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


8-6-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3803




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                 Nos. 05-3803 & 05-4795
                                       __________

                                   RUDY SUSANTO,
                                            Petitioner
                                         v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                      Respondent
                              __________

                          On Petition for Review of an Order of
                           the Board of Immigration Appeals
                               U.S. Department of Justice
                                (BIA No. A95-368-427)
                                       __________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  February 26, 2007

        Before: McKEE and ALDISERT, Circuit Judges and RESTANI,* Judge


                             (Opinion Filed: August 6, 2007)




* Honorable  Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.

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                                       __________

                                        OPINION
                                       __________

McKee, Circuit Judge:

      In these consolidated appeals, Rudy Paulus Susanto petitions for review of two

orders of the Board of Immigration Appeals. In the first, the BIA denied Susanto’s

request for asylum, withholding of removal and protection under the United Nations

Convention Against Torture (“CAT”). In the second, the Board denied Susanto’s motion

to reopen proceedings. For the reasons that follow, we will deny both petitions.

                                            I.

      Since we write primarily for the parties, we will forgo lengthy recitation of the

facts and procedural history well-known to the parties. We have jurisdiction to review a

final order of removal pursuant to 8 U.S.C. §§ 1252(a)(1), (d)(1). Where the BIA issued

decisions on the merits, we review the BIA’s decisions rather than the IJ’s.Gao v.

Ashcroft, 299 F.3d 266, 271 (3d. Cir. 2002). We review the BIA’s decision denying

asylum, withholding of removal, and relief under the CAT for substantial evidence on the

record. Our review of Susanto’s argument that the BIA erred in applying our decision in

Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005), retroactively is reviewed de novo. We

review the BIA’s denial of Susanto’s motion to reopen for abuse of discretion.



                                            2
                                                 A.

       To establish eligibility for asylum or withholding of removal, Susanto must

establish that he is a “refugee.” 8 U.S.C. §§ 1158(b)(1). He must prove by a

preponderance of the evidence that he is unwilling to return to Indonesia “because of

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).

Persecution can either be individualized or part of a “pattern or practice.” 8 C.F.R. §

1208.13(b)(2)(iii)(A). To be well-founded, an alien’s fear of persecution must be

subjectively genuine and objectively reasonable. Zubeda v. Ashcroft, 333 F.3d 463, 469

(3d Cir. 2003). Past persecution raises a rebuttable presumption that fear of persecution is

well-founded 8 C.F.R. § 1208.13(b)(1). As we noted in Fatin v. INS, “the BIA [has]

interpreted ‘persecution’ to include threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” 12 F.3d 1233, 1240

(3d Cir. 1993) (citing Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985)).

Moreover, the harm must be “committed by the government or forces the government is

either unable or unwilling to control.” Abdurahman v. Ashcroft, 330 F.3d 587, 592 (3d

Cir. 2003).

       “Under the substantial evidence standard, the BIA’s finding must be upheld

unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v.

Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001); see also INS v. Elias-Zacharias, 502 U.S.


                                             3
478, 480 (1992). Our review is limited to the “record on which the order of removal is

based.” 8 U.S.C. 1252(b)(4)(A). The BIA did not disturb the IJ’s finding that Susanto

was credible. Matter of Susanto, No. A95-368-427 (BIA 2005), at 1; App. 006

[hereinafter Susanto Appeal]. Accordingly, the BIA accepted that Susanto’s subjective

fear of persecution is genuine. The BIA concluded, however, that Susanto’s fear was not

objectively reasonable and therefore not well-founded. Id. at App. 007; see Zubeda, 333

F.3d at 469.

       The BIA reviewed Susanto’s evidence of specific instances of conflicts with ethnic

Indonesians and determined that he had not shown these were consistently motivated by

ethnicity or religion but noted that, even if they were, the harm Susanto suffered as a

result does not rise to the level of persecution. Susanto Appeal, 1-2; App. 006-007.

Susanto’s mother had to claim that he was “illegitimate” so that he would have an

ethnically Indonesian name and be eligible for an Indonesian passport. Transcript of

Removal Hearing, at 54-55, Matter of Susanto, No. A95-368-427; App. 095-096

[hereinafter, “Transcript”]. As a school child, ethnic Indonesians called Susanto names,

fought with him, and on one occasion, a group of eight schoolmates stole his watch and

money. Transcript, at 29-30; App. 070-071. Susanto was beaten and suffered a fracture

in the course of defending a Chinese girl from being molested by ethnic Indonesians.

