Suharso v. Attorney General of the United States
Opinion of the Court
OPINION OF THE COURT
Anton Suharso and his wife, Yunita Wulansari, petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their application for asylum and withholding of removal. The facts in this case reflect a familiar pattern: Christian Indonesians of Chinese descent alleging persecution by Muslim Indonesians. The Immigration Judge (“IJ”) concluded, and the BIA agreed, that the intimidation and harassment alleged by petitioners — including an episode in which a gang of Muslims assaulted Suharso with a knife — were not sufficiently severe to constitute persecution. Because we agree that petitioners neither suffered past persecution nor possess a well-founded fear of future persecution on account of their religion or ethnicity, we will deny the petition for review.
Suharso and his wife, Wulansari, are natives and citizens of Indonesia, and are ethnically Chinese Catholics. At the hearing on their application for asylum and withholding of removal, Suharso testified that he suffered verbal harassment and was frequently “stopped or attacked” by Indonesian Muslims, and that, on one occasion in March 2002, a gang of Muslims confronted him on his walk to church, seized and stomped his prayer book, and cut him with a knife — incidents that failed to deter Suharso from attending church. A. 111.
Suharso’s experience reflected a wider pattern of aggression toward Chinese Christians by elements of the Muslim community between 2000 and 2002. During that period, Suharso testified that radical Muslims regularly targeted churches: bomb attacks and bomb threats against churches “happened] everywhere.” A. 116. An expert retained by petitioners, Dr. Jeffrey Winters, corroborated Suharso’s testimony, indicating that on Christmas Eve in 2000, unknown terrorists
Government efforts to stem religious and ethnic violence have had mixed results. Winters opined that the Indonesian government, which has a “severely degraded” legal and security apparatus, has had difficulty controlling fanatical fringes, which continue to terrorize Chinese Christians. A. 221. Suharso testified that his church, for example, was forced to close after the government was unable to protect congregants against Muslim extremists. A second expert retained by petitioners, Jana Mason, noted that crimes against Chinese Christians are rarely prosecuted, and that a “significant risk” of ethnic violence has remained since 1998 — the last wave of nationwide looting and rioting-— reflecting the government’s inability to stem the “growing militancy of Islam.” A. 233-34.
One month after his assault at knife-point, Suharso and his wife celebrated their honeymoon in the United States. Suharso explained that, “at first it was our intention [to come to the United States] for honeymooning (sic),” but, after touring the country, “we felt the situation in here, we do not want to return.” A. 126. After immigration officials discovered that petitioners overstayed their visas, removal proceedings were initiated. Petitioners conceded their removability but sought asylum and withholding of removal.
On appeal, Suharso makes two arguments — that his due process rights were
We easily dispose of Suharso’s first argument, finding “sufficient indicia” that the BIA gave “particularized consideration” to his arguments and evidence. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001). The BIA considered — and rejected — Suharso’s twin contentions — that the harassment that he endured rose to the level of persecution, and that the IJ failed to consider Winters and Mason’s affidavits. In a succinct analysis, the BIA concluded that the fact that Suharso’s family continued to reside in Indonesia undermined his claim of persecution, that the IJ adequately addressed Winters’ affidavit, and that the IJ’s alleged failure to consider Mason’s affidavit was not prejudicial. In Abdulai v. Ashcroft, we approved a similar analysis by the BIA and rejected petitioner’s due process claim. Id. We thus dismiss Suharso’s constitutional challenge as meritless.
Suharso’s second argument — that the BIA erroneously concluded that he had not suffered past persecution — also fails.
In Lie, we considered whether religiously and ethnically motivated violence more severe than that directed at Suharso constituted persecution. Id. There, the peti
Lie strongly supports our conclusion that the violence directed at Suharso does not rise to the level of persecution. Lie makes clear that verbal harassment, and isolated criminal acts resulting in minor injuries or property damage, do not rise to the level of persecution. Further, courts have distinguished legal discrimination from persecution.
We also agree with the BIA that Suharso did not demonstrate a well-founded fear of future persecution — a requirement satisfied by proof that the petitioner was individually singled out for persecution, or that a pattern or practice of persecution against similarly situated individuals exists.
Alternatively, Suharso seeks relief based on a pattern or practice of persecution against Chinese Christians. In rejecting petitioner’s argument, the BIA discounted Winters’ affidavit, which identified a risk of renewed violence toward Chinese Christians, underscored the government’s inability to control Muslim radicals, and noted the inadequate prosecution of crimes perpetrated against Chinese Christians. The BIA credited, instead, a State Department report indicating a general reduction in ethnic and religious violence. The BIA also found that the Indonesian government had neither perpetrated nor acquiesced to violence against Chinese Christians, but rather strove to reduce ethnic tensions— efforts that Suharso himself acknowledged at the removal hearing. Mason noted, moreover, that the Indonesian government had begun to repeal discriminatory laws targeting ethnically Chinese Indonesians.
On appeal, Suharso asserts, however, that ethnic and religious violence escalated, rather than subsided, after 2002. Suharso cites the 2005 International Religious Freedom Report, indicating a doubling in the number of churches attacked over the prior year. Suharso also stresses that a recent State Department report found continued legal discrimination against Chinese Christians, who encounter numerous roadblocks in registering marriages, divorces, and births. Suharso maintains that the BIA erred in giving short-shrift to these reports and to Mason and Winters’ affidavits, which suggested a continued risk of ethnic and religious violence.
