Sugianto v. Atty Gen USA , 138 F. App'x 451 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-7-2005
Sugianto v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3154
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3154
AGUS SUGIANTO,
Petitioner
v.
ALBERTO GONZALES, ATTORNEY GENERAL*,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondant
*Caption amended pursuant to Rule 43(c), Fed. R. App. P.
On Petition for Review from an Order of the
Board of Immigration Appeals
(Agency No. A95-363-804)
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 3, 2005
BEFORE: FUENTES, GREENBERG and COWEN, Circuit Judges
(Filed July 7, 2005 )
OPINION
COWEN, Circuit Judge.
Agus Sugianto, a native and citizen of Indonesia, petitions for review of an order
of the Board of Immigration Appeals (the “BIA”) denying his application for asylum,
withholding of removal, protection under the Convention Against Torture and voluntary
departure. He asserts that the immigration judge (the “IJ”) erred: (1) in finding that he
was statutorily ineligible for voluntary departure and (2) in concluding that he had not
established a well-founded fear of future persecution in Indonesia. Our jurisdiction to
review the Board’s order is controlled by section 242(a)(1) of the Immigration and
Nationality Act (the “INA”) (now, the Illegal Immigration Reform and Immigrant
Responsibility Act (the “IIRIRA”)), 8 U.S.C. § 1252(a)(1). We have jurisdiction to
consider the well-founded fear of future persecution argument and will deny the petition
on that ground. We lack jurisdiction to consider the voluntary departure claim.
As we write solely for the parties, we only provide a brief recitation of the facts.
According to Sugianto’s testimony, he was persecuted in Indonesia based on his Chinese
ethnicity and Roman-Catholic religion. Specifically, he recalled occasions when his
classmates fought with him, money was extorted from him while he owned a furniture
business, he was assaulted by demonstrators while driving his car, and people attempted
to prevent him from going to church. He also explained that he currently has two wives,
the first one is Catholic and the second Muslim, who both reside in Indonesia.
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The Immigration and Naturalization Service (the “INS”) (now, the Bureau of
Immigration and Customs Enforcement (“BICE”), began removal proceedings in
February 2000, based on Sugianto’s illegal overstay of his non-immigrant visa. Before
admitting the charges and conceding removability, Sugianto filed an asylum application
with the Asylum Office, which was denied. The application was renewed before the
immigration court. Specifically, Sugianto sought relief in the form of asylum,
withholding of removal, protection under Convention against Torture and voluntary
departure. The IJ denied his application for relief and ordered Sugianto removed. The
BIA summarily affirmed and this petition for review ensued.
We review the BIA’s decision that an alien has not established a well-founded fear
of future persecution to determine whether it is supported by substantial evidence. See
Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004). Where the BIA has adopted the IJ’s
decision without opinion, we review the IJ’s decision under the same standard. See
Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). The substantial evidence
standard requires us to grant a petition only if the evidence in the record is so strong that
it compels a contrary result. See Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003).
The Secretary of Homeland Security or the Attorney General has discretion to
grant asylum to any applicant who he determines is a refugee. 8 U.S.C. § 1158(b). A
refugee is defined in the INA as a person unable or unwilling to return to his country
“because of persecution or a well-founded fear of persecution on account of race,
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religion, nationality, membership in a particular social group or political opinion.” 8
U.S.C. § 1101(a)(42)(A). The alien bears the burden of proving eligibility for asylum. 8
C.F.R. § 208.13(a).
After reviewing the record, we find that the IJ’s conclusion that Sugianto has
failed to prove past persecution or a well-founded fear of future persecution is supported
by substantial evidence. Persecution has been defined narrowly to denote extreme
conduct, including “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). The definition “does not encompass all treatment that our society regards
as unfair, unjust, or even unlawful or unconstitutional.” Id. (citing Matter of Acosta, 19
I.&N. Dec 211, 229 (BIA 1985) (“If persecution were defined . . . expansively, a
significant percentage of the world’s population would qualify for asylum in this
country—and it seems most unlikely that Congress intended such a result.”).
