Dwi Iriani; Lucas Benjamin; Citra A. Paais; Vidya P. Paais v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3235
___________
DWI IRIANI; LUCAS BENJAMIN; CITRA A. PAAIS; VIDYA P. PAAIS,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A98-694-275, A98-694-276, A98-694-277, A98-694-278)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 19, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: August 25, 2009)
_________
OPINION
_________
PER CURIAM
Dwi Iriani, her husband (Lucas Benjamin), and their two children (Citra and Vidya

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Petitioners’ brief also argues that they were persecuted on account of their1
ethnicity. Aside from checking the relevant box in their asylum application and
submitting two affidavits that discussed the plight of Chinese persons in Indonesia
generally, Petitioners did not indicate during the proceeding before the IJ that they were
pursuing an ethnicity claim. In their appeal to the BIA, they argued that the IJ ignored
these affidavits and failed to consider their ethnicity claim. The BIA noted, however, that
Petitioners never sought to mark the affidavits as exhibits or otherwise enter them into
evidence. Moreover, the BIA concluded that the affidavits did not undermine the IJ’s
finding that Petitioners did not suffer persecution. The substantial evidence supports the
BIA’s conclusion.
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Paais) petition for review of the Board of Immigration Appeals’ (“BIA”) final order of
removal in their consolidated removal proceeding. For the reasons that follow, we will
grant the petition in part and deny it in part, and we will remand for further proceedings.
I.
In July 2004, Petitioners – each of whom is a native and citizen of Indonesia –
entered the United States on non-immigrant visas. They stayed beyond the time allowed
under their respective visas and were ultimately placed in removal proceedings. In
January 2005, Iriani – on the family’s behalf – applied for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”), arguing that they
suffered persecution and feared future persecution on account of her religion.1
In November 2006, Iriani testified before the Immigration Judge (“IJ”). She
testified that she and Benjamin married in 1985. At the time of the marriage, Iriani
practiced Islam and Benjamin practiced Christianity. In 1990, however, Iriani converted
to Christianity. A few months after her baptism, her employer demanded that she

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reconvert to Islam within ten days. Iriani refused to do so and resigned. She found other
employment a few days later.
In 1992, Iriani and some of her co-workers at her new place of employment
formed a Christian prayer group, which held services during their lunch break. In 1996
they began using a nearby church for their prayer services because their group had grown
to include about sixty families. In 2001, the group began to focus on evangelization, and
Iriani ultimately converted thirteen Muslims to Christianity, including two individuals
who were considered leaders in the Muslim community.
In 2002, the vice president of the company that employed Iriani requested to meet
with her. When Iriani arrived at the meeting, she noticed that two Muslim leaders were
present. One of these leaders told Iriani that if she did not discontinue her Christian
activities, his followers would make her do so. A few days later, Iriani’s prayer group
received an anonymous call threatening to bomb the group if it did not discontinue its
services. In light of these events, Iriani resigned from her job a few weeks later.
Iriani later began holding prayer services in her house. This prayer group initially
consisted of twelve families and ultimately grew to include forty-five families. In
December 2003, three Muslim leaders from Iriani’s neighborhood came to her house and
threatened to kill her family if she did not stop holding Christian activities in her home.
Iriani reported this incident to the police, but the officer who fielded her complaint told
her that he did not want to get involved in religious affairs.

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In January 2004, Iriani received phone calls from Muslims threatening to destroy
her house and kill her family if she continued to hold services in her home. The
following month, someone punctured a tire on her car while she was holding a prayer
service. A few weeks later, Muslims destroyed a Catholic building near Iriani’s house.
Finally, in April 2004, several Muslims gathered outside her house during a prayer
service and threw rocks at the house. Four individuals ultimately entered the house and
threatened to kill Iriani’s family if the prayer group did not stop the service. About three
months later, Petitioners fled to the United States.
The IJ found Iriani’s testimony credible but nonetheless denied her request for
asylum and withholding of removal. In doing so, the IJ relied heavily on the U.S. State
Department’s 2006 International Religious Freedom Report for Indonesia. The IJ only
briefly discussed the specific incidents testified to by Iriani, concluding that “the threats
did not rise to the level of persecution.” The IJ also rejected Iriani’s request for relief
under the CAT.
On appeal, Petitioners challenged the IJ’s denial of asylum and withholding of
removal only. The BIA concluded that there was “no adequate basis to disturb the
Immigration Judge’s conclusion that the lead respondent did not demonstrate that she
experienced past persecution,” and that “the record supports the Immigration Judge’s
finding that she had not established that she had a well-founded fear of persecution if she

