2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-21-2008

Tantono v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2242

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1

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-2242

___________

MILAWATI TANTONO,

Petitioner

 

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

___________

On Petition for Review of an Order 

of the Board of Immigration Appeals

(BIA No. A95-370-408)

Immigration Judge: Donald Ferlise

___________

Submitted Under Third Circuit L.A.R. 34.1(a)

November 20, 2008

Before: FUENTES, HARDIMAN, and GARTH Circuit Judges.

(Opinion Filed: November 21, 2008)

OPINION OF THE COURT
2

FUENTES, Circuit Judge:

Milawati Tantono, a native and citizen of Indonesia, entered the United States in

2001, and subsequently applied for asylum, withholding of removal, and protection under

the Convention Against Torture (CAT). A Catholic of Chinese descent, Tantono claims

that she has a well-founded fear of persecution in Indonesia based on her religion and

ethnicity. As we explain below, substantial evidence supports the BIA’s denial of asylum

and withholding of removal. We also find that we lack jurisdiction to review Tantono’s

application for relief under CAT. Accordingly, we will deny Tantono’s petition for

review.

I.

Tantono was born in 1976 in Jakarta, Indonesia. Tantono entered the United

States as a non-immigrant in July 2001 and overstayed her visa. In March 2002, she was

placed in removal proceedings. Tantono conceded removability, but filed an application

for asylum, withholding of removal, and protection under CAT. 

In her January 2002 asylum application, Tantono alleged discrimination by the

Indonesian government against ethnically Chinese Indonesians. In an attached personal

statement, Tantono also alleged that during the 1998 anti-Chinese riots in Indonesia, two

friends were raped and her parents’ house was “broken and plundered” by nativeIndonesian rioters. (App. at 177.) 

In May 2003, Tantono submitted a second affidavit providing a new account of the
 Medan is nearly 1000 miles north of Jakarta. 1

3

events that occurred during the 1998 riots. In her second affidavit, Tantono alleged that,

on May 15, 1998, a group of eight or nine “Indonesian native men,” including one in

military clothing, broke into her office and stole office equipment. (App. at 141.) Three

of the men dragged Tantano and the other two female employees, both also ethnically

Chinese, into another room where they were beaten and raped. Tantono saw the rapists

insert broken glass into the vagina of one of the women and throw the other woman down

a flight of stairs. Tantono lost consciousness, and following the attack was hospitalized

for three days for injuries including serious vaginal bleeding. In her affidavit, Tantono

explained that she did not make these allegations in her initial asylum application because

she was ashamed that she was no longer a virgin. In support of her second affidavit,

Tantono submitted a medical note dated May 16, 1998 and a police report dated May 30,

1998. The medical note indicates that Tantono suffered bruising and vaginal bleeding

and that she was to be hospitalized for three days. The police report confirms Tantono’s

account of the attack and her injuries.

At a hearing before the Immigration Judge, Tantono testified consistently with her

second affidavit. Tantono added additional claims of purported persecution including

regular harassment on her way to church and frequent robberies. Tantono also testified

that five months after the riots, she moved to Medan, a city in northern Sumatra, to live

with her aunt. During this period, Tantono was afraid to leave the house, but did travel 1
 Because the BIA did not explicitly adopt the Immigration Judge’s adverse

2

credibility determination we assume that Tantono was credible for purposes of this

petition. Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 191 (3d Cir. 2007)

4

to the nearby countries of Singapore, Malaysia, and Thailand for a week-long vacation in

2000.

The Immigration Judge found that Tantono was not credible because she did not

disclose her alleged rape in her initial asylum application, and because her claim that she

was afraid to leave her aunt’s home was inconsistent with her international travel. The

Immigration Judge further found that “[t]here is absolutely no evidence that the rape of

the respondent at work was anything other than a vicious criminal act.” (App. at 38.) 

