Setiawan v. Atty Gen USA , 152 F. App'x 239 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-31-2005
Setiawan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2105
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 04-2105
STEFANUS SETIAWAN,
Petitioner
v.
*ALBERTO GONZALES,
Respondent
*(Amended pursuant to Rule 43(c), Fed. R. App. P.)
___________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
(No. A79-310-376)
Submitted pursuant to LAR 34.1(a) July 12, 2005
Before: ALITO, BECKER, and GREENBERG, Circuit Judges.
(Opinion Filed: October 31, 2005)
_________________
OPINION OF THE COURT
PER CURIAM:
Stefanus Setiawan seeks review of an order from the Board of Immigration
Appeals denying his request for withholding of removal. We deny the petition.
I.
As we write only for the parties, we do not set forth the full background of the
case. The sole issue raised by the petition for review is whether substantial evidence
supports the Board’s finding that Setiawan does not face a clear probability of persecution
if he returns to Indonesia. Setiawan argues that the substantial evidence standard is not
satisfied because any reasonable adjudicator would have reached two conclusions: first,
that he was persecuted in the past; and second, that he is in any case more likely than not
to face future persecution. We consider each argument in turn.
A.
An applicant is entitled to withholding of removal if upon return to his home
country his life or freedom would be threatened because of his race, religion, nationality,
membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A).
The Attorney General must grant withholding of removal if petitioner demonstrates a
“clear probability” of such persecution. INS v. Stevic, 467 U.S. 407, 413 (1984);
Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003). A “clear probability” means it
is “more likely than not” that the petitioner would be subject to persecution. Stevic, 467
U.S. at 429-30. A showing of past persecution gives rise to a rebuttable presumption of a
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well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1); Li v. AG of the United
States, 400 F.3d 157, 162 (3d Cir. 2005).
Whether petitioner faces a clear probability of persecution is a question of fact
reviewed under the substantial evidence standard. See Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002). “[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B). “When the BIA defers to an IJ, a reviewing court must, as a matter of
logic, review the IJ’s decision to assess whether the BIA’s decision to defer was
appropriate.” Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).
B.
Setiawan claims any reasonable adjudicator would be compelled to find that he
was persecuted in Indonesia. We disagree.
Setiawan’s claim of past persecution is based on five incidents: a March 1995
incident in which street thugs first demanded money from and then assaulted Setiawan
and his friends, and in which the police refused to pursue the attackers; an October 1995
incident in which passers-by stole items from Setiawan as he lay injured by the side of the
road after a motorcycle accident; a mob attack in 1996, in which Setiawan escaped
personal injury but was almost hit by oncoming traffic as he fled the scene; rioting in
1998, during which his mother’s business was burned to the ground and his sister was
almost raped (but which did not directly affect Setiawan, who was attending college in
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Malaysia); and a 1999 incident in which Setiawan was attacked by street thugs and
rendered unconscious from a head injury when he attempted to protect his sister from
physical harassment as they were walking to their car after attending Christmas mass.
The malefactors in these incidents were all native Indonesians. Setiawan asserts that they
were animated by anti-Chinese and anti-Christian animus, but he does not allege any
specific facts to directly corroborate this speculation.
Based on the facts alleged, a reasonable adjudicator might find, as did the IJ and
the Board, that the incidents in question either did not involve discrimination on the basis
of an enumerated characteristic or did not otherwise rise to the level of persecution. The
fact that Setiawan and his family members were, in the circumstances he describes,
readily identifiable as ethnic or religious minorities does not prove they were targeted
because of their Chinese ancestry or Christian faith. Assuming arguendo that they were,
the episodes of crime and mob violence to which Setiawan refers, although disturbing, do
not constitute unequivocal evidence of persecution as defined by our past cases. See, e.g.,
Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001) (“ordinary criminal activity does not
rise to the level of persecution necessary to establish eligibility for asylum.” ); Singh v.
INS, 134 F.3d 962, 967 (9th Cir. 1998) (“Mere generalized lawlessness and violence
between diverse populations, of the sort which abounds in numerous countries and inflicts
misery upon millions of innocent people daily around the world, generally is not
sufficient to permit the Attorney General to grant asylum”); Fatin v. INS, 12 F.3d 1233,
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1240 & n.10 (3d Cir. 1993) (noting that “the term ‘persecution’ denotes extreme conduct”
and “does not encompass all treatment that our society regards as unfair, unjust, or even
unlawful or unconstitutional.”).
Our conclusion that the Board’s finding is supported by substantial evidence draws
strong support from Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005), which addressed
virtually identical circumstances and claims. The petitioner in Lei was a Chinese
Christian from Indonesia who alleged that she and her family had been robbed on several
occasions by unknown individuals motivated by religious and ethnic hostility. See id. at
532-33. Notwithstanding record evidence of “widespread animus against ethnic
Chinese,” we concluded that “the evidence of general ethnic difficulties would not
compel a reasonable factfinder to conclude that the intrusions were ‘on account of’ Lie’s
ethnicity or religion.” Id. at 535-36. We also concluded that, even assuming that the
incidents alleged were motivated by ethnicity, the incidents alleged were not “sufficiently
severe to be considered persecution.” Id. at 536.
We find no plausible basis for distinguishing Lei from the instant case. Like Lei,
Setiawan is a Chinese Christian from Indonesia alleging persecution on the basis of
religion and ethnicity. Also like Lei, Setiawan’s factual allegations involve “isolated
criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some
personal property and a minor injury.” Id. Given the substantial similarities between the
two cases, we cannot say that Setiawan has established persecution where Lei did not.
