Prawira v. Attorney General of the United States ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-28-2006
Prawira v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2559
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2559
SENO PRAWIRA,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
On Petition for Review of an Order of
The Board of Immigration Appeals
(No. A95-369-188)
Submitted Under Third Circuit LAR 34.1(a)
March 6, 2006
Before: RENDELL and AMBRO, Circuit Judges,
and SHAPIRO,* District Judge
(Opinion filed: March 28, 2006)
OPINION
AMBRO, Circuit Judge
*
Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Seno Prawira petitions for review of a final order of removal issued by the Board
of Immigration Appeals (“BIA” or “Board”) that affirmed without opinion the denial by
an Immigration Judge (“IJ”) of Prawira’s applications for political asylum, withholding
of removal, and relief under Article III of the United Nations Convention Against Torture
and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”).
Prawira asserts that the BIA’s decision is not supported by substantial evidence. For the
reasons set forth below, we deny the petition.
I.
Prawira is ethnically Chinese, Christian, and a native and citizen of Indonesia. He
was admitted into the United States as a non-immigrant visitor on December 12, 2000,
and was authorized to remain until June 11, 2001. When he overstayed, the Immigration
and Naturalization Service (“INS”) issued Prawira a notice to appear, charging him as
removable for staying beyond his visa without authorization from the INS pursuant to 8
U.S.C. § 1227(a)(1)(B).1 Prawira conceded his removability and requested relief in the
form of asylum, withholding of removal, protection under the CAT, and, in the
alternative, voluntary departure. Prawira alleged a lifetime of harassment and
mistreatment in Indonesia because of his ethnicity and religion.
1
On March 1, 2003, the INS’s functions were transferred to the United States
Department of Homeland Security (“DHS”). See Knapik v. Ashcroft, 384 F.3d 84, 86 n. 2
(3d Cir.2004) (citing Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 451 &
471, 116 Stat. 2135, codified at 6 U.S.C. §§ 251, 271 & 291). Because the operative
events in this case began before the transfer of functions, INS is used here.
2
On November 12, 2003, the IJ found Prawira was not eligible for a discretionary
grant of asylum, and Prawira therefore failed to meet the higher standard of proof
required for withholding of removal. The IJ found Prawira’s testimony to be credible,
but concluded that he had not presented even “a scintilla of evidence” of past persecution
on any of the protected grounds. Even assuming that past persecution had been
established, the IJ noted that Prawira could avoid future persecution by relocating within
Indonesia. The IJ also found Prawira had failed to prove he would be tortured if he is
returned to Indonesia. Finally, in light of Prawira’s stated refusal to depart the United
States, the IJ declined to permit voluntary departure and ordered him removed to
Indonesia.
Prawira appealed the IJ’s decision to the BIA and the Board affirmed without
opinion. This petition for review followed.2
II.
In his petition, Prawira argues that the IJ’s denials of asylum and withholding of
removal are not supported by substantial evidence.3 As we write for the parties, we need
2
We have jurisdiction to review final orders of removal under 8 U.S.C. §
1252(a)(1). When, as here, the BIA adopts the IJ’s opinion, it is the decision of the IJ that
we review. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
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Prawira’s petition for review focuses on his claims for asylum and withholding
of removal and makes no specific argument that the BIA’s denials of his claims for CAT
protection and voluntary departure were incorrect. We therefore deem those claims
waived and address only the asylum and withholding claims. Konan v. Attny. Gen. of the
U.S., 432 F.3d 497, 500 n.2 (3d Cir. 2005).
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not detail the facts of this case. An alien is eligible for a discretionary grant of asylum if
he or she qualifies as a refugee under the INA. 8 U.S.C. § 1158(b)(1). A refugee is an
alien who is “unable or unwilling” to return to his or her country of origin “because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion,” 8 U.S.C. § 1101(a)(42)(A),
that is “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).
Aliens have the burden of supporting their asylum claims. Vente v. Gonzales, 415 F.3d
296, 300 (3d Cir. 2005). Under some circumstances, credible testimony alone will meet
this burden. 8 C.F.R. § 208.13(a); Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003).
Whether an asylum applicant has demonstrated past persecution or a well-founded fear of
future persecution is a factual determination reviewed under the substantial evidence
standard. Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005). We must affirm the
agency’s finding unless “any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Whereas asylum is discretionary, withholding of removal under 8 U.S.C. §
1231(b)(3)(A) is mandatory if the applicant meets a more stringent standard – that it is
“more likely than not” that he or she will be persecuted on account of race, religion,
nationality, membership in a particular social group, or political opinion if deported to his
or her home country. Singh v. Gonzales, 406 F.3d 191, 196 (3d Cir. 2005). Whether an
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applicant has met the standard for withholding of removal is also a decision that is
reviewed for substantial evidence. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.
2003).
The IJ concluded that Prawira had not demonstrated past persecution because
some of the incidents of which Prawira complained had occurred when he was a child,
over fifty years ago; the more recent incidents he described were isolated and were not
severe enough to constitute persecution; and there was no evidence that the Indonesian
government was unwilling or unable to help protect Christian, ethnically Chinese
Indonesians. The IJ further concluded that, even assuming Prawira had established past
persecution, he could avoid future persecution by relocating within Indonesia to the town
where his wife and children currently live, as there was no evidence that Prawira or his
family had ever had problems in that locale.
Prawira argues that the IJ’s conclusions were not supported by substantial
evidence because any reasonable adjudicator would be compelled to conclude that the
almost complete destruction of Prawira’s church by Muslim Indonesians amounted to
persecution; State Department country reports demonstrate that inter-religious violence
in Indonesia is not limited to regions of the country characterized as “far-flung” by the IJ;
and the country reports also demonstrate that the Indonesian government is ineffective at
deterring religiously motivated violence.
We do not believe it necessary to review the IJ’s characterization of the conditions
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in Indonesia, as we hold that the evidence does not compel the conclusion that Prawira’s
experiences rise to the level of persecution. Our Court has defined persecution as
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).
There is substantial evidence to support the conclusion that, even if the country
conditions were as described by Prawira, his testimony would not compel any reasonable
fact finder to conclude that he established the “individualized risk of persecution”
necessary for asylum. See Lie, 396 F.3d at 537 (holding there was substantial evidence to
support denial of asylum when, inter alia, alien provided “little evidence that [she]
would face an individualized risk of persecution any more severe than that faced by her
family members or other Chinese Christians in Indonesia”). There is also substantial
evidence to support the IJ’s conclusion that Prawira could avoid future persecution by
relocating to the location within Indonesia where his wife and children reside.
Thus, the conclusion that Prawira neither was persecuted nor has a well-founded
fear of persecution in Indonesia is supported by substantial evidence. Moreover, because
he failed to establish eligibility for asylum, he necessarily also failed to meet the more
stringent standard for showing a “clear probability of persecution” to be eligible for
withholding of deportation. Paripovic v. Gonzales, 418 F.3d 240, 246 (3d Cir. 2005).
* * * * *
For the reasons stated above, we will deny Prawira’s petition for review.
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