Setiawan v. Atty Gen USA , 128 F. App'x 873 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-19-2005
Setiawan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1051
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-1051
____________
FRANICO SETIAWAN,
Petitioner
v.
*ALBERTO GONZALES, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
*(Amended pursuant to Rule 43(c), Fed. R. App. Pro.)
____________________
ON PETITION FOR REVIEW OF ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(Nos. A95-161-727, A95-161-728)
___________________
Submitted pursuant to LAR 34.1(a)
March 29, 2005
Before: ALITO, SMITH, and ROSENN, Circuit Judges
(Filed: April 19, 2005)
____________________
OPINION OF THE COURT
____________________
PER CURIAM:
Franico Setiawan (“Setiawan”), a native and citizen of Indonesia, seeks review of
a decision by the Board of Immigration Appeals (“the BIA”). The BIA affirmed the
Immigration Judge’s denial of Setiawan’s applications for asylum, withholding of
removal under the Immigration and Nationality Act (“INA”), and protection under the
Convention Against Torture (the “Torture Convention”). Setiawan, a practicing Christian
of Chinese descent, claims to have suffered past persecution and to fear future
persecution because of his ethnicity and his religion. As we write for the parties only, we
do not set out the facts. We conclude that the BIA’s decision was supported by
substantial evidence, and we deny Setiawan’s petition.
I.
Because Setiawan does not raise any argument in his brief regarding the BIA’s
denial of protection under the Torture Convention beyond the conclusory statement that
the BIA erred in denying protection, he has not preserved the issue for review. Lie v.
Ashcroft, 396 F.3d 530, 532, n.1 (3d Cir. 2005).
II.
We will affirm the BIA’s decision that Setiawan was not eligible for asylum if
there is substantial evidence to support it. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). The administrative findings of fact supporting a final order of removal cannot be
reversed unless the administrative record was such that “a reasonable adjudicator would
2
be compelled to conclude to the contrary.” 8 U.S.C. §1252(b)(4)(A)-(B).
An applicant for asylum bears the burden of establishing that he has suffered past
persecution or has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(a)-
(b); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). If an applicant cannot meet
the standard for asylum, this Court may assume that the applicant cannot meet the higher
standard for withholding of removal. Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.
2003).
III.
To qualify for withholding of removal, an alien must show that if he returned to his
country, it is more likely than not that his life or freedom would be threatened on account
of race, religion, nationality, membership in a particular social group, or political opinion.
Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). If an alien is able to establish
past persecution, then it is presumed that his life or freedom would be threatened were he
to return to his country. 8 C.F.R. § 1208.16(b)(1)(i) (2004). “In order to establish
eligibility for asylum on the basis of past persecution, an applicant must show (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.” Adulrahman v. Ashcroft, 330 F.3d
587, 592 (3d Cir. 2001) (quotations and citations omitted).
“‘[P]ersecution’ is an extreme concept that does not include every sort of treatment
3
our society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993);
accord Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (“Persecution is an
extreme concept, which ordinarily does not include ‘[d]iscrimination on the basis of race
or religion, as morally reprehensible as it may be.’” (alteration in original) (citation
omitted)); see also Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000) (“To qualify as
persecution, a person’s experience must rise above unpleasantness, harassment, and even
basic suffering.”).
Setiawan alleges that he and his family suffered several violent attacks by street
thugs in Indonesia, but the BIA’s conclusion that these attacks did not rise to the level of
persecution is supported by substantial evidence. Victims of discrimination and random
violence of the sort Setiawan alleges are not victims of persecution as legally defined; the
harm is not of a sufficient degree. Moreover, the alleged attack by the “singing beggars”
or “road singers” does not constitute persecution because it was not on account of a
protected ground. On Setiawan’s own telling, the thugs were seeking money, not seeking
to harm Setiawan on account of his race, religion, nationality, membership in a particular
social group, or political opinion. There is no evidence that the road singers targeted
Setiawan and his family because they were Indonesians of Chinese descent, or because
they were Christians, or because they were on their way to church.
Finally, Setiawan offers no evidence in support of his claim that the State
Department, major non-governmental organizations, and news agencies have reported
4
“serious and increasing attacks on Christians in Indonesia.” The riots in May of 1998 and
the events that Setiawan witnessed were terrible. But he offers no evidence that these
events were the norm before or since, much less that attacks on Christians or persons of
Chinese descent are increasing in frequency or severity. Nor does he offer evidence that
the Indonesian government is unable or unwilling to stop such attacks. See
Abdulrahman, 330 F.3d at 592. Thus, there is insufficient evidence to compel the
conclusion that there is a pattern or practice of persecuting persons similarly situated to
Setiawan, and Setiawan cannot be relieved of the duty to demonstrate that he has been or
would be individually targeted for persecution. 8 C.F.R. § 1208.13(b)(2)(i)(A)-(B);
Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
IV.
As Setiawan failed to establish his eligibility for asylum, he necessarily failed to
meet the higher standard of eligibility for withholding of removal. See Lukawago, 329
F.3d at 182.
V.
For the reasons given above, we deny Setiawan’s petition.