Transcript, at 31-36; App. 072-077. Ethnic Indonesians slashed Susanto’s arm with a

knife and took his motorbike; when the incident was reported, the police demanded an


                                             4
administrative fee. Transcript, at 37-40; App. 078-081. During high school, Susanto and

a friend fought with a pair of ethnic Indonesians; the next day, a large group of ethnic

Indonesians came to the Catholic high school Susanto attended, threw stones, damaged

school vehicles and property, and injured a number of Susanto’s classmates. Transcript,

at 42-44; App. 083-085. One Christmas eve, Muslims yelled and threw stones at

Susanto’s church, Transcript, at 44-46, 49; App. 085-087, 090. On several occasions,

Susanto had to pay higher administrative fees for government services than ethnic

Indonesian would have paid, and was subject to administrative fees of questionable

validity when reporting crimes in hopes of police investigation. E.g., Transcript, at 51,

56, 62-63; App. 092, 097, 103-104. During one such encounter, a police officer slapped

Susanto. Transcript, at 70; App. 070.

       “Persecution” under the immigration laws does not “encompass all treatment that

our society regards as unfair, unjust, or even unlawful or unconstitutional,” Fatin v. INS,

12 F.3d 1233, 1240, 1240 n.10. Based upon our review of this record, we agree that the

evidence does not compel a conclusion of past persecution. Most of the incidents do not

entail “threats to life or freedom.” Fatin, 12 F.3d at 1240. In the incidents arguably

approaching this threshold – the slashing and the large group attack on Susanto’s school –

the actors were private. In the slashing incident, the Susanto testified that he could

identify the attackers as “natives,” but offered no indications of racial or religious

motivation for the crime. Transcript, at 37-39; App. 079-080. In the case of the school


                                              5
attacks, Susanto testified that police arrived within ten minutes, and their presence alone

was sufficient to disperse the attackers. Transcript, at 43; App. 084. This is inconsistent

with the governmental involvement or acquiescence that is required to establish

persecution. Moreover, although the fees Susanto had to pay to the police were certainly

appear unfair and unjust, he does not suggest that they caused severe economic hardship

to him or his relatives, who were able to work and attend school in Indonesia. Transcript,

at 72-73; App. 113-14. Rather, they appear not that different from bribes or “puts” that

are common in developing countries. We note also that Susanto was able to become a

star athlete in Indonesia and to travel to the United States for an athletic competition.

App. 053, 428. For these reasons, we conclude that the BIA’s determination that Susanto

had not been persecuted is supported by substantial evidence. Accordingly, the burden of

showing fear of future persecution remained with Susanto.

       There is also substantial evidence to support the BIA’s determination that a

reasonable person in Susanto’s circumstances would not harbor a well-founded fear of

future persecution, either of individually or as part of a pattern and practice persecuting a

racial, religious, nationality, or social group of which he is a member. See 8 C.F.R. §

1208.13(b)(iii). Susanto’s family has continued to live, attend school, practice their

religion, and work in Indonesia. Transcript, at 72-73; App. 113-14. No evidence

suggests Susanto’s family in Indonesia is being persecuted and Susanto has stated no

reason why he would be treated more severely than his relatives who remained there.


                                              6
       Moreover, to the extent Susanto’s evidence establishes a “pattern and practice” of

mistreatment of Christians, Catholics, ethnic Chinese, and/or Chinese Christians, he has

not been able to show that the persecution involved the government or that the

government of Indonesia is unwilling or unable to control the activity. See Abdurahman,

330 F.3d at 592. In fact as noted earlier the police responded when called while he was

being attacked at school and their presence appears to have been prompt and effective.

Transcript at 43-44; App. 084-085 Moreover, the State Department reports in evidence

when the BIA rendered its decision indicate that Catholicism is among the faiths

officially recognized by the government, that ethnic Chinese “play[] a major role in the

economy[,]” and that [i]nstances of discrimination and harassment of ethnic Chinese

Indonesians declined compared with previous years.” U.S. Dep’t of State, Bureau of

Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices:

Indonesia 14, 24; App. 296, 306 [hereinafter 2004 Country Report]. This clearly does not

compel a conclusion that the BIA erred in finding that Susanto’s fear of persecution was

not well-founded.

       Although asylum is within the discretion of the Attorney General, withholding of

removal is mandatory if the alien proves that it is more likely than not that he will be

persecuted. 28 U.S.C. 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407, 429-30 (1984);

Ghebrehiwot, 467 F.3d at 351. Since this is a higher burden than the well-founded fear




                                              7
required for asylum, Susanto’s failure to establish eligibility for asylum dooms his claim

for withholding of removal. Id.

                                                  B.

       As we pointed out in Ghebrehiwot, failure to show eligibility for asylum or

entitlement to withholding of removal does not necessarily preclude protection under the

CAT. Id. at 358; Zubeda, 333 F.3d at 476. In order to receive protection under the CAT,

a removable alien must show that it is more likely than not that he/she will be tortured if

removed. Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002). However, the alien

need not establish any nexus between the torture and membership in a protected group or

a protected status. He/she need only establish the probability of torture. Ghebrehiwot,

467 F.3d at 352 (citations omitted). The regulations implementing the CAT provide in

relevant part:

              (1) Torture is defined as any act by which severe pain or suffering,
       whether physical or mental, is intentionally inflicted on a person for such
       purposes as obtaining from him or her or a third person information or a
       confession, punishing him or her for an act he or she or a third person has
       committed or is suspected of having committed, or intimidating or coercing
       him or her or a third person, or for any reason based on discrimination of
       any kind, when such pain or suffering is inflicted by or at the instigation of
       or with the consent or acquiescence of a public official or other person
       acting in an official capacity.
              (2) Torture is an extreme form of cruel and inhuman treatment and
       does not include lesser forms of cruel, inhuman or degrading treatment or
       punishment that do not amount to torture.

