                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2391




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-2391
                                      ___________

                             DONYSIUS RIZA PAHLEVI,
                                            Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                 Respondent
                          ______________________

                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                               (BIA No. A95-837-929)
                 Immigration Judge: Honorable Charles M. Honeyman
                             _______________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   MAY 21, 2008

    Before:   RENDELL, GREENBERG AND VAN ANTWERPEN, Circuit Judges

                                  (Filed: May 23, 2008)
                                      ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

              Donysius Riza Pahlevi petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) dismissing Pahlevi’s appeal of an immigration judge’s
denial of his application for asylum and withholding of removal. For the following

reasons, we will deny the petition for review.

       Pahlevi is a native and citizen of Indonesia. Pahlevi is ethnically Chinese and a

Catholic. Pahlevi also identifies himself as a homosexual. Pahlevi’s parents are both

deceased and his brother and sister live in Indonesia. On August 28, 2002, Pahlevi

applied for asylum and withholding of removal. The former Immigration and

Naturalization Service (“INS”) commenced removal proceedings on or about October 28,

2002, and charged Pahlevi as removable under INA § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B), as an alien who remained in the United States for a time longer than

permitted.

       In support of his application, Pahlevi claimed that he had suffered past persecution

and feared future persecution on the basis of his ethnicity, religion, and membership in a

particular social group (sexual orientation). Petitioner testified that as a child he was

verbally insulted by other children because of his Chinese background. A rock was

thrown at him and he still bears the resulting scar. In addition, Pahlevi’s family was

robbed twice. Both occasions were reported to the police, but they took no action in

response. In 1998, Pahlevi witnessed the robbery of a customer’s husband outside a salon

where Pahlevi worked. The customer’s husband was Chinese and was robbed by two

Indonesian Muslim men at knife-point. When the robbers saw Pahlevi, they told him to

keep quiet or he would die.



                                              2
       Pahlevi further testified that he had been baptized Catholic and went to church on

a weekly basis. Pahlevi did not claim to have personally experienced any incidents of

harm on account of his religion. However, he did describe an incident where his brother-

in-law’s relative was on her way to a mass when a suitcase containing a bomb exploded

next to her and caused her a very serious injury.

       In addition, Pahlevi testified that he is gay and wanted asylum because he can be

open about his sexuality in the United States and fears the discrimination he would face in

Indonesia. Pahlevi testified that when he told his brother and sister about his sexual

orientation, they did not respond favorably. Pahlevi confided to a few friends that he was

gay, including a close friend named Johnny who was also gay. Johnny owned the salon

where Pahlevi worked from 1998-2002. Johnny continues to live in Surabaya and

became openly gay before Pahlevi left the country. Although Johnny initially lost

customers when he became openly gay, most of those customers later returned. When

Pahlevi went shopping with Johnny, people insulted them regarding their sexual

orientation. Pahlevi claimed Johnny continues to be verbally insulted in Indonesia.

       Pahlevi was also acquainted with another gay individual whom he called “Mr. A.”

Mr. A had a partner named Johnny (“Johnny II”). Mr. A told Pahlevi that Johnny II was

killed by homophobic individuals, but Pahlevi did not have independent knowledge that

this was true.

       The Immigration Judge (“IJ”) rendered an oral decision finding Pahlevi removable



                                             3
as charged and denying his application for asylum and withholding of removal. Although

the IJ found that Pahlevi was credible, the IJ concluded that Pahlevi failed to show that

the harm he experienced rose to the level of persecution or that he faced a reasonable

possibility or clear probability of future persecution on account of one of the statutory

grounds. The BIA affirmed, reasoning that Pahlevi’s experiences “do not amount to past

persecution.” The BIA further concluded that the record (which included various articles

and the 2004 U.S. Department of State Country Report on Human Rights Practices and

the 2004 International Religious Freedom Report for Indonesia) “contains no evidence

demonstrating that the respondent faces an individualized risk of persecution or that there

is a pattern or practice of persecution.” Pahlevi timely petitioned for review of the BIA’s

order dismissing his appeal.

       We exercise jurisdiction to review the BIA’s final order of removal under INA

§ 242(a), 8 U.S.C. § 1252(a). Because the BIA appears to have substantially relied on the

findings of the IJ, we have jurisdiction to review the decisions of both the BIA and the IJ.

See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).

       Our review of these decisions is for substantial evidence, considering whether they

are “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)

(quotation omitted). The decisions must be affirmed “unless the evidence not only

supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471



                                              4
(3d Cir. 2003) (quotation omitted).

       The BIA’s conclusion that Pahlevi failed to establish past persecution is supported

by substantial evidence in the record. Although the incidents described by Pahlevi

(including the name-calling during his childhood, the two robberies of his family, and the

verbal insults regarding his sexual orientation) are unfortunate, they do not rise to the

level of persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding that

an ethnic Chinese Indonesian’s account of two isolated criminal acts by unknown

assailants, which resulted only in the theft of some personal property and a minor injury,

was not sufficiently severe to constitute persecution). See also Fatin v. INS, 12 F.3d

1233, 1243 (3d Cir. 1993) (“persecution is an extreme concept that does not include every

sort of treatment our society regards as offensive.”). Moreover, the other incidents that he

described were not personally directed to him, and do not demonstrate past persecution

under the circumstances presented here.

       Nor has Pahlevi established a well-founded fear of future persecution. Pahlevi

failed to show that he would be individually singled out for persecution or that there is a

pattern or practice of persecution against Chinese Christians or homosexuals. See 8

C.F.R. § 208.13(b)(2)(iii)(A). We have held that violence directed against Chinese

Christians in Indonesia “does not appear to be sufficiently widespread as to constitute a

pattern or practice,” Lie, 396 F.3d at 537, and Pahlevi failed to adduce evidence

warranting a contrary conclusion.



                                              5
       Finally, on appeal, Pahlevi contends that it is “clear from the administrative record

that homosexuals are persecuted in Indonesia,” and that the IJ and the BIA “ignored” this

“fact.” However, Pahlevi cites nothing in support of this bald assertion. In any event, the

record in this case does not compel the conclusion that there is a systemic, pervasive, or

organized persecution of homosexuals in Indonesia. See id. (discussing what constitutes

a pattern or practice of persecution). Further, as the IJ noted “there is insufficient

evidence of widespread targeting by -non-state actors that the government is unwilling or

unable to control”.

       Because we conclude that Pahlevi failed to establish his eligibility for asylum, we

necessarily conclude that he has not satisfied the more stringent requirements for

withholding of removal. See Paripovic v. Gonzales, 418 F.3d 240, 246 (3d Cir. 2005).

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




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