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


8-1-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1861




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                                        NOT PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT




                       No. 06-1861


                 PRIYONO SUMARDY,

                                   Petitioner

                            v.

    ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT,

                                   Respondent


             Petition for Review of an Order
           of the Board of Immigration Appeals
                     No. A96-204-393
         Immigration Judge: Charles M. Honeyman


         Submitted Under Third Circuit LAR 34.1(a)

                       July 12, 2007

  Before: SLOVITER, ALDISERT and ROTH, Circuit Judges.

                  (Filed: August 1, 2007)
                                OPINION OF THE COURT




ALDISERT, Circuit Judge.

       Priyono Sumardy, a native and citizen of Indonesia, petitions for review of a final

order of the Board of Immigration Appeals (“BIA”). The BIA affirmed the Immigration

Judge’s (“IJ”) denial of his application for asylum, withholding of removal and relief

under the Convention Against Torture (“CAT”). We have jurisdiction to review the

BIA’s final order pursuant to 8 U.S.C. § 1252. Sumardy’s petition is limited to his

request for withholding of removal. We will deny the Petition.

                                              I.

       The parties are familiar with the facts and proceedings before the BIA and the IJ,

so we will revisit them only briefly. Sumardy is a Christian and an ethnically Chinese

citizen of Indonesia. On March 10, 2001, he entered the United States for an authorized

six-month stay. On March 31, 2004—two and a half years after the expiration of his legal

status—Sumardy filed an application for asylum, withholding of removal and relief under

the CAT. In support of his application, Sumardy argued that he suffered persecution in

Indonesia on account of his religion and ethnicity. He asserted persecution on four

alleged bases: (1) being treated as a “second class” citizen, (2) an assault he suffered




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during a robbery, (3) having to remain inside during an anti-Christian riot in 1998 and (4)

anxiety over general conditions. App. 99.

       The IJ who considered Sumardy’s case rejected all three applications. First, the IJ

determined that Sumardy was ineligible for asylum because his application was not filed

in a timely manner. See 8 U.S.C. § 1158(a)(2)(B). Second, the IJ decided that Sumardy

did not qualify for withholding of removal because he failed to establish past persecution

or that it is more likely than not that he will suffer future persecution. See 8 U.S.C. §

1231(b)(3)(A) (governing withholding of removal claims). Specifically, the IJ

determined that the incidents alleged by Sumardy, viewed cumulatively, were not

sufficient to support a finding of past persecution on account of ethnicity or religion. The

IJ also found that recent reports on country conditions in Indonesia undercut Sumardy’s

argument that he will suffer future persecution if he is returned. Turning to the third

application, the IJ determined that Sumardy did not qualify for protection under the CAT

because he failed to prove it is more likely than not that he would be tortured by, or with

the acquiescence of, the government. See 8 C.F.R. § 1208.16 (governing CAT claims).




       The BIA affirmed and adopted the IJ’s decision. Specifically, the BIA agreed with

the IJ that (1) the asylum application was not timely filed; (2) petitioner failed to show a

“clear probability that his life or freedom would be threatened on account of a protected



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ground”; and (3) the harm complained of by Sumardy amounted to “discrimination and

harassment, but not persecution.” App. 2-3.

       Sumardy now petitions this Court to review the decision of the Board.

                                             II.

       On petition to this Court, Sumardy has not raised any argument regarding the IJ’s

denial of his asylum application on grounds of untimeliness, a determination which, in

any event, we lack jurisdiction to review. See 8 U.S.C. § 1158(a)(3). Sumardy also has

not raised any argument regarding his application under the CAT, though he did on his

appeal to the BIA. As a result, we deem his CAT claim to have been waived. See Nagle

v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993). We are therefore asked to review only the

BIA’s rejection of his application for withholding of removal.

                                             III.

