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


1-11-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2668




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-2668


                                HELEIANA KUSWADI;
                                 SOEPENI SUHADA,

                                                  Petitioners

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                  Respondent


                        On Petition for Review of an Order of
                          The Board of Immigration Appeals
                    Immigration Judge: Honorable Donald V. Ferlise
                         (Nos. A96-257-860 / A96-257-861)


                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 9, 2007

        Before: SCIRICA, Chief Judge, AMBRO, and JORDAN, Circuit Judges

                            (Opinion filed: January 11, 2008)


                                        OPINION


AMBRO, Circuit Judge

       This case involves Heleiana Kuswadi and Soepeni Suhada, a married couple, who

are natives and citizens of Indonesia, though their ancestry is Chinese. Rejecting their
claim for asylum, an Immigration Judge ordered both of them removed from the United

States. Kuswadi and Suhada petitioned our Court for review, specifying Kuswadi as lead

petitioner and consolidating Suhada’s case as a derivative claim. We deny their petition.

       Kuswadi and Suhada previously lived in Jakarta, where Kuswadi ran a grocery-

supply business in connection with her sister’s supermarket business. She alleges that

four incidents of past persecution give rise to a well-founded fear of persecution should

she return to Indonesia. First, rioters destroyed her sister’s supermarkets, and the supply

business’s inventory with them, in 1998. Second, a bomb exploded outside her family’s

Roman Catholic church on Christmas Eve of 2000. Third, following an anonymous

phone call, unknown assailants shot and wounded her sister in February 2001. Fourth, on

an unspecified date, a distant relative of hers had to dodge stones thrown at his car while

driving.

       In May 2001, Suhada entered the United States; Kuswadi joined her husband in

October 2002. Kuswadi timely applied for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”), with her husband as a

derivative applicant. (Suhada did not file a separate application.) In April 2003, the

Department of Homeland Security initiated removal proceedings against Kuswadi. An IJ

denied her claims at a hearing in January 2005. The Board of Immigration Appeals

affirmed without opinion, and Kuswadi filed a timely petition for review.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed the



                                             2
IJ’s order without opinion, we review his order. Partyka v. Att’y Gen., 417 F.3d 408, 411

(3d Cir. 2005). Under our standard of review, we must uphold the IJ’s findings “unless

the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,

242 F.3d 477, 483–84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 &

n.1).

        To succeed on her asylum claim, Kuswadi must establish that she is “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. § 1101(a)(42)(A). “A showing of past persecution

gives rise to a rebuttable presumption of a well-founded fear of future persecution.” Lie

v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005) (citing 8 C.F.R. § 1208.13(b)(1)). Without

that presumption, Kuswadi must demonstrate both a subjective fear of persecution, see

Lie, 396 F.3d at 535, and an objectively reasonable possibility of persecution, see Zubeda

v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).

        The IJ found Kuswadi’s testimony credible, which supports her claim of subjective

fear. But substantial evidence supports the IJ’s conclusion that the four incidents

Kuswadi described do not establish that she, in particular, was persecuted in the past.1

Kuswadi lost property but did not personally experience bodily harm or lose her freedom




        1
        We take no notice of the additional affadavit attached to Kuswadi’s opening
brief, which is not part of the administrative record. See 8 U.S.C. § 1252(b)(4)(A).

                                             3
in any of the four incidents to which she testified.2 (We also agree with the IJ that

nothing in the record demonstrates a religious or ethnic motivation for the supermarket,

shooting, and stoning incidents.) With this backdrop, there is no presumption of future

persecution.

       As an ethnically Chinese Catholic, Kuswadi might face challenging conditions in

Indonesia. But she has not shown that conditions have changed since our decision in Lie,

which held that no pattern or practice of persecution exists in Indonesia with respect to

ethnically Chinese Christians. 396 F.3d at 537–38. Thus, she has not established an

objectively reasonable possibility of future persecution.

       In sum, substantial evidence supports the IJ’s finding that Kuswadi has not

demonstrated a well-founded fear of persecution on account of a protected ground.

       Since withholding of removal requires demonstrating a higher probability of

persecution than asylum, Kuswadi’s claim on that theory must also fail. Janusiak v. INS,

947 F.2d 46, 47–48 (3d Cir. 1991). Finally, we agree with the IJ that nothing in the

record suggests that Kuswadi is more likely than not to experience torture upon her return

to Indonesia.

       For these reasons, we deny the petition for review.




       2
        Kuswadi’s situation does not rise to the level of economic deprivation
experienced by the petitioner in Li v. Attorney General. 400 F.3d 157 (3d Cir. 2005).

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