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


2-7-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4126




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                                                   NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                       No. 06-4126
                      ____________

                  YANTI SYLVIANA;
                  DANIAL HANDOKO,

                                    Petitioners,

                             v.

    ATTORNEY GENERAL OF THE UNITED STATES

                        __________

              On Review of a Decision of the
              Board of Immigration Appeals
                (Agency No. A96-259-784)
       Immigration Judge: Honorable Miriam K. Mills

        Submitted Under Third Circuit LAR 34.1(a)
                   December 11, 2007

Before: McKEE, CHAGARES and HARDIMAN, Circuit Judges.

                      ____________

                 (Filed: February 7, 2008)
                      ____________

               OPINION OF THE COURT
                    ____________
CHAGARES, Circuit Judge.

       Yanti Sylviana, on behalf of herself and her husband, Danial Handoko, petitions

for review of a final order of removal issued by the Board of Immigration Appeals (BIA).

As explained below, we lack jurisdiction to review Sylviana’s claim that extraordinary

circumstances excused the late filing of her asylum application. In addition, substantial

evidence supports the BIA’s denial of withholding of removal and relief under the

Convention Against Torture (CAT). Accordingly, we will dismiss the petition for review

in part, and deny it in part.

                                             I.

       As we write mainly for the parties, we only briefly recite the facts. Sylviana and

Handoko are ethnic Chinese Christians from Indonesia. They claim that they would

suffer harm upon return to Indonesia because of their ethnicity and religious beliefs. To

support this belief, Sylviana points to the bombing of a Marriott hotel and an attempted

bombing of the American Embassy in Indonesia—both since her arrival in the United

States. Additionally, Sylviana alleges two incidents of persecution she witnessed while in

Indonesia. The first was during the 1998 riots, where Sylviana witnessed some

destruction and saw some of the “bad things on television and read about them in the

news papers.” Appendix (App.) 47-48. The second was in December 2000, when

Sylviana claims to have witnessed the bombing of an ethnic Chinese church. Neither she,

nor her husband, were injured during these incidents.

                                            II.
         As a preliminary matter, we have consistently explained that this Court lacks

jurisdiction to review discretionary and factual asylum determinations presented in

petitions for review. See Jarbough v. Attorney General, 483 F.3d 184, 188-90 (3d Cir.

2007); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). Sylviana’s claim that

extraordinary circumstances excused the late filing of her asylum application challenges a

finding of fact. Accordingly, we lack jurisdiction and we will dismiss Sylvia’s asylum

claim.

         We do, however, have jurisdiction to review the denial of withholding of removal

and relief under the CAT. See Gabuniya v. Attorney General, 463 F.3d 316, 321 n.4 (3d

Cir. 2006) (acknowledging jurisdiction over petitioner’s withholding and CAT claims

despite lacking jurisdiction over his claim that extraordinary circumstances excused the

late filing of his asylum application).

                                              III.

         The Attorney General must grant withholding of removal if he “decides that the

alien’s life or freedom would be threatened” in the country of removal “because of the

alien’s race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3)(A). A finding of “past persecution raises a rebuttable

presumption ‘that the applicant’s life or freedom would be threatened in the future. . . .’”

Jarbough, 483 F.3d at 191 (citing Gabuniya, 463 F.3d at 321). Alternatively, “[i]f the

applicant’s fear of future threat to life or freedom is unrelated to the past persecution, the

applicant bears the burden of establishing that it is more likely than not that he or she

would suffer such harm.” 8 C.F.R § 208.16(b)(1)(iii). We review the relevant findings
by the Immigration Judge (IJ) under the substantial evidence standard, Gao v. Ashcroft,

299 F.3d 266, 272 (3d Cir. 2002), and may decline to uphold them “only if the evidence

compels a contrary conclusion.” Jarbough, 483 F.3d at 191 (quoting Ahmed v. Ashcroft,

341 F.3d 214, 216 (3d Cir. 2003)).

       To begin with, Sylviana fails to produce evidence that would compel a finding of

past persecution. Sylviana relies on two specific events: riots that occurred while she was

in Indonesia in 1998, and the bombing of a Christian church in 2000. As to the first,

Sylviana was not a direct witness to the riots, experiencing them mainly through the local

media outlets. As to the second, although Sylviana claims to have witnessed the attack,

neither she nor her husband were injured, nor did she provide any evidence that she had

been traumatized. These isolated incidents, much like those described in Lie v. Ashcroft,

396 F.3d 530, 532-33 (3d Cir. 2005), where the alien-petitioner did suffer actual injury,

do not meet the narrowly circumscribed concept of persecution. See also Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993) (“If persecution were defined . . . expansively, a

significant percentage of the world’s population would qualify for asylum in this

country—and it seems most unlikely that Congress intended such a result.”).

       The same infirmity befalls Sylviana’s claimed fear of future persecution as well.

She points only to two events that occurred since she left Indonesia—the bombing of an

Indonesian hotel and a thwarted attack on the United States Embassy in Indonesia. As




                                             4
neither instance indicates that Chinese Christians are being targeted, nor do they show

that the Indonesian government was responsible for either incident, Sylviana is unable to

show that she would be persecuted on account of a protected ground. See 8 C.F.R. §

208.16(b)(2). Accordingly, the denial of Sylviana’s application for withholding of

removal is supported by substantial evidence.

       The insufficiency of these facts also demonstrates Sylviana’s inability to carry her

burden under the CAT. Under the CAT’s implementing regulations “the burden of proof

is on the applicant to establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” Tarrawally, 338 F.3d 180, 187-

88 (3d Cir. 2003) (quoting 8 C.F.R. §208.16 (c)(2)). Moreover, the torture must be

inflicted “by or at the instigation of or with the consent or acquiescence of a public

official or other person action in an official capacity.” 8 C.F.R. § 208.18 (a)(1). As

explained above, Sylviana presents no evidence that the incidents she alleges were

undertaken by, or with the acquiescence of, people in any official capacity. Moreover,

the IJ found that the State Department’s Country Report on Indonesia indicates that

Chinese Christians have not been subject to persecution by the Indonesian government,

that there was no pattern or practice of widespread violence in Indonesia, and that any

violence toward Chinese Christians in Indonesia is on the decline. Far from

“compel[ling] a contrary conclusion,” the evidence Sylviana presents clearly fails to meet




                                               5
the burden required under the CAT. Jarbough, 483 F.3d at 191 (quoting Ahmed v.

Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003)).

                                           IV.

      For the forgoing reasons, we will dismiss in part and deny in part the petition for

review.




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