and 08-3237 AUW ROBBY PRIYANTO v. Attorney General of the United States

IMG-135 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 08-3236 and 08-3237
___________
AUW ROBBY PRIYANTO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
ERNA SETIAWATI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petitions for Review of Orders of the
United States Department of Justice
Board of Immigration Appeals
(Agency Nos. A96-266-257 & A96-266-258)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 19, 2009
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: August 25, 2009)
___________

-- 1 of 8 --

2
OPINION OF THE COURT
___________
PER CURIAM
Petitioners Auw Priyanto and Erna Setiawati seek review of final orders of
removal in this consolidated appeal. For the reasons that follow, we will deny the
petitions for review.
Priyanto and Setiawati are both ethnic Chinese Christians and citizens of
Indonesia. Both entered the United States on visitor visas, Priyanto in 2001 and Setiawati
in 2002, and overstayed. The couple married in the United States and have one child who
was born in the United States. In November 2003, the Government served the couple
with notices to appear. Both conceded removability and sought asylum, withholding of
removal, relief under the Convention Against Torture (“CAT”), and voluntary departure.
I.
A. Priyanto
Priyanto claimed that he had been subjected to persecution in Indonesia on account
of his religion and ethnicity. To support this claim, he offered testimony about the
following events: 1) When he attended elementary school, Muslim students demanded
that he buy them food, and on one occasion beat him up. His parents complained to the
school’s principal, and there were no further beatings, though the students continually
called him derogatory names; 2) He was once mugged by several Muslims while riding
on a bus. He claimed that the mugging began after some of the passengers on the bus

-- 2 of 8 --

3
realized that he was Chinese. After the mugging, he complained to the bus driver, who
did not yell at or chase the perpetrators, though he did drop off Priyanto in the police
district; 3) He once bought doughnuts and complained to the Muslim store owner about
them. The store owner called him an ethnic slur, pulled a knife, and threw the doughnuts
at him; and 4) On several occasions while walking to church, Muslims would call him
names and spit on him.
Priyanto also argued that he would be subjected to further persecution if he were to
return to Indonesia. To support this argument, he noted the riots of 1998, as well as other
events showing the extent of anti-Chinese sentiment in Indonesia. He also relied on the
country’s recent earthquakes, which he claimed had increased unemployment and
encouraged Muslims to demand money from the ethnic Chinese. In addition, he
presented the 2001 and 2005 Country Reports for Indonesia. He testified that members of
his family still live in Indonesia, and admitted that none have been harmed since he came
to the United States.
The Immigration Judge (“IJ”) found Priyanto credible, but denied all substantive
relief and allowed voluntary departure. The Board of Immigration Appeals (“BIA”)
affirmed. First, the BIA found that Priyanto was ineligible for asylum because he had
filed his application more than one year after he had entered the United States and had not
shown extraordinary circumstances sufficient to excuse the delay of filing. See 8 U.S.C.
§ 1158(a)(2)(B) & (D). Second, the BIA found that Priyanto was not eligible for

-- 3 of 8 --

4
withholding of removal because the incidents of harassment that he described did not rise
to the level of persecution. In addition, the BIA found that he had failed to show a clear
probability that he would be persecuted if he were to return to Indonesia. Finally, the
BIA found that Priyanto was not eligible for relief under the CAT because he had not
shown that he is more likely than not to be tortured upon return to Indonesia.
B. Setiawati
Setiawati also claimed that she had been persecuted in Indonesia on account of her
religion and ethnicity, and that she would be subjected to further persecution if she were
to return. To support this claim, she offered testimony about the following events: 1) She
was teased in elementary school because of her ethnicity; 2) When she was a child, her
dog was killed. She suspected Muslim neighbors of the killing; 3) When Muslims would
walk past her house on the way to a nearby mosque, they would yell racial epithets at her
and, on one occasion, demanded that she turn down the volume on her television; 4) One
day, while returning to her home on a motorcycle, she drove through a crowd of people
whom she believed to be Muslim. Members of the crowd yelled at her, though she was
not harmed; and 5) She once worked in a church that received an anonymous bomb threat.
Police later recovered the bomb, which failed to detonate.
Setiawati also argued that she would be persecuted if she were to return to
Indonesia. Like Priyanto, she supported her argument by relying on the 1998 riots, the
social consequences of the recent earthquakes, and other events motivated by anti-