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Setiawan contends that the IJ’s distinction between persecution and instances of
civil unrest and street crime is based on a false and potentially dangerous dichotomy.
Because these categories of incidents may overlap, he argues, the IJ’s approach threatens
to render vast numbers of persecuted people artificially ineligible for relief. We do not
understand the IJ’s determination to proceed from the assumption that criminality, civil
unrest, and persecution are mutually exclusive categories. Instead, we interpret the IJ’s
decision to mean that the instances of crime and civil unrest alleged here did not rise to
the level of persecution. Given the record below and our decision in Lei, we do not think
the IJ’s conclusions are unreasonable.
Finally, we find Setiawan’s reliance on Surita v. INS, 95 F.3d 814 (9th Cir. 1996),
and Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), unavailing. Unlike the petitioner
in Surita, Setiawan does not allege that circumstances in Indonesia would prevent him
from leaving his home or earning a livelihood. See 95 F.3d at 819 (holding that
petitioner, a Hindu and ethnic Indian living in Fiji, had been persecuted where, among
other things, “she was compelled to quit her job of more than ten years and was afraid to
leave her home.”). O-Z- & I-Z- is likewise distinguishable on several grounds. First, the
BIA in that case found record evidence proving that petitioners had been repeatedly
attacked “on account of their Jewish nationality.” See 22 I&N at 7. No such evidence
was adduced here. Second, the BIA in O-Z- & I-Z- noted ample evidence of the kind of
severe and extreme conduct needed to establish persecution. See id. at 6-7 (observing that
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petitioners had suffered beatings requiring surgery, the theft or destruction of their
furniture and possessions, and extreme humiliation). In distinguishing these cases, of
course, we do not deny the seriousness of Setiawan’s allegations. We merely point out
that the IJ’s reasoning in this case is compatible with the precedents Setiawan invokes.
In sum, we hold that substantial evidence supported the IJ’s determination that
Setiawan had not been persecuted.
C.
Setiawan next argues that the Board erred because, even if he was not persecuted
in the past, he submitted sufficient evidence to prove he faces a clear probability of
persecution in the future. The record does not support this claim.
As discussed above, the Board could reasonably have found that the facts Setiawan
alleged did not suffice to establish a reasonable, individualized fear of persecution. Thus,
Setiawan’s sole basis for anticipating future persecution is documentary evidence
concerning general country conditions.
Setiawan interprets various documents in the record to offer evidence for the
following propositions: religious intolerance and religiously motivated violence are
increasingly evident in Indonesia; societal attitudes towards ethnic Chinese Christians
have been worsening, in spite of efforts by the Indonesian government to promote
religious tolerance; Indonesian government officials often allow religiously motivated
violence to occur with impunity; there were a number of attacks on Christian churches in
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1999, most of which the government did not fully investigate; and attacks on ethnic
Chinese Indonesians were still occurring despite the cessation of large-scale anti-Chinese
riots like those that occurred in 1998.
Substantially similar evidence was presented in Lie, which concluded that “the
evidence in the record does not establish that there is a pattern or practice of persecution
of Chinese Christians in Indonesia.” Id. at 537. Lei noted two reasons for rejecting the
pattern or practice claim. First, the violence against Chinese Christians “does not appear
to be sufficiently widespread as to constitute a pattern or practice.” Id. at 537. Second,
“this violence seems to have been primarily wrought by fellow citizens and not the result
of governmental action or acquiescence.” Id. Because both reasons are fully applicable
here, the Board was not compelled to find that the documentary evidence in the record
established a clear probability of future persecution.
Finally, Setiawan claims that the Board’s decision should be vacated because its
opinion did not consider record evidence concerning allegedly deplorable country
conditions. An agency’s decision must indeed consider pertinent record evidence to be
affirmed on appeal. See Berishaj v. Ashcroft, 378 F.3d 314, 325 (3d Cir. 2004) (noting
that “[i]rrespective of [article’s] reliability, ... the article was in the administrative record
and the IJ was obliged to address it.”); Sotto v. INS, 748 F.2d 832, 837 (3d Cir. 1984) (“If
the administrative record fails to reveal that ... [material] evidence has been fairly
considered, the proper course is to remand the case to the INS so that the Service may
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evaluate such evidence and consider its effect on the application as a whole.”). In this
case, however, the Board’s admittedly conclusory opinion incorporated the IJ’s reasoning
by reference. See App. 3 (“We agree with the Immigration Judge who noted that the
respondent did not establish persecution under the Act based either on his ethnicity or on
his religion.”) (Board of Immigration Appeals Order). Thus, the pertinent inquiry is
whether the IJ properly considered the evidence in the record. See Abdulai v. Ashcroft,
239 F.3d 542, 549 n.2 (3d Cir. 2001) (“When the BIA defers to an IJ, a reviewing court
must, as a matter of logic, review the IJ’s decision to assess whether the BIA’s decision to
defer was appropriate.”). Setiawan does not even argue that the IJ failed to consider
record evidence. Accordingly, we see no cause for remand.
In sum, a reasonable factfinder would not be compelled to find that Setiawan has
established a clear probability of future persecution. Absent such a finding, Setiawan is
not entitled to withholding of removal. We thus deny the petition for review.