2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-30-2008

Wibowo v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1923

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-1923

 

BUDI WIBOWO,

 Petitioner

v.

ATTORNEY GENERAL OF 

THE UNITED STATES

 Respondent

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A 96-203-861)

Immigration Judge: Charles Honeyman

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 16, 2008

Before: AMBRO, FISHER, and JORDAN, Circuit Judges

(Opinion filed: April 30, 2008)

 

OPINION

 

PER CURIAM

Budi Wibowo, a native and citizen of Indonesia, petitions for review of a final

order of the Board of Immigration Appeals (“BIA”), in which the BIA affirmed the denial
 The IJ and the BIA also determined that Wibowo’s application for asylum was time 1

barred. The BIA deemed Wibowo’s request for relief under the Convention Against

Torture waived. Wibowo does not challenge either finding. 

2

by the Immigration Judge (“IJ”) of Wibowo’s application for asylum and withholding of

removal. 

1

Wibowo is Javanese and a Muslim. He bases his claims for relief on his fear of

returning to Indonesia. He claims that Muslim radicals who opposed a musical event that

he co-coordinated were responsible for a beating that resulted when he and others refused

to call off the event. He believes that these same Muslim radicals were later responsible

for an incident where his motorcycle tires were flattened and for the robbery of his cellphone store.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the IJ’s

decision and the BIA’s affirmance under the deferential “substantial evidence” standard. 

Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). A finding is not supported

by substantial evidence only where “no reasonable fact finder could make that finding on

the administrative record.” Id.

First, we agree with the BIA that Wibowo failed to appeal from the IJ’s denial of

his request for protection under the CAT and, therefore, we lack jurisdiction to entertain

that claim. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (an alien

is required to raise and exhaust his remedies as to each claim or ground of relief if he is to

preserve the right of judicial review of that claim). We also lack jurisdiction to review
3

the timeliness of his asylum application where, as here, a petitioner has not alleged a

constitutional claim or raised a question of law. See 8 U.S.C. § 1158(a)(3),

1252(a)(2)(D); Tarrawally v. Ashcroft, 338 F.3d 180 (3d Cir. 2003); see also

Sukwanputra v. Gonzales, 434 F.3d 627, 634-35 (3d Cir. 2006). 

Wibowo’s sole remaining claim is for withholding of removal. To obtain

withholding of removal, Wibowo bore the burden of establishing that it was more likely

than not that his life or freedom would be threatened in Indonesia on account of his race,

religion, nationality, membership in a particular social group, or political opinion. 8

U.S.C. § 1231(b)(3)(A); Romanishyn v. Att’y Gen., 455 F.3d 175, 178 n.1 (3d Cir. 2006);

Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001) (holding that “more likely than not” is the

standard to establish withholding of removal). Wibowo argues that he provided sufficient

evidence of past persecution, having testified that he was beaten up in 1997 by a group of

radical Muslims who opposed the concert he coordinated and who had unsuccessfully

tried to recruit him. Wibowo also points out in his brief that the 2002 International

Religious Freedom Report documents interreligious violence that occurred during 2002,

sometimes with official complicity.

Substantial evidence supports the IJ’s denial of Wibowo’s request for withholding

of removal. See; 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). The three incidents that Wibowo testified to having suffered—one instance of

physical violence by unidentified persons in 1997 at the concert event, the puncturing of
4

his motorcycle tire by an unidentified person, and the robbery of his cell phone store—are

not serious enough to constitute persecution under the statute. See, e.g., Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993) (persecution is an “extreme concept” that “does not

encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional”).

Wibowo did not demonstrate either “a real threat to life or freedom” or that the

Indonesian government is “unable or unwilling to control” the individuals who allegedly

persecuted him. See Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001) (finding

that random street violence and criminal activity does not constitute persecution). First,

the beating Wibowo experienced resulted in black and blue bruises, but Wibowo did not

testify that he sought medical treatment after he was beaten, nor that he has suffered longterm serious harm. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (noting the

minor injury suffered by the petitioner was not so severe as to constitute persecution). 

Second, even if Wibowo could show that the harm he experienced was severe enough to

rise to the level of persecution, Wibowo has not provided sufficient evidence to compel

our conclusion that the alleged events he suffered were inflicted by the Muslim radicals’

desire to penalize him based on his religious beliefs. See Abdille, 242 F.3d at 495

(generalized evidence of hostility toward a group is insufficient to constitute persecution). 

Under our deferential review standard, the BIA’s conclusion must be upheld. 

 Finally, there is no record evidence that the alleged persecution was perpetrated by
5

the Indonesian government, or by forces the government is unwilling or unable to control. 

See, e.g., Lie, 396 F.3d at 536 (noting that two isolated criminal acts, perpetuated by

unknown assailants, which resulted only in the theft of some personal property and a

minor injury, were not sufficiently severe to be considered persecution unless committed

by the government or forces the government is either “unable or unwilling” to control);

see also Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Wibowo relies on a general

statement in the 2002 Report on International Religious Freedom, which states that the

Indonesian government tolerates interreligious violence. However, Wibowo does not

claim that there is a pattern or practice of persecution against persons with his particular

political or religious beliefs by Muslim radicals or that the government specifically

tolerates the group that beat him up in 1996. 

For the foregoing reasons, we will deny the petition for review.