Suryanto v. Atty Gen USA ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-1424
No. 08-4342
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ANDREAS SURYANTO,
Petitioner
v.
Attorney General of the United States,
Respondent
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On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A95-846-410)
Immigration Judge: Donald Vincent Ferlise
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Submitted Under Third Circuit LAR 34.1(a)
October 19, 2010
Before: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges.
(Filed: October 22, 2010 )
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
In these consolidated appeals, Andreas Suryanto petitions for review of two orders
of the Board of Immigration Appeals (BIA). We will deny both petitions.
I.
Because we write for the parties, we state only the facts and procedural history
necessary to our decision. Suryanto is an Indonesian Chinese Christian who was placed
in removal proceedings after overstaying his visa. He conceded removability, but applied
for asylum, withholding of removal, and protection under the Convention Against Torture
(CAT), arguing that he faced religious and ethnic persecution in Indonesia. After a
hearing on the merits, the Immigration Judge (IJ) issued an oral decision denying
Suryanto relief and granting his request for voluntary departure. The Board of
Immigration Appeals (BIA) summarily affirmed the IJ’s order. Following the BIA’s
decision, Suryanto incorrectly filed a petition for review in the Ninth Circuit, which
transferred the case here. After his case was transferred, Suryanto married a United
States citizen, and we held his appeal in abeyance pending adjudication of his I-130
application. Following approval of his I-130 application, Suryanto filed a motion with
the BIA to reopen and remand his case. The BIA denied this petition, and Suryanto filed
a second petition for review.
A.
Suryanto argues that he is entitled to relief because he has suffered persecution in
Indonesia as a result of his Chinese ethnicity and Christian faith, and because he fears
future persecution if he is forced to return. At his removal hearing, Suryanto recounted
incidents of harassment and violence to support his claim. While a student in primary
school, children frequently demanded money from Suryanto, and on ten or more
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occasions he was physically assaulted, although sometimes the attack was limited to a
slap or a push. Suryanto testified that he was targeted for these attacks because “they
assume that every Chinese has money.” Tr. 25.
Suryanto described two specific incidents of violence in greater detail. First, in
1990 he and a friend were beaten by seven or eight peers after rebuffing their demand for
money. Second, about a year later, two older teenage boys accosted Suryanto and choked
him until he “couldn’t breathe.” Id. at 30. Suryanto believed he was targeted both times
because of his Chinese ethnicity.
Suryanto also related instances of violence and harassment directed toward his
family. For example, Suryanto’s father opened an electronics store in the late 1980s and
gang members demanded protection money from him. Suryanto’s father initially refused
to pay, and the gang members beat him and his employees. Suryanto claimed that these
incidents “only happen[ed] in the Chinese [stores],” and were thus likely motivated by
ethnic animus. Id. at 41. In May 1998, during the widespread anti-government riots in
Indonesia, Suryanto’s father’s electronics store was burned down and his family was
forced to hide in their home for a period of three days.
In addition to this ethnically-motivated harassment, Suryanto described two
religiously-motivated attacks that he experienced. On December 24, 2000, during a
Christmas service at Suryanto’s church in Jakarta, a bomb exploded in the parking lot. A
few minutes later, after he had gone out to see what had happened, a second bomb
exploded inside the church, causing several injuries, some of them serious. In January
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2001, as Suryanto and other young members of the congregation were returning home
from cleaning the church, they were again accosted. When Suryanto refused to turn over
his money, he was beaten and warned: “don’t even try to repair or rebuild that church.”
Id. at 53.
Soon after this incident, Suryanto left for Singapore at his mother’s behest. After
two months, however, he returned to Indonesia because Singapore was too “busy” and
because it was “very difficult to find a job.” Id. at 22. Five months later, in September
2001, Suryanto came to the United States.
In addition to his claims of past persecution, Suryanto testified that he fears future
persecution because of ongoing hostility toward ethnic Chinese Christians in Indonesia.
B.
Although Suryanto had “basically been a credible witness,” the IJ found that
Suryanto did not suffer past persecution. IJ Opinion 8. The IJ concluded that Suryanto’s
run-ins with children seeking money were a result of his “refus[al] to give individuals
money. Not because he was Chinese.” Id. at 9. The IJ also held that the bombing of
Suryanto’s church was not an “act of persecution,” but rather “an isolated act of
aggression and terrorism.” Id. This finding was buttressed by the fact that “[t]here were
no problems before or subsequent to that incident at that church.” Id. The IJ also noted
that the attack made on Suryanto during his return from cleaning the church did not
constitute religious persecution because it did not impair his freedom of worship. Finally,
the IJ concluded that Suryanto did not “truly . . . fear for his life” in Indonesia, as
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evidenced by his prompt return from Singapore. Id. at 4. The IJ found that had Suryanto
truly feared for his life, he would have remained in Singapore “notwithstanding the fact
that . . . life is very busy and hectic there, and notwithstanding the fact that he did not
have a job at that time.” Id. at 5.
Alternatively, the IJ held that Suryanto “could obviously avoid any future
persecution by relocating to another section of his country . . . .” Id. at 11. Suryanto
conceded that he “has had no problems as an adult” in the province where his parents
reside, and that his family is free to practice religion there. Id.
C.
