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


6-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1561




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NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                               Case No: 06-1561

                               RUDY SUSANTO;
                              LIANA WATI LOW,

                                      Petitioners

                                            v.

                          ATTORNEY GENERAL OF
                           THE UNITED STATES


               On Petition for Review from a Final Decision of the
                          Board of Immigration Appeals
                    BIA Nos. A96-265-981 & A96-265-982
                       Immigration Judge Miriam K. Mills


               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                June 4, 2007

             Before: SMITH, COWEN, and SILER, Circuit Judges*

                              (Filed: June 5, 2007)


                                   OPINION



      *
       The Honorable Eugene E. Siler, Senior Circuit Judge for the United States
Court of Appeals for the Sixth Circuit, sitting by designation.
                                        1
SMITH, Circuit Judge.

      Rudy Susanto and Liana Wati Low, husband and wife, petition for review of

an order by the Board of Immigration Appeals (BIA) affirming the denial by the

Immigration Judge (IJ) of Susanto’s and Low’s applications for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT).1

For the reasons set forth below, we will deny the petition for review.

      Susanto and Low are natives and citizens of Indonesia. They alleged in their

applications that they were persecuted by native Indonesians because they are

Christians and because they are of Chinese descent. The IJ noted that their

applications for asylum were time-barred under 8 U.S.C. § 1158(a)(2)(B), and

neither Susanto nor Low presented any evidence during the hearing to demonstrate

changed circumstances warranting an exception to the one year time period under 8

U.S.C. § 1158(a)(2)(C). The IJ determined that the harassment and discrimination

Susanto and Low described did not constitute past persecution and that such

evidence also failed to establish a clear probability that they would be harmed or

tortured if they were repatriated. The IJ acknowledged that there was some

religious conflict in certain areas of Indonesia, but noted that Susanto and Low had


      1
        The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2(b). The BIA
entertained Susanto’s appeal pursuant to 8 C.F.R. § 1003.1(b). We possess
jurisdiction under 8 U.S.C. § 1252(a).
                                          2
no connection with those areas. In her order, the IJ noted that Susanto’s and Low’s

claims for asylum had been withdrawn, and denied their claims for withholding of

removal and relief under the CAT.

      Susanto and Low appealed the IJ’s decision to the BIA. They did not

challenge the IJ’s determination that their asylum applications had been withdrawn

as untimely. Instead, they argued that the IJ erred by denying their applications for

asylum and withholding of removal. According to Susanto and Low, the evidence

established that they had been persecuted on the basis of their religion and their

ethnicity, and that they had a well-founded fear of future persecution.

      The BIA affirmed the IJ’s decision. It agreed with the IJ that the

discrimination that Susanto and Low experienced did not rise to the level of

persecution under Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). It pointed out

that the alleged fear of future persecution was undermined by the fact that members

of Susanto’s and Low’s families continued to reside in Indonesia without

experiencing harm. The BIA also rejected their claim that there was a pattern and

practice of persecution against Chinese Christians in Indonesia.

      Susanto and Low petitioned for review of the BIA’s decision.2 They


      2
       Susanto’s and Low’s brief in support of their petition for review neither
challenges nor discusses the denial of their claim for relief under the CAT.
Accordingly, we deem their CAT claim to be waived. Vente v. Gonzales, 415 F.3d
                                          3
contend that the IJ deprived them of a fair hearing by excluding evidence which

they sought to introduce on the day of the hearing. In addition, Susanto and Low

submit that the IJ erred by denying their claims for asylum and withholding of

removal as the evidence demonstrated there was a pattern and practice of

persecuting ethnic Chinese Christians in Indonesia.3

      We lack jurisdiction to review whether the exclusion of evidence was error

that deprived Susanto and Low of their right to procedural due process as they did

not raise this issue before the BIA. Abdulrahman v. Ashcroft, 330 F.3d 587, 595

(3d Cir. 2003); Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989). As we

explained in Bonhometre v. Ashcroft, 414 F.3d 442, 447 (3d Cir. 2005), an alien

must exhaust his claims before the BIA, even if it pertains to his right to due


296, 299 n.3 (3d Cir. 2005).
      3
        Susanto and Low do not contest the determination that their asylum
applications were untimely under 8 U.S.C. § 1158(a)(2)(B). Indeed, § 1158(a)(3)
precludes judicial review of any determination made regarding the timeliness of an
asylum application. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.
2006). Accordingly, we are reviewing only the denial of Susanto’s and Low’s
claim for withholding of removal. To the extent we consider the merits of their
asylum claim, it is only with regard to whether they have established that they are
entitled to withholding of removal under 8 U.S.C. § 1231(b)(3)(A). As we
explained in Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003), if an alien “is
unable to satisfy the standard for asylum, he necessarily fails to meet the standard
for withholding of removal” in § 1231(b)(3)(A). Id. at 182; see also Janusiak v.
INS, 947 F.2d 46, 47 (3d Cir. 1991) (observing that the standard for withholding of
removal is more demanding that the standard for asylum).
                                          4
process, if the alleged error implicates agency expertise and the agency is capable

of granting a remedy. In this instance, the BIA clearly had the ability to address

the alleged error regarding the administrative process afforded by the IJ.

      We possess jurisdiction to review Susanto’s and Low’s contention that the IJ

erred by determining that they failed to establish a pattern or practice of

persecution against ethnic Chinese Christians in Indonesia. Because the BIA

issued a decision addressing the merits of Susanto’s and Low’s claims, we review

the BIA’s decision for substantial evidence. Lie v. Ashcroft, 396 F.3d 530, 534 n.3

(3d Cir. 2005) (citing Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)).

      In Lie, we acknowledged that an alien may establish a well-founded fear of

future persecution by demonstrating that there is a pattern or practice of

persecuting a specific group of persons. 396 F.3d at 537 (citing 8 C.F.R. §

208.13(b)(2)(iii)(A)). We agreed with the Eighth and Tenth Circuits that “to

constitute a ‘pattern or practice,’ the persecution of the group must be ‘systematic,

pervasive or organized.’” Id. (citations omitted). In light of this standard, we

conclude that there is substantial evidence to support the BIA’s determination that

Susanto and Low did not meet this threshold. Accordingly, we will deny the

petition for review.




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