Devido v. Attorney General ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-7-2005
Devido v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1317
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1317
SINA DEVIDO,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A79-303-202)
Submitted pursuant to Third Circuit LAR 34.1(a)
September 30, 2005
Before: RENDELL, FUENTES, and WEIS, Circuit Judges
(Filed: October 7, 2005)
______________________
OPINION OF THE COURT
_____________________
FUENTES, Circuit Judge.
Sina Devido petitions for review of a decision by the Board of Immigration
Appeals (“BIA”) affirming the rejection by an Immigration Judge (“IJ”) of his application
for asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). We find that there is substantial evidence to support the IJ’s and the BIA’s
decisions and accordingly deny the petition.
I. Facts and Procedural History
As we write only for the parties, we recite only the essential facts. Devido is a
native and citizen of Indonesia. He lawfully entered the United States on or about
October 10, 2000, as a non-immigrant visitor for pleasure. He remained in the country
longer than he was authorized to stay, and the Immigration and Nationalization Service
(“INS”) commenced removal proceedings against him on May 29, 2001.1 Devido
conceded removeability under Section 237(a)(1)(B) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(1)(B), but filed an application for asylum, withholding of
removal, and protection under the CAT.
Devido claims that he is Christian and of Chinese descent, and that he suffered
persecution in Indonesia from native Indonesians on account of his Chinese ethnicity.2 In
his testimony before the IJ, Devido, who was twenty-nine years old at the time of his
1
As of “March 2003, the INS ceased to exist as an independent agency within the
United States Department of Justice and its functions were transferred to the newly
formed United States Department of Homeland Security. The BIA, however, remains
within the Department of Justice.” Leia v. Ashcroft, 393 F.3d 427, 430 n.4 (3d Cir. 2005)
(citation omitted).
2
At Devido’s immigration hearing, the IJ noted that Devido did not indicate in his
testimony that he suffered persecution on account of his religion.
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hearing, stated that when he was in elementary school three or four native Indonesians
demanded money from him almost every day. On one occasion, the native Indonesians
knocked him down and beat him when he attempted to run away. According to Devido,
his friend’s mother found him lying on the ground and took him to the hospital for
treatment. Devido further testified that when he was attending university in 1997, a group
of native Indonesians, some of whom were carrying clubs and knives, approached him
while he was sitting in a truck with its engine running, got into the truck, took his money,
and demanded that he drive them to a political rally. Devido also testified that his father’s
bakery was destroyed by fire in 1998 after rioters threw Molotov cocktails into the shop,
and that, one year later, native Indonesians attacked and robbed the rebuilt bakery;
however, Devido was not present at the bakery when either of these incidents took place.
According to Devido, the mistreatment he and his family suffered occurred because they
are ethnic Chinese. Devido also stated that none of the incidents were reported to the
police. Devido testified that he believes more riots will occur in Indonesia and that he
cannot trust the police.
The IJ found that the main reason for Devido’s trip to the United States was “to
seek employment and establish a life here in the United States.” The IJ also stated that
Devido “apparently” had no fear of remaining in Indonesia, and that although his parents
and siblings have remained there “they are not suffering in terms of their ethnicity or
religion.” The IJ referred to the State Department’s 2001 “Country Reports on Human
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Rights Practices: Indonesia,” and found that the Indonesian government is taking steps to
promote racial equality and ethnic tolerance. Accordingly, the IJ denied Devido’s
asylum application and his application for withholding of removal and CAT relief. The
BIA affirmed, and Devido filed a timely petition for review in this Court.3
II. Discussion
We review the decisions of the IJ and the BIA under the substantial evidence
standard. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We conclude that the
IJ’s decision, and the BIA’s affirmance of it, are supported by the record.4
Devido claims that the IJ relied on an adverse credibility determination to deny his
application for asylum. The IJ, however, did not enter an adverse credibility
determination against Devido; rather, the IJ found that the portion of Devido’s testimony
relating to the destruction of his father’s bakery in 1998 was not credible. In particular,
the IJ found that a photograph of the bakery that Devido submitted in support of his claim
appeared to have been altered, with the name of the business establishment apparently
blacked out. The IJ found Devido’s explanation that the marks were the result of the fire
that destroyed his father’s bakery not to be credible. The IJ’s refusal to credit Devido’s
testimony about his father’s bakery was reasonable and must be upheld. 8 U.S.C.
3
Respondent Attorney General of the United States moved to dismiss Devido’s
appeal to this Court for lack of subject matter jurisdiction. This Court denied the motion.
4
For this reason, this Court need not address Respondent’s argument that Devido’s
petition must be dismissed for failure to comply with Rule 28(a) of the Federal Rules of
Appellate Procedure.
4
§ 1252(b)(4)(B); Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001).
As the IJ and BIA determined, the incidents of discrimination, harassment, and
robbery described by Devido do not amount to persecution under the controlling law. See
Fatin v. INS, 12 F.3d 1233, 1240 & n.10 (3d Cir. 1993) (explaining that persecution
denotes “extreme conduct” that “does not encompass all treatment that our society regards
as unfair, unjust, or even unlawful or unconstitutional”); cf. Lie v. Ashcroft, 396 F.3d
530, 536 (3d Cir. 2005) (holding that ethnic Chinese Indonesian’s “account of two
isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft
of some personal property and a minor injury, is not sufficiently severe to be considered
persecution”). Thus, Devido’s claim for asylum based on past persecution was properly
denied.
Furthermore, the determination by the IJ and the BIA that Devido did not establish
a well-founded fear of future persecution is supported by substantial evidence. Although
the last incident that personally affected Devido occurred in June 1997, he continued
living in Indonesia until October 2000. In addition, Devido did not claim that he
attempted to escape further mistreatment by going into hiding or moving to a new
location within Indonesia. Nor has Devido shown that ethnic Chinese continue to be
subject to persecution in Indonesia such that he faces a reasonable probability of harm
upon his return. Cf. Lie, 396 F.3d at 537 (finding that petitioner “failed to establish either
that she faces an individualized risk of persecution or that there is a ‘pattern or practice’
5
of persecution of Chinese Christians in Indonesia”). Aside from an incident in 2001
when one of Devido’s sisters was groped while riding in a badji (a three-wheeled bike
used like a taxi), Devido’s Christian and ethnically Chinese parents and siblings have
continued living in Indonesia without any problems since 1999. Moreover, the IJ
considered the current conditions in Indonesia and found that conditions for ethnic
Chinese Indonesians have improved greatly since 1998. Devido does not challenge this
finding by the IJ or the conclusions of the State Department’s 2001 “Country Reports on
Human Rights Practices: Indonesia,” which indicates that, although problems persist, the
Indonesian government promotes ethnic tolerance. Thus, Devido’s claim for asylum
based on a well-founded fear of future persecution was properly denied.
Devido’s withholding of removal and CAT claims fail for reasons similar to those
discussed above.
III. Conclusion
For the foregoing reasons, we will deny Devido’s petition for review.
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