Gustianto v. Attorney General

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

7-25-2008

Gustianto v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3600

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-3600

___________

HARRY GUSTIANTO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A96 253 302)

Immigration Judge: Honorable Robert P. Owens

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 23, 2008

Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

(filed: July 25, 2008)

___________

OPINION

___________

PER CURIAM

Harry Gustianto petitions for review of a final order of the Board of Immigration

Appeals (“BIA”). For the reasons that follow, we will deny the petition.

Gustianto, a native and citizen of Indonesia, was admitted to the United States

around May 4, 2002, as a non-immigrant visitor with authorization to remain for six

months. He applied for asylum, withholding of removal, and protection under the United

Nations Convention Against Torture (“CAT”), arguing that he would be persecuted in

Indonesia because of his Chinese ethnicity and because he would be perceived to be

Catholic.1 Gustianto provided several examples which, he claims, constituted

persecution. He explained that when he was a boy Muslim parents did not permit their

children to play with him. In 1995, while Gustianto celebrated the Chinese New Year

with relatives, native Indonesians complained about excessive noise and threw rocks

through the windows of his home. The next year, a Christmas celebration at Gustianto’s

house drew additional noise complaints from native Indonesians. Although the police

were called on both occasions, they blamed Gustianto and his family for creating a

disturbance and required a “bribe” before allowing the celebrations to continue. When

Gustianto enrolled in college in 1997, he and other ethnic Chinese students were

subjected to harsher “hazing,” such as being told to do 200 push-ups. During the riots in

May 1998, Gustianto suffered a cut on his arm when native Indonesian students

overturned his car. He was taken to a hospital, where he received bandages and

medication.

The Immigration Judge (“IJ”) found Gustianto to be credible, but concluded that

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Gustianto testified that he is Buddhist, but that he is “learning Catholicism,” the

religion practiced by his wife and family.

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he failed to establish a nexus between the 1998 incident and a protected ground. The IJ

further found that his other experiences did not rise to the level of persecution, and that he

had not satisfied the requirements for withholding of removal or for relief under the CAT.

These determinations were based in part on the IJ’s observation that Gustianto remained

in Indonesia for four years after the last incident of alleged persecution and that his family

had lived safely in Indonesia since Gustianto departed for the United States in 2002. On

August 8, 2007, the Board of Immigration Appeals (“BIA”) dismissed Gustianto’s appeal.

The BIA found that the harm suffered by Gustianto did not rise to the level of past

persecution and that he failed to meet the burdens of proof on his withholding and CAT

claims. Gustinato timely petitioned for review of the BIA’s order.

We have jurisdiction over the petition pursuant to INA § 242(a)(1) [8 U.S.C.

§ 1252(a)(1)]. Because the BIA substantially relied on the IJ’s determinations and also

issued its own decision, this Court reviews the decisions of both the BIA and the IJ. See

Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007); Xie v. Ashcroft, 359 F.3d 239,

242 (3d Cir. 2004). We review the factual determinations in these decisions under the

substantial evidence standard. See Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006).

Under that standard, the decisions must be affirmed “unless the evidence not only

supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471

(3d Cir. 2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001)).

To qualify for asylum under INA § 208(b)(1) [8 U.S.C. § 1158(b)(1)], Gustianto

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must establish that he is unable or 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.” INA

§ 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. Establishing eligibility for asylum on the

basis of past persecution requires a showing of: “(1) an incident, or incidents, that rise to

the level of persecution; (2) that is ‘on account of’ one of the statutorily-protected

grounds; and (3) is committed by the government or forces the government is either

‘unable or unwilling’ to control.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)

(citation omitted). To establish eligibility on the basis of future persecution, an applicant

must demonstrate “that [he] has a genuine fear, and that a reasonable person in [his]

circumstances would fear persecution if returned to [his] native country.” Id. “[I]f an

alien fails to establish the well-founded fear of persecution required for a grant of asylum,

he or she will, by definition, have failed to establish the clear probability of persecution”

standard for withholding of removal. Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.

2003). Significantly, “persecution connotes extreme behavior, including threats to life,

confinement, torture, and economic restrictions so severe that they constitute a threat to

life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (quotations

omitted). It “does not include all treatment that our society regards as unfair, unjust, or

even unlawful or unconstitutional.” Id.

After thoroughly reviewing the record, we conclude that substantial evidence

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supports the denial of relief. Gustianto’s experiences – not being permitted to play with

Muslim children, having to pay the police “bribes” for permission to continue with

celebrations at his home after native Indonesians complained about excessive noise, the

“hazing” he experienced in college, and the attack during the 1998 riots – are not severe

enough, even when viewed cumulatively, to constitute persecution. See Lie v. Ashcroft,

396 F.3d 530, 536 (3d Cir. 2005) (holding that ethnic Chinese Indonesian’s “account of

two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the

theft of some personal property and a minor injury, is not sufficiently severe to be

considered persecution”); Abdille, 242 F.3d at 494-95 (holding that “[m]ere generalized

lawlessness and violence between diverse populations” will not support relief).

Furthermore, ample evidence supports the determination that Gustianto did not establish a

well-founded fear of future persecution. See Lie, 396 F.3d at 538 (finding that petitioner

“failed to establish an individualized risk of persecution or that there is pattern or practice

of persecution of Chinese Christians in Indonesia”). In particular, the 2005 State

Department Country Report, news articles, and NGO reports submitted in support of

Gustianto’s application do not compel a finding different than that reached by the IJ and

the BIA. Because Gustianto failed to establish a well-founded fear of future persecution,

he also failed to satisfy the higher standard for withholding of removal. See Kibinda v.

Att’y Gen., 477 F.3d 113, 123 (3d Cir. 2007). Gustianto’s CAT claim was properly

denied because the record evidence does not compel the conclusion that he is “more

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likely than not” to be tortured if returned to Indonesia. See Tarrawally v. Ashcroft, 338

F.3d 180, 186 (3d Cir. 2003); 8 C.F.R. § 208.16(c)(2).

Gustianto argues that his experiences are similar to those described in Matter of O-

Z- & I-Z-, 22 I. & N. Dec. 23 (BIA 1998), where the successful asylum petitioners

suffered repeated physical attacks (resulting, on different occasions, in stitches and

surgery), received written and verbal threats, endured humiliation at school, and had their

apartment robbed and vandalized. Evidence of such severe and extreme conduct is not

present here. Gustianto also claims that the IJ mistakenly faulted the lack of a “direct

nexus” between one of the five protected grounds and the 1998 incident where

Gustianto’s car was overturned. Notably, though, the BIA did not adopt the IJ’s

conclusion that Gustianto failed to establish persecution on account of his ethnicity or

religion; rather, the Board held that Gustianto’s experiences – including the 1998 attack –

did not rise to the level of past persecution. As noted above, this determination is

supported by substantial evidence.

Finally, Gustianto asserts that “the IJ erroneously determined that [his] . . . fear of

future persecution was unreasonable” because he departed for the United States four years

after the last incident of alleged persecution and because his family has remained in

Indonesia without experiencing any harm. These factors, however, are clearly relevant to

Gustianto’s fear of future persecution. See Lie, 396 F.3d at 537 (“[W]hen family

members remain in petitioner’s native country without meeting harm, and there is no

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individualized showing that petitioner would be singled out for persecution, the

reasonableness of a petitioner’s well-founded fear of future persecution is diminished.”).

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

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