he will be singled

out for future persecution, but focuses on the pattern or practice of persecution test. To

constitute a “pattern or practice,” the persecution of a group must be “systemic, pervasive,

or organized.” Lie, 396 F.3d at 537 (quoting Ngure v. Ashcroft, 367 F.3d 975, 991 (8th

Cir. 2004)).

        Setiawan argues that the treatment of Chinese Christians in Indonesia by Muslim

extremists and ethnic Indonesians constitutes a pattern or practice of persecution. This

contradicts the precedent of this Court. In Lie, 396 F.3d at 537-538, we held that

ethnically Chinese Christians like Setiawan do not face systemic persecution in Indonesia

because any ongoing violence appears to be “wrought by fellow citizens” and is not the

result of “governmental action or acquiescence.” See Abdulrahman v. Ashcroft, 330 F.3d


                                               6
587, 592 (3d Cir. 2003) (holding that an act does not constitute persecution unless it is

committed by the government or forces the government is either unable or unwilling to

control).

       Setiawan has not demonstrated that conditions in Indonesia have changed since the

decision in Lie. Further undermining his argument, the 2003 State Department Country

Report on Human Rights Practices and the State Department International Religious

Freedom Report of 2003 indicate a drop in violence and an improvement in religious

freedom. Setiawan’s assertion that the IJ erred by considering only the State Department

country reports, in lieu of other reports submitted, is unsupported by the record and

contradicts the law of this Court. See App. 9 (IJ stating that “[n]one of the other reports

on conditions in Indonesia rebutted the findings of the country reports . . . .”); Zubeda v.

Ashcroft, 333 F.3d 463, 477-478 (3d Cir. 2004) (stating that country reports are the most

appropriate and perhaps the best resource for information on political situations in foreign

nations). Accordingly, we find that substantial evidence supports the IJ’s finding that

Setiawan’s risk of future persecution in Indonesia is less than a clear probability.

                                             V.

       Setiawan also argues that the IJ’s CAT determination is unsupported by substantial

evidence. We disagree. A CAT applicant must establish that “it is more likely than not”

that he will be tortured if returned to Indonesia. 8 C.F.R. § 208.16(c)(2). “Torture is

defined as any act by which severe pain or suffering, whether physical or mental, is


                                              7
intentionally inflicted on a person . . . by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R.

§ 1208.18(a)(1). In evaluating whether an applicant is more likely than not to be tortured

when returned, we consider evidence of past torture and conditions in the country of

removal. 8 C.F.R. §§ 208.16(c)(3)(i), 208.16(c)(3)(iv).

       In his petition, Setiawan does not argue that his alleged assault constituted torture,

but he does argue that country conditions in Indonesia are sufficient to find that it is more

likely than not that he would be tortured if returned. The record does not support this

contention. The State Department International Religious Freedom Report of 2003 states,

“[i]nterreligious violence plummeted, and peaceful conditions prompted many displaced

persons to return to their homes.” App. 124. Substantial evidence therefore supports the

IJ’s determination that country conditions in Indonesia are insufficient to find that it is

more likely than not that Setiawan will be tortured if returned. See Tarrawally, 338 F.3d

at 188 (“country conditions alone can play a decisive role in granting relief under the

Convention”). Accordingly, we will hold that the denial of CAT relief was supported by

substantial evidence.

                                              VI.

       Setiawan alternatively requests a remand to either the BIA or the IJ for further

inquiry into whether a pattern or practice of persecution exists in Indonesia. As we held

previously in this opinion, the IJ considered all reports entered into the record and


                                               8
substantial evidence supports her conclusion that a pattern or practice of persecution does

not exist in Indonesia. We therefore will deny the Petition for Review.

                                           VII.

       We have considered all contentions of the parties and conclude that no further

discussion is necessary.

       The Petition for Review will be denied.




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