                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-16-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4243




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-4243


     SETIAWAN HARTONO; YENNY IRAWATI DOLLY; FIDELIA HARTONO,

                                               Petitioners

                                          v.

      JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES




            On Petition for Review from the Board of Immigration Appeals
               Agency No. A79-307-567, A79-307-568, A79-307-569



           Submitted Under Third Circuit LAR 34.1(a): November 12, 2004

                Before: McKEE and CHERTOFF, Circuit Judges, and
                         Buckwalter,* Senior District Judge.

                              (Filed December 16, 2004)



                                      OPINION


Chertoff, Circuit Judge.


 *
  Honorable Ronald Buckwalter, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
      Setiawan Hartono (“Hartono”) along with his wife, Yenni Dolly (“Dolly”), and

minor daughter, seek review of a final order of removal issued by the Board of

Immigration (“BIA”). We will affirm the decision of the BIA and deny petition for

review.

                                            I.

      Hartono, a native of Indonesia and former resident of Semarang, arrived in the

United States with his wife and minor child on November 10, 2000, on visitor visas.

They were authorized to stay in the United States until May 9, 2001. The petitioners

remained in the United States beyond that time. They were later served with a Notice to

Appear charging that they were subject to removal as aliens without valid entry

documents.

      Petitioners applied for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”), on grounds that they would be persecuted in

Indonesia on account of their Chinese ethnicity and Christian religion. At a hearing

before an Immigration Judge (“IJ”), Hartono based his claims on six different events:

      (1) During the Semarang riots in 1980, Hartono’s home was stoned and his

neighbor’s house was burned. Hartono’s father was struck by a stone during the rioting.

Hartono was unable to return to school for approximately two to three weeks. Hartono

testified that he believes his family was targeted because they were Chinese.

      (2) In 1996, when Hartono was driving children to Sunday school, a native


                                            2
Indonesian pulled up alongside his vehicle, grazed it, and then confronted him. When

Hartono told the man he was taking the children in his car to Sunday school, the man

grabbed him by the shirt and broke the mirror of Hartono’s car. The children started

screaming and the assailant drove off. Hartono testified that he did not report the

incident to the police because he believed it would have been futile to do so.

       (3) In 1996 or 1997, Hartono’s church received two bomb threats in a two-week

period. Hartono’s church was closed twice for a three-week period due to the threats.

Hartono testified that he did not know who made the threats but presumed that they were

made because it was a Christian church.

       (4) In 1997, Hartono and Dolly (then Hartono’s fiancee) were confronted by five

or six teenage native Indonesian boys on their way to Dolly’s home. The boys allegedly

teased them for being Chinese. The boys then attacked Hartono until he fell to the

ground. One of the boys also touched Dolly in an inappropriate fashion. At that time, a

police officer came to the scene. The police officer eventually scared the boys off. The

police officer then asked Hartono if he was Chinese. He told Hartono that he was not

allowed on the road where the assault took place. Hartono testified that he did not know

what the police officer meant, but assumed that it had to do with him being Chinese.

       (5) On May 13, 1998, Hartono’s daughter, Fidelia, was born. Hartono and Dolly

had great difficulty getting to the hospital due to a series of riots that broke out at that

time. Hartono testified that he stayed in the hospital for five days because it was too


                                               3
dangerous to go outside. On cross-examination, however, Hartono conceded that he left

the hospital during those five days to go the ATM and “buy things.”

       (6) Hartono owned a trucking company that he inherited from his parents. Out of

the eight drivers employed by Hartono, only one of them was Chinese. The rest of the

drivers were Indonesian. During the 1998 riots, Hartono’s trucks were broken into six or

seven times and the merchandise in the trucks was stolen. Hartono testified that he

reported the break-ins to the police, but the police did nothing. Hartono testified that he

believed the police did nothing because they thought they could not find the culprit.2

       The IJ denied petitioners’ claims for asylum, withholding of removal, and CAT

protection. The IJ found that the petitioners had failed to present credible evidence to

support their requests for asylum and that petitioners’ application for asylum was

knowingly frivolous. The IJ also found that, even assuming petitioners were credible,

that they had failed to present substantial evidence of any prior persecution or any

reasonable fear of future persecution if they were returned to Indonesia. As a result, the

IJ determined, petitioners also failed to meet their burden of proof required for

withholding of removal and CAT.

       The BIA affirmed the IJ decision. The BIA, however, overruled the IJ’s finding

that petitioners had filed a frivolous asylum application.




 2
  Dolly’s corroborative testimony was roughly identical to Hartono’s testimony, but for
some minor differences in detail.

                                             4
                                                II.

          Because petitioner failed to challenge the IJ’s decisions regarding credibility,

withholding of removal and CAT protection determinations, the only issue this Court

must address is whether Hartono met his burden of proving eligibility for asylum based

on past persecution or a well-founded fear of future persecution.3 See F.D.I.C. v.

