2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-11-2009

Lesmana v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1377

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-1377

 

KEKE LESMANA;

CASSANDRA E. PRASETYO,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES, 

Respondent

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A78-580-889)

Immigration Judge: Honorable Annie S. Garcy

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 3, 2009

Before: AMBRO, FISHER and JORDAN, Circuit Judges

(Opinion filed: June 11, 2009)

 

OPINION

 

PER CURIAM

Petitioners Keke Lesmana and Cassandra E. Prasetyo seek review of an order of

the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final
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order of removal. For the reasons that follow, we will deny their petition.

Petitioners are husband and wife, natives and citizens of Indonesia, and ethnic

Chinese Christians. They entered the United States as non-immigrant visitors on March

28, 2000, and were placed into removal proceedings after Lesmana, the lead respondent,

applied for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”) on August 22, 2000. Prasetyo later filed a separate application seeking

the same forms of relief. The IJ found petitioners removable as charged and denied all

relief and the BIA affirmed. Petitioners filed a petition for review.

We have jurisdiction over this petition for review under 8 U.S.C. § 1252. In cases

such as this one, where the BIA “invokes specific aspects of the IJ’s analysis and

factfinding in support of [its] conclusions,” we review both the decisions of the IJ and the

BIA. See Voci v. Gonzalez, 409 F.3d 607, 612-13 (3d Cir. 2005). We review factual

findings, including “conclusions regarding evidence of past persecution and the wellfounded fear of persecution” for substantial evidence. See Chavarria v. Gonzalez, 446

F.3d 508, 515 (3d Cir. 2006) (citing Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.

2001)). Under this standard, we will uphold these findings unless “the evidence is such

that a reasonable factfinder would be compelled to conclude otherwise.” See id. 

To be granted asylum, an applicant must establish that she is unable or unwilling to

return to her country of origin “because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social
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group, or political opinion.” 8 U.S.C. § 1101(a)(42). To be entitled to withholding of

removal, an applicant must prove that it is more likely than not that her “life or freedom

would be threatened in that country” on account of a protected ground. See 8 U.S.C.

§ 1231(b)(3). For relief under the CAT, an applicant must demonstrate that it is more

likely than not that she would be tortured if removed to her country of origin. See

8 C.F.R. § 208.16(c)(2). 

We have defined persecution as “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v.

INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Additionally, there must be a nexus between the

alleged persecution and a protected ground. See 8 U.S.C. §§ 1101(a)(42), 1231(b)(3). 

An asylum applicant who has demonstrated past persecution is entitled to a rebuttable

presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). 

Absent a showing of past persecution, an applicant must demonstrate a subjective fear of

future persecution and show that a reasonable person in her situation would fear

persecution if returned to her country of origin. See 8 C.F.R. § 1208.13(b)(2). An

applicant can meet this objective prong either by showing that she would be individually

singled out for persecution upon her return or that a pattern and practice of such

persecution exists. See 8 C.F.R. § 1208.13(b)(2)(iii).

In support of her application, Prasetyo testified that she was taunted by Indonesian

Muslim students when she was 11 years old and from then on always waited 15 minutes
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after school before leaving for home. On another occasion, she was groped on the school

bus while in high school and thereafter began carrying heavy books close to her chest to

prevent that from happening again. She decided to become an Indonesian citizen when

she was 21 because it made it easier to obtain documentation for school and to find a job. 

In order to do so, she was required to change her name. Her husband testified that he

changed his name and was forced to naturalize in order to continue his education. He

claimed that, in trying to do so, he was treated poorly by the clerks who worked at the

immigration office because he was Chinese.

Both petitioners testified about the events occurring in 1998 during the riots in

Jakarta. On May 13, 1998, both of them were at work when they learned of rioting and

homes and businesses being looted and set on fire in their vicinity. According to

Prasetyo, most of the residences being targeted were occupied by ethnic Chinese, and the

police did not appear to take any action in response. While the riots were occurring, she

could hear shouts of epithets regarding people of Chinese ancestry. On May 14, 1998,

petitioners were awakened by sirens. The leader of their housing complex told them a

mob was approaching and advised them to evacuate to a nearby gym. The next morning,

after the mob had subsided, petitioners and the other residents of their housing complex

emerged from the gym to find that their houses had been ransacked. A week later, when

they were permitted to leave their home, they went to Prasetyo’s mother’s house in a

different section of Jakarta, where they remained until May of 1999. Prasetyo quit her
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job, began to experience nightmares, and feared life in Jakarta. Petitioners then moved to

Surabaya in East Java, about nine hours from Jakarta by train. After approximately one

year in Surabaya, petitioners decided to seek asylum in the United States, explaining that

they did not believe they would ever feel safe in Indonesia.

The IJ found that, while their testimony was credible, the incidents they related

were not sufficiently severe and extreme to constitute past persecution, and that there was

no evidence in the record to suggest that either of them might be singled out for future

persecution if they were to return to Indonesia. In particular, the IJ noted that they were

able to live and worship safely in Surabaya, and could return there, where Lesmana’s

family lives. Additionally, the IJ found that the evidence in the record did not support a

finding of a pattern and practice of persecution of ethnic Chinese Christians in Indonesia. 

The BIA agreed that while petitioners were credible, the events they related did not rise to

the level of persecution, nor did they demonstrate a likelihood of future persecution on

account of a protected ground or the existence of a pattern or practice of persecution of

ethnic Chinese or Catholics in Indonesia.

In their petition for review, petitioners argue that the IJ erred in concluding that

petitioners’ experience during the riots did not constitute persecution simply because they

were not physically harmed. Additionally, petitioners argue that the attack during the

riots constituted a “threat of rape,” as many Chinese women were raped during that time,

that they suffered from “severe economic restrictions” due to their Chinese ethnicity, and
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that the IJ failed to consider the cumulative effect of the individual instances of

discrimination they experienced. We considered claims very similar to petitioners’ in

Sioe Tjen Wong v. Attorney General, 539 F.3d 225 (3d Cir. 2008). In Wong, petitioner,

also ethnically Chinese, suffered “harassment and discrimination” throughout her youth,

her parents’ livelihood was threatened, her brother was assaulted and later died from his

injuries, she felt compelled to change her name to make herself less noticeable, the church

she attended was twice set on fire, and during the 1998 riots, “[she] and her family hid in

their house for days, while rioters threw stones and broke the front window.” Id. at 228-

29. After considering this testimony, as well as the 2003 and 2004 Country Reports on

Human Rights Practices for Indonesia, the BIA concluded that Wong had not satisfied the

standard for proving persecution, and we agreed that the record did not compel such a

finding. Id. at 232. Additionally, we noted in dicta that the more recent State Department

reports published between 2005 and 2007 document similar or improved treatment of

Chinese Christians in Indonesia. Id. at 234 (emphasizing the importance of basing the

“factual determination as to a pattern or practice claim . . . on the most current

information in the record”). 

While we are sympathetic to petitioners’ experiences in Indonesia, we cannot say

that the evidence in the record compels the conclusion that they suffered from past 

persecution, nor that they demonstrated a well-founded fear of future persecution. 

Because petitioners do not meet the standard of asylum, they also fail to meet the more
stringent standard for withholding of removal and for relief under the CAT. Based on the

foregoing, we will deny the petition for review. 

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