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


4-30-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3511




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    ___________

                                    No. 05-3511
                                    ___________

                           TONY DJAJADI SUGIARTO;
                          HONNI SUGIARTO; ANGELINA
                             NATASHA LEVAKAR,

                                           Petitioners

                                          v.

                          ATTORNEY GENERAL OF THE
                               UNITED STATES,

                                          Respondent

                                    ___________


                         Petition for Review of an Order of the
                             Board of Immigration Appeals
                   (Nos. A79-730-981, A97-486-224, A97-486-225)
                          Immigration Judge: Miriam K. Mills

                                    ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 11, 2007

             Before: SMITH, NYGAARD, and HANSEN,* Circuit Judges.




      *Honorable David R. Hansen, Senior Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
                                   (Filed: April 30, 2007)

                                       ___________

                                OPINION OF THE COURT
                                     ___________

NYGAARD, Circuit Judge.

              Petitioners Tony Djajadi Sugiarto, Honni Sugiarto and their daughter,

Angelina Natasha Levakar, appeal from the denial of their application for asylum and for

withholding of removal under the Immigration and Nationality Act, and their request for

relief under the United Nations Convention Against Torture and Other Forms of Cruel,

Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”). For

the reasons stated below, we will deny the petition.

                                              I.

              Because we write solely for the benefit of the parties, we recite only those

facts necessary to our analysis. Petitioners are natives and citizens of Indonesia, of

Chinese ethnicity, and were admitted to the United States on or about April 30, 1999 as

non-immigrants with authorization to remain in this country for a period not to exceed six

months. They remained beyond that date without permission and were served with a

Notice to Appear charging them with removability under Section 237(a)(1)(B) of the INA

for remaining in the United States longer than permitted. Petitioners conceded



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removability for remaining in this country without permission, but requested a grant of

asylum, withholding of removal, and in the alternative, voluntary departure.

              Petitioner claims they were persecuted in Indonesia on account of their

Christian Chinese identity and that they suffered harm in Indonesia in the form of

discrimination during childhood, theft by natives, curses and spells by neighbors and co-

workers, unwanted sexual touching of Honni Sugiarto in public, the assault of Tony

Sugiarto by soccer fans after a match in 1999, stones thrown at their church and

firecrackers thrown at their home, the robbery of Honni Sugiarto in 1997, and various

incidents of verbal abuse. Appendix 311-317.

              After a hearing, Immigration Judge Miriam K. Mills determined that the

Petitioners did not have individualized fears of future persecution. Additionally, the IJ

found that the Petitioners failed to timely file for asylum, overstayed their visas before

filing and , that there were no extraordinary circumstances which would have justified a

waiver of the one-year filing deadline. Also, the IJ discredited Petitioners’ fears of harm

because their family members (older siblings and other family members) remain in

Indonesia unharmed. Thus, the IJ concluded that Petitioners failed to show by a

preponderance of the evidence that they would be harmed if they returned to Indonesia on

the basis of their ethnicity or their religion. The Board of Immigration Appeals adopted

and affirmed the IJ's decision, finding Petitioners subject to removal as charged and

denying their application for asylum as not timely filed.



                                              3
                                             II.

              We begin by noting that we lack jurisdiction to review the asylum claim.

Under the teachings of Tarrawally v. Ashcroft, we have no power to examine the BIA's

determination that the Petitioners’ asylum papers were not filed within the one-year

limitations period. 338 F.3d 180, 185 (3d Cir. 2003) (interpreting 8 U.S.C. § 1158, which

states that no court shall have jurisdiction to review the Attorney General's determination

that an alien has filed an asylum application in an untimely fashion). We also lack the

authority to review any judgment that the one-year limit was not tolled by extraordinary

circumstances. Id; see also Sukwanputra et al. v. Attorney General, 434 F.3d 627, 633

(3d Cir. 2006).

                                             III.

              We do have jurisdiction to review the denial of Petitioner's claim for

withholding of removal and relief under the CAT. For withholding of removal under 8

U.S.C. § 1231(b)(3)(A), an alien must demonstrate “a clear probability” of persecution to

avoid deportation. Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997). In other words, an

alien must show it is “more likely than not” that because of “race, religion, nationality,

membership in a particular social group, or political opinion,” 8 U.S.C. § 1231(b)(3)(A),

he will be subjected to “threats to life, confinement, torture, and economic restrictions so

severe that they constitute a threat to life or freedom.” Li Wu Lin v. INS, 238 F.3d 239,

244 (3d Cir. 2001); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). For relief under the



                                              4
CAT, an alien must show that “it is more likely than not that he or she would be tortured

if removed to the proposed country of removal.” August v. Ridge, 395 F.3d 123, 151 (3d

Cir. 2005).

              The record here, particularly the Petitioners’ testimony, does not compel a

conclusion contrary to that reached by the IJ and the BIA. The robberies and other

offenses that victimized the Petitioners in Indonesia do not constitute past persecution,

nor were they sufficiently “severe” to justify a finding of past persecution or a

well-founded fear of persecution in the future. We have often stated that random incidents

of violence are not persecution warranting withholding of removal under the INA. See,

e.g., Lie v. Ashcroft, 396 F.3d 530, 534, 536 (3d Cir. 2001). Additionally, the record

clearly supports the IJ’s determination that Petitioners failed to establish a well-founded

fear of future persecution were they to return to Indonesia. The record demonstrates that

members of the Petitioners’ family remain in Indonesia. As the record reveals, the

Petitioners only provided vague generalities about the alleged treatment of ethnic Chinese

Christians in Indonesia and failed to present any evidence concerning threats to their

remaining family members safety and well-being.

              We find that substantial evidence supports the IJ’s determination that the

petitioners failed to establish that it is “more likely than not” that they would be subject to

persecution if they were to return to Indonesia. See Lie, 396 F.3d at 537.

                                              IV.



                                               5
             Accordingly, the petition for review will be DISMISSED insofar as it

relates to the asylum claim and will be DENIED insofar as it relates to withholding of

removal and relief under the Convention Against Torture.




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