2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-11-2008

Ganadi v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4301

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-4301

___________

BASUKI GANADI; ESTER RATNADEWI INDRAWATI,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A97-849-707, A97-849-708)

Immigration Judge: Honorable R. K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 10, 2008

Before: FUENTES, ALDISERT and GARTH, Circuit Judges

(Opinion filed September 11, 2008)

___________

OPINION

___________

PER CURIAM

Basuki Ganadi and Ester Ratnadewi Indrawati petition for review of a final order

of removal issued by the Board of Immigration Appeals (“BIA”). We will deny their

petition.
I.

Ganadi and his wife, Indrawati, are natives and citizens of Indonesia. Indrawati

arrived in the United States in October 2001, followed by her husband approximately a

year later. After the commencement of removal proceedings against them in October

2003, Petitioners requested asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). According to Petitioners, they suffered past

persecution, and feared future persecution, because they are ethnic Chinese Christians.

However, the Immigration Judge (“IJ”) denied Petitioners’ requests for relief and

ordered them removed. The BIA then dismissed their appeal. In doing so, it agreed with

the IJ that “there is insufficient evidence to establish that any harm [Petitioners]

experienced rises to the level of persecution and was on account of a protected ground.” 

(AR000002 (citation omitted).) Regarding an alleged fear of future persecution, it noted

that some family members have remained in Indonesia unharmed, that the Petitioners left

the country some time after the alleged incidents of persecution occurred, and that the

2005 State Department country and religious freedom reports indicate certain

improvements in the treatment of Christians and ethnic Chinese citizens. Finally,

Petitioners failed to meet the higher burden of proof for withholding of removal and did

not address the issue of CAT relief in their supporting brief. Following the BIA’s

dismissal of their administrative appeal, Petitioners filed a timely petition for review with

this Court. 

II. 
The Court has jurisdiction over this matter pursuant to 8 U.S.C. § 1252. 

Because the BIA agreed with the findings made by the IJ and added its own discussion,

we review both the BIA’s order as well as the IJ’s decision. See, e.g., Jarbough v.

Attorney General, 483 F.3d 184, 191 (3d Cir. 2007). Their respective findings of fact are

then reviewed under a substantial evidence standard. See, e.g., id. After considering the

parties’ briefs as well as the record itself, we conclude that the administrative

determinations at issue here are supported by substantial evidence. 

Initially, Petitioners argue that the BIA erred in finding that they failed to establish

past persecution on account of their Chinese ethnicity. Petitioners have admittedly

identified a number of unfortunate incidents in their past, going as far back as their

childhood. For instance, Ganadi claimed that he was robbed and beaten by immigration

officers when traveling to work from his home and that native Muslims surrounded and

threatened his church during Sunday services. Likewise, Indrawati testified that a native

Muslim attempted to rape her when she was a teenager. 

Nevertheless, there is adequate support in the record for the BIA to conclude either

that such incidents are insufficiently severe to constitute persecution or that Petitioners

failed to show that they occurred on account of a protected ground. It is well established

that “the concept of persecution does not encompass all treatment that society regards as

unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240

(3d Cir. 1993). Accordingly, mere criminal conduct, such as simple robbery, does not

ordinarily constitute persecution. See, e.g., Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.
2005). The BIA further observed that, at least with respect to some of these incidents,

there is no indication in the record that Petitioners or their family members had been

personally targeted because of their religion or ethnicity. It then noted that the Indonesian

police actually provided physical protection for Ganadi’s church and that he thereby

continued to attend religious services and actively participate in his church’s various

activities. See, e.g., id. at 537 (“[V]iolence or other harm perpetrated by civilians . . .

does not constitute persecution unless such acts are committed by the government or

forces the government is either unable or unwilling to control.” (quotations omitted)). 

Most of the incidents also occurred some time before Petitioners left the country. In fact,

several incidents, including the alleged attempted rape of Indrawati, took place several

decades ago when Petitioners, who are now in their late fifties, were either children or

teenagers. 

Petitioners also allege a well-founded fear of future persecution, and they

specifically assert that there is a “longstanding pattern and practice of persecution against

ethnic Chinese-Indonesians.” (Petitioners’ Br. at 12.) While they refer to the 2001 State

Department country report for Indonesia, they fail to mention that the BIA expressly cited

the more recent 2005 country and religious freedom reports as indicating “decreased

instances of inter-religious violence, a decline in discrimination and harassment against

ethnic Chinese, and government action to promote tolerance.” (AR000003.) See, e.g.,

Wong v. Attorney General, --- F.3d ---, 2008 WL 3852363, at *8 (3d Cir. 2008) (“The

factual determination as to a pattern or practice must, however, be based on the most
current information in the record . . . .”). The BIA further emphasized that several family

members remained in Indonesia and that Petitioners did not leave the country until well

after the alleged incidents of persecution actually occurred. See, e.g., Lie, 396 F.3d at

536-37. Under the circumstances, we conclude that the record contains substantial

evidence to support the BIA’s denial of Petitioners’ future persecution and “pattern and

practice” theories. See, e.g., Wong, --- F.3d ---, 2008 WL 3852363, at *7 & n.4 (rejecting

petitioner’s claim that 2003 and 2004 reports demonstrate pattern or practice of

persecution against Chinese Christians in Indonesia and further noting that more recent

reports also document improved treatment of Chinese Christians); Lie, 396 F.3d at 537-38

(concluding that there was no pattern or practice of persecution against ethnic Chinese

Christians in Indonesia based in part on 1999 country report showing sharp decline in

violence since 1998 riots).

Because Petitioners thereby did not establish either past persecution or a fear of

future persecution for purposes of asylum, the BIA correctly determined that they

necessarily failed to meet the higher burden required for withholding of removal. See,

e.g., Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 348-49 (3d Cir. 2008). The

BIA also noted that the “brief on appeal makes no argument in support of protection

under CAT.” (AR000003.) For their part, Petitioners do not appear to take issue with

this statement. In fact, the brief submitted by Petitioners in support of their petition for

review generally makes only passing references to this form of relief, and it lacks any

apparent argument with respect to a likelihood of torture. See, e.g., 8 C.F.R. §
208.16(c)(2). We therefore must conclude that Petitioners have abandoned any real

claim for CAT relief. See, e.g., Chen v. Ashcroft, 376 F.3d 215, 221 (3d Cir. 2004)

(“[Petitioner] timely filed this petition for review, limiting his arguments to his asylum

and withholding of removal claims, thus abandoning his claim for protection under

[CAT].”). 

III.

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

seeking a reversal of the BIA's decision and a remand, the Petitioners have moved for a

stay of removal. The affidavit submitted in support thereof is devoid of the essentials for

stay. In particular, if there was any indication that there is a probability of success, in

light of our decision to deny the petition, such an allegation would have been fruitless.