Sugianto has presented evidence of many unfortunate occurrences allegedly based
on his ethnicity and religion to support his claim of past persecution: (1) verbal
harassment for money; (2) fist fights with classmates; (3) extortion of money from his
furniture business; (4) an encounter with demonstrators where he was assaulted and his
car was vandalized; and (5) a few incidences of harassment when unidentified
individuals tried to prevent him from attending church. The IJ found that Sugianto was
basically credible, despite some discrepancies in his testimony as compared to his
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affidavit. However, the IJ denied his applications because Sugianto had “not provided the
Court a scintilla of evidence that he has ever been persecuted in Indonesia.” (App. at 10.)
The IJ found that these past experiences do not individually or in the aggregate rise to the
level of persecution. Rather, the IJ explained, Sugianto was the victim of common
childhood behavior, extortion carried out by common criminals or gangsters, and
widespread riots and demonstrations. The IJ’s analysis was reasonable in light of the
evidence presented. There was no evidence that Sugianto was ever physically injured or
detained for any period of time. Further, Sugianto has not demonstrated that any of the
incidences occurred on account of a protected ground.
Similarly, the IJ’s conclusion that Sugianto has not established a well-founded fear
of persecution is supported by the record. The test for determining whether an alien has a
well-founded fear of future persecution is both subjective and objective—an alien must
demonstrate that he “has a genuine fear, and that a reasonable person in [his]
circumstances would fear persecution if returned to [his] native country.” Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Here, Sugianto has not presented evidence
that his fear of future persecution is objectively reasonable. Other than the isolated
unfortunate experiences which did not rise to the level of persecution, Sugianto generally
lived an undisturbed life in Indonesia. He was a successful businessman who was
married to a Muslim woman and was able to attend church. Accordingly, the record
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supports the IJ’s determination that Sugianto’s fears of future persecution were not well-
founded.
With respect to Sugianto’s argument that the IJ erroneously denied his request for
voluntary departure, after finding that he lacked good moral character and was
inadmissable to the United States because he was a polygamist, we lack jurisdiction to
consider his claim.
Congress divested this court of jurisdiction over challenges to the decision of the
BIA or IJ to deny voluntary departure. The INA specifically provides that “[n]o court
shall have jurisdiction over an appeal from denial of a request for an order of voluntary
departure.” 8 U.S.C. § 1229c(f). Similarly, the general judicial review provision
precludes review of orders denying voluntary departure: “Notwithstanding any other
provision of law . . . no court shall have jurisdiction to review any judgment regarding the
granting of relief under section . . . 1229c.” 8 U.S.C. § 1252(a)(2)(B)(i).
While we recognize that we may retain jurisdiction to consider constitutional
claims arising from discretionary denials of voluntary departure, Sugianto has not raised
any such claims. See contra Tovar-Landin v. Ashcroft, 361 F.3d 1164 (9th Cir. 2004)
(holding that the Court has jurisdiction to consider petitioner’s due process and equal
protection claims relating to his request for voluntary departure.) Sugianto contends that
the decision to classify petitioner as one not possessing good moral character violates due
process. However, as the Government correctly argues, the IJ based its denial on two
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different grounds. The IJ concluded that because Sugianto “is inadmissable to the United
States, he does not qualify for voluntary departure. Likewise the Court would also find
that a practitioner of polygamy is not a person of good moral character, and that would be
another basis for him to be ineligible for voluntary departure.” (App. at 4.) Even if we
agreed that the classification of polygamists is subject to review because it implicates the
due process clause, we would nonetheless be precluded from reviewing the IJ’s decision
to deny voluntary departure on the ground that the IJ found that Sugianto is inadmissable
to the United States under 8 U.S.C. § 1182(a)(10), for the practice of polygamy.
Further, Sugianto’s due process argument fails because there is no constitutionally
protected liberty interest in the discretionary privilege of voluntary departure. As the
Ninth Circuit explained, “aliens have no fundamental right to discretionary relief from
removal for purposes of due process.” Tovar-Landin, 361 F.3d at 1167.
For the foregoing reasons, the petition for review will be denied.
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