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


6-22-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2892




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Setiawan v. Atty Gen USA" (2007). 2007 Decisions. Paper 893.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/893


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                       NOT PRECEDENTIAL


                 IN THE UNITED STATES COURT
                          OF APPEALS
                     FOR THE THIRD CIRCUIT


                             NO. 06-2892


                         ROY SETIAWAN,
                            Petitioner

                                  v.

        ATTORNEY GENERAL OF THE UNITED STATES,
                      Respondent




On Petition for Review of an Order of the Board of Immigration Appeals
                           No. A960-264-443
               Immigration Judge: Hon. Donald V. Ferlise




           Submitted Pursuant to Third Circuit LAR 34.1(a)
                           June 14, 2007

         BEFORE: McKEE, STAPLETON and NYGAARD,
                      Circuit Judges

                        (Filed: June 22, 2007)
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Roy Setiawan petitions this court for review of a final order of removal of the

Board of Immigration Appeals (BIA). We have jurisdiction under 8 U.S.C. § 1252(a)(1),

and we will deny the petition for review.

                                             I

       Setiawan is 27 years old, a Christian, and an ethnic Chinese citizen of Indonesia.

He came to the United States from Indonesia in August 2000, and received a visitor’s visa

authorizing him to stay for six months. Setiawan overstayed, however, and applied for

asylum in March 2003. On April 30, 2003, the Immigration and Naturalization Service

(now the Department of Homeland Security) served him with a Notice to Appear and

instituted removal proceedings against him. Setiawan conceded removability and

requested asylum, withholding of removal, and protection under the Convention Against

Torture (CAT). After an initial hearing in 2003, the Immigration Judge (IJ) denied

Setiawan’s application for asylum as time-barred. On January 25, 2005, the Immigration

Court held a hearing on Setiawan’s application for withholding of removal and protection

under the CAT, at which Setiawan testified and presented evidence.

       According to Setiawan’s testimony at the hearing, while he lived in Indonesia, he

                                             2
was subjected to discrimination, harassment, insults, and physical abuse in Indonesia

because he is Christian and ethnic Chinese. He testified that when he was a small child,

his family had his name changed from a Chinese name to an Indonesian name, because

they thought the process of registering him for school would go more smoothly. His

friends and classmates would occasionally let the air out of his bicycle tires to harass him.

When he was 13, a group of Indonesian children called him names, pushed him to the

ground, and damaged his bicycle. Setiawan also stated that his family owns a bus

company, and that they were often forced to pay bribes and extra money to corrupt

government officials because they are Chinese. In May 1998, there were political riots in

many parts of Indonesia, and rioters throwing rocks broke windows on two of his family’s

buses.

         Setiawan also described a July 1998 confrontation between parishioners of his

church and Muslims at a nearby mosque. The Muslims accused Setiawan’s fellow

parishioners of making too much noise and disturbing their prayers when the parishioners

rode their motorcycles to church. The following day, some of the Muslims went to

Setiawan’s church, beat three of Setiawan’s friends, and burned part of the church.

Although Setiawan’s fellow parishioners had reported previous incidents of harassments

to the police, they did not report the July 1998 incident.

         Setiawan testified that he fears returning to Indonesia because his church may be

bombed and he could be killed, though he admitted that his family still lives in Indonesia



                                              3
and still owns the bus company.

       At the close of the hearing, the IJ denied Setiawan’s claim for withholding of

removal and his CAT claim. Although the IJ found Setiawan generally credible, he stated

that the incidents Setiawan described did not amount to past persecution, because they

were not severe enough, because some of them were not motivated by his religion or

ethnicity, and because Setiawan had not proven that they were committed by the

government or by forces the government is unwilling or unable to control. The IJ also

found that Setiawan had not shown that there was a reasonable likelihood that he would

be persecuted or tortured if he returned to Indonesia. The IJ found, however, that

Setiawan was eligible for voluntary departure.

       Setiawan appealed to the BIA. On May 2, 2006, the BIA affirmed, adopting the

IJ’s decision, and also affirming the IJ’s denial of Setiawan’s asylum application as time-

barred. Setiawan petitions this court for review, challenging only the BIA’s denial of his

request for withholding of removal.

                                               II

        This Court reviews the IJ’s findings of fact1 for “substantial evidence,” and we

will uphold the IJ’s decision unless the evidence “was so compelling that no reasonable

factfinder could fail to find the alien eligible for . . . withholding of removal.” Lie v.



   1
    When the BIA issues an affirmance without opinion, we review the IJ's opinion and
scrutinize its reasoning. Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004) (citing Dia
v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc)).

                                               4
Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S.

478, 480 (1992)).




       Setiawan’s first argument is that he established his entitlement to withholding of

removal under 8 U.S.C. § 1231(b)(3) through his testimony—which the IJ found

credible—that he had suffered past persecution, and that he was therefore entitled to a

rebuttable presumption that he has a well-grounded fear of future persecution upon his

return to Indonesia, see Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006); 8

C.F.R. §§ 208.16(b)(1)(ii), 1208.16(b)(1)(ii) (2007). Setiawan argues that the IJ erred in

holding otherwise. We disagree because substantial evidence supports the IJ’s findings in

support of its conclusion that the incidents Setiawan described do not constitute

persecution.

       One of the elements of past persecution is that the incidents of which the petitioner

complains must be so severe as to constitute threats to life or freedom. See Lie v.

Ashcroft, 396 F.3d 530, 534-35 (3d Cir. 2005); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993). Not all physical harm constitutes persecution, see Voci v. Gonzales, 409 F.3d 607

(3d Cir. 2005); Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004), and this court has

distinguished between persecution and random incidents of minor crime. Lie, 396 F.3d at

536. With the possible exception of the burning of the church, the IJ’s finding that the

incidents of which Setiawan complained were not sufficient to constitute persecution is



                                             5
clearly supported by substantial evidence.

       Another element of past persecution, however, is that the incidents must have been

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

control. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The IJ’s finding that the

church burning incident did not meet this requirement is supported by substantial

evidence. Although the failure of Setiawan’s fellow parishioners to report the church

burning to the police may be circumstantial evidence that the government was unwilling

or unable to protect them from their assailants, the IJ reasonably found that evidence

insufficient, and found that the failure to call the police was unreasonable under the

circumstances. As the IJ noted, Setiawan testified that the parishioners had previously

reported a rock-throwing incident to the police, and Setiawan did not provide much in the

way of explanation as to why the parishioners did not report the burning incident.

Moreover, the other documents in the record, including State Department reports, reflect

that the Indonesian government is not generally indifferent to violence against Christians

and ethnic Chinese.

       Setiawan’s second argument is that regardless of whether he has shown that he

was the victim of past persecution, he is entitled to withholding of removal because he

has shown that is a pattern or practice in Indonesia of persecuting a group—Christians

and ethnic Chinese—of which Setiawan is a member. See 8 C.F.R. §§ 208.16(b)(2)(i)-

(ii), 1208.16(b)(2)(i)-(ii). We reject this argument because the IJ’s finding that Setiawan



                                             6
did not make such a showing is supported by substantial evidence. As the IJ noted, the

State Department reports and other documents in the record show that while there are

some parts of Indonesia in which there is uncontrolled violence in which government

actors may be complicit, those areas are nearly 1,000 miles from the island of Java, where

Setiawan lived. In the less remote areas of Indonesia, such as the island of Java, the

government has been considerably more successful in preventing acts of religious and

ethnically-motivated violence and has made progress in recent years toward promoting

religious freedom.

                                            III

       For the foregoing reasons, we will deny Setiawan’s petition for review.




                                             7
