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


4-18-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1439




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                                                           NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                              Nos. 05-1439, 05-2112



                                PENI PURWANTI,
                                         Petitioner

                                           v.


               ATTORNEY GENERAL OF THE UNITED STATES,
                                    Respondent



                          Petition for Review of an Order
                        of the Board of Immigration Appeals
                              (INS No. A95-429-650)
                     Immigration Judge: Honorable R. K. Malloy



                     Submitted Under Third Circuit LAR 34.1(a)
                                  April 17, 2006

            Before: SLOVITER, AMBRO and MICHEL*, Circuit Judges

                              (Filed: April 18, 2006)



                                     OPINION
SLOVITER, Circuit Judge.


                 *
                  Hon. Paul R. Michel, Chief Judge of the United States
          Court of Appeals for the Federal Circuit, sitting by designation.
       Peni Purwanti appeals the denial of her application for asylum, withholding of

removal, and protection under the United Nations Convention Against Torture (“CAT”).

The Immigration Judge (“IJ”) found that Purwanti’s testimony failed to establish that she

had a well-founded fear of persecution, that it was more likely than not that she would be

persecuted upon returning to Indonesia, or that anyone would “be interested in torturing

her.” App. at 21. The Board of Immigration Appeals (“BIA”) affirmed, finding that most

of the incidents reported by Purwanti “including robbery, . . . knocking her off of her bike

prior to stealing it, and acts of vandalism, are events which transpire without regarding

[sic] to a person’s race/ethnicity or religion.” App. at 3. Purwanti filed a motion for

reconsideration which was denied. She filed a petition for review of the final order of

removal issued by the BIA as well as of the denial of her motion for reconsideration,

which were consolidated.

       On appeal, Purwanti contends that the IJ made numerous errors of law which the

BIA erroneously affirmed, and that the IJ violated her due process rights. She also argues

that the BIA’s denial of her motion to reconsider was an abuse of discretion.

       We have jurisdiction to review the BIA’s final order of removal pursuant to 8

U.S.C. § 1252(a)(1). See Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). Where,

as here, the Board adopts the opinion of the IJ, we review the decision of the IJ. We

review the IJ’s opinion to see if it is supported by substantial evidence. Dia v. Ashcroft,

353 F.3d 228, 247 (3d Cir. 2003) (en banc). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion . . . .” Id.

                                              2
at 248. We review the BIA’s denial of Purwanti’s motion for reconsideration for abuse of

discretion. Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 2002). We review Purwanti’s due

process claim de novo. Dipeppe v. Quarantillo, 337 F.3d 326, 332 (3d Cir. 2003).

       Peni Purwanti is an ethnic Chinese and practicing Catholic who is a native and

citizen of Indonesia. She claimed that she suffered persecution on the basis of her

religion and ethnicity. She testified as follows: she was forced to practice Islam for three

years in high school; native Indonesians would come to her father’s store and force him to

give them money under threat of violence; she was robbed; she was frightened by

students who chased a bus she was riding; she ran a successful comforter and clothing

business out of her home that was harmed by native Indonesians who would vandalize her

customers’ cars; she was knocked off her motorcycle and her motorcycle was stolen; and

an exhibition she attended to display her comforters and clothing, and which was attended

primarily by other ethnic Chinese, was burned down by native Indonesians.

       “An asylum applicant must prove that she suffered past persecution or has a

well-founded fear of future persecution on account of one of five enumerated grounds:

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

Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005) (internal quotations and citations

omitted). The BIA and this court have defined persecution to include conduct or

conditions “so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993). “[P]ersecution does not encompass all treatment that our

society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. at 1240.

                                              3
       Because the threshold for establishing eligibility for withholding of removal is

higher than that for establishing entitlement to asylum, an applicant who does not qualify

for asylum necessarily does not qualify for withholding of removal. Guo v. Ashcroft, 386

F.3d 556, 561 n.4 (3d Cir. 2004).

       To qualify for relief under the CAT, an applicant bears the burden of proving

through objective evidence that “it is more likely than not” that he or she would be

“tortured” in the country to which the applicant would be removed. Wang v. Ashcroft,

368 F.3d 347, 349 (3d Cir. 2004) (quoting 8 C.F.R. § 208.16(c)(2)).

       The IJ and BIA found that Purwanti was ineligible for asylum because, inter alia,

she failed to establish that she had been persecuted. This conclusion is supported by

substantial evidence. While she was the unfortunate victim of numerous crimes, none of

these rose to the level of persecution. As noted by the IJ, Purwanti was the victim of

attacks by native Indonesians on people who “appear to have some form of wealth.” App.

at 19. “[O]rdinary criminal activity does not rise to the level of persecution necessary to

establish eligibility for asylum.” Abdille, 242 F.3d at 494.

       Because we find that Purwanti was not persecuted, we need not address her claim

that the IJ and BIA “misapplied the law regarding the required level of governmental

involvement required for an act to constitute persecution.” Appellant’s Br. at 16.1


                    1
                    Purwanti also challenges the IJ and BIA’s conclusions that
            she failed to establish a nexus between her persecution and a
            protected ground. This finding is supported by substantial
            evidence. Even if the crimes against Purwanti amounted to

                                              4
       Purwanti contends her due process rights were violated because she was not

permitted to testify to her high school experiences which occurred over twenty years prior

to her departure from Indonesia. The Supreme Court has held that the Fifth Amendment

entitles aliens to due process of law in removal proceedings. Reno v. Flores, 507 U.S.

292 (1993). “Due process requires that a court afford an applicant a meaningful

opportunity to be heard and a reasonable opportunity to present evidence on her behalf.”

Giday v. Gonzales, 434 F.3d 543, 547-48 (7th Cir. 2006). Here, the fact that Purwanti’s

testimony regarding high school was curtailed did not deprive her of a meaningful

opportunity to be heard. She was permitted to testify extensively to more recent and

relevant events and the IJ acted permissibly in excluding the more remote testimony.

Moreover, the IJ had an opportunity to consider the incidents in high school because

Purwanti had submitted testimony regarding these incidents in her affidavit for asylum.

       Purwanti also claims that the BIA abused its discretion when it denied her motion

to reconsider. “We will disturb the BIA’s denial of a motion to reopen or to reconsider

only if it was arbitrary, irrational, or contrary to law.” Borges v. Gonzales, 402 F.3d 398,

404 (3d Cir. 2005) (quotation marks and citations omitted). In her application for



            persecution, she offered minimal evidence that those crimes were
            committed because of her ethnicity and religion. For example, she
            could not identify the individuals who burned the exhibition nor
            explain their motivations. Moreover, her mother and sister are
            practicing Catholics who still live in Indonesia. She also claims
            relief under the CAT. Because she has offered no evidence that
            she would be tortured, that claim has no merit.

                                             5
reconsideration, Purwanti raises claims identical to those at issue here.2 We conclude that

the BIA’s denial was a correct application of relevant law and therefore was neither

arbitrary nor contrary to law.

       For the foregoing reasons, the petition for review will be denied.




                    2
                     In addition, Purwanti contended that her case should be
            reconsidered because the IJ had failed to make a credibility
            determination. Where no determination has been made regarding
            credibility, we assume a petitioner is credible. Kayembe v.
            Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003). Therefore, her
            contention was meritless and the BIA correctly denied her motion.
