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


2-20-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5205




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-5205
                                    ____________

                                   EVIE SUTIONO;
                                  JOSEF SUTIONO,

                                         Petitioners
                                           v.

               ATTORNEY GENERAL OF THE UNITED STATES;
            SECRETARY DEPARTMENT OF HOMELAND SECURITY,

                                       Respondents
                                    ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                      (Board Nos. A96 241 038 and A96 241 039)
                         Immigration Judge: Miriam K. Mills
                                     ____________

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

      Before: SMITH and FISHER, Circuit Judges, and DOWD,* District Judge.

                              (Filed: February 20, 2007 )
                                    ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.


      *
        The Honorable David D. Dowd, Jr., United States District Judge for the Northern
District of Ohio, sitting by designation.
       The Petitioners seek review of a final order of the Board of Immigration Appeals

(“BIA”) denying their applications for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). Because we find that the Immigration

Judge’s (“IJ”) decision that the BIA adopted was supported by substantial evidence, we

will deny their petition for review.

                                             I.

       As we write only for the parties, we will forgo a lengthy recitation of the factual

and legal background to this case. Evie and Josef Sutiono are ethnic Chinese and

practicing Christians who are natives and citizens of Indonesia. They obtained student

visas and entered the United States on January 12, 2002, and November 2, 2001,

respectively. On November 25, 2002, Evie applied for asylum, withholding of removal

under section 241(b)(3) of the Immigration and Nationality Act, and protection under

Article III of the CAT. Her husband Josef was included as a derivative beneficiary on the

application.

       Evie conveyed her alleged grounds for asylum and withholding of removal

through an affidavit and her May 20, 2004, testimony before the IJ. She began by

describing an incident when she was in elementary school, when a Muslim student threw

a rock at her. While she was screaming in pain, an adult male told her “shut up Chinese,

go back to your country.”

       In junior high school, Evie was riding a bus to a friend’s house when a group of

Muslim students surrounded her. One began to beat and grab her. When she cried for

                                             2
help, the boys laughed and said “look at that Chinese, she whine for getting more

pleasure.” Instead of making the boys stop, the bus driver forced Evie to exit and take

another bus. As she was leaving, one boy kicked her again.

       These incidents continued in February 1998, when Evie was approached by a

group of Muslim males while she was shopping with her boyfriend. One of them

intentionally touched her inappropriately. When her boyfriend protested, he was struck,

and they were both robbed.

       According to Evie, the worst incident she experienced was on May 13, 1998. That

day, stores owned by ethnic Chinese Indonesians were looted and burned, and there were

numerous reports of Chinese women being raped as part of an anti-Chinese riot. On her

way home from work, the car Evie was riding in with her brother, sister, and boyfriend’s

sister was stopped by an angry mob of Muslims. The mob began to shake the car, and

one man shouted “there are Chinese in this car. Hi Chinese, open the door. Get out, if

you don’t we burn you all alive.” At the time, there was a burning car in front of them.

Another man broke a mirror off of the car and yelled “Come on, we make a pig

barbecue.”

       When Evie tried to flee the car, she was grabbed by the mob. They violently

ripped off her necklace and bracelet. Then they tore off her blouse and bra and groped

her. She testified that she felt “like an animal because I’m begging them to please let me

go but, well, if, when I’m begging, begging so much they just keep laughing.” She was



                                             3
able to escape the mob when a stranger covered her with his coat and led her to safety.

As a result of the incident, Evie was terrified to go outdoors without an escort.

       Finally, Evie testified that her two sisters, two brothers, mother, and father all still

reside in Indonesia. Since the 1998 riot, nothing harmful has happened to her, her

husband, or her immediate family that she considers to be related to her ethnicity or

religion.

       After hearing Evie’s testimony, the IJ denied her applications for asylum,

withholding of removal, and CAT relief. The IJ found that Evie had suffered past

persecution based on one incident during civil rioting in May 1998, but that changed

country conditions rebutted the presumption of a well-founded fear of future persecution.

In making this finding, the IJ observed that State Department reports did not show that

ethnic Chinese were being targeted to the extent they had been around the time of the

1998 riots. In addition, the IJ found it significant that Evie had stayed in Indonesia for

four years after the riots without suffering any further harm, and that her family had

remained in Indonesia without incident.

       The Sutionos appealed the IJ’s ruling to the BIA on June 21, 2004. The sole issue

raised in that appeal was whether the IJ erred in finding that the presumption of past

persecution had been rebutted by evidence of changed country conditions. On

October 28, 2005, the BIA affirmed the IJ’s decision without opinion. This petition

followed.

                                              II.

                                               4
       We exercise jurisdiction to review the BIA’s final order of removal under 8 U.S.C.

§ 1252(a)(1). Where, as here, the BIA has adopted the findings and reasoning of the IJ,

we review the IJ’s decision. Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir. 2006).

In our review, we apply the substantial evidence standard, under which an IJ’s decision

must be affirmed if it is “supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.