       We now turn to the standard of review for the denial of Sumardy’s application for

withholding of removal. We must give significant deference to the BIA’s decision. We

review the Board’s decision under the “substantial evidence” standard and may reverse

only if the “evidence not only supports that conclusion, but compels it . . . .” INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992) (emphasis in original). Although we generally

review only the decisions of the BIA, where the BIA affirms and adopts the decision of

the immigration judge, we review the decision of the IJ. See Partyka v. Attorney General,

417 F.3d 408, 411 (3d Cir. 2005).

                                              4
                                            IV.

       The law in this area is well-settled. To be entitled to withholding of removal, an

alien must demonstrate that “‘it is more likely than not that [he] would be subject to

persecution’ in the country to which he would be returned.” INS v. Cardoza-Fonseca,

480 U.S. 421, 423 (1987) (quoting INS v. Stevic, 467 U.S. 407, 429-430 (1984)). An

alien can establish eligibility for withholding of removal either (1) by creating a

rebuttable presumption of future persecution by demonstrating past persecution or (2) by

showing that it is more likely than not that he will suffer future persecution. 8 C.F.R. §

1208.16(b). After review of the record, we conclude that substantial evidence supports

the BIA’s conclusion that Sumardy does not qualify for withholding of removal.

       Sumardy argues that the treatment he received at the hands of Muslim extremists

and ethnic Indonesians amounts to past persecution. We disagree. Substantial evidence

supports the IJ’s determination that the alleged incidents, viewed cumulatively, do not

amount to harm that was sufficiently threatening to life or freedom to support a finding of

past persecution. This Court has defined persecution to include “threats to life,

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

life or freedom.” Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) (citing Fatin v.

INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). The events alleged by Sumardy—the robbery

and the riot—do not rise to this level. See, e.g., Lie v. Ashcroft, 396 F.3d 530, 536 (3d

Cir. 2005) (holding that an isolated robbery motivated by ethnicity is not sufficiently

                                              5
severe to rise to the level of persecution where the only harms suffered are loss of

property and minor injury).

       We next turn to Sumardy’s contention that he will be subjected to future

persecution in Indonesia because he is an ethnically Chinese Christian. Once again,

substantial evidence supports the IJ’s holding that Sumardy cannot prove it is more likely

than not that he will suffer future persecution. To establish a future persecution claim, a

petitioner must demonstrate by clear probability either (1) that he would be singled out for

persecution on account of his race or religion, or (2) that there is a “pattern or practice of

persecution of a group of persons similarly situated to the applicant . . . .” 8 C.F.R. §

208.16(b)(2). To constitute a “pattern or practice,” the persecution of a group must be

“systemic, pervasive, or organized.” Lie, 396 F.3d at 537 (quoting Ngure v. Ashcroft,

367 F.3d 975, 991 (8th Cir. 2004)). Upon petition to this Court, Sumardy has not argued

that he will be singled out for future persecution, but focuses on the pattern or practice of

persecution test.

        Sumardy argues that the treatment of Chinese Christians by Muslim extremists

and ethnic Indonesians constitutes a pattern or practice of persecution. This contradicts

the precedent of this Court. In Lie, we held that ethnically Chinese Christians, like

Sumardy, do not face systemic persecution in Indonesia because any ongoing violence

appears to be “wrought by fellow citizens” and is not the result of “governmental action

or acquiescence.” Lie, 396 F.3d at 537-538; see Abdulrahman v. Ashcroft, 330 F.3d 587,

                                               6
592 (3d Cir. 2003) (holding that an act does not constitute persecution unless it is

committed by the government or forces the government is either unable or unwilling to

control).

       Sumardy has not demonstrated that the circumstances in Indonesia have changed

for the worse since the decision in Lie. His argument that there is a nationwide pattern of

increasing harm is unsupported by the 2003 State Department Country Report on Human

Rights Practices or the State Department International Religious Freedom Report of 2004.

Those reports, as the IJ noted, indicate a drop in violence and an improvement in religious

tolerance. Accordingly, we find that substantial evidence supports the IJ’s finding that

Sumardy’s risk of future persecution in Indonesia is less than a clear probability. We

therefore will deny the Petition for Review.

                                               V.

       We have considered all contentions of the parties and conclude that no further

discussion is necessary.

       The Petition for Review will be denied.




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