Sanusi, Kristanty v. Gonzales, Alberto ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 9, 2006
Decided July 24, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-3100
KRISTANTY SANUSI, et al. Petition for Review of an Order of the
Petitioners, Board of Immigration Appeals
v. Nos. A96-496-600, A96-496-601 &
A96-496-602
ALBERTO GONZALES,
Respondent.
ORDER
The petitioners, a husband and wife and their minor son, applied for asylum
and withholding of removal on grounds of ethnic and religious persecution in their
native Indonesia. The petitioners did not timely seek asylum, and the IJ and the
BIA agreed that they were ineligible for withholding because they had not
demonstrated a clear probability of persecution should they return to Indonesia.
The petitioners challenge the denial of withholding of removal, but that decision is
supported by substantial evidence.
Kristanty Sanusi, the primary applicant, and her husband, Djoni Susanto
Lie, are ethnically Chinese and practicing Catholics. They and son Steven, who is
now seven years old, entered the United States most recently in May 2000 at Los
Angeles, California, and overstayed their six-month visitor visas. The couple also
No. 05-3100 Page 2
have a daughter, whose birth shortly after their arrival in the United States is not
relevant to this case. In March 2003, almost three years after they arrived, the
petitioners applied—as relevant here—for withholding of removal, claiming past
persecution on account of their ethnicity and religion. Two months later DHS
initiated removal proceedings and served the petitioners with Notices to Appear.
Sanusi and Lie were the only witnesses before the IJ. Sanusi, who is
presently 33 years old, was educated in Catholic primary and secondary schools in
her Jakarta neighborhood and graduated from college with a degree in accounting.
Afterward she helped her father run his successful stationery store. Her parents,
two brothers, and one of her sisters still live in Jakarta.
Sanusi’s contention that she suffered ethnically or religiously motivated
abuse really comes down to events during a few days in 1998 and 2000. In May
1998, according to Sanusi, students who were protesting economic conditions and
the waning rule of then-president Haji Mohammad Suharto rioted in Jakarta and
looted Chinese businesses. The government, she said, offered no protection, and
during the riots her family home was burned and several of her neighbors were
beaten. One year later, Sanusi continued, she left for an extended visit to the
United States with Lie, but the couple returned voluntarily to Jakarta in August
1999 when her parents assured them that the situation in Indonesia had improved.
During 2000, though, she twice encountered rock-throwing mobs. The first time, in
January, she was attending Mass with other Chinese Catholics when people outside
yelling “Allah Akbar” (a common Arabic expression meaning Allah is the Greatest)
began pelting the church with stones. She did not make any effort to call the police
and was unaware if any of the other parishioners had either. Then in mid-May,
during the anniversary of the 1998 riots, protestors shouting “kill the Chinese” tried
unsuccessfully to enter the temporary housing where her family had moved after
losing their house. Nobody was injured in either attack, and neither the church nor
the shelter was damaged.
Apart from these events, Sanusi focused on sexual abuse she suffered as a
child. She testified that when she was seven or eight she was touched
inappropriately by one of two men who accosted her and her aunt on a bus and
demanded money at knife point. That time, she said, the assailants referred to her
aunt as “Chinese.” She also testified that a few years later, when she was 11, an
individual (whom she did not describe) called her “Chinese” and tried to kiss her
and touched her breast. Sanusi’s testimony about this incident might be read to
suggest that her assailant and his companions touched her more than once (“[q]uite
often, when I passed by, they would look at me and then they would touch my
breast”), but her counsel characterizes it as a single episode. The most serious
attack, though, occurred when Sanusi was in junior high; she was sexually
assaulted in front of her mother while the two were walking near the family home.
No. 05-3100 Page 3
As before she did not describe the assailant, and this time neither did she attempt
to ascribe any ethnic or religious motive to the attack.
Lie’s testimony was shorter. He corroborated Sanusi’s testimony about the
attacks on the church and her family’s temporary housing, but otherwise he had
little to add about his own personal experiences. Mostly he implied that Indonesian
authorities are indifferent to attacks on ethnic-Chinese. He testified that police did
nothing when his uncle was murdered after he and Sanusi came to the United
States; that testimony was false: a newspaper article introduced by the petitioners
recounts that police had charged employees of the uncle with committing the
murder during a robbery. Lie also testified that his brother had been robbed and
beaten by people calling him “Chinese Bastard,” and that his brother told him he
saw an Indonesian marine fire a gun into a car occupied by an ethnic-Chinese
family.
The IJ held that the petitioners were ineligible for withholding of removal
because they had not demonstrated a clear probability of future persecution.
Looking first to past events, the IJ found “scant evidence” that the petitioners, even
assuming their testimony was credible, had suffered persecution while living in
Indonesia. The IJ, while characterizing the destruction of Sanusi’s parents’ home
as “an event of some significance,” reasoned that the petitioners could not attribute
the 1998 rioting to the government even though there was some indication that the
government didn’t take “effective action” to control the turmoil. Moreover, the IJ
concluded that the two stone-throwing incidents in 2000 were “not really significant
events” and, again, not attributable to the government.