The Immigration Judge also found that Tantono lived with her aunt for three years “in

total peace,” and that “she would rest a lot easier” if she returned to her aunt’s home

rather than to Jakarta. (App. at 39.) The BIA adopted the Immigration Judge’s finding

that Tantono would not be eligible for asylum even if credible.2

II.

“We have plenary review over questions of law, subject to the principles of

deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837,

844, 104 S.Ct. 2778, 81 L.Ed.2d 694[ ] (1984).” Wong v. Att’y Gen. of U.S., 539 F.3d

225, 231 (3d Cir. 2008) (citations and internal quotation marks omitted). However, we

lack jurisdiction to review issues that were not presented to the BIA. 8 U.S.C. §

1252(d)(1); Joseph v. Att’y Gen. of U.S., 465 F.3d 123, 126 (3d Cir. 2006).
5

We review factual determinations under the substantial evidence standard. 

Gabuniya v. Att’y Gen. of U.S., 463 F.3d 316, 321 (3d Cir. 2006). Accordingly, “we may

decline to uphold the BIA’s findings only if the evidence compels a contrary conclusion.” 

Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003). Because the BIA adopted portions

of the Immigration Judge’s opinion, we review those portions directly. Jarbough v. Att’y

Gen. of U.S., 483 F.3d 184, 191 (3d Cir. 2007).

III.

The Attorney General may grant asylum to an alien in removal proceedings if the

alien establishes that he or she is a “refugee” under the Immigration and Nationality Act

(INA). 8 U.S.C. § 1158(a), (b). The INA defines “refugee” as:

any person who is outside any country of such person’s nationality . . . and who

is unable or unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country 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 . . . .

Id. § 1101(a)(42)(A). To establish entitlement to withholding of removal, an applicant

must show a “clear probability of persecution.” INS v. Cardoza-Fonseca, 480 U.S. 421,

444 (1987).

The BIA adopted the Immigration Judge’s denial of Tantono’s claim for asylum to

the extent he found that Tantono had been the victim of street crime rather than ethnic or

religious persecution, and that she would be able to return safely to Sumatra. The Court

must affirm on the second basis, as discussed below.
 The government may also rebut a claim based on a pattern or practice of official 3

persecution by showing that internal relocation would be reasonable. 8 C.F.R. §

208.13(b)(3)(ii).

6

A.

An asylum applicant who has demonstrated past persecution, is presumed to have a

well-founded fear of future persecution. Gabuniya, 463 F.3d at 324. However, the

government may rebut this presumption by proving by a preponderance of the evidence

that the applicant “could avoid future persecution by relocating to another part of the

applicant’s country of nationality . . . and under all the circumstances, it would be

reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(1)(i)(B). In 3

evaluating the reasonableness of internal relocation, “adjudicators should consider . . .

whether the applicant would face other serious harm in the place of suggested relocation;

any ongoing civil strife within the country; administrative, economic, or judicial

infrastructure; geographical limitations; and social and cultural constraints, such as age,

gender, health, and social and familial ties.” 8 C.F.R. § 208.13(b)(3). 

Tantono testified that she lived safely with her aunt for three years in Northern

Sumatra before coming to the United States. While Tantono testified that she was afraid

during this period, she admitted that nothing happened to her in Sumatra. Tantono

provided no evidence suggesting that she was in danger in Sumatra. Accordingly, even if

Tantono were the victim of past persecution in Jakarta, or had established a pattern or

practice of persecution of Chinese Christians in Indonesia, there is substantial evidence to
7

support the Immigration Judge’s finding that she could safely and reasonably return to

Sumatra. Thus, the Immigration Judge properly denied Tantono’s asylum application. 

For the same reason, we find that the Immigration Judge properly denied Tantono’s

withholding of removal application.

We also hold that we lack jurisdiction over Tantono’s CAT claim because she did

not appeal this issue to the BIA. Joseph, 465 F.3d at 126. In any event, our conclusion

that Tantono can safely return to Sumatra is inconsistent with relief under CAT. 

III.

For the foregoing reasons, we will deny Tantono’s petition and affirm the decision

of the BIA.