Deglau, 207 F.3d 153, 169 (3d Cir. 2000) (challenge waived if not raised in opening

brief).

          To be eligible for asylum in the United States as a refugee, an alien must

demonstrate “persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1101(a)(42)(A). IJ or BIA findings are reviewed under the “substantial

evidence” standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under this

deferential standard, IJ or BIA “findings must be upheld unless the evidence not only

supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-

484 (3d Cir. 2001). We will examine Hartono’s claims of past persecution and well-

founded fear of persecution, in turn.

                                                A.

          Hartono first argues that the BIA’s determination that he had not established past

 3
   Because the government does not contest the BIA’s reversal of the IJ’s finding that
petitioner’s application for asylum was frivolous, we need not address this issue on
appeal. We also note that the resolution of this case does not rest on the IJ’s adverse
credibility finding.

                                                5
persecution was not supported by the record evidence. We disagree.

       “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 a government is either unable or unwilling to control.”

Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir. 2003).

       Based on this standard, Hartono’s claim for past persecution must fail. The

majority of evidence put forth by Hartono is consistent with acts of private violence that

fall short of persecution on account of race, nationality, or origin. For example, the

altercation Hartono experienced with the native Indonesian while driving the children to

Sunday school, could have just as easily been motivated by road rage. The looting of

Hartono’s trucks and Hartono’s prolonged stay in the hospital appear to be the

unfortunate products of the rioting. Similarly, Hartono has furnished no evidence, short

of his own speculation, that the stoning of his home as a youth, was perpetrated on

account of race or religion rather than on account of civil strife. This leaves us with the

church bomb threats and the street fight with the teenage Indonesians, provoked by

Hartono’s race. These sporadic occurrences, even if indicative of prejudice, do not rise

to the level of persecution necessary to establish eligibility for asylum.

       Moreover, Hartono has not proven that the alleged persecution he suffered at the

hands of different sets of private groups of attackers was perpetrated by persons the


                                              6
government was unwilling or unable to control. In the majority of Hartono’s claims,

Hartono admitted that he did not seek the police’s help. In the street fight with the

teenage Indonesians, Hartono recognizes in his asylum application that “fortunately” the

police office arrived and caused the youths to “back off.” (AR 188.) In the only other

instance where Hartono sought police help, Hartono only speculates that the police did

nothing to find the culprits of the truck looting.

                                              B.

       Hartono also argues that the BIA’s determination the he failed to establish a well-

founded fear of persecution was not supported by the record evidence. Again, we

disagree.

       Where past persecution is not established, an applicant for asylum can

demonstrate that he or she has a well-founded fear of persecution. Gao v. Ashcroft, 299

F.3d at 272. Demonstration of a well-founded fear of persecution carries both a

subjective and objective component. The applicant must “show that he has a subjective

fear of persecution that is supported by objective evidence that persecution is a

reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997) (citing INS

v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)).

       Subjective component aside, Hartono’s documentary evidence consisting of

reports on Indonesia issued by the State Department, does not establish that a reasonable

person in Hartono’s circumstances would fear persecution. To be sure, there is evidence


                                              7
of horrific violence against Christians at the hands of Muslims (and vice-versa) in certain

parts of Indonesia. The evidence put on by Hartono, however, fails to establish that fear

of religious persecution exists country-wide. The most pertinent pieces of documentary

evidence relating to Hartono’s claims focus on the harassment and violence experienced

by Christians in the Moluccas.4 (App. 91.) There is no indication that this level of

violence has been experienced by Christians in Central Java (Semarang) where Hartono

previously resided. Abdille, 242 F.3d at 496 (upholding BIA’s determination that

petitioner failed to establish well-founded fear on the premise that record evidence did

not support a fear of persecution throughout South Africa).

       Similarly, the State Department reports regarding native Indonesian treatment of

Chinese Indonesians, also fails to establish a well-founded fear of persecution. The

report notes that while there are still instances of discrimination and harassment,

“[r]acially motivated attacks against Sino-Indonesians have dropped sharply since mid-

1998...” (App. 199.) Under the deferential standard, we cannot say that such evidence

compels a conclusion contrary to the IJ and BIA’s determination that Hartono failed to

establish a well-founded fear of persecution.

                                            III.

       In sum, there is not substantial evidence on the record to reverse the IJ’s finding

that Hartono failed to establish past persecution or a well-founded fear of persecution.

 4
  Especially in the cities of Ambon, Keswui, Buru, Seram and other parts of the Maluku
province. (App. 98.)

                                             8
Consequently, there is no evidence to support the higher standards required for

withholding of removal and CAT protection, even if these two issues had not been

waived on appeal. Accordingly, we will deny petition for review.




                                            9
