Susiani v. Atty Gen USA , 121 F. App'x 461 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
2-2-2005
Susiani v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1353
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1353
SUSI SUSIANI,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the
United States,
Respondent
On Petition for Review of an Order of the Board of Immigration Appeals
(No. A95-163-474)
Submitted Under Third Circuit LAR 34.1(a): January 14, 2005
Before: ROTH and CHERTOFF * , Circuit Judges, and IRENAS, ** Senior District Judge.
(Filed February 2, 2005 )
OPINION
ROTH, Circuit Judge.
*
This case was originally submitted to the three judge panel of Roth, Chertoff and
Irenas. Judge Chertoff subsequently recused. Because the remaining two judges agreed
on the opinion and disposition of the case, it was unnecessary to assign a third judge.
Linde v. Phelps, 731 F.2d 1201 (5 th Cir. 1984); Murray v. Nat’l Broadcasting Co., 35 F.3d
45 (2 nd Cir. 1994).
**Honorable Joseph E. Irenas, Senior District Judge for the District of New
Jersey, sitting by designation.
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Susi Susiani petitions for review of a decision entered by the Board of Immigration
Appeals (BIA) denying her application for asylum, withholding of deportation, and relief
under the Convention Against Torture (CAT). She argues that the Immigration Judge (IJ)
in her case denied her due process by, among other things, failing to put forward a
reasoned explanation for his decision. She also argues that the IJ’s decision on the merits
of her claim was not supported by substantial evidence. Because we find that the IJ did
not violate Susiani’s due process rights and that his decision was supported by substantial
evidence, we will deny the petition.
I.
Susiani arrived in the United States from Indonesia in May of 1998 with a six-
month visa. After she remained in this country three years longer than permitted, the
Immigration and Naturalization Service initiated deportation proceedings. At that point,
Susiani applied for asylum, withholding of removal, relief under CAT, and voluntary
removal. A hearing was held before an IJ on October 28, 2002 at which Susiani testified.
Following her testimony, the IJ denied her asylum claim, finding that she had failed to file
her application within one year of her arrival in the United States, as required by 8 U.S.C.
§ 1158(a)(2)(B). He also denied her claims for withholding of removal and relief under
CAT on the grounds that she had not established that it was more likely than not that she
would face persecution or torture if returned to Indonesia.
Susiani then appealed to the BIA, which dismissed her appeal in a written opinion
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dated October 22, 2003. The BIA agreed with the IJ that Susiani had failed to file her
asylum application within one year of arriving in the United States. It also agreed that she
had failed to meet her burden of proof on her withholding and CAT claims. Following
the dismissal by the BIA, Susiani filed a timely petition for review with this Court.
II.
Susiani first argues that the IJ violated her due process rights by failing to provide
a reasoned basis for his opinion. In an administrative proceeding, an agency must put
forward “a sufficiently reasoned opinion” to enable a court to engage in meaningful
judicial review. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003). In the immigration
context, the decision of the BIA, the IJ, or both, may provide such a “sufficiently
reasoned opinion.”
In this case, we find that the decision of the IJ is sufficiently reasoned to enable us
to engage in meaningful review. Susiani argues that the IJ violated her due process rights
because he failed to reference “what [she] actually said” in her testimony. (Pet’r Br. at 9)
(emphasis in original). In fact, the IJ reviewed Susiani’s testimony in some detail in his
oral decision. Furthermore, he explained why he found that the specific events testified to
by Susiani did not constitute “persecution” such that she would be eligible for
withholding of removal. Based on our own review of the IJ’s opinion, we find that it set
forth in sufficient detail the grounds for his decision. Therefore, we reject Susiani’s first
claim.
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Susiani next argues that the IJ failed to consider certain pieces of evidence she
submitted. In conjunction with her asylum application, Susiani provided the IJ with
background materials on Indonesia. Susiani alleges that the IJ ignored this evidence as
well as her testimonial evidence in reaching his decision. As already noted, the IJ did, in
fact, refer to Susiani’s testimony in rendering his decision. While he did not reference her
documentary evidence in his oral opinion, nothing requires an IJ to refer to every piece of
evidence that is before him. The evidence submitted by Susiani described, in general
terms, ongoing violence in Indonesia between Muslims and Christians and Indonesians
and ethnic Chinese. While the information she submitted was potentially relevant to her
application, nothing in it compelled or even supported the conclusion that Susiani herself
had faced persecution in the past and thus could demonstrate that she was more likely
than not to face persecution in the future. Thus, it was not error for the IJ to fail to cite
her documentary evidence in his decision.
Susiani also argues that the IJ erred in considering evidence that was not made part
of the record. Specifically, she claims that the IJ relied on the State Department’s country
report for Indonesia, even though that report was never included in the record. In
rendering his decision, the IJ stated: “The Court has not been provided with a copy of the
State Department Report with regard to Indonesia. However, the Court states for the
record that I am totally familiar with the contents of that Report.” (App. 9) (emphasis in
original). The BIA has held that if an IJ “relies on the country conditions in adjudicating
4
the alien’s case, the source of the Immigration Judge's knowledge of the particular
country must be made part of the record.” In re S-M-J-, 21 I. & N. Dec. 722, 727 (BIA
1997). However, nothing in the IJ’s oral decision in this case suggests that he relied on
the country report in any meaningful way. Rather, after stating that he was familiar with
its contents, the IJ mentioned the report only once more, in passing, and did not refer to it
in articulating the grounds on which he denied Susiani’s claims. Therefore, the evidence
shows that the IJ did not impermissibly rely on evidence not part of the record.
III.
Susiani also argues that the IJ erred in determining that she was ineligible for
withholding of removal. An applicant seeking withholding of removal must demonstrate
that it is “more likely than not” that she will face persecution if deported. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 423 (1987). The IJ, while finding Susiani to be a
credible witness, concluded that she had not met this threshold. We will not upset an IJ’s
factual determination unless we determine that it is not supported by “substantial
evidence.” E.g., Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
In her testimony before the IJ, Susiani detailed several incidents which, she
argues, show that she had faced persecution at the hands of Muslims and ethnic
Indonesians due to her status as a Christian of Chinese descent. First, she testified that,
while in junior high school in the 1980s, she was assaulted by a Muslim after buying a
drink on the side of the road during Ramadan, the Muslim fasting holiday. Second, she
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testified that, in 1992, a group of ethnic Indonesians looted a store belonging to her and
her mother. While the store was being looted, Susiani and her mother hid at the police
station for three days. Finally, she testified that, in May 1998, a series of riots erupted
across the country involving fighting between Indonesians and ethnic Chinese. Although
Susiani herself was not harmed during the riots, she was sufficiently scared for her safety
that she decided to flee to the United States.
After hearing her testimony, the IJ concluded that she had not shown that she had
faced persecution while in Indonesia. Persecution is an “extreme concept that does not
include every sort of treatment our society regards as offensive.” Fatin v. INS, 12 F.3d
1233, 1243 (3d Cir. 1993). In particular, persecution only embraces actions that are
“committed by the government or forces the government is either ‘unable or unwilling’
to control.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (citations
omitted). In this case, we find that substantial evidence supports the conclusion that
Susiani had not faced persecution in Indonesia. Indeed, we observe that in 1992,
petitioner actually fled to the police for safekeeping. The isolated incidents Susiani
testified to, while disturbing, simply do not rise to the level required to establish
eligibility for withholding of removal. Therefore, we will deny the petition for review.
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