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


2-16-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3830




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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                           Nos. 04-3830 & 05-1628


                             SHINTA D. SUSILO,

                                            Petitioner

                                       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 Vincent Ferlise
                              (No. A95-369-189)


                   Submitted Under Third Circuit LAR 34.1(a)
                               January 16, 2007

           Before: McKEE, AMBRO, and STAPLETON, Circuit Judges

                       (Opinion filed: February 16, 2007)



                                   OPINION




AMBRO, Circuit Judge
       Shinta Devi Susilo petitions for review of an order issued by the Board of

Immigration Appeals (“BIA”) affirming the denial of her applications for asylum,

withholding of removal, and protection under the United Nations Convention Against

Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”). In addition, she petitions for review of the BIA’s denial of her motion to

reconsider its decision. We have jurisdiction to consider these petitions under Section

242(b) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1252(b).

For the reasons set forth below, we deny the petitions.

                                             I.

       We highlight only those facts that are pertinent to our analysis. Susilo, a Catholic,

is a native and citizen of Indonesia who is of ethnic Chinese origin. She came to the

United States as a non-immigrant visitor on June 12, 2001, overstayed her visa, and was

charged with removal under 8 U.S.C. § 1227(a)(1)(B). Susilo conceded the charge of

removal and proceeded to apply for asylum, withholding of removal, and protection under

the CAT. She asserted in oral testimony that she feared persecution in Indonesia because

of her religion.

       The immigration judge (“IJ”) who considered Susilo’s applications found that she

had not demonstrated a well-founded fear of future persecution because her testimony

was not credible. In the alternative, the IJ held that, even if Susilo’s testimony were

credible, the allegations and evidence she provided did not support a finding of past or

future persecution based on religion or any other ground. As a result, the IJ denied each

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of Susilo’s asylum, withholding of removal, and CAT claims.

       Susilo appealed this decision to the BIA. It affirmed the IJ’s decision without

opinion and dismissed Susilo’s appeal. She then petitioned us for review of this

dismissal. In addition, she filed a motion for reconsideration, which the BIA denied. In

so doing, the BIA did not revisit the IJ’s adverse credibility finding, agreeing with the IJ

that, even if Susilo were credible, her petition still fails. The BIA also concluded that an

intervening case cited by Susilo, Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004), was

not controlling in our jurisdiction and declined to apply it here. Following this denial,

Susilo petitioned us for review of the BIA’s refusal to reconsider its earlier decision.

Both petitions have been consolidated into this review.

                                              II.

       Before us, Susilo makes two arguments: (1) the BIA erred in concluding that she

failed to establish past persecution, fear of future persecution, or pattern and practice of

persecution; and (2) the BIA violated her right to due process of law by failing to make

any ruling on her claim for relief under the CAT. Susilo does not challenge the IJ’s

credibility finding before us and, as the BIA affirmed the IJ’s holding on the alternative

ground, we need not address it here.

       Where the BIA “adopts the findings of the IJ and discusses some of the bases for

the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.”

Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Whether an applicant for asylum has

established past persecution or a well-founded fear of future persecution is “a factual

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determination reviewed under the substantial evidence standard.” Gao v. Ashcroft, 299

F.3d 266, 272 (3d Cir. 2002). As such, we must uphold the agency’s findings of fact to

the extent that they are “supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” Id. (internal quotations and citations omitted). Here,

the IJ concluded that encountering discrimination on the street, being robbed by muggers,

and being harassed as a child by other children, does not rise to the level of persecution.

As for Susilo’s allegation that she was present during a church bombing on Christmas

Eve in 2000, the IJ concluded that this experience did not constitute persecution because

there was no evidence that the government of Indonesia was unable or unwilling to

protect Christians on the Island of Java, where Susilo lived. We conclude that the IJ’s

determinations are supported by substantial evidence and are consistent with the law of

persecution. See Gao, 299 F.3d at 272.

       Finally, Susilo’s claim that the BIA violated her due process rights by denying her

CAT relief without making factual or legal findings also fails. Susilo did not raise this

claim before the BIA, and therefore it is unexhausted.

                                         * * * * *

       Accordingly, we deny Susilo’s petitions for review.




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