Suryanto petitioned for review of the IJ’s decision and the BIA affirmed without
opinion. Because Suryanto improperly sought review of the BIA decision in the Court of
Appeals for the Ninth Circuit, the case was transferred here on January 25, 2006.1
On May 25, 2007, Suryanto married a United States citizen. He then moved the
BIA to reopen his case, so we held his petition in abeyance pending further action by the
BIA. After the BIA denied his motion, Suryanto filed a second petition for review,
claiming a due process deprivation. We consolidated both petitions.
II.
1 The Government claims we lack jurisdiction, citing the requirement of 8 U.S.C.
§ 1252(b)(1) that a “petition for review [of an order of removal] must be filed not later
than 30 days after the date of the final order.” Suryanto did, however, file his petition
within the requisite timeframe; he simply filed it in the wrong venue. See id. §1252(b)(2).
Because the venue requirement is nonjurisdictional, Bonhometre v. Gonzales, 414 F.3d
442, 446 n.5 (3d Cir. 2005), we reject the Government’s argument in this regard.
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A.
Where, as here, the BIA affirms the IJ’s decision without opinion, we review the
IJ’s decision. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005). We review the IJ’s
factual determinations under the substantial evidence standard, which requires us to defer
to the IJ’s findings “unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the BIA’s denial of the motion to
reopen for an abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2006).
B.
An alien is eligible for asylum, pursuant to 8 U.S.C. § 1158(b)(1)(A), if he
qualifies as a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A), that is, if he “is
unable or unwilling to return to” the country of his nationality “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.” The applicant bears the burden of
showing that he qualifies as a refugee, see Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.
2004), and he “must establish that race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least one central reason for [his]
persecut[ion].” 8 U.S.C. § 1158(b)(1)(B)(i). “Persecution” is defined 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) (quoting Fatin v. INS,
12 F.3d 1233, 1240 (3d Cir. 1993)). A “well-founded fear of persecution” must be both
genuinely held by the petitioner and objectively reasonable. Id. An alien may establish a
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presumption that a well-founded fear exists by demonstrating that he suffered persecution
in the past. 8 C.F.R. § 208.13(b)(1).
After careful review of the record, we are unable to conclude that any reasonable
factfinder would have been compelled to disagree with the IJ. In Lie v. Ashcroft—another
case involving an ethnically Chinese Christian from Indonesia—we stated that “[s]imple
robbery, in isolation, while unfortunate and troubling, does not seem to meet th[e]
stringent standard” required to establish persecution under the statute. 396 F.3d at 536.
The same conclusion applies here: although the robberies Suryanto suffered were terrible,
a reasonable factfinder would not be compelled to conclude that they were severe enough
to constitute persecution under the statute. Likewise, a reasonable factfinder would not
be compelled to conclude that the bombing of Suryanto’s church and the subsequent
warning constituted persecution.
Moreover, there is insufficient evidence to compel a reasonable factfinder to
conclude that the robberies were motivated by Suryanto’s race, as opposed to his
perceived wealth. In Lie, the robbers referred to the petitioner as a “Chinese pig,” but we
agreed with the BIA that “a single ethnic slur was insufficient to establish that the thieves
were motivated by Lie’s or her husband’s ethnicity.” Id. at 535 (internal quotation marks
omitted). Similarly, although Suryanto has offered some evidence supporting his
contention that the harassment he suffered was a result of ethnic animus, the majority of
his testimony supports the IJ’s conclusion that financial gain was the motivating force.
Furthermore, a reasonable factfinder could conclude (as the IJ did) that Suryanto
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does not subjectively hold a well-founded fear of persecution based on his voluntary
return to Indonesia from Singapore.
For all the foregoing reasons, we will affirm the IJ’s conclusion that Suryanto is
not eligible for asylum, which also dooms his claim for withholding of removal. See
Kibinda v. Att’y Gen., 477 F.3d 113, 123 (3d Cir. 2007).
III.
Suryanto next claims the BIA’s denial of his motion to reopen following his
marriage deprived him of due process of law. We review this claim de novo.
We find no constitutional infirmity in the BIA’s action. “[A] cognizable liberty or
property interest must exist in the first instance for a procedural due process claim to lie.”
Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006). Here, Suryanto seeks reopening to
vindicate his supposed interest in adjusting his immigration status. Ordinarily, the
Attorney General has discretion to adjust an alien’s status.2 See 8 U.S.C. § 1255(a);
Mudric, 469 F.3d at 98-99. When the decision to grant or withhold a benefit is entrusted
to the discretion of a government actor, one has no constitutional property interest in
obtaining that relief. Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981).
Accordingly, Suryanto does not have a sufficient property or liberty interest in the
2 In the instant case it appears that the Attorney General may have been statutorily
required to deny adjustment because Suryanto failed to voluntarily depart within the
timeline set by the IJ. See 8 U.S.C. § 1229a(b)(7) (an alien who fails to voluntarily depart
is ineligible for relief under § 1255, governing adjustment of status, for 10 years).
Because we find that Suryanto does not have a viable due process claim, however, there
is no need for us to address this issue.
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adjustment of his status to qualify for due process protection. Mudric, 469 F.3d at 99(“No constitutional injury occurred from the INS delays in this case because Mudric
simply had no due process entitlement to the wholly discretionary benefits of which he
and his mother were allegedly deprived . . . .”). Suryanto’s due process claim therefore
must fail.
IV.
For the foregoing reasons, we will deny both of Suryanto’s petitions for review.
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