-- 4 of 8 --

5
Chinese sentiment. In addition, she noted the 2003 and 2005 Country Conditions Reports
for Indonesia.
The IJ found Setiawati credible, but denied all substantive relief and allowed
voluntary departure. The IJ found that Setiawati’s asylum application, which she had
filed more than one year after entering the country, was timely because she had originally
filed as a derivative to Priyanto’s 2003 asylum application. Nevertheless, the IJ
determined that she was ineligible for asylum because none of the events that she
described rose to the level of persecution. The IJ also found that she had not established
that she would be persecuted in the future. Likewise, the IJ found that she was ineligible
for withholding of removal and relief under the CAT. The BIA affirmed without opinion.
C. Jurisdiction
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). In
Priyanto’s case, the BIA issued an opinion that “invoke[ed] specific aspects of the IJ's
analysis and fact-finding” to support its conclusion; therefore, we will review both
decisions. Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir. 2005). In Setiawati’s case,
because the BIA affirmed without opinion, we will review the IJ’s decision.
Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir. 2006). We review the BIA’s
findings of fact regarding claims of past persecution and well-founded fears of future
persecution under “the deferential substantial evidence standard.” Chavarria v. Gonzalez,
446 F.3d 508, 515 (3d Cir. 2006).

-- 5 of 8 --

We ordinarily lack jurisdiction to review the BIA’s conclusion that an asylum1
application was untimely. See Sukwanputra, 434 F.3d at 633.
6
II.
In their consolidated petition for review, Priyanto and Setiawati challenge only the
findings that they did not suffer past persecution and did not have a well-founded fear of
future persecution and were thus ineligible for asylum (in Setiawati’s case) and
withholding of removal (in both cases). Priyanto does not challenge the BIA’s decision
that his asylum application was untimely, and the parties do not challenge their1
ineligibility for relief under the CAT. Accordingly, we will not consider those claims.
A. Setiawati’s asylum claim
“Persecution includes threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom,” Wong v. Att’y Gen.,
539 F.3d 225, 232 (3d Cir. 2008) (internal quotations omitted), but it does not
“encompass all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional,” Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993).
An applicant can demonstrate entitlement to asylum on the basis of persecution in
one of two ways. First, an applicant can provide credible testimony that he or she had
been persecuted in the past. See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004).
Setiawati testified to several instances of what she deemed to be past persecution because
of her religion and ethnicity. She argues that these events, taken cumulatively, constitute

-- 6 of 8 --

The Government argues that Setiawati failed to raise this argument in her brief and2
therefore waived judicial review of the issue. However, Setiawati did challenge the
BIA’s finding that she had not suffered past persecution. Accordingly, she preserved the
issue for judicial review.
Setiawati argues that Chinese Indonesians are a significantly disfavored group and3
thus must meet a comparably low standard of individualized risk to show a well-founded
fear of persecution. We have already rejected that argument. See Lie at 538 n.4.
7
persecution. We find that there was substantial evidence to support IJ’s conclusion that2
these events were not extreme enough to satisfy the standard for persecution. See Wong,
539 F.3d at 232; Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).
The second way that an applicant can obtain asylum is by showing that he or she
has a well-founded fear of future persecution upon return to the country of removal. The
applicant can make this showing by demonstrating that either “she would be individually
singled out for persecution” or “that there is a pattern or practice in his or her country of
nationality ... of persecution of a group of persons similarly situated to the applicant.”
Wong, 539 F.3d at 232. Setiawati does not attempt to demonstrate that she will be
singled out for persecution upon return to Indonesia; instead, she attempts to establish a
pattern-or-practice claim. She supports her argument by pointing to attacks against
Chinese Christians in Indonesia and the 2003 and 2005 Country Reports for Indonesia.
The IJ rejected this argument, noting that the 2005 Country Report states that the
Indonesian government supports tolerance of all religions and has taken steps to end
discriminatory laws in the country. We find that this was a valid basis to reject
Setiawati’s claim. See Wong, 539 F.3d at 234. Therefore, she is not entitled to asylum.3

-- 7 of 8 --

8
B. The withholding of removal claims
An applicant seeking withholding of removal “must establish a ‘clear probability’
. . . that he/she would suffer persecution” if returned to the country of removal.
Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006). This standard is higher
than the standard governing asylum claims. Id. Accordingly, Setiawati’s request for
withholding of removal necessarily fails because her request for asylum failed. See Id.
Priyanto testified to several instances of what he deemed persecution at the hands
of Muslims, including a beating, a robbery, and name-calling. The BIA found that these
events did not rise to the level of persecution. We find substantial evidence in the record
to support the BIA’s decision. See Wong, 539 F.3d at 232; Lie, 396 F.3d at 536. To
support his argument that he had a well-founded fear of persecution, Priyanto, like
Setiwati, noted the attacks against ethnic Chinese Christians in Indonesia. He also
submitted the 2001 and 2005 Country Reports for Indonesia. The BIA rejected this
claim, noting that Priyanto’s family has continued to live in Indonesia without incident.
We find this to be a valid basis to reject Priyanto’s claim. See Wong, 539 F.3d at 236.
Accordingly, we find that Priyanto did not establish eligibility for withholding of
removal.
III.
For the foregoing reasons, we will deny the petition for review.

-- 8 of 8 --