Puspitaningsih v. Atty Gen USA , 313 F. App'x 512 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-15-2008
Puspitaningsih v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1802
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"Puspitaningsih v. Atty Gen USA" (2008). 2008 Decisions. Paper 367.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 07-1802
_________________
FNU PUSPITANINGSIH;
YAHYA GUNAWAN,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
________________
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
(Agency Nos. A96-263-968; A96-263-969)
Immigration Judge: Charles M. Honeyman
______________
Submitted Under Third Circuit LAR 34.1(a)
May 9, 2008
________________
Before: BARRY and STAPLETON, Circuit Judges, and RESTANI * , Judge
(Filed: October 15, 2008 )
_______________
OPINION
_______________
RESTANI, Judge
Petitioners Fnu Puspitaningsih and Yahya Gunawan seek review of the order of the
*
Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
Board of Immigration Appeals (“BIA”) affirming the order of the Immigration Judge
(“IJ”) denying their applications for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”), but granting them voluntary departure.
We will deny the petition.
Petitioners Gunawan, an ethnically half-Chinese Christian, and Puspitaningsih, a
Javanese Christian, are husband and wife and citizens of Indonesia. They entered the
United States as non-immigrant visitors, with Puspitaningsih arriving in June 2001, with
authorization until December 2001, and Gunawan arriving in February 2001, with
authorization until August 2001. Removal proceedings were commenced in June 2003,
as Petitioners remained beyond their authorization date. Puspitaningsih applied for
asylum in March 2003, and Gunawan filed a defensive asylum application in February
2004.
Petitioners conceded their removability before the IJ, who conducted a hearing on
their application in December 2005. Petitioners alleged that while living in Indonesia,
they had been subject to harassment and discrimination during their youth and had their
family store burned down during the 1998 riots. Puspitaningsih had problems attending
church and was once hit with a rock and knocked unconscious outside of church, and
Gunawan suffered a beating during a fasting season when he brought water and food to
school and was threatened concerning prayer services in his home. Petitioners fear that
past incidents will reoccur upon their return to Indonesia and are concerned that church
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bombings and church closings will prevent them from peaceful worship. In support of
their claims, Petitioners offered the U.S. State Department’s 2004 Country Report and
International Religious Freedom Report for Indonesia, as well as other newspaper articles
and materials concerning the social and religious situation in Indonesia.
The IJ denied Petitioners’ claims for relief. The IJ determined that Petitioners’
asylum applications were time-barred 1 and that on the merits, Petitioners had conceded
there was no past persecution and had failed to demonstrate a fear of future persecution.
With respect to Petitioners’ withholding claim, the IJ noted that Petitioners were “seeking
a good faith modification of existing law” concerning their argument that there is a
pattern and practice of persecution of Chinese Christians in Indonesia. The IJ found
Petitioners credible but determined that prior case law had found violence in Indonesia
not sufficiently widespread as to constitute a pattern or practice of persecuting Chinese
Christians and concluded that there was no evidence that Petitioners would be detained or
tortured by the Indonesian government or someone working with the government’s
agreement or encouragement.
The BIA affirmed the IJ’s decision in an order dated March 8, 2007. The BIA
agreed that Petitioners’ experiences did not rise to the level of past persecution and that
the evidence presented failed to demonstrate that it was more likely than not that
1
Petitioners did not challenge the IJ’s dismissal of their asylum application before
the BIA and therefore it is not before us.
3
Petitioners would be singled out for persecution or that their life or freedom would be
threatened upon return. The BIA found that the specific events complained of by
Petitioners were remote, isolated events and that there was no indication that Petitioners
were specifically targeted in the 1998 riots, especially as they lived in Indonesia for more
than two years afterwards and their Christian family members have continued to live in
Indonesia without meeting harm. The BIA acknowledged the mixed commentary from
the country reports regarding the religious strife in Indonesia, but found this did not
change the fact that Petitioners and their family had never been persecuted or tortured.
We have jurisdiction to review the order of the BIA under 8 U.S.C. § 1252(a)(1).
Where the BIA renders its own decision, we review the finding under the substantial
evidence standard. Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007) (citations
omitted).
On appeal, Petitioners’ only argument is that the record demonstrates that there is a
pattern or practice of persecution against Chinese Christians living in Indonesia sufficient
to establish a threat to their life or freedom for their withholding of removal claim.2 See
INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b)(2). The BIA
properly dismissed this argument, finding insufficient evidence of persecution and relying
on In re A-M-, 23 I. & N. Dec. 737 (B.I.A. 2005), and Lie v. Ashcroft, 396 F.3d 530 (3d
Cir. 2005), which found that pre-2003 media and country reports were insufficient to
2
Petitioners do not challenge the BIA’s denial of their claim under the CAT.
4
establish a pattern or practice of persecution in Indonesia. Similarly, we recently found in
Wong v. Attorney General, 539 F.3d 225, 233–34 (3d Cir. 2008), that the 2003 and 2004
State Department Reports do not establish a pattern of persecution of Chinese Christians
in Indonesia. Petitioners concede that the issues raised in Wong are substantially similar
to the issues raised here and do not contest its application to the facts and circumstances
of the present case.
The BIA’s decision was therefore supported by substantial evidence and we will
deny Petitioners’ petition for review.
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