                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2845




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-2845


                               LANNY SWANDAYANI,

                                                          Petitioner
                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                          Respondent


                       On Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                                 BIA No. A95-146-858




                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 31, 2006

          Before: McKEE, BARRY, and VAN ANTWERPEN, Circuit Judges.

                                  (Filed April 4, 2006)
                                          ____

                              OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

      Lanny Swandayani is a Christian Chinese citizen of Indonesia and petitions for review

of the Board of Immigration Appeals’s (“BIA”) Order of May 3, 2005, which Order affirmed
the October 20, 2003, decision of an Immigration Judge (“IJ”) that denied her claims for

asylum, withholding of removal, and relief under the United Nations Convention Against

Torture (“Convention Against Torture”). We have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1), and for the reasons set forth below, we will deny the petition for review.

                                               I.

       Because we write solely for the benefit of the parties, we will set forth only those facts

necessary to our analysis. Swandayani entered the United States in 1998, and on August 28,

2001, the Immigration and Naturalization Service served her with a Notice to Appear,

charging her with being subject to removal under 8 U.S.C. § 1227(a)(1)(B) as an alien

admitted to the United States as a non-immigrant who remained in the United States for a

period longer than that which was authorized.

       On March 19, 2002, Swandayani appeared before an IJ.                 She conceded her

removability but sought asylum, withholding of removal, Convention Against Torture relief,

and, in the event no relief was granted, voluntary departure. At a merits hearing before an

IJ on October 20, 2003, Swandayani testified that after living in Taiwan from 1993 to 1996,

she moved to Puri Indah Didoarjo, Indonesia in 1997. She left that town for the United States

because of several incidents, which we detail below.

       In the first of these incidents, Swandayani was intimidated by groups of people

marching in the streets and throwing firecrackers during the month of Ramadan, a Muslim

holiday. In a second incident, Swandayani was shouted at by a group of native Indonesians,



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who claimed that they wanted to rob her and her friends but did not ultimately do so.

Swandayani testified to a third incident, in which a group of native Indonesians hurled stones

at her and her son while driving in his car, yelling, “eat these stones, Chinese” as they threw

the stones. One of these stones cut her son’s cheek. Swandayani reported the incident to the

police but the police did not take any action. Finally, Swandayani testified that while with

her son in his car in January, 1998, a group of native Indonesians on motorcycles revved their

engines and that one of these individuals punched her son in the nose after he made eye

contact with them. The police took no action when Swandayani told them of this incident.

       After the January, 1998, incident, Swandayani felt threatened and decided to come to

the United States. At that time, she went to the California home of her brother-in-law, a

United States citizen. Swandayani testified that she feared returning to Indonesia because

of problems between Catholics and Muslims, and testified to her belief that native

Indonesians believed that Chinese fared better economically than did native Indonesians.

       On cross-examination, Swandayani admitted that she did not fear returning to

Indonesia in 1996 after her three years in Taiwan. She also admitted that she was not harmed

during either incident involving her son and his car. Finally, Swandayani admitted that two

of her sons still live in Indonesia, as well as her brother, her brother’s two children, and five

of her own grandchildren.

       At the conclusion of the hearing, the IJ rendered an oral decision. In that decision, the

IJ accepted Swandayani’s testimony as true, but denied Swandayani’s asylum application



                                               3
under 8 U.S.C. § 1158(a)(3) because she had filed the application more than one year after

her arrival in the United States and there were no extraordinary circumstances that warranted

tolling the one year limitations period. The IJ concluded that even had Swandayani’s asylum

application been timely, it would have been denied because there was no evidence she had

suffered past persecution or had a well-founded fear of future persecution if returned to

Indonesia. The IJ next denied Swandayani’s application for withholding of removal on the

ground that there was no evidence that she would more likely than not suffer persecution if

returned to Indonesia. Finally, the IJ denied her Convention Against Torture claim because

there was no evidence that it was more likely than not that she would be tortured if returned

to Indonesia. Swandayani appealed the IJ’s decision to the BIA, which affirmed the IJ.

                                             II.

       Pursuant to 8 U.S.C. § 1252(b)(4)(B), “administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.”

