Linawati v. Atty Gen USA , 311 F. App'x 539 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-20-2009
Linawati v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2333
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2333
FNU LINAWATI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
Respondents
On Petition for Review of a Final Order from
the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
(BIA No. A79-307-097)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 9, 2008
Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges.
(Opinion filed: February 20, 2009)
OPINION OF THE COURT
McKEE, Circuit Judge.
Fnu Linawati petitions for review of a final order of the Board of Immigration
Appeals affirming the decision of an Immigration Judge that denied her application for
asylum and withholding of removal.1 For the reasons that follow, we will deny the
petition.2
I.
Since we write primarily for the parties who are familiar with this case, we need
not recite the factual or procedural background except insofar as may be helpful to our
brief discussion.
Since the BIA adopted the IJ=s reasoning while discussing the IJ=s legal
conclusions, we review the decisions of both the IJ and the BIA. Xie v. Ashcroft, 359
F.3d 239, 242 (3d Cir. 2004). The BIA=s “findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B). See also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
The BIA concluded that Linawati=s documentation and attendant testimony, while
credible, established neither past persecution, nor a well-founded fear of future
persecution. Linawati relied upon three incidents to support her petition. The firstCthe
1
Linawati does not seek review of the BIA=s decision affirming the denial of her claim
under the Convention Against Torture (“CAT”). We therefore need not discuss that claim as it
is waived. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 316 n.2 (3d Cir. 2001).
2
We have jurisdiction under 8 U.S.C. § 1252.
2
May 1998 incidentCoccurred during a riot in Jakarta. The second incident involved the
burning of a church in her neighborhood in November 1999. The third involved a riot
that she witnessed in Glodok, a predominantly Chinese neighborhood in Jakarta.
The BIA relied upon our decision in Fatin v. INS, 12 F.3d 1233 (3d Cir.1993), in
concluding that the incidents Linawati described did not establish that she was a
“refugee.” In Fatin, we explained that persecution encompasses “extreme conduct,”
including “threats to life, confinement, torture, and economic restrictions so severe that
they constitute a threat to life or freedom.” Id. at 1240. Linawati=s continued uneventful
presence in Indonesia for two years following the 1998 riot in Jakarta, the relatively
isolated nature of the events she relies upon, and her family=s uneventful continued
presence in Indonesia, all undermine her effort to claim that these three incidents amount
to past persecution or support a well-founded fear of future persecution. See Lie v.
Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (“[W]hen family members remain in
petitioner's native country without meeting harm, and there is no individualized showing
that petitioner would be singled out for persecution, the reasonableness of a petitioner's
well-founded fear of future persecution is diminished.”). We therefore agree that she has
not established past persecution or a well-founded fear of future persecution.
II.
Linawati also argues that her due process rights were violated because the BIA
failed to adequately consider each of her arguments. Although there is no constitutional
3
right to asylum, aliens facing removal are entitled to due process. Sewak v. I.N.S., 900
F.2d 667, 671 (3d Cir. 1990). The Due Process Clause ensures that immigration
proceedings include: (1) factfinding based on a record produced before the decisionmaker
and disclosed to the petitioner; (2) an opportunity to make arguments on his or her own
behalf; and (3) the right to an individualized determination of the merits of his or her
claim. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). However, Linawati does
not contend that she was denied the opportunity to introduce evidence to establish her
claim before the BIA or the IJ. Thus, her argument only implicates her right to an
“individualized determination.” Id.
The BIA cited Lie, supra, in explaining why Linawati=s affidavits do not establish
a pattern or practice of persecuting Chinese Christians in Indonesia.3 396 F.3d at 530.
The BIA addressed Linawati=s testimony about the attempted rape during the 1998 riot,
but found that the record as a whole did not establish persecution, even when combined
with the evidence of two local uprisings.
Finally, although Linawati disagrees, the Board clearly considered our decision in
Lie in rejecting her attempt to prove a fear of future persecution.
3
Linawati also cites Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006). However,
our decision to remand there in no way suggests that Linawati does not have to establish the
“systemic, pervasive, or organized[]” nature of any suffering. See Lie, 396 F.3d at 537 (citing
Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)). Rather, in Sukwanputra, we remanded
with the express purpose of requiring the IJ to consider documents that he refused to take notice
of during the initial hearing because of authentication concerns that could have been procedurally
remedied.
4
III.
For the foregoing reasons, we find that substantial evidence supports the BIA’s
determination that Linawati did not meet her burden of demonstrating eligibility for
asylum and withholding of removal. Accordingly, we will deny the petition for review.
5