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


3-20-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4763




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                                                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                No. 06-4763

                            BILLY RUDIANTO,

                                           Petitioner

                                      v.

             ATTORNEY GENERAL OF THE UNITED STATES,

                                           Respondent


                 On Petition for Review of a Decision of the
                    United States Department of Justice
                      Board of Immigration Appeals
                        (Agency No. A96 264 014)
                 Immigration Judge: Charles M. Honeyman

               Submitted pursuant to Third Circuit LAR 34.1(a)
                              March 13, 2008

Before: FUENTES and CHAGARES, Circuit Judges, and VAN ANTWERPEN, Senior
                               Judge.

                           (Filed: March 20, 2008)




                        OPINION OF THE COURT
CHAGARES, Circuit Judge:

       Billy Rudianto petitions for review of a final order of removal issued by the Board

of Immigration Appeals (BIA). The BIA affirmed the decision of the Immigration Judge

(IJ) denying Rudianto’s petition for withholding of removal.1 Because substantial

evidence supports the BIA’s order, we will deny the petition for review.

                                             I.

       We have jurisdiction to review the BIA's final orders of removal. 8 U.S.C. §

1252(a). Because the BIA adopted the findings of the IJ and discussed some of the bases

for the IJ’s decision, we review the orders of the BIA and IJ.2 We review whether an

alien has demonstrated past persecution, a likelihood of future persecution, or a likelihood

of torture under the substantial evidence standard. See Wang v. Ashcroft, 368 F.3d 347,

349-50 (3d Cir. 2004); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). Under

this standard, the BIA’s findings are conclusive “unless the evidence not only supports a

contrary conclusion, but compels it.” Abdille, 242 F.3d at 483-84.



       1
               Rudianto also applied for asylum and relief under the Convention Against
Torture (CAT). The IJ determined that the asylum request was time-barred and denied
the petition for CAT relief. Rudianto now petitions for review of these determinations.
However, Rudianto did not challenge these findings below and the BIA therefore
declined to address them. Consequently, we will limit our review to the withholding of
removal issue.
       2
             Rudianto contends that the BIA affirmed without opinion, and therefore this
Court should review the IJ’s decision. The BIA, however, issued its own decision on the
withholding of removal matter. See Appendix (App.) 9.
                                            2
                                              II.

       Withholding of removal may be granted if “the alien's life or freedom would be

threatened” in the country of removal “because of the alien's race, religion, nationality,

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

The alien bears the burden of proving that he will more likely than not face persecution

on account of a protected ground. See INS v. Stevic, 467 U.S. 407, 429-30, 104 S. Ct.

2489, 81 L. Ed. 2d 321 (1984). If the alien can demonstrate past persecution, then that

finding will raise a rebuttable presumption that the alien's “life or freedom would be

threatened in the future . . . . ” 8 C.F.R. § 1208.16(b)(1)(i). Past persecution requires

proof of “(1) one or more incidents rising to the level of persecution; (2) that is ‘on

account of’ one of the statutorily-protected grounds; and (3) is committed either by the

government or by forces that the government is either unable or unwilling to control.”

Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Under our cases, persecution “is

an extreme concept that does not include every sort of treatment our society regards as

offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993). It encompasses only grave

harms such as “threats to life, confinement, torture, and economic restrictions so severe

that they constitute a threat to life or freedom.” Id. at 1240.

                                              III.

       As we write only for the parties, our summary of the facts is brief. Billy Rudianto

is a native and citizen of Indonesia. He is also a Catholic of Chinese descent. Rudianto

                                               3
claims to have suffered persecution in Indonesia on account of his religion and ethnicity.

In particular, he contends that an incident in 1998 compels findings of past persecution

and a likelihood of future persecution.


       Rudianto testified that in May 1998, during widespread riots in Indonesia, armed

individuals wearing military uniforms entered the medical clinic at the University of

Trisakti in Jakarta where Rudianto worked, put a gun to Rudianto’s head, and told him to

instruct other students to stop demonstrating. When Rudianto insisted that he had nothing

to do with the student demonstrations, the individuals hit him in the face, necessitating

medical treatment. Rudianto entered the United States almost three years later, in April

2001, and overstayed his visa.


       As unfortunate as the 1998 incident was, substantial evidence supports the IJ's

denial of relief. The record does not show past persecution based on Rudianto’s ethnicity

or religion, nor does it compel the conclusion that there is a clear probability of

persecution if he returns to Indonesia. See Fatin, 12 F.3d at 1240 (defining persecution as

death, confinement, torture, or severe economic restrictions inflicted for invidious

reasons).


       Furthermore, even assuming that the injury was severe enough to constitute

persecution, Rudianto did not establish that the armed individuals were motivated by an

anti-Chinese or anti-Christian animus. Rudianto indicated that he was uncertain why the
                                              4
armed individuals took issue with him, although his testimony suggested that the clinic

was known to employ graduates of the university that was involved in the riots the

soldiers were attempting to stop. Rudianto failed to provide any objective evidence of a

link between the 1998 episode and Rudianto’s ethnicity or religion. We therefore

conclude that this incident does not compel a finding of ethnic persecution.


       Rudianto also argues that the BIA’s decision must be reversed or remanded

because the IJ did not adequately address whether a pattern or practice of persecution of

Chinese Christians exists in Indonesia. We have determined that an IJ cannot hold that a

petitioner failed to establish a well-founded fear of persecution without specifically

addressing whether the petitioner established that a pattern or practice of persecution

exists. Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006). Here, however, we

are reviewing the BIA’s decision, and the BIA specifically stated that “there is no

evidence to support [a pattern-or-practice] finding in this case.” App. 9. Thus, the BIA’s

statement was sufficient to show that it considered this argument.


                                            IV.


       Accordingly, we will deny the petition for review.




                                             5
