2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 10-6-2004 

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UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT
No. 03-3898
I. KETUT S UMADATHA, Petitioner
v. JOHN ASHCROFT, ATTORNEY GENERA L,

Respondent
Petition for Revi ew of an Order of the Bo ard o f Imm igration Ap peals

(A79-300-765)
Submitte d Under Third Circ uit LAR 34.1(a)

October 4, 2004 Be for e: S LO VI TE R, B EC KE R a nd S TA PL ET ON , Circu it Judges

(Fil ed October 6, 2004)
OPINI ON OF THE COURT2

SL OV ITE R, Circu it Judge
. I. Ketut Sumadatha, a native and citi zen of Indonesi a, seeks review of a fi nal order of removal i ssued bythe Board of I mmigrati on Appeals (BIA) on August 26, 2003, which
sum mar il y aff

irmed t he d eci si on o f the I mmig ra ti on J udg e ( IJ ) d eny in g as y lu m, withholdi ng of removal, and protec tion fr om removal under Article 3 of the Unit ed Nations Conventi on Against Tort ure and Other Crue l, I nhuman or Degrading Treat ment or Punish ment (C AT ). I. A. Facts Sum adath a arrive d in the Un ited Sta tes on June 14, 20 00 as a non -imm igrant w ith authori zati on to remai n in the United State s on a temporar y bas is. On April 19, 2001 t he Immigration and Natura lization Service (I NS) filed a Noti ce to Appear ( NTA ) seeki ng Sumadatha’s removal as an al ien who overst ayed hi s authorization. Sumadatha conceded removabil ity , but applied f or asy lum, withholding of removal, and pr otection under t he CAT. His application was grounded on cl aims of pers ecuti on based on his reli gion (Hinduism) and minority st atus as an Indonesian man married to an ethnicallyChinese
woman. Sumadatha’s appl ication and te sti mony in s upport of as yl um centers primaril y on a singl e inci dent that occurred in Dempasar, Indonesi a on April 21, 1998. He clai ms that because of hi s marri age to an et hnical ly Chinese woman, he was tar geted and3

apprehended bya mob of Indonesia ns which att acked shop owners and r esident s, burned chur ches , and k illed ethn ic Ch inese r esiden ts. Sum adath a w as no t com pelled to eng age in any spe cific ac ts, but alleg es that h e w as pa rtially boun d fo r fou r hou rs and wa s forc ed to accompany t

he mob. He also al leges t hat his house was marked with r ed paint signal ing it as a targ et to “ bur n an d ki ll.” Sumadatha managed to es cape the mob uninj ured, and l ater went into hi ding in t

he city of Su rabaya o n the isla nd o f Ea st Java . Sum adath a testified that he lived u nhar med in Surabay a from June 1998 to J une 2000, and re turned t o Dempasar onlyonce during t hat time to obtain a pas sport. Sumadatha further tes tifi ed that he has had no cont act with his wife or son since the April1998 incide nt for fear that any communicat

ion would make them “t argets ” of majorit arian pe rsecution. I n additi on, he describes a s eparat e inci dent in J une of 1998, where he w itnessed ten men assault a woman of C hinese ethnicity. He claims these incide nts caus ed him to suff er a “mentalbreakdown,” char acterized bydiffi culty sleepi ng and eati ng. On June 13, 2000, he left Indonesi a for the United States. Despi te bei ng out of work for over two years , he had amass ed savings from his prior busi nesses of $600 million Indon esian currenc y ($ 60,000 U .S.). B. The BIA and IJ Decisions The BIA summarily affirmed t he IJ’s decisi on denyi ng asy lum, withholding of
remo val , a nd pr ote ct ion fro m remo val unde r Art . 3 o f th e CAT.4

Alth oug h the IJ did n ot ma ke an expr ess ad verse credib ility finding, h e did in dicate some doubts about

Sumadatha’s t

ruthful ness, stating, “ in the Court ’s vie w, the respond ent’s answ ers were s ketchy and no t particularly persuasive.” In particular, Sumadatha’s w ritten application for asy lum indicating that he was “forced” to do “things” by the Indonesi an mob conflicted with his stat ements duri ng testimony t hat “he was not spec ifically requ ired to d o anythin g.” In a ddition , the IJ fo und Sum adath a’s fa ilure to make any attempt t o contact his wife s ince the April 1998 i ncident “curious , unusualand . . . di sproportionate to anyplausi ble ri sk that his wife might

face si mply by

recei ving a letter fro m h im.” The IJ then determined that even w ith a favorab le credibility finding, “the Cou rt would otherwis e not have found t hat the respondent

had met his burden of proof and pe rsu as io n.” Th e f ou r-h ou r m ob ap pr eh en sio n, a lle ge d t hr ea ts, an d d am ag e to pr op er ty, were not al one suffici ent, in the vi ew of the IJ, to est ablis h past per secuti on. In addi tion, the IJ noted sever al fact ors which mitigate d against Sumadatha’s well -founded fear of future pe rsecution: ( 1) Sumadatha l ived in Sur abaya , Indones ia for two years without any prob lems; (2 ) noth ing in th e reco rd, inclu ding repo rts from the U nited S tates Sta te Department, suggeste d that Hindus were targe ted in any way ; (3) Sumadatha did not tender a ny evi dence that he or his familywas targeted because of hi s all eged marri age to a Chinese woman, let

alone offer

any pr oof of such marri age; and ( 4) Sumadatha offered no corroborating or documentary evidence to support hi s statements.5 II. This court