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In their brief, Petitioners state that they seek review of the denial of their requests2
for asylum, withholding of removal, and relief under the CAT. Because they did not
challenge the denial of their CAT claim in their appeal to the BIA, we lack jurisdiction to
review that claim. See 8 U.S.C. § 1252(d)(1); Zheng v. Gonzales, 422 F.3d 98, 107-08
(3d Cir. 2005).
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returned to Indonesia.” Petitioners now seek this Court’s review of the BIA’s decision.2
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). Where, as here, the BIA purports to rely on the IJ’s findings, we review the
IJ’s decision. See Chukwu v. Att’y Gen. of the U.S., 484 F.3d 185, 189 (3d Cir. 2007).
We review factual findings, including conclusions regarding evidence of persecution, for
substantial evidence. Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 230 (3d Cir. 2008).
Under this deferential standard of review, we must affirm “unless the evidence not only
supports a contrary conclusion, but compels it.” Id. (quoting Abdille v. Ashcroft, 242
F.3d 477, 484 (3d Cir. 2001)).
To establish eligibility for asylum, an alien must show that she is unable or
unwilling to return to her home country due to a well-founded fear of future persecution
on account of her race, religion, nationality, membership in a particular social group, or
political opinion. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). A showing of past
persecution triggers a rebuttable presumption of a well-founded fear of future
persecution. See 8 C.F.R. § 208.13(b)(1). If an alien cannot show past persecution, she
can still establish a well-founded fear of future persecution by showing that her fear is

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both subjectively and objectively reasonable. See id. at 345-46. If an alien fails to
demonstrate eligibility for asylum, she cannot obtain withholding of removal, for the
standard for withholding is higher than that for asylum. Id. at 348-49.
Whether an alien suffered past persecution and whether she possesses a
subjectively and objectively reasonable fear of future persecution are two separate issues.
See id. at 341. In this case, however, it appears that the IJ conducted only one persecution
analysis, concluding that the harm suffered by Iriani “did not rise to the level of
persecution.” Although the IJ did not explicitly state whether this conclusion related to
Iriani’s efforts to establish past or future persecution, the IJ’s use of the past tense – “did
not rise” – suggests that the IJ was ruling on the former and not the latter.
On appeal, the BIA did not highlight this flaw in the IJ’s analysis. Rather, the
BIA’s decision made it seem as if the IJ did conduct two separate analyses, for the BIA
held, without more, that (1) there was “no adequate basis to disturb the Immigration
Judge’s conclusion that the lead respondent did not demonstrate that she experienced past
persecution”; and (2) “the record supports the Immigration Judge’s finding that she had
not established that she had a well-founded fear of future persecution if she returned to
Indonesia.”
Because the BIA affirmed a conclusion that the IJ seemingly never made and did
not provide any of its own reasoning for that conclusion, we are unable to meaningfully
review the issue of whether Iriani’s fear is both subjectively and objectively reasonable.

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The Government argues that Petitioners’ brief made only a passing reference to3
the issue of past persecution and thus they have waived any challenge to that issue.
Although Petitioners’ brief, prepared by counsel, is disorganized and far from a model of
clarity, we believe that it sufficiently addresses the issue of past persecution – albeit
barely – to place that issue before us.
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Accordingly, we must vacate the BIA’s decision as to this issue and remand so that the
BIA can reconsider this issue. See Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.
2003) (“When deficiencies in the BIA’s decision make it impossible for us to
meaningfully review its decision, we must vacate that decision and remand so that the
BIA can further explain its reasoning.”). We note, without deciding, that Iriani may be
able to demonstrate that her fear is both subjectively and objectively reasonable. In the
months leading up to Petitioners’ departure from Indonesia, Muslims from their
neighborhood made repeated death threats and otherwise attempted to intimidate Iriani
into discontinuing her prayer group’s services. Although Iriani sought police protection
after receiving the first death threat, the Indonesian police were unwilling to help her.
Indeed, the 2006 International Religious Freedom Report states that the Indonesian
government “sometimes tolerated extremist groups that used violence and intimidation
against religious groups, and it often failed to punish perpetrators of such violence.” In
any event, we leave it to the BIA to determine in the first instance whether Petitioners
demonstrated both a subjectively and objectively reasonable fear of future persecution.
Although we are unable to review the issue of future persecution, we are able to
consider the finding that Petitioners failed to establish past persecution. The substantial3

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evidence supports the conclusion that the harm suffered by Iriani does not constitute past
persecution. Threats constitute past persecution in “only a small category of cases, and
only when the threats are so menacing as to cause significant actual ‘suffering or harm.’”
Li v. Att’y Gen. of the U.S., 400 F.3d 157, 164 (3d Cir. 2005) (quoting Lim v. INS, 224
F.3d 929, 936 (9th Cir. 2000)). The threats in this case – although undoubtedly
frightening and reprehensible – were never acted upon and did not cause Petitioners any
physical injury. Additionally, the incidents in which Muslims threw rocks at Petitioners’
home and vandalized their car do not rise to the level of persecution.
In light of the above, we will grant the petition in part and remand to the BIA so
that it may consider whether Petitioners have established both a subjectively and
objectively reasonable fear of future persecution on account of Iriani’s religion. We will
deny the remainder of the petition.

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