Chin v. Attorney General

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-27-2008
Chin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2090
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Chin v. Atty Gen USA" (2008). 2008 Decisions. Paper 966.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/966
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2090
___________
SUCIPTO HENDRA CHIN;
FELIX GUNAWAN;
SUJANI GUNAWAN,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
__________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency Nos. A A96-203-420, A96-203-390, and A97-849-742)
Immigration Judge: Honorable Charles M. Honeyman
__________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 12, 2008
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: June 27, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM
Petitioners, Sucipto Hendra Chin, Felix Gunawan, and Sujani Gunawan,1 petition
for review of a final order of removal issued by the Board of Immigration Appeals
(“BIA”). For the reasons that follow, we will deny the petition.
Petitioners are natives and citizens of Indonesia and are Christians. Petitioners
entered the country at Los Angeles, California, on approximately August 1, 2001, as non-
immigrant visitors with authorization to remain in the United States until February 1,
2002. On April 16, 2003, Petitioners were issued a Notice to Appear, which alleged that
they were in the country without authorization. In response, they applied for asylum,
withholding of removal, relief under the Convention Against Torture (“CAT”), and
voluntary departure.
In denying their claims on August 29, 2005, the Immigration Judge (“IJ”)
concluded that Petitioners’ asylum applications were untimely and that Petitioners had
demonstrated neither that they had suffered past persecution nor that they had a well-
founded fear of future persecution. The IJ further found that Petitioners had not satisfied
the requirements for withholding of removal pursuant to § 241(b)(3)(A) or under the
CAT. The IJ granted their application for voluntary departure. On March 12, 2007, the
BIA affirmed the IJ’s decision.
1
Sucipto Hendra Chin and Sujani Gunawan are husband and wife, and Felix Gunawan
is their adult son.
2
Because the BIA adopted a portion of the IJ’s decision, we will review the
determinations of both the BIA and the IJ. See Shehu v. Att’y Gen., 482 F.3d 652, 657
(3d Cir. 2007). We will sustain their determinations if they are supported by substantial
evidence in the record. Id. Under the substantial evidence standard, we will uphold the
determinations of the BIA and the IJ “unless the evidence not only supports a contrary
conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003)
(citations omitted).
Petitioners first argue that the BIA and the IJ erred in concluding that they failed to
establish past persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A). To obtain
withholding of removal, Petitioners must demonstrate a “clear probability” that their
“[lives] or freedom would be threatened” on account of one of the aforementioned
grounds.2 Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir. 2005); 8 U.S.C.
§ 1231(b)(3)(A). If, however, Petitioners establish that they suffered past persecution it is
presumed that their lives or freedom would be threatened for purposes of withholding of
removal. 8 C.F.R. § 1208.16(b)(1)(i). The Government may then rebut this presumption
by proving certain criteria by a preponderance of the evidence. See 8 C.F.R.
§ 1208.16(b)(1)(i)(A)-(B).
2
Petitioners concede that we lack jurisdiction to consider the denial of their asylum
applications. See 8 U.S.C. § 1158(a)(3); see also Tarrawally v. Ashcroft, 338 F.3d 180,
185 (3d Cir. 2003).
3
Petitioners Sujani Gunawan and Felix Gunawan both testified at the hearing before
the IJ. Sujani Gunawan testified that, in May 1998, unknown assailants came to the small
restaurant that she and her husband owned and threatened to “kill the Chinese” and
attempted to destroy the front door of the restaurant with their truck. She testified that, as
a result of this incident, they were forced to close the restaurant two years later. She also
testified that she has a brother who resides in Indonesia and that her husband’s mother
and his five siblings are currently residing in Indonesia.
Felix Gunawan testified that while in high school he was hit in the face and lost a
tooth. He reported the incident to the police; however, he testified that making the report
was an useless endeavor. He also testified that, while attending college in Indonesia,
Muslim students harassed him, asked him for money and attacked him, stealing his
money, ring, and necklace. Prior to his arrival in the United States, Felix Gunawan
testified that he traveled to Singapore, Thailand and Malaysia, seeking medical treatment
for his father.
Although Sucipto Hendra Chin did not testify before the IJ, he submitted an
affidavit regarding his experiences in Indonesia. In his affidavit, Chin stated he was
forced to pay monetary amounts to local natives to prevent them from destroying his
business. In 1978, Chin refused to pay the money, and an unknown assailant left human
feces by the door of his store. Chin reported the incident to the police; however, they
simply ignored him and told him to leave the country. Chin stated that in 1988, he and his
4
wife were threatened at knife point in the store they owned. The assailants stole the
money from the register and warned Chin not to notify the police. No one was injured in
the incident. Chin’s affidavit also stated that in the 1998 riots, a neighbor’s store was
completely destroyed.
Upon review of the record, we conclude that the determinations by the BIA and the
IJ are supported by substantial evidence. 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)). Although the incidents that Petitioners suffered are
unfortunate, Petitioners’ accounts of isolated criminal acts do not rise to the level of
persecution that would compel a conclusion contrary to the determinations of the IJ and
the BIA. See Lie, 396 F.3d at 536.
Petitioners also argue that the BIA and IJ erred in concluding that they failed to
demonstrate a well-founded fear of future persecution. See Wang, 405 F.3d at 139; see
also 8 U.S.C. § 1231(b)(3)(A).
To establish a well-founded fear of future persecution an applicant must first
demonstrate a subjective fear of persecution through credible testimony that [his]
fear is genuine. Second, the applicant must show, objectively, that “a reasonable
person in the alien’s circumstances would fear persecution if returned to the
country in question.” To satisfy the objective prong, a petitioner must show [he]
5
would be individually singled out for persecution or demonstrate that “there is a
pattern or practice in his or her country of nationality . . . of persecution of a group
of persons similarly situated to the applicant.”
Lie, 396 F.3d at 536 (citations omitted).
The BIA and IJ concluded that the cumulative effect of the incidents Petitioners
testified regarding failed to rise to the level of persecution and, thus, Petitioners failed to
demonstrate a reasonable basis to fear future persecution. Petitioners argue that they
satisfy the requirements for withholding of removal because the record demonstrates that
there is a pattern or practice of persecution of Chinese Christians in Indonesia. The IJ’s
decision relied, in part, on the United States Department of State Country Reports for
2003 and 2004, which state that the government of Indonesia officially promotes ethnic
and racial tolerance. The 2003 report noted a sharp decline in violence between Christians
and Muslims and improvement of inter-religious tolerance and cooperation, and the 2004
report states that discrimination and harassment of ethnic Chinese citizens declined
compared with previous years. Furthermore, Sujani Gunawan testified that her brother
and her husband’s mother and his five siblings still reside in Indonesia, seemingly,
without any adverse incidents. Upon review of the record, we conclude that the
determinations by the BIA and the IJ are supported by substantial evidence. See
Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004) (holding that “State
Department reports may constitute ‘substantial evidence’ for the purposes of reviewing
6
immigration decisions”). Given the deferential standard of review that governs, we will
not disturb the decisions of the BIA and the IJ.3
For the foregoing reasons, we will deny Petitioners’ petition for review.
3
Petitioners do not allege any incidents or likelihood of torture, and, thus, cannot meet
the criteria for relief under the CAT. 8 C.F.R. § 208.16(c)(2).
7