                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1353




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                                                      NOT PRECEDENTIAL
                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                        No. 04-1353


                                      SUSI SUSIANI,

                                          Petitioner
                                          v.
                          JOHN ASHCROFT, Attorney General of the
                                    United States,

                                             Respondent


           On Petition for Review of an Order of the Board of Immigration Appeals
                                     (No. A95-163-474)

                Submitted Under Third Circuit LAR 34.1(a): January 14, 2005

Before: ROTH and CHERTOFF * , Circuit Judges, and IRENAS, ** Senior District Judge.

                            (Filed     February 2, 2005        )




                                         OPINION

ROTH, Circuit Judge.



       *
          This case was originally submitted to the three judge panel of Roth, Chertoff and
Irenas. Judge Chertoff subsequently recused. Because the remaining two judges agreed
on the opinion and disposition of the case, it was unnecessary to assign a third judge.
Linde v. Phelps, 731 F.2d 1201 (5 th Cir. 1984); Murray v. Nat’l Broadcasting Co., 35 F.3d
45 (2 nd Cir. 1994).

       **Honorable Joseph E. Irenas, Senior District Judge for the District of New
Jersey, sitting by designation.
                                             1
       Susi Susiani petitions for review of a decision entered by the Board of Immigration

Appeals (BIA) denying her application for asylum, withholding of deportation, and relief

under the Convention Against Torture (CAT). She argues that the Immigration Judge (IJ)

in her case denied her due process by, among other things, failing to put forward a

reasoned explanation for his decision. She also argues that the IJ’s decision on the merits

of her claim was not supported by substantial evidence. Because we find that the IJ did

not violate Susiani’s due process rights and that his decision was supported by substantial

evidence, we will deny the petition.

                                             I.

       Susiani arrived in the United States from Indonesia in May of 1998 with a six-

month visa. After she remained in this country three years longer than permitted, the

Immigration and Naturalization Service initiated deportation proceedings. At that point,

Susiani applied for asylum, withholding of removal, relief under CAT, and voluntary

removal. A hearing was held before an IJ on October 28, 2002 at which Susiani testified.

Following her testimony, the IJ denied her asylum claim, finding that she had failed to file

her application within one year of her arrival in the United States, as required by 8 U.S.C.

§ 1158(a)(2)(B). He also denied her claims for withholding of removal and relief under

CAT on the grounds that she had not established that it was more likely than not that she

would face persecution or torture if returned to Indonesia.

       Susiani then appealed to the BIA, which dismissed her appeal in a written opinion



                                             2
dated October 22, 2003. The BIA agreed with the IJ that Susiani had failed to file her

asylum application within one year of arriving in the United States. It also agreed that she

had failed to meet her burden of proof on her withholding and CAT claims. Following

the dismissal by the BIA, Susiani filed a timely petition for review with this Court.

                                                II.

         Susiani first argues that the IJ violated her due process rights by failing to provide

a reasoned basis for his opinion. In an administrative proceeding, an agency must put

forward “a sufficiently reasoned opinion” to enable a court to engage in meaningful

judicial review. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003). In the immigration

context, the decision of the BIA, the IJ, or both, may provide such a “sufficiently

reasoned opinion.”

         In this case, we find that the decision of the IJ is sufficiently reasoned to enable us

to engage in meaningful review. Susiani argues that the IJ violated her due process rights

because he failed to reference “what [she] actually said” in her testimony. (Pet’r Br. at 9)

(emphasis in original). In fact, the IJ reviewed Susiani’s testimony in some detail in his

oral decision. Furthermore, he explained why he found that the specific events testified to

by Susiani did not constitute “persecution” such that she would be eligible for

withholding of removal. Based on our own review of the IJ’s opinion, we find that it set

forth in sufficient detail the grounds for his decision. Therefore, we reject Susiani’s first

claim.



