2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-23-2009

Suhartono v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1848

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

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 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Suhartono v. Atty Gen USA" (2009). 2009 Decisions. Paper 52.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/52
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-1848

___________

HARDJANTO SUHARTONO; 

NANA KENTJANAWATI;

YOHANES CHRISTIANTO HARDJANTO,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A79-318-118, A79-318-119 and A79-318-120)

Immigration Judge: Honorable Donald V. Ferlise

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 8, 2009

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Filed December 23, 2009 )

___________

OPINION OF THE COURT

___________

PER CURIAM

Petitioner Hardjanto Suhartono, an ethnic-Chinese Christian and citizen of

Indonesia, entered the United States in 2001 with a visitor’s visa. He overstayed the visa
 The other petitioners in this case are Suhartono’s wife and son, who sought 1

derivative relief under Suhartono’s application. 

2

and later received a notice to appear. Suhartono appeared before the IJ in 2006 and

conceded removability, but sought asylum, withholding of removal, relief under the

Convention Against Torture, and voluntary departure. The IJ granted the request for

voluntary departure, but denied Suhartono’s other requests for relief, and the BIA

dismissed Suhartono’s subsequent appeal. Suhartono then filed a petition for review.1

I

Suhartono testified that, while in Indonesia, he worked as a businessman selling

stationery supplies and medicine. In addition, Suhartono was active as a member of the

Pentecostal Church of Indonesia, for which he served on the governing council and

participated in missionary work in nearby villages.

At various times, Suhartono experienced poor treatment, and described instances

in which individuals repeatedly demanded money from him and his wife or attempted to

disrupt his religious services. In 1999, Suhartono and his wife were in a village several

miles from their home in Solo. Suhartono was waiting in his truck for his wife, who was

selling goods to a store owner. A man later identified as “Singo,” a known criminal in

that village, approached Suhartono’s truck and demanded money. Suhartono refused and

fled the scene, joining his wife in the store. Singo followed him into the store and

stabbed Suhartono in the head, ostensibly because Suhartono refused to pay him. 
3

Suhartono later reported the incident to police, who did nothing. He did not encounter

Singo again before leaving for the United States.

In 2001, Suhartono’s brother-in-law informed him that Singo and other men,

looking for Suhartono, had visited the home of Suhartono’s mother-in-law. The brotherin-law claimed to have heard that Singo wanted to kill Suhartono because he would be

paid for killing a pastor. Suhartono did not know who would provide a reward for killing

a pastor, and explained only that there is persecution against Chinese people in Indonesia.

In denying relief, the IJ found Suhartono to be credible, but reasoned that there

was no evidence that the stabbing – the only incident Suhartono identified that could be

sufficiently severe to rise to the level of persecution – was the product of animosity

toward Suhartono’s status as an ethnic-Chinese Christian. As to Suhartono’s fear that

Singo would harm him upon his return to Indonesia, the IJ noted that the brother-in-law’s

letter, which contained speculation about Singo’s actions and motives, was insufficient to

demonstrate a reasonable fear of future persecution. The IJ further noted that Suhartono

presented no evidence that Singo had continued to look for him or that anyone still

intended to harm him. The BIA affirmed the IJ’s decision as to the past persecution

claim, and noted that Suhartono’s future persecution claim lacked merit, as he presented

no evidence demonstrating a pattern or practice of persecution against ethnic-Chinese

Christians in Indonesia.
4

II

We have jurisdiction over Suhartono’s petition for review under 8 U.S.C.

§ 1252(a). Because the BIA issued its own opinion, we review its decision rather than

that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also

look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s

reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review

agency factual determinations for substantial evidence, and will uphold such

determinations “unless the evidence not only supports a contrary conclusion, but compels

it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005) (internal citations omitted). 

Suhartono presents only two arguments on appeal: (1) that the Agency failed to properly

consider his prominent status within his church in evaluating the likelihood he would face

future persecution, and (2) that this Court should take judicial notice of worsening

conditions for ethnic-Chinese Christians in Indonesia.

Suhartono’s first argument is two-fold. First, he contends that the BIA should

have expressly considered his status as a prominent and publicly active church member in

evaluating whether he could demonstrate a likelihood of future persecution. In that

regard, we understand the BIA to have adopted the IJ’s analysis as to Suhartono’s claim

that he faces a particularized risk of future persecution. See A.R. 3 (“Inasmuch as we are

in agreement with the Immigration Judge’s decision, we affirm his decision based upon

and for the reasons set forth therein.”); see also A.R. 38-39 (IJ decision discussing
5

Suhartono’s membership and leadership role in the Pentecostal Church).

Second, Suhartono argues that the IJ erred in determining that he did not

reasonably fear future persecution based on his status as a pastor. To demonstrate

eligibility for asylum based on a fear of future persecution, an applicant must demonstrate

that he “has a genuine fear, and that a reasonable person in [his] circumstances would fear

persecution if returned to [his] native country.” Abdulrahman v. Ashcroft, 330 F.3d 587,

592 (3d Cir. 2003). To satisfy the objective prong, a petitioner must show that he would

be individually singled out for persecution or demonstrate a pattern or practice of

persecution of similarly situated individuals. Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.

2005). In support of his particularized risk claim, Suhartono argued that his brother-inlaw’s letter demonstrated that Singo intended to harm him because of his status as a

church leader. Given that the statements in the letter were based on hearsay and

speculation about Singo’s intent and motivation, we believe the IJ reasonably concluded

that, without more, Suhartono failed to meet his burden of proving eligibility for asylum.

To the extent that Suhartono contends that the Agency should have found a

qualifying fear of future persecution claim based on a pattern or practice of persecution,

the BIA justifiably concluded that he did not present sufficient evidence that the Christian

population in Indonesia – let alone Christians who take active leadership roles in their

churches – are subject to such a pattern or practice. Indeed, the 2005 State Department

report on Indonesia was submitted to the IJ, and, as we have noted in several cases, that
 Even if we were permitted to consider evidence that was not part of the administrative 2

record, we note that the documentation Suhartono asks us to take judicial notice of was

not actually submitted to the Court. Therefore we have nothing to review. 

6

report indicates a trend toward better treatment for Chinese Christians. See, e.g., Sioe

Tjen Wong v. Att’y Gen., 539 F.3d 225, 233-34 (3d Cir. 2008) (noting that State

Department reports from 2005 to 2007 describe better conditions for Chinese Christians

in Indonesia). 

Finally, Suhartono argues that we should take judicial notice of certain news

articles and other documents showing increased hostility toward ethnic-Chinese

Christians in Indonesia. However, we have held it impermissible to take judicial notice of

developments that arise after a final agency determination. See Berishaj v. Ashroft, 378

F.3d 314, 330 (3d Cir. 2004) (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)).2

Accordingly, we will deny the petition for review.