1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal quotation

marks omitted). In other words, “the [IJ’s] finding must be upheld unless the evidence

not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d

477, 483-84 (3d Cir. 2001).

       The Petitioners first complain that the IJ’s finding that changed circumstances in

Indonesia rebutted their well-founded fear of future persecution was not supported by

substantial evidence. When an alien is “found to have established . . . past persecution

[she] shall also be presumed to have a well-founded fear of persecution on the basis of the

original claim.” 8 C.F.R. § 208.13(b)(1); see also Abdille, 242 F.3d at 496. However,

that presumption may be rebutted if “[t]here has been a fundamental change in

circumstances such that the applicant no longer has a well-founded fear of persecution in

the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(1)(i)(A). When past

persecution has been established, the Government bears the burden of showing changed

circumstances by a preponderance of the evidence. Id. § 208.13(b)(1)(ii).



                                             5
       Here, substantial evidence supports the IJ’s finding that the Government had

carried this burden. The Government advanced several State Department reports

regarding the improving conditions for ethnic Chinese in Indonesia. The Petitioners

argue that these reports are not sufficiently reliable to establish changed country

conditions on their own. Notwithstanding our past suggestions to the contrary, see

Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004) (“State Department reports

may constitute ‘substantial evidence’ for the purposes of reviewing immigration

decisions.”), we do not actually need to reach this argument given the other record

evidence relied on by the IJ. The record reflects that the IJ did not rely solely on the State

Department reports in reaching her decision. She also found other record evidence

persuasive. For example, the IJ emphasized Evie’s testimony that she remained in

Indonesia for four years after the 1998 riots without incident, and that she would not have

tried to leave if her boyfriend had not been in the United States. Even after she left

Indonesia, her family has continued to live there without incident. In addition, the

Government advanced reports from non-governmental agencies that were consistent with

the findings of the State Department.

       The Petitioners also argue that this evidence does not reflect the kind of

“fundamental change” necessary to rebut a finding of past persecution. See 8 C.F.R.

§ 208.13(b)(1)(i)(A). But the case they rely on for this proposition describes changes

similar to those regarding ethnic Chinese in Indonesia. In Shardar v. Ashcroft, 382 F.3d

318 (3d Cir. 2004), we found that conditions had “radically changed” for members of the

                                              6
Jatiyo Party in Bangladesh based on the fact that some members of the group were

serving in the Cabinet, and one Jatiyo Party member, “[a]lthough still formally held in

custody,” was able to take his seat in Parliament. Id. at 322 & n.3. Similarly, the

evidence in this case describes how ethnic Chinese are gaining formal acceptance in

Indonesia: restrictions on Chinese-language education and publications have been

removed, and the State Department Country Report on Human Rights and Practices for

2000 observed that “[r]acially motivated attacks against Sino-Indonesians have dropped

sharply since mid-1998.” Thus, we are unable to conclude that the evidence compels us

to reach a conclusion contrary to the one reached by the IJ.

       The Petitioners also argue that the IJ improperly placed the burden on them to

establish a well-founded fear of persecution, rather than on the Government to rebut that

presumption. We do not agree. Although the Petitioners focus on the IJ’s statement that

“there is reported no where [sic] ethnic Chinese being targeted for violence or harm to the

extent that occurred in May of 1998 during the civil rioting,” the record is clear that the IJ

never placed the burden on the Petitioners to show that conditions had not changed.

Rather, she merely pointed out that they had not overcome the evidence of changed

circumstances advanced by the Government. We find that there is substantial evidence in

the record to support the IJ’s determination that the Government proved by a

preponderance of the evidence that circumstances had fundamentally changed in

Indonesia since Evie’s last incident in 1998.



                                                7
       Finally, the Petitioners contend that the IJ failed to consider the entire record in

making the determination that the Government had met its burden of establishing changed

country conditions. Specifically, they complain that the IJ did not discuss two articles: a

December 29, 2001 New York Times article entitled “In Indonesia, Once Tolerant Islam

Grows Rigid,” and an Agence France Presse article from October 30, 2001, entitled “U.S.

State Department Slams Indonesian Record on Protecting Minority.” An IJ is required to

consider the record as a whole in ruling on an alien’s claim for relief, but “the

Immigration Judge need not discuss each and every piece of evidence presented by an

asylum applicant when rendering a decision, as long as that decision is substantially

supported.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 425 n.10 (3d Cir. 2005). Here,

although the IJ did not mention these two articles in particular, it is clear that she did

consider their subject matter as part of the record. Every incident discussed in the New

York Times article is reported in the State Department Reports that the IJ mentioned in her

oral decision. And the Agence France Presse article merely reports on the issuance of the

State Department International Religious Freedom Report for 2001, which the IJ also

mentioned in her decision. We thus find no error with the IJ’s consideration of the

evidence.

                                              III.

       For the foregoing reasons, we will deny the petition for review.




                                               8
