Lukas v. Attorney General USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-8-2008
Lukas v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2019
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"Lukas v. Atty Gen USA" (2008). 2008 Decisions. Paper 394.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2019
FNU LUKAS,
Petitioner
v.
ATTORNEY GENERAL USA,
Respondent
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A96-263-785
Immigration Judge: Charles M. Honeyman
Submitted Under Third Circuit LAR 34.1(a)
May 8, 2008
Before: BARRY, STAPLETON, Circuit Judges, and RESTANI,* Judge
(Opinion Filed: October 8, 2008)
OPINION
BARRY, Circuit Judge
Petitioner Fnu Lukas seeks review of the order of the Board of Immigration
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
Appeals (“BIA”) affirming the order of the Immigration Judge (“IJ”) denying his
application for withholding of removal and relief under the Convention Against Torture
(“CAT”). We will deny the petition.
I.
Because we write only for the parties, familiarity with the facts is presumed, and
we recite only those facts that are relevant to our analysis.
Lukas, a citizen of Indonesia, is an ethnic Chinese Christian. He entered the
United States on November 10, 1999 as a non-immigrant visitor for pleasure, authorized
to stay until May 9, 2000. He did not leave by that date, and on June 10, 2003, removal
proceedings were commenced. He subsequently applied for asylum, withholding of
removal and relief under the CAT, claiming that he had been persecuted in Indonesia, and
that he feared future persecution and torture should he return. His alleged past
persecution consisted of being robbed while at school, suffering verbal insults, and
“sometimes” having rocks thrown at him. (A.R. 113.)
A hearing was held before the IJ on August 4, 2005, and at the conclusion of the
hearing, the IJ denied Lukas’s application. The IJ denied the asylum claim as time-barred
and on the merits, finding that Lukas had failed to establish either past persecution or a
well-founded fear of future persecution. It denied the withholding and CAT claims on the
merits, finding that Lukas failed to establish past persecution, a clear probability of future
persecution, or that he was more likely than not to be tortured upon return.
2
On administrative appeal, the BIA adopted and affirmed the decision of the IJ. In
his petition for review, Lukas challenges the denial of his withholding and CAT claims.1
II.
We have jurisdiction to review the order of the BIA order pursuant to 8 U.S.C. §
1252. “Where the BIA has adopted the IJ's findings, we review those findings under the
substantial evidence standard, upholding them ‘unless any reasonable adjudicator would
be compelled to conclude to the contrary.’” Chukwu v. Attorney General, 484 F.3d 185,
189 (3d Cir. 2007) (citations omitted).
III.
The IJ found that the isolated instances of mistreatment described by Lukas did not
rise to the level of persecution. We agree. “Persecution has been defined by the Third
Circuit and the BIA ‘to include threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom....’” Myat Thu v.
Attorney General, 510 F.3d 405, 413 (3d Cir. 2007) (citation omitted). Lukas’s
experiences in Indonesia – being robbed, verbally insulted, and “sometimes” having rocks
thrown at him – while deplorable, simply do not fit within that definition.
Nor did the IJ err in finding that Lukas failed to establish a clear probability of
future persecution. First, because he did not establish past persecution, he was not
1
Lukas has not challenged the denial of his asylum application, and therefore we need
not consider it.
3
entitled to a presumption of future persecution. Cf. Jarbough v. Attorney General, 483
F.3d 184, 191 (3d Cir. 2007) (“A finding of past persecution raises a rebuttable
presumption ‘that the applicant’s life or freedom would be threatened in the future....’”)
(citation omitted). Other than his past experiences, the only evidence presented by Lukas
in support of a finding of future persecution were press accounts and Indonesia country
reports from 2004 and 2005. According to Lukas, those documents reflect the
widespread persecution of ethnic Chinese Christians in Indonesia, thus suggesting that he
will be persecuted should he return. The IJ properly rejected that argument, relying
largely on Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005), in which we held that pre-2003
press accounts and country reports, standing alone, are insufficient to establish a pattern
or practice of persecution in Indonesia. We recently reaffirmed our holding in Lie, and
explained that its reasoning applied with equal force to the 2003 and 2004 State
Department reports, and noting (albeit in dicta) that the 2005 to 2007 reports
“document[s] similar or improved treatment of Chinese Christians in Indonesia.” See
Wong v. Attorney General, 539 F.3d 225, 234 (3d Cir. 2008). We agree with the IJ that
Lukas failed to carry his burden of establishing a clear probability of future persecution.
Finally, the IJ correctly held that Lukas failed to establish that he would more
likely than not be tortured should he return to Indonesia. “Torture is defined as...an act by
which pain or suffering, whether physical or mental, is intentionally inflicted on a person
for such purposes as” obtaining information or a confession, punishment, intimidation, or
4
coercion, when such pain and suffering is inflicted by a governmental actor or with the
acquiescence of a governmental actor. Kaita v. Attorney General, 522 F.3d 288, 300 (3d
Cir. 2008) (citation omitted). Lukas’s past mistreatment simply did not rise to the level of
torture, and he has failed to present credible evidence establishing that he would more
likely than not be tortured upon returning to Indonesia.
IV.
We will deny the petition for review.
5