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


3-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4122




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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 05-4122


                              RIZAL GUNAWAN,

                                             Petitioner

                                        v.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                             Respondent



                 On Petition for Review from a Final Order of the
                          Board of Immigration Appeals
                            (Agency No. A96-257-463)
                        Immigration Judge: Miriam K. Mills


                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                March 6, 2007

               BEFORE: SLOVITER and AMBRO, Circuit Judges,
                     and THOMPSON*, District Judge

                            (Filed: March 12, 2007)




*   Honorable Anne E. Thompson, United States District Judge for the District of New
    Jersey, sitting by designation.
                                         OPINION


THOMPSON, District Judge.

       Rizal Gunawan petitions for review of an order of the Board of Immigration

Appeals (“BIA”), which adopted and affirmed an Immigration Judge’s (“IJ”) order

denying Petitioner’s application for asylum and withholding of removal pursuant to the

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

Torture (“CAT”). For the reasons stated below, we will deny the petition.

                                          I.

       Because we write solely for the benefit of the parties, we recite only those facts

necessary to our analysis. Petitioner is a native and citizen of Indonesia, of Chinese

ethnicity, admitted to the United States on or about February 4, 2001, as a non-immigrant

with authorization to remain until August 3, 2001. He remained beyond that date without

permission from the U.S. On April 21, 2003, he was served with a Notice to Appear

charging him with removability under Section 237(a)(1)(B) of the INA for remaining in

the U.S. longer than permitted. Petitioner requested a grant of asylum, withholding of

removal, and in the alternative, voluntary departure. Though protection under the CAT

was not discussed by the Immigration Judge, the BIA noted its inapplicability.

       Petitioner claims he was persecuted in Indonesia on account of his Christian

Chinese identity and that he suffered harm in Indonesia in the form of three robberies by


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natives. One incident occurred in 1994, while he was in junior high school, when he was

punched and his bike was stolen. The second incident occurred in 1998 when several

Islamic school students tried to seize his motorbike and demanded money. The third

incident occurred in 1999 when he was robbed at knife point, while on his motorbike. He

also described being threatened at one point by a knife-wielding native Indonesian who

seized his watch and money.

       Petitioner recounted knowledge of rioting in Indonesia when ethnic Chinese were

victimized. There were also reports of church bombings, which Petitioner contended

instilled fear in him. Petitioner admitted that when he left Indonesia, he had no intention

of returning to his native country. However, he failed to timely file for asylum and

overstayed his visa by a year before filing. The IJ found that the country conditions in

Indonesia had shown improvement in Chinese-Indonesian relations. Furthermore,

Petitioner’s fears of harm were discredited by the fact that his family members (mother

and two brothers) remain in Indonesia unharmed. Thus, the IJ concluded that Petitioner

failed to show by a preponderance of the evidence that he would be harmed if he returned

to Indonesia on the basis of his ethnicity or his religion.

       The BIA adopted and affirmed the IJ’s decision, finding Petitioner subject to

removal as charged and denying his application for asylum as not timely filed. The BIA

concluded that Petitioner’s fear of returning to Indonesia lacked a nexus to any of the five

bases for refugee status enumerated in 18 U.S.C. § 1101(a)(42). That opinion stated

“[t]he evidence does not demonstrate that it is more likely than not that the respondent

                                               3
would be persecuted if he returns to Indonesia thereby making him ineligible for

withholding of removal.” The BIA’s opinion also noted that Petitioner’s fears were

linked to mistreatment from criminals, not from any government or public official, hence

protection under the CAT was not implicated.

       Petitioner was granted the privilege of voluntary departure if he departed within

the time period specified or any extensions granted. This appeal followed.



                                          II.

       The Court lacks jurisdiction to review the denial of Petitioner’s asylum application

because the IJ determined it was not filed within the one-year limitations period. 8

U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). The

Court does have jurisdiction to review the denial of Petitioner’s claim for withholding of

removal and relief under the CAT. We review the BIA’s decision and the IJ’s decision,

to the extent it was adopted by the BIA, under the substantial evidence standard. Zhang

v. Gonzales, 405 F.3d 150, 1555 (3d Cir. 2003). Factual determinations under the

withholding of removal statute and the CAT should be upheld if supported by

“reasonable, substantial and probative evidence on the record considered as a whole” and

should be overturned where the evidence “is so compelling that no reasonable factfinder

could conclude” as the IJ had. Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003)

(citations omitted).

       For withholding of removal under 8 U.S.C. § 1231(b)(3)(A), an alien must

                                                4
demonstrate “a clear probability” of persecution to avoid deportation. Chang v. INS, 119

F.3d 1055, 1066 (3d Cir. 1997). In other words, an alien must show it is “more likely

than not” that because of “race, religion, nationality, membership in a particular social

group, or political opinion,” 8 U.S.C. § 1231(b)(3)(A), he will be subjected to “threats to

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

to life or freedom.” Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001); Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993). For relief under the CAT, an alien must show that “it is

more likely than not that he or she would be tortured if removed to the proposed country

of removal.” August v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005).

       Petitioner contends that the IJ erred when she characterized the attacks against him

and the police’s failure to act as only “discriminatory.” We have often stated that random

incidents of violence are not persecution warranting withholding of removal under the

INA. See, e.g., Lie v. Ashcroft, 396 F.3d 530, 534, 536 (3d Cir. 2001). Though

Petitioner contends that the violent attacks against him, without protection or response

from the police, were persecutory, he presented only verbal argument that failed to

establish the acts were “on account of” his ethnicity. Id. at 535. Substantial evidence

supports the conclusion that Petitioner’s assailants were petty thieves, motivated by

money and not by one of the enumerated grounds. Id. Further, the record lacks any

evidence that demonstrates that “the violence or harm perpetrated by civilians” was

“committed by the government or forces that the government is either unable or unwilling

to control.” Id. at 537. Therefore, substantial evidence supports the BIA’s conclusion

                                              5
that Petitioner had not sufficiently established that his life or freedom would be

threatened upon removal to Indonesia. Accordingly, we will affirm the BIA’s denial of

withholding of removal.

       Further, Petitioner’s claim under the CAT also must fail as there is no evidence in

the record to compel the conclusion that it is more likely than not that Petitioner will be

tortured if returned to Indonesia. Petitioner presented no evidence of government

involvement in the assaults he suffered. There was no evidence to show that an

Indonesian official knew or acquiesced in the attacks. Accordingly, we will deny the

Petition for relief under the CAT as well.

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


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