Suharso v. Attorney General of U.S., No. 07-3123 (3rd Cir. 10/6/2009), 07-3123.
| Decision Date | 06 October 2009 |
| Docket Number | No. 07-3123.,07-3123. |
| Parties | ANTON SUHARSO; YUNITA WULANSARI, Petitioners v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
Before: RENDELL, AMBRO, AND WEIS, Circuit Judges.
NOT PRECEDENTIAL
Anton Suharso and his wife, Yunita Wulansari, petition for review of an order of the Board of Immigration Appeals ("BIA") denying their application for asylum and withholding of removal. The facts in this case reflect a familiar pattern: Christian Indonesians of Chinese descent alleging persecution by Muslim Indonesians. The Immigration Judge ("IJ") concluded, and the BIA agreed, that the intimidation and harassment alleged by petitioners—including an episode in which a gang of Muslims assaulted Suharso with a knife—were not sufficiently severe to constitute persecution. Because we agree that petitioners neither suffered past persecution nor possess a well-founded fear of future persecution on account of their religion or ethnicity, we will deny the petition for review.
Suharso and his wife, Wulansari, are natives and citizens of Indonesia, and are ethnically Chinese Catholics. At the hearing on their application for asylum and withholding of removal, Suharso testified that he suffered verbal harassment and was frequently "stopped or attacked" by Indonesian Muslims, and that, on one occasion in March 2002, a gang of Muslims confronted him on his walk to church, seized and stomped his prayer book, and cut him with a knife—incidents that failed to deter Suharso from attending church. A. 111.
Suharso's experience reflected a wider pattern of aggression toward Chinese Christians by elements of the Muslim community between 2000 and 2002. During that period, Suharso testified that radical Muslims regularly targeted churches: bomb attacks and bomb threats against churches "happen[ed] everywhere." A. 116. An expert retained by petitioners, Dr. Jeffrey Winters, corroborated Suharso's testimony, indicating that on Christmas Eve in 2000, unknown terrorists bombed or attempted to bomb 34 Christian churches in 10 cities. Episodic rioting, involving attacks on Chinese homes and businesses, continued thereafter in different parts of the country. These attacks, Winters stressed, reflected longstanding animus toward Chinese Christians, perceived as unwelcome outsiders. Winters also described an array of discriminatory laws enforced against ethnically Chinese Indonesians.
Government efforts to stem religious and ethnic violence have had mixed results. Winters opined that the Indonesian government, which has a "severely degraded" legal and security apparatus, has had difficulty controlling fanatical fringes, which continue to terrorize Chinese Christians. A. 221. Suharso testified that his church, for example, was forced to close after the government was unable to protect congregants against Muslim extremists. A second expert retained by petitioners, Jana Mason, noted that crimes against Chinese Christians are rarely prosecuted, and that a "significant risk" of ethnic violence has remained since 1998—the last wave of nationwide looting and rioting—reflecting the government's inability to stem the "growing militancy of Islam." A. 233-34.
One month after his assault at knife-point, Suharso and his wife celebrated their honeymoon in the United States. Suharso explained that, "at first it was our intention [to come to the United States] for honeymooning (sic)," but, after touring the country, "we felt the situation in here, we do not want to return." A. 126. After immigration officials discovered that petitioners overstayed their visas, removal proceedings were initiated. Petitioners conceded their removability but sought asylum and withholding of removal.1 The IJ determined, and the BIA agreed, that Suharso offered credible testimony that he suffered persistent harassment and threats on the basis of his religion and ethnicity, but that the indignities endured, including Suharso's assault in March 2002, fell short of "persecution" under the applicable law.2 Accordingly, the BIA affirmed the IJ's decision that petitioners were ineligible for asylum and withholding of removal.3
On appeal, Suharso makes two arguments—that his due process rights were violated when the BIA failed to make an individualized determination of his eligibility for asylum and withholding of removal;4 and that the BIA's conclusion that he lacked a well-founded fear of persecution was unsupported by substantial evidence.