Notwithstanding Mason and Winters’s affidavits, we find substantial evidence to support the BIA’s conclusion that there is no widespread pattern or practice of persecution of Chinese Christians, and that the Indonesian government has not condoned or acquiesced to attacks by private actors. To the contrary, the State Department Country Report noted a significant drop in violence towards Chinese Christians and improved respect for religious freedom. Although the Report suggested that the government occasionally tolerated hostilities toward Chinese Christians, it also noted that the government made “significant efforts to reduce inter-religious violence.” A. 177.
Our conclusion that Suharso does not face a well-founded risk of future persecution is buttressed by our opinion in Lie. There, as discussed, we considered whether the petitioner faced a risk of future persecution in the wake of a wave of ethnic and religious violence — a pandemic that, Winters acknowledged, was more lethal and more widespread than the more recent period of turmoil. Despite the virulence of the 1998 attacks, which we noted produced “significant violence and rioting against individuals of Chinese origin throughout Indonesia,” culminating in the deaths of over one thousand people, id. at 533, we agreed with the BIA that the petitioner failed to establish a pattern or practice of persecution of Chinese Christians. Because the climate has improved — not worsened — -since 1998, we agree with the BIA that Suharso has failed to demonstrate a risk of future persecution on account of his religion or ethnicity.
For the foregoing reasons, we will deny the petition for review.
. Specifically, Suharso applied for asylum and withholding of removal; Wulansari is a derivative applicant for asylum and also seeks withholding of removal.
. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. See Briseno-Flores v. Att'y Gen., 492 F.3d 226, 228 (3d Cir. 2007). Where the BIA substantially adopts the findings of the IJ, as the BIA did here, we review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
. Under INA § 208(b), the Attorney General has the discretion to grant asylum to “refugees.” 8 U.S.C. § 1158(b). Section 101(a)(42)(A) of the INA defines a "refugee” as a person unable to return to her country of “nationality ... 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). The alien bears the burden of proof of establishing that he is a refugee and that he has suffered past persecution or has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(a). If past persecution is established, then the asylum applicant is presumed to have a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1). If the alien cannot show past persecution, he may still establish a well-founded fear of future persecution by demonstrating a subjective fear of persecution, and that a reasonable person in the alien’s circumstances would fear persecution if returned to the country in question. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).
To establish entitlement to withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a "clear probability” of persecution through the presentation of evidence that it is more likely than not that he would be subject
. Although the federal Constitution does not guarantee a right to asylum, aliens facing removal are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quotation marks and citation omitted). In removal proceedings, due process has three elements. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001). An alien: "(1) is entitled to factfinding based on a record produced before the decisionmaker and disclosed to him or her; (2) must be allowed to make arguments on his or her own behalf; and (3) has the right to an individualized determination of his [or her] interests.” Id. (internal citations omitted). Petitioners focus solely on the third element, urging that the BIA did not render an individualized determination of their applications for asylum and withholding of removal.
. We must uphold the BIA's factual findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We will conclude substantial evidence is lacking only where the evidence “was so compelling that no reasonable factfinder could fail to find the alien eligible for asylum or withholding of removal.” Id. at 483-84, 112 S.Ct. 812; see Lie v. Ashcroft, 396 F.3d 530, 534 n. 3 (3d Cir. 2005).
. Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir. 2008) (“Discrimination in Indonesia does not, without more, qualify a Christina Indonesian national for asylum.”); Pulisir v. Mukasey, 524 F.3d 302, 308-309 (1st Cir. 2008); Kho v. Keisler, 505 F.3d 50, 58 (1st Cir. 2007); Susanto v. Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006).
. Winters observed, “[T]here has been no massive upsurge of violence against the ethnic Chinese on the scale seen in 1998." A. 221.
. Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006); see 8 C.F.R. § 208.13(b)(2)(iii)(A).
. Lie, 396 F.3d at 537 (noting that "when family members remain in petitioner's native country without meeting harm,” the "reasonableness of a petitioner's well-founded fear of future persecution is diminished”); see Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001).
. See Kayembe v. Ashcroft, 334 F.3d 231, 236 (3d Cir. 2003) (noting that just because "the State Department report cuts both ways ... does not mean that it does not constitute substantial evidence”).
. We have previously observed that the State Department Country Report of 2005 reflects improved treatment of Chinese Christians in Indonesia and a reduction in ethnic tensions. See Wong v. Att’y Gen., 539 F.3d 225, 234 (3d Cir. 2008) (noting that State Department Country Report of 2005 documents improved treatment of Chinese Christians in Indonesia); Budiono v. Mukasey, 548 F.3d 44, 46 (1st Cir. 2008) (finding that the State Department Country Report of 2005, indicating a decrease in discrimination and harassment of ethnic Chinese, undercuts petitioner's assertion of a pattern and practice of discrimination against Chinese Christians in Indonesia).
. See Yunaidi v. Att’y Gen., 324 Fed.Appx. 762, 764-65 (11th Cir. 2009) (unpublished) (rejecting petitioner’s contention that the 1998 wave of ethnic violence, which resulted in destruction of petitioner’s church and family business and forced the petitioner to flee, rose to the level of persecution).
Reference
- Full Case Name
- Anton SUHARSO Yunita Wulansari v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published