                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1051




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                                            NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 04-1051
                  ____________


             FRANICO SETIAWAN,

                       Petitioner

                  v.

*ALBERTO GONZALES, ATTORNEY GENERAL
   OF THE UNITED STATES OF AMERICA,

                        Respondent

      *(Amended pursuant to Rule 43(c), Fed. R. App. Pro.)
            ____________________

ON PETITION FOR REVIEW OF ORDER OF THE
    BOARD OF IMMIGRATION APPEALS
       (Nos. A95-161-727, A95-161-728)
            ___________________

        Submitted pursuant to LAR 34.1(a)
                 March 29, 2005

Before: ALITO, SMITH, and ROSENN, Circuit Judges

              (Filed: April 19, 2005)
             ____________________

           OPINION OF THE COURT
            ____________________
PER CURIAM:

       Franico Setiawan (“Setiawan”), a native and citizen of Indonesia, seeks review of

a decision by the Board of Immigration Appeals (“the BIA”). The BIA affirmed the

Immigration Judge’s denial of Setiawan’s applications for asylum, withholding of

removal under the Immigration and Nationality Act (“INA”), and protection under the

Convention Against Torture (the “Torture Convention”). Setiawan, a practicing Christian

of Chinese descent, claims to have suffered past persecution and to fear future

persecution because of his ethnicity and his religion. As we write for the parties only, we

do not set out the facts. We conclude that the BIA’s decision was supported by

substantial evidence, and we deny Setiawan’s petition.

                                             I.

       Because Setiawan does not raise any argument in his brief regarding the BIA’s

denial of protection under the Torture Convention beyond the conclusory statement that

the BIA erred in denying protection, he has not preserved the issue for review. Lie v.

Ashcroft, 396 F.3d 530, 532, n.1 (3d Cir. 2005).

                                            II.

       We will affirm the BIA’s decision that Setiawan was not eligible for asylum if

there is substantial evidence to support it. INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). The administrative findings of fact supporting a final order of removal cannot be

reversed unless the administrative record was such that “a reasonable adjudicator would



                                             2
be compelled to conclude to the contrary.” 8 U.S.C. §1252(b)(4)(A)-(B).

         An applicant for asylum bears the burden of establishing that he has suffered past

persecution or has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(a)-

(b); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). If an applicant cannot meet

the standard for asylum, this Court may assume that the applicant cannot meet the higher

standard for withholding of removal. Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.

2003).

                                              III.

         To qualify for withholding of removal, an alien must show that if he returned to his

country, it is more likely than not that his life or freedom would be threatened on account

of race, religion, nationality, membership in a particular social group, or political opinion.

Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). If an alien is able to establish

past persecution, then it is presumed that his life or freedom would be threatened were he

to return to his country. 8 C.F.R. § 1208.16(b)(1)(i) (2004). “In order to establish

eligibility for asylum on the basis of past persecution, an applicant must show (1) an

incident, or incidents, that rise to the level of persecution; (2) that is on account of one of

the statutorily-protected grounds; and (3) is committed by the government or forces the

government is either unable or unwilling to control.” Adulrahman v. Ashcroft, 330 F.3d

587, 592 (3d Cir. 2001) (quotations and citations omitted).

         “‘[P]ersecution’ is an extreme concept that does not include every sort of treatment



                                               3
our society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993);

accord Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (“Persecution is an

extreme concept, which ordinarily does not include ‘[d]iscrimination on the basis of race

or religion, as morally reprehensible as it may be.’” (alteration in original) (citation

omitted)); see also Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000) (“To qualify as

persecution, a person’s experience must rise above unpleasantness, harassment, and even

basic suffering.”).

       Setiawan alleges that he and his family suffered several violent attacks by street

thugs in Indonesia, but the BIA’s conclusion that these attacks did not rise to the level of

persecution is supported by substantial evidence. Victims of discrimination and random

violence of the sort Setiawan alleges are not victims of persecution as legally defined; the

harm is not of a sufficient degree. Moreover, the alleged attack by the “singing beggars”

or “road singers” does not constitute persecution because it was not on account of a

protected ground. On Setiawan’s own telling, the thugs were seeking money, not seeking

to harm Setiawan on account of his race, religion, nationality, membership in a particular

social group, or political opinion. There is no evidence that the road singers targeted

Setiawan and his family because they were Indonesians of Chinese descent, or because

they were Christians, or because they were on their way to church.

       Finally, Setiawan offers no evidence in support of his claim that the State

Department, major non-governmental organizations, and news agencies have reported



                                               4
“serious and increasing attacks on Christians in Indonesia.” The riots in May of 1998 and

the events that Setiawan witnessed were terrible. But he offers no evidence that these

events were the norm before or since, much less that attacks on Christians or persons of

Chinese descent are increasing in frequency or severity. Nor does he offer evidence that

the Indonesian government is unable or unwilling to stop such attacks. See

Abdulrahman, 330 F.3d at 592. Thus, there is insufficient evidence to compel the

conclusion that there is a pattern or practice of persecuting persons similarly situated to

Setiawan, and Setiawan cannot be relieved of the duty to demonstrate that he has been or

would be individually targeted for persecution. 8 C.F.R. § 1208.13(b)(2)(i)(A)-(B);

Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).

                                             IV.

       As Setiawan failed to establish his eligibility for asylum, he necessarily failed to

meet the higher standard of eligibility for withholding of removal. See Lukawago, 329

F.3d at 182.

                                             V.

       For the reasons given above, we deny Setiawan’s petition.
