Ganadi v. Attorney General , 291 F. App'x 490 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-11-2008
Ganadi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4301
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4301
___________
BASUKI GANADI; ESTER RATNADEWI INDRAWATI,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A97-849-707, A97-849-708)
Immigration Judge: Honorable R. K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2008
Before: FUENTES, ALDISERT and GARTH, Circuit Judges
(Opinion filed September 11, 2008)
___________
OPINION
___________
PER CURIAM
Basuki Ganadi and Ester Ratnadewi Indrawati petition for review of a final order
of removal issued by the Board of Immigration Appeals (“BIA”). We will deny their
petition.
I.
Ganadi and his wife, Indrawati, are natives and citizens of Indonesia. Indrawati
arrived in the United States in October 2001, followed by her husband approximately a
year later. After the commencement of removal proceedings against them in October
2003, Petitioners requested asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). According to Petitioners, they suffered past
persecution, and feared future persecution, because they are ethnic Chinese Christians.
However, the Immigration Judge (“IJ”) denied Petitioners’ requests for relief and
ordered them removed. The BIA then dismissed their appeal. In doing so, it agreed with
the IJ that “there is insufficient evidence to establish that any harm [Petitioners]
experienced rises to the level of persecution and was on account of a protected ground.”
(AR000002 (citation omitted).) Regarding an alleged fear of future persecution, it noted
that some family members have remained in Indonesia unharmed, that the Petitioners left
the country some time after the alleged incidents of persecution occurred, and that the
2005 State Department country and religious freedom reports indicate certain
improvements in the treatment of Christians and ethnic Chinese citizens. Finally,
Petitioners failed to meet the higher burden of proof for withholding of removal and did
not address the issue of CAT relief in their supporting brief. Following the BIA’s
dismissal of their administrative appeal, Petitioners filed a timely petition for review with
this Court.
II.
The Court has jurisdiction over this matter pursuant to 8 U.S.C. § 1252.
Because the BIA agreed with the findings made by the IJ and added its own discussion,
we review both the BIA’s order as well as the IJ’s decision. See, e.g., Jarbough v.
Attorney General, 483 F.3d 184, 191 (3d Cir. 2007). Their respective findings of fact are
then reviewed under a substantial evidence standard. See, e.g., id. After considering the
parties’ briefs as well as the record itself, we conclude that the administrative
determinations at issue here are supported by substantial evidence.
Initially, Petitioners argue that the BIA erred in finding that they failed to establish
past persecution on account of their Chinese ethnicity. Petitioners have admittedly
identified a number of unfortunate incidents in their past, going as far back as their
childhood. For instance, Ganadi claimed that he was robbed and beaten by immigration
officers when traveling to work from his home and that native Muslims surrounded and
threatened his church during Sunday services. Likewise, Indrawati testified that a native
Muslim attempted to rape her when she was a teenager.
Nevertheless, there is adequate support in the record for the BIA to conclude either
that such incidents are insufficiently severe to constitute persecution or that Petitioners
failed to show that they occurred on account of a protected ground. It is well established
that “the concept of persecution does not encompass all treatment that society regards as
unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240
(3d Cir. 1993). Accordingly, mere criminal conduct, such as simple robbery, does not
ordinarily constitute persecution. See, e.g., Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.
2005). The BIA further observed that, at least with respect to some of these incidents,
there is no indication in the record that Petitioners or their family members had been
personally targeted because of their religion or ethnicity. It then noted that the Indonesian
police actually provided physical protection for Ganadi’s church and that he thereby
continued to attend religious services and actively participate in his church’s various
activities. See, e.g., id. at 537 (“[V]iolence or other harm perpetrated by civilians . . .
does not constitute persecution unless such acts are committed by the government or
forces the government is either unable or unwilling to control.” (quotations omitted)).
Most of the incidents also occurred some time before Petitioners left the country. In fact,
several incidents, including the alleged attempted rape of Indrawati, took place several
decades ago when Petitioners, who are now in their late fifties, were either children or
teenagers.
Petitioners also allege a well-founded fear of future persecution, and they
specifically assert that there is a “longstanding pattern and practice of persecution against
ethnic Chinese-Indonesians.” (Petitioners’ Br. at 12.) While they refer to the 2001 State
Department country report for Indonesia, they fail to mention that the BIA expressly cited
the more recent 2005 country and religious freedom reports as indicating “decreased
instances of inter-religious violence, a decline in discrimination and harassment against
ethnic Chinese, and government action to promote tolerance.” (AR000003.) See, e.g.,
Wong v. Attorney General, --- F.3d ---, 2008 WL 3852363, at *8 (3d Cir. 2008) (“The
factual determination as to a pattern or practice must, however, be based on the most
current information in the record . . . .”). The BIA further emphasized that several family
members remained in Indonesia and that Petitioners did not leave the country until well
after the alleged incidents of persecution actually occurred. See, e.g., Lie, 396 F.3d at
536-37. Under the circumstances, we conclude that the record contains substantial
evidence to support the BIA’s denial of Petitioners’ future persecution and “pattern and
practice” theories. See, e.g., Wong, --- F.3d ---, 2008 WL 3852363, at *7 & n.4 (rejecting
petitioner’s claim that 2003 and 2004 reports demonstrate pattern or practice of
persecution against Chinese Christians in Indonesia and further noting that more recent
reports also document improved treatment of Chinese Christians); Lie, 396 F.3d at 537-38
(concluding that there was no pattern or practice of persecution against ethnic Chinese
Christians in Indonesia based in part on 1999 country report showing sharp decline in
violence since 1998 riots).
Because Petitioners thereby did not establish either past persecution or a fear of
future persecution for purposes of asylum, the BIA correctly determined that they
necessarily failed to meet the higher burden required for withholding of removal. See,
e.g., Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 348-49 (3d Cir. 2008). The
BIA also noted that the “brief on appeal makes no argument in support of protection
under CAT.” (AR000003.) For their part, Petitioners do not appear to take issue with
this statement. In fact, the brief submitted by Petitioners in support of their petition for
review generally makes only passing references to this form of relief, and it lacks any
apparent argument with respect to a likelihood of torture. See, e.g., 8 C.F.R. §
208.16(c)(2). We therefore must conclude that Petitioners have abandoned any real
claim for CAT relief. See, e.g., Chen v. Ashcroft, 376 F.3d 215, 221 (3d Cir. 2004)
(“[Petitioner] timely filed this petition for review, limiting his arguments to his asylum
and withholding of removal claims, thus abandoning his claim for protection under
[CAT].”).
III.
For the foregoing reasons, we will deny the petition for review. In addition to
seeking a reversal of the BIA's decision and a remand, the Petitioners have moved for a
stay of removal. The affidavit submitted in support thereof is devoid of the essentials for
stay. In particular, if there was any indication that there is a probability of success, in
light of our decision to deny the petition, such an allegation would have been fruitless.