Susanto v. Atty Gen USA , 235 F. App'x 890 ( 2007 )

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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claims for asylum had been withdrawn, and denied their claims for withholding of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.
5