As to whether the petitioners might reasonably fear future persecution apart
from their past experiences, the IJ observed that their return to Indonesia in 1999
undermined any argument that events before that year were cause for them to fear
the prospect of future abuse. The IJ then concluded that “[t]he history in Indonesia
does not indicate that there is generalized mistreatment of Chinese or Catholics by
the government or by a part of Indonesian society that the government will not
control or is unwilling to control.” The IJ recognized that reports on country
conditions in Indonesia do evidence discrimination against ethnic
Chinese—sometimes by the government—and opined that the government had “not
done enough to protect its ethnic and religious minorities.” The IJ also
acknowledged recent, isolated attacks by extremists targeting ethnic Chinese and
Christians in areas of Indonesia remote from Jakarta. But the IJ found “no
indication that the government follows a persecutory policy toward Chinese or
Catholic[s],” and concluded that the petitioners had not demonstrated widespread
persecution of either ethnic Chinese or Catholics in Indonesia.
No. 05-3100 Page 4
The petitioners argue that substantial evidence does not support the IJ’s and
BIA’s conclusion that they failed to establish past persecution. The BIA adopted
the IJ’s decision, so we review the IJ’s order. See Ali v. Ashcroft, 395 F.3d 722, 727
(7th Cir. 2005). To have qualified for withholding of removal, the petitioners were
required to show that it is more likely than not that their “life or freedom would be
threatened” upon return to Indonesia on account of their “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A); Lhanzom, 430 F.3d at 842. This standard is stricter than the
standard for establishing asylum eligibility, Prela v. Ashcroft, 394 F.3d 515, 519
(7th Cir. 2005), and the IJ found that the petitioners would not have qualified for
asylum even if their application had been timely. We review a denial of an
application for withholding of removal for substantial evidence, and will grant a
petition for review only if the petitioners’ evidence compels relief. Mabasa v.
Gonzales, 440 F.3d 902, 907 (7th Cir. 2006).
The petitioners’ evidence does not compel us to conclude that they were
eligible for withholding of removal. Sanusi claimed she had been sexually assaulted
on three occasions in her youth, although she alleged only stray remarks to show
that the attacks were motivated by her ethnicity. She also testified that her
parents’ home was burned by student rioters in 1998, and that she and her husband
were victims of two separate rock attacks in 2000. The IJ did not focus on whether
the attacks against the petitioners were on account of their ethnicity or religion.
Instead the IJ concluded that there was no link to the government. The IJ thought
that the evidence suggested “a problem of Islamic extremism” in Indonesia, but he
also concluded from the record that the government was attempting to correct the
problem. Persecution is something perpetrated by the government or by a non-
governmental group that the government refuses to control, Margos v. Gonzales,
443 F.3d 593, 599 (7th Cir. 2006); Hor v. Gonzales, 421 F.3d 497, 501-02 (7th Cir.
2005); Mitreva v. Gonzales, 417 F.3d 761, 764-66 (7th Cir. 2005), and the petitioners
have not provided compelling evidence that the government of Indonesia was
complicit or indifferent to their suffering.
Moreover, the IJ considered the State Department’s country reports and
recognized the complex history of discrimination against ethnic Chinese and
Catholics in Indonesia, but found no evidence of widespread persecution against
either. We recently considered the conditions Chinese-Catholic Indonesians face,
and rejected a petitioner’s challenge to a denial of withholding of removal,
concluding that the Indonesian government has taken steps to “control the ethnic
and religious tension.” Firmansjah v. Gonzales, 424 F.3d 598, 607 (7th Cir. 2005).
And except for the Ninth Circuit, other circuits generally agree that the Indonesian
government has worked to protect members of this group. See Susanto v. Gonzales,
439 F.3d 57, 61 (1st Cir. 2006); Wijono v. Gonzales, 439 F.3d 868, 874 (8th Cir.
No. 05-3100 Page 5
2006); Setiadi v. Gonzales, 437 F.3d 710, 714 (8th Cir. 2006); Lie v. Ashcroft, 396
F.3d 530, 537 (3d Cir. 2005). But see Lolong v. Gonzales, 400 F.3d 1215, 1220-22
(9th Cir. 2005); Sael v. Ashcroft, 386 F.3d 922, 925-27 (9th Cir. 2004). That Sanusi’s
family has remained in Indonesia and continues to attend the same church in
Jakarta further belies the petitioners’ claim that they fear future persecution.
Firmansjah, 424 F.3d at 607.
Accordingly, there is substantial evidence to support the IJ’s withholding
decision. In a final attempt to undermine that conclusion, the petitioners contend
that the IJ denied them of a full and fair hearing by disregarding “relevant”
testimony because it was too remote in time. We review de novo the purely legal
question of whether an immigration hearing violated due process. Giday v.
Gonzales, 434 F.3d 543, 547 (7th Cir. 2006). The Fifth Amendment Due Process
Clause requires that aliens be afforded a meaningful opportunity to be heard and a
reasonable opportunity to present evidence during deportation proceedings. See id.
This standard ensures petitioners a full and fair opportunity to present their case
without frequent interruptions or hostility from the IJ. Id. at 548. Here, though,
the petitioners contend only that the IJ improperly disregarded certain events.
They do not suggest that the IJ overreached his role as arbitrator to control
testimony or that he improperly barred complete chunks of oral testimony that
would have supported their claims. Instead the IJ allowed the record to develop
during the proceedings, and only afterwards did he decide to assign no weight to
events he considered too remote to bear on the issue of persecution. The IJ’s
weighing of evidence after the petitioners were afforded a meaningful opportunity
to be heard, did not violate their right to due process. See Liu v. Ashcroft, 380 F.3d
307, 315 (7th Cir. 2004); Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir. 2003). The
petition is DENIED.