Determinations that an alien experienced persecution or has a well founded fear of

persecution are findings of fact reviewed under the substantial evidence standard. See

Abdille v. Ashcroft, 242 F.3d 477, 483 84 (3d Cir. 2001) (holding that agency’s finding “must

be upheld unless the evidence not only supports a contrary conclusion, but compels it”).

With respect to a claim for withholding of removal, “[w]hether an asylum applicant has

demonstrated past persecution or a well founded fear of future persecution is a factual

determination,” and is reviewed for substantial evidence. Gao v. Ashcroft, 299 F.3d 266, 272



                                             4
(3d Cir. 2002). Under this standard, we will 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.

                                             III.

                                         A. Asylum

       We have held that we lack jurisdiction to review an IJ’s determination that an asylum

petition was not filed within the one year limitations period and the limitations period was

not tolled by extraordinary circumstances. Tarawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.

2003). Accordingly, because the IJ determined that Swandayani’s asylum application was

untimely under 8 U.S.C. § 1158(a)(3) because it was filed more than one year from the date

of her arrival in the United States and the applicable limitations period was not tolled by

extraordinary circumstances, we are without jurisdiction to review that decision. Id.

                               B. Withholding of Removal

       An alien seeking withholding of removal must establish by a “clear probability” that

his life or freedom would be threatened in his country of origin because of, inter alia, his

race or religion. Chang v. INS, 119 F.3d 1055, 1059 (3d Cir. 1997). To meet this burden,

the applicant must demonstrate that it is more likely than not that he will be persecuted upon

his return. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). An applicant can establish

eligibility for withholding of removal either by demonstrating past persecution or by showing

a likelihood of future persecution. See 8 C.F.R. § 1208.16(b).



                                              5
       Our review of the record in this case leads us to conclude that the BIA’s finding that

Swandayani failed to show a clear probability that her life or freedom would be threatened

if returned to Indonesia was supported by substantial evidence. The incidents upon which

Swandayani relies upon are similar to those recounted in Lie v. Ashcroft, 396 F.3d 530 (3d

Cir. 2005), in which we rejected a petition for withholding of removal asserted by an ethnic

Chinese Christian from Indonesia. As we stated in Lie, “isolated criminal acts, perpetrated

by unknown assailants, which resulted only in the theft of some personal property and a

minor injury, [are] not sufficiently severe to be considered persecution.” Id. at 536. Hence,

while Swandayani and her son were accosted on two separate occasions by small groups of

individuals and her son injured on both of these occasions, these incidents were “isolated acts

perpetrated by unknown assailants” and we agree with the BIA that they are insufficient to

support Swandayani’s withholding of removal claim. Id. Similarly, the incidents in which

Swandayani was (1) intimidated by a group of individuals throwing firecrackers and (2)

threatened by with robbery by a different group of individuals were not sufficiently severe

to qualify as persecution. See Fatin v. INS, 12 F.3d 1233, 1240 & n.10 (3d Cir. 1993)

(observing that “persecution” denotes “extreme conduct,” including “threats to life,

confinement, torture and economic restrictions so severe that they constitute a threat to life

or freedom.”). Accordingly, we conclude that the BIA’s finding that Swandayani did not

suffer past persecution was supported by substantial evidence.

       Our review of the record similarly leaves us satisfied that substantial evidence



                                              6
supports the BIA’s determination that Swandayani did not establish a well-founded fear of

future persecution. The documents submitted in support of Swandayani’s application do not

compel a finding different than that reached by the BIA, and the fact that Swandayani’s

children and grandchildren continue to remain in Indonesia undercuts her claim that her own

life or freedom would be threatened if returned to that country. See Lie, 396 F.3d at 537

(“We agree that when family members remain in petitioner’s native country without meeting

harm, and there is no individualized showing that petitioner would be singled out for

persecution, the reasonableness of a petitioner’s well-founded fear of persecution is

diminished.”).

                            C. Convention Against Torture

       Swandayani offers no argument regarding the BIA’s denial of her claim for

relief under the Convention Against Torture. Accordingly, that claim is waived. Nagle v.

Alspach, 8 F.3d 141, 143 (3d Cir. 1993).

                                            IV.

       We have considered all other arguments made by the parties on appeal, and conclude

that no further discussion is necessary.    For the foregoing reasons, we conclude that

substantial evidence supports the BIA’s decision to deny relief and we will accordingly deny

the petition for review.




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