has power to r eview onlyfinal orders of removal. When the BIA does not render

its own opinion, but

rather defers or

adopts t he opinion of

the IJ , a Court

of Ap pea ls m ust re view the d ecis ion of th e IJ. Abdulai v. Ashcroft , 239 F.3 d 54 2, 54 9 n. 2 (3d C ir. 2001 ). The Sup reme Co urt has stated th at the sc ope o f suc h rev iew is extrem ely narrow. Because of the profound f oreign pol icyimpli cati ons, “j udicia l defer ence to t he Executive Bra nch is es pecial ly appropri ate i n the immigr ation c ontext. ” INS v. AguirreAgu irre , 526 U .S. 415, 425 (1999). A. Legal Standards Bec ause we write o nly for the parties, w ho ar e fam iliar with the ap plicab le statu tes, w e ne ed n ot se t them for th h ere. 8 U.S .C. § § 11 58( b)(1 ), 11 01( a)(4 2)(A ). Sumadatha argues that the IJ erred when it failed to fi nd that he had shown p ast perse cution . To e stablish “pas t perse cution ”, the ap plican t mus t show : “‘(1) an incide nt, or inci dents, that rise t o the le vel of per secuti on; (2) that i s ‘on account of’ one of the stat utori ly -prot ected gr ounds; and ( 3) is c ommitted bythe government or forces the government i s eit

her ‘unabl e or unwill ing’ t o control .’” Berishaj v. Ashcroft , __ F.3d __, 2004 WL 1746299, *6 (3d Cir. 2004) (quoti ng Nav as v. INS , 217 F .3d 64 6, 655 -56 (9 th Cir. 2000 )). An app licant can dem onstrate that she ha s a well-fou nded f ear of fu ture persecution by showing “that she has a genui ne fear, and that a reasonabl e person i n her circumst ances would fear persecution if returned to her nati ve country .” Gao v. Ashcroft ,6

299 F .3d 266, 27 2 (3d C ir. 2002). The BIA and this court have adopt ed a narrow defi niti on of persecution, whic h “incl ude[s] threats to li fe, confi nement, t ortur e, and economi c rest rictions so s evere that theyconsti tute a

threat to li fe or free dom.” Fat in v. INS , 12 F.3d 1 233, 124 0 (3d C ir. 199 3); see also M atter of Ac osta , 19 I. & N. D ec. 21 1, 222 (BIA 198 5). By co ntrast, “pers ecutio n do es no t enco mp ass all trea tmen t that ou r socie ty regards as un fair, un just, or even unla wful or unconstitutional. ” Fatin , 12 F.3d at 1240. To qualifyfor rel ief under the CAT, an appli cant for reli ef bears t

he burden of proving t hrough object

ive evi dence that

“it i s more li kelythan not” that he would be tortu red in th e co unt ry of re mo val. Wang v. Ashcroft , 368 F.3d 347, 348 (3d Cir. 2004) (quoting 8 C .F.R. § 120 8.16(c)(2) (200 4)). B. Standard of Revi ew Wh ether a n app licant q ualifies for as ylum, w ithhold ing, or re lief un der the CA T is a factualdetermi nation, which this court wil l revi ew under the subs tanti al evi dence stan dar d. Abdille v. Ashcroft , 242 F .3d 47 7, 483 (3d C ir. 2001 ). As th is cou rt stated in Ab dille , “[u]n der the subs tantial ev idenc e stand ard, the BIA ’s find ing m ust be uph eld unless t he evidence not

only supports a contrary conclusi on, but c ompels it .” Id. at 483- 84; see INS v. Elia s-Zacari as , 502 U .S. 478 , 481 & n.1 (1 992 ); Cha ng v . I NS , 119 F.3d 1055, 10 60 (3d C ir. 1997) (“O n questions of fact, w e will reverse the B IA’s determ ination that [a n app licant] is n ot eligib le for a sylum . . . on ly if a reaso nable fact-7

finder w ould hav e to conclu de that the requ isite fear of persec ution existed.”). C. An alysis In the pr esent ca se, Sumadatha has fai led to de monstrate that evidence i n the
reco rd, e ven if tak en a s true , “co mp els” a fin din g di ffe ren t fro m th at rea che d by th e IJ. The IJ’s f

inding t hat Sumadatha’ s four-hour detention, wit

h no atte ndant phy sical beati ngs or tor

ture, does not rise t o the le vel of “pas t pers ecuti on” is suppor ted by substant ial e vidence i n the rec ord, gi ven this court’ s and the BIA’s c onstruc tion of t he term . See Fatin , 12 F .3d at 1 240 ; Ac osta , 19 I. & N. Dec. at 222. We will als o defer t o the IJ ’s fi nding that Sumadatha does not

have a well- founded fear of future pers ecuti on. Because t he one inci dent of harm was not signi ficant enough to q ualif y as pa st pe rsec utio n, it d oes not hin g to bol ster h is fe ar o f ret urn ing to In don esia
. Furth er, he w as ab le to live u nhar med in Su rabaya, In don esia fo r two years imm ediate ly prior to his arri val to t

he United States, had amassed a si zable wealt h in Indones ia, and
wa s able to obtain a pas sport in perso n in D emp asar, the city from wh ich he purp ortedly fled. There is a lso no i ndication in t he State Department r eports that Hindus or Indone sians married to ethnically Chinese p ersons are targe ted in any way. Thu s, the IJ’s determi nation i s support ed by s ubstantial e vidence i n the rec ord. Subs ta nti al evi denc e al so s uppor ts the IJ ’s deci si on de ny ing rel ie f und er t he CAT, as the s tandard unde r that treat y i s even more st

ringent . Neither the record, nor Sumadatha’s brief, indicate anyprobabil ity , much les s a probabi lit y “more l ikely

than8

not,” that Sumadat

ha will be tort

ured if he returns to Indone sia. For th e a bov e r ea so ns we wi llde ny th e Pe ti ti on f orRev ie w.