8 C.F.R. § 208.18(1)-(2).




                                              8
       The BIA’s discussion of the CAT was exceedingly brief, but it was sufficient.

Based on this record, the CAT claim appears little more than a “throw-in.” Susanto’s real

claim is that he is a “refugee” entitled to withholding of removal or asylum. He does not

really claim that his treatment would amount to torture if he returned, and the record

would not support any such argument. Thus, the BIA correctly rejected it. See Susanto

Appeal, at 2; App. 007 (“Specifically, we do not find sufficient evidence that it is more

likely than not that [Susanto] would be tortured if returned to Indonesia.”).

                                             C.

       Susanto also argues that the BIA’s reliance on our decision in Lie v. Ashcroft, 396

F.3d 530 (3d Cir. 2005), that was filed after the IJ’s grant of asylum, was an ex post facto

application of law thereby denying him the due process of law the Constitution

guarantees. The argument is meritless. Adjudicators must apply court decisions in effect

when a given case is decided. See Harrison v. Ryan, F.2d 84, 86 (3d Cir. 1990).

Furthermore, Lie did nothing to change the definition of “persecution,” “torture,” or an

alien’s burden of proof. In addition, the BIA did not rely on Lie in finding Susanto’s fear

of persecution was not well-founded. Susanto Appeal, A95-368-427, at 2; App. 007.

Rather, the Board simply concluded, based upon Susanto’s testimony and the State

Department’s assessments of Indonesia, that Susanto’s fear of persecution, while

credible, was not well-founded. We agree. Accordingly, neither the BIA’s use of the




                                              9
phrase “in light of . . . Lie” nor its citation to Lie represent a violation of Susanto’s due

process rights. Thus, the BIA correctly sustained the appeal of the IJ’s grant of relief.

                                                    II.

       We review the BIA’s October 26, 2005 denial of Susanto’s motion to reopen

proceedings for abuse of discretion. Denial of Motion to Reopen, Matter of Susanto,

A95--368-427 (BIA 2005) [hereinafter Denial of Motion to Reopen]. Our review is highly

deferential and we will reverse the Board’s decision only if “arbitrary, irrational, or

contrary to law.” Sevoian, 290 F.3d at 174; see Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.

2001). As the BIA correctly noted, motions to reopen must state the new facts that will

be proved and must make a prima facie showing that the alien is eligible for the relief

sought. 8 C.F.R. § 1003.2(c)(1).

       Susanto offered to prove that, as a result of being falsely accused of a sex offense

and despite his eventual acquittal of the charges, his fear of persecution is now well-

founded. App. 190-92. When the BIA reversed the grant of asylum and ordered Susanto

removed, all information regarding his beating, arrest, initial conviction, June 2005

acquittal, and the media coverage of these events was available; it could have been

argued, but was not. App. 147-50. Nevertheless, the BIA considered all evidence

presented in denying Susanto’s motion to reopen. It was within the discretion of the BIA

to find the State Department Country Reports more persuasive than Susanto’s fears of

persecution and torture, the general information regarding the incidence of


                                               10
disappearances and extrajudicial killings, and the affidavit of Susanto’s expert stating

Susanto faced a newly-heightened likelihood of persecution. See Ambartsoumian v.

Ashcroft, 388 F.3d 85, 88 (3d Cir. 2004); Xie v. Ashcroft, 359 F.3d 239, 244 (3d Cir.

2004).

          Moreover, Susanto has not offered any evidence of the existence of any social

group comprised of persons accused of sex offenses in Indonesia. Accordingly, it was

well within the BIA’s discretion to consider the absence of any such evidence in the

Country Reports in denying his petition to reopen. Although the BIA’s discussion was

exceedingly minimal, it was adequate. We can not fault the BIA for failing to discuss

more thoroughly nonexistent evidence of a social group that may or may not exist.

         Finally, unlike the decision we reviewed in Ghebrehiwot, the Board did not say

that the alien’s application for relief under CAT necessarily failed because he was

ineligible for asylum, stating instead that Susanto had failed to establish a prima facie

claim for relief. Compare Ghebrehiwot, 467 F.3d at 358, with Denial of Motion to

Reopen, at 2; App. 003.

                                                  V.

         For the reasons above, we will deny Susanto’s petition for review of the BIA’s

decision denying asylum, withholding of removal, and protection under the CAT and we

will deny Susanto’s petition for review of the BIA’s denial of his petition to reopen

removal proceedings.


                                             11
