Sulistiowati v. Attorney General of United States , 307 F. App'x 627 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-21-2009
Sulistiowati v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1148
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________
No. 08-1148
_________
SULISTIOWATI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of Order
of the Board of Immigration Appeals
(Agency No. A95-461-992)
Immigration Judge: Hon. Rosalind K. Malloy
Submitted under Third Circuit LAR 34.1(a)
October 30, 2008
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed: January 21, 2009)
________
OPINION
________
PER CURIAM
The petitioner, an Indonesian citizen, seeks review of a final order of the Board of
Immigration Appeals (“BIA”). For the following reasons, we will grant the petition for
review.
I.
Sulistiowati entered the United States in 2001. She was served with a notice to
appear in 2003, charging her with being subject to removal under INA § 237(a)(1)(B).
While Sulistiowati conceded that she was removable as charged, she filed an application
for asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”).1 She claimed that she had been persecuted in Indonesia due to her status as an
ethnic-Chinese Buddhist.
Sulistiowati claims to have been frightened (but not otherwise affected) by rioting
on numerous occasions, but her application for relief centers on two particular events.
During the May 1998 riots, Sulistiowati’s home (which was located in Bangkalan,
Madura Island) was broken into and looted. Sulistiowati and her neighbors were able to
escape from their homes, and they hid in a canal for four hours until the army dispersed
the crowd. During the riot, a Buddhist temple was burned, and she heard people
shouting, in Arabic: “Kill the infidels.” Although Sulistiowati did not believe that any of
the estimated 500 rioters were arrested, she stated that the army protected “the area” for
approximately one month until the tension eased.
1
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United
States by the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231.
2
After the 1998 riots, Sulistiowati remained in Bangkalan, where she owned a
shrimp farm. As a single, ethnic-Chinese woman, she believed that she needed to hide
her ownership of the farm, so she hired ethnic-Indonesians to sell the produce. She
contended, however, that her employees defrauded her by keeping the profits, and that
they threatened to expose her as the owner unless she gave them more money.
Sulistiowati stopped operating the farm (though she did not sell it) after the fall 2000
harvest (which apparently coincided with more rioting) when a mass of people who lived
in the area stole the produce from the farm. She then moved to Jakarta.
In Jakarta, Sulistiowati rented and operated a store. In December 2000, she closed
the store because churches were being bombed and she became frightened. She reopened
in March 2001, but closed again after three months because she did not feel safe due to
demonstrations and church burnings. She received her passport in June 2001, and a visa
in July 2001; she left Indonesia in August 2001.
Sulistiowati lives in Philadelphia with her daughter, who received asylum in 1999.2
In Philadelphia, Sulistiowati is an active member of the Buddhist temple. Three of her
children still live in Indonesia—one in Surabaya and two in Jakarta—and her sisters
operate a shop that was previously owned by their parents. She did not testify that any of
her family in Indonesia is being or has been persecuted.
2
Sulistiowati testified that she did not know the basis on which her daughter received
asylum.
3
The Immigration Judge (“IJ”) denied all relief except for voluntary departure. The
IJ found that Sulistiowati’s experiences did not rise to the level of persecution, as she was
not physically injured, the army put down the 1998 riots and protected her neighborhood
thereafter, and the incidents she described were part of the general civil strife in
Indonesia. The IJ also determined that Sulistiowati did not demonstrate that the fraud and
extortion perpetrated by her employees or the looting of her shrimp farm occurred
because she was ethnic-Chinese. Finally, the IJ found that Sulistiowati did not establish a
well-founded fear of future persecution.
On December 20, 2007, the BIA affirmed the IJ’s decision without opinion.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). In situations like this, where the BIA adopts and affirms the IJ’s decision, we
review the decision of the IJ. Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005).
Whether an applicant has demonstrated past persecution or otherwise established a
likelihood of future persecution is a question of fact, which we review for substantial
evidence. Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003). This means that we
must uphold the IJ’s findings to the extent they are “supported by reasonable, substantial
and probative evidence on the record as a whole.” Id.
We will grant the petition for review because, although the conclusion that
Sulistiowati did not establish past persecution is supported by substantial evidence, the IJ
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did not address whether ethnic-Chinese are subject to a pattern or practice of persecution
in Indonesia.3
We find no error in the conclusion that the incidents complained of, although
serious and undoubtedly frightening, do not amount to persecution. The crux of
Sulistiowati’s claim was that her home was looted and she was forced to hide in a canal
for four hours during a riot to protect herself. However, this incident, in addition to
witnessing and hearing about additional riots, does not warrant a finding that she suffered
sufficiently severe harm to constitute persecution. See Singh v. INS, 134 F.3d 962, 967
(9th Cir. 1998) (general violence does not rise to the level of persecution); see also Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (citing cases).
Additionally, Sulistiowati’s abandonment of her shrimp farm after being defrauded
and/or extorted by her employees and after people stole her inventory does not constitute
the “deliberate imposition of severe economic disadvantage” that qualifies as persecution.
See Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir. 2005). The IJ concentrated on the fact
that Sulistiowati did not demonstrate that the problems she encountered in maintaining
her business were on account of her ethnicity or religion, which is supported by the
record. It is also important to recognize that when Sulistiowati left her shrimp farm, she
maintained employment and was able to continue supporting herself by moving to Jakarta
3
Because Sulistiowati did not appeal from the denial of CAT relief, she has waived
that issue. See generally Kost v. Kozakiewicz, 1 F.3d 176, 182, 83 (3d Cir. 1993).
5
and opening a store. See id. at 169 (severe economic restriction amounted to persecution
where the petitioner was blacklisted from government and most other employment, lost
health benefits, school tuition, and food rations). Sulistiowati thus cannot demonstrate
that she was a victim of economic persecution, as we have defined it. See id.
Sulistiowati also argues that the IJ erred by not examining the issue of whether a
practice or practice of persecution exists against ethnic-Chinese in Indonesia. We find
that this issue was properly raised before the BIA, and that we thus have jurisdiction to
review it. 8 U.S.C. § 1252(d); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)
(“So long an immigrant petitioner makes some effort, however insufficient, to place the
Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed
to have exhausted her administrative remedies.”).
To establish a well-founded fear of persecution, the applicant must first
demonstrate a subjective fear of persecution through credible testimony that her fear is
genuine. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). The applicant must also
show, objectively, that a “reasonable person in the alien’s circumstances would fear
persecution if returned to the country in question.” Id. To satisfy this prong, the
applicant must show that she would be singled out for persecution, or that “there is a
pattern or practice . . . of persecution against a group of persons similarly situated to the
applicant” on one of the protected grounds. 8 C.F.R. § 208.13(b)(2)(iii)(A). To
constitute a pattern or practice, the persecution of the group must be “systemic, pervasive,
6
or organized,” and must be committed by “the government, or forces the government is
either ‘unable or unwilling’ to control.” Lie, 396 F.3d at 537 (internal citation omitted).
Here, the IJ found that Sulistiowati had not established a well-founded fear of
persecution, stating only that she “could never fully articulate exactly what she feared if
she were to return to Indonesia.” (A.R. 59.) The IJ did not specifically address whether
a pattern or practice of persecution of ethnic-Chinese existed in Indonesia. Thus, we will
remand for consideration of this claim. See Sukwanputra v. Gonzales, 434 F.3d 627, 637
(3d Cir. 2006).
For the foregoing reasons, the petition for review will be granted, the order of the
BIA vacated, and the case remanded for further proceedings consistent with the dictates
of this opinion. Judge Roth voted to deny the petition for review.
7