We easily dispose of Suharso's first argument, finding "sufficient indicia" that the BIA gave "particularized consideration" to his arguments and evidence. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001). The BIA considered—and rejected—Suharso's twin contentions—that the harassment that he endured rose to the level of persecution, and that the IJ failed to consider Winters and Mason's affidavits. In a succinct analysis, the BIA concluded that the fact that Suharso's family continued to reside in Indonesia undermined his claim of persecution, that the IJ adequately addressed Winters' affidavit, and that the IJ's alleged failure to consider Mason's affidavit was not prejudicial. In Abdulai v. Ashcroft, we approved a similar analysis by the BIA and rejected petitioner's due process claim. Id. We thus dismiss Suharso's constitutional challenge as meritless.
Suharso's second argument—that the BIA erroneously concluded that he had not suffered past persecution—also fails.5 Although the BIA credited Suharso's accounts of extremist attacks on Christian churches, his assault in March 2002, and persistent harassment on account of his religion and ethnicity, the BIA properly concluded that these isolated criminal acts were not sufficiently egregious to constitute "persecution"—a term that we have narrowly defined as "threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom." Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). We believe that our recent decision in Lie v. Ashcroft, addressing similar facts, forecloses petitioners' argument. Id.
In Lie, we considered whether religiously and ethnically motivated violence more severe than that directed at Suharso constituted persecution. Id. There, the petitioner, a Chinese Christian, asserted a well-founded fear of persecution on account of her religion and ethnicity if removed to Indonesia. Petitioner had left Indonesia in the wake of a nationwide wave of ethnic violence that shook the country in 1998. During this tumultuous period, which witnessed serious and widespread attacks on Chinese-owned businesses and homes, thousands of Chinese were killed, raped, or beaten, and their homes, looted and torched. Petitioner was an unfortunate victim of this violence. In 1997, at the very outset of the turmoil, Muslim Indonesians entered her husband's store and, shouting "Chinese pig," robbed petitioner's husband at knife-point. Several months later, two intruders knocked down the door of petitioner's home, demanding money. Calling petitioner a "Chinese pig" and threatening to burn down her house, the assailants seized her money and jewelry and, when petitioner attempted to defend herself, slashed her left forearm with a knife; the resulting laceration required several stitches. Two years later, in March 2000, petitioner left Indonesia. The BIA concluded, and we agreed, that the acts of robbery and violence directed at petitioner, "while unfortunate and troubling," fell short of "persecution." Id. at 536. Adopting the holdings of two other courts of appeals, we stated, "We agree with the Ninth and Tenth Circuits that Lie's account of two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution." Id. at 536.
Lie strongly supports our conclusion that the violence directed at Suharso does not rise to the level of persecution. Lie makes clear that verbal harassment, and isolated criminal acts resulting in minor injuries or property damage, do not rise to the level of persecution. Further, courts have distinguished legal discrimination from persecution.6 The most significant act of retaliation identified by Suharso—an altercation with Muslim gang members in which his forearm was cut and his prayer book destroyed—was less severe than the repeated acts of violence visited upon Lie and her husband, whose homes and businesses were ransacked, who were twice robbed, beaten, and knifed, and who were told that their home would be torched. And, although some evidence suggests a resurgence of religious violence—specifically, bombings, or threats to bomb, Christian churches—Winters explained that 1998 represented an even more dangerous period for Chinese Christians.7 Because we determined in Lie that the conditions in Indonesia in 1998 did not rise to the level of persecution, the BIA properly found that the smaller, ensuing wave of religious violence did not entitle Suharso to relief.
We also agree with the BIA that Suharso did not demonstrate a well-founded fear of future persecution—a requirement satisfied by proof that the petitioner was individually singled out for persecution, or that a pattern or practice of persecution against similarly situated individuals exists.8 Analyzing the former avenue—whether an individualized risk of persecution exists—the BIA initially credited Suharso's testimony that, after his arrival in the United States, his family received death threats, that his church was...
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