                                                3
       Susiani next argues that the IJ failed to consider certain pieces of evidence she

submitted. In conjunction with her asylum application, Susiani provided the IJ with

background materials on Indonesia. Susiani alleges that the IJ ignored this evidence as

well as her testimonial evidence in reaching his decision. As already noted, the IJ did, in

fact, refer to Susiani’s testimony in rendering his decision. While he did not reference her

documentary evidence in his oral opinion, nothing requires an IJ to refer to every piece of

evidence that is before him. The evidence submitted by Susiani described, in general

terms, ongoing violence in Indonesia between Muslims and Christians and Indonesians

and ethnic Chinese. While the information she submitted was potentially relevant to her

application, nothing in it compelled or even supported the conclusion that Susiani herself

had faced persecution in the past and thus could demonstrate that she was more likely

than not to face persecution in the future. Thus, it was not error for the IJ to fail to cite

her documentary evidence in his decision.

       Susiani also argues that the IJ erred in considering evidence that was not made part

of the record. Specifically, she claims that the IJ relied on the State Department’s country

report for Indonesia, even though that report was never included in the record. In

rendering his decision, the IJ stated: “The Court has not been provided with a copy of the

State Department Report with regard to Indonesia. However, the Court states for the

record that I am totally familiar with the contents of that Report.” (App. 9) (emphasis in

original). The BIA has held that if an IJ “relies on the country conditions in adjudicating



                                               4
the alien’s case, the source of the Immigration Judge's knowledge of the particular

country must be made part of the record.” In re S-M-J-, 21 I. & N. Dec. 722, 727 (BIA

1997). However, nothing in the IJ’s oral decision in this case suggests that he relied on

the country report in any meaningful way. Rather, after stating that he was familiar with

its contents, the IJ mentioned the report only once more, in passing, and did not refer to it

in articulating the grounds on which he denied Susiani’s claims. Therefore, the evidence

shows that the IJ did not impermissibly rely on evidence not part of the record.

                                             III.

       Susiani also argues that the IJ erred in determining that she was ineligible for

withholding of removal. An applicant seeking withholding of removal must demonstrate

that it is “more likely than not” that she will face persecution if deported. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 423 (1987). The IJ, while finding Susiani to be a

credible witness, concluded that she had not met this threshold. We will not upset an IJ’s

factual determination unless we determine that it is not supported by “substantial

evidence.” E.g., Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

       In her testimony before the IJ, Susiani detailed several incidents which, she

argues, show that she had faced persecution at the hands of Muslims and ethnic

Indonesians due to her status as a Christian of Chinese descent. First, she testified that,

while in junior high school in the 1980s, she was assaulted by a Muslim after buying a

drink on the side of the road during Ramadan, the Muslim fasting holiday. Second, she


                                              5
testified that, in 1992, a group of ethnic Indonesians looted a store belonging to her and

her mother. While the store was being looted, Susiani and her mother hid at the police

station for three days. Finally, she testified that, in May 1998, a series of riots erupted

across the country involving fighting between Indonesians and ethnic Chinese. Although

Susiani herself was not harmed during the riots, she was sufficiently scared for her safety

that she decided to flee to the United States.

       After hearing her testimony, the IJ concluded that she had not shown that she had

faced persecution while in Indonesia. Persecution is an “extreme concept that does not

include every sort of treatment our society regards as offensive.” Fatin v. INS, 12 F.3d

1233, 1243 (3d Cir. 1993). In particular, persecution only embraces actions that are

“committed by the government or forces the government is either ‘unable or unwilling’

to control.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (citations

omitted). In this case, we find that substantial evidence supports the conclusion that

Susiani had not faced persecution in Indonesia. Indeed, we observe that in 1992,

petitioner actually fled to the police for safekeeping. The isolated incidents Susiani

testified to, while disturbing, simply do not rise to the level required to establish

eligibility for withholding of removal. Therefore, we will deny the petition for review.




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