Richard Tumundo v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2027
___________
RICHARD TUMUNDO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_____________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A79-708-168)
Immigration Judge: Honorable Margaret R. Reichenberg
_____________________________
Submitted under Third Circuit LAR 34.1(a)
on July 1, 2009
Before: McKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed August 27, 2009)
O P I N I O N

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PER CURIAM:
Richard Tumundo petitions for review of the Board of Immigration Appeals’
(“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
I.
Tumundo, a Christian who is a native and citizen of Indonesia, entered the United
States on a non-immigrant visa in December 1994. He remained in the United States
beyond the period of time allowed under his visa, and was ultimately placed in removal
proceedings. He conceded removability and, in 2004, applied for withholding of removal
and relief under the Convention Against Torture (“CAT”).
In 2006, Tumundo testified before the Immigration Judge (“IJ”). He claimed that
in the middle of 1994, his girlfriend at the time became pregnant. The two planned to
wed, and she agreed to convert from Islam to Christianity. When her family learned of
these plans, they kidnapped Tumundo, locked him in a room that they guarded with axes
and machetes, and told him that he could marry her only after converting to Islam.
Although the family threatened to kill Tumundo, the only physical injury he suffered
during his confinement was a swollen jaw. After approximately a month in captivity,
Tumundo escaped and fled to another island in Indonesia, where he remained for about
four months without incident before traveling to the United States.
Tumundo explained that, approximately nine years after the child was born, the
girlfriend’s family gave the child to Tumundo’s father, who lives in Indonesia. The

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family threatened that if Tumundo’s father raised the child Christian, Tumundo’s father
would be killed. Tumundo believed that the family gave the child to his father in the
hopes that doing so would help the family find Tumundo, and because the family was too
poor to raise the child.
Tumundo testified that he fears returning to Indonesia because the girlfriend’s
family follows the tradition of “siri,” which purportedly requires the family to kill
Tumundo because his refusal to convert to Islam and marry the girlfriend shamed her
family. He noted that he could not obtain protection from the Indonesian police force
because it respects the tradition of siri. Furthermore, he stated that he would not be able
to relocate to another island in Indonesia because (1) the family would still find him; and
(2) people in Indonesia do not like Christians.
The IJ appeared to find Tumundo’s testimony credible, but nonetheless denied his
requests for withholding of removal and relief under the CAT. As to his claim for
withholding of removal, the IJ held that the events Tumundo described did not rise to the
level of past persecution and were not on account of his race, religion, nationality,
membership in a particular social group, or political opinion. The IJ further concluded
that Tumundo failed to show that it was more likely than not that the girlfriend’s family
would target him upon his return to Indonesia. The IJ observed that many years had
passed since the abduction and that there was no indication that the family had the “means
or ability to extend [its] vendetta outside [its own] island.” Additionally, the IJ found that

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the girlfriend’s family is not a group the Indonesian government is unable or unwilling to
control.
On appeal, the BIA agreed with the IJ’s reasons for denying Tumundo’s request
for relief under the CAT. As for his claim for withholding of removal, the BIA agreed
with the IJ’s denial of relief but nonetheless conducted its own analysis. In rejecting
Tumundo’s request for withholding of removal, the BIA held that his abduction and the
events that followed did not rise to the level of persecution, highlighting the fact that he
had not sustained a serious injury. The BIA further concluded that Tumundo failed to
show that the family would likely persecute him if he returned to Indonesia. The BIA
reasoned that even if the family were still interested in targeting him all these years later,
Tumundo had “failed to establish that he could not reasonably avoid the threat of future
persecution by relocating within Indonesia.” Moreover, the BIA noted that Tumundo had
never sought protection from the Indonesian government, nor had he submitted sufficient
evidence in support of his contention that the Indonesian police would be unwilling to
protect him because it respects the tradition of siri. Finally, the BIA rejected Tumundo’s
argument that there is a pattern or practice of persecution against Christians in Indonesia.
Tumundo now petitions this Court to review the BIA’s decision.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C.
§ 1252(a)(1). Tumundo challenges only the denial of his request for withholding of

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Because Tumundo’s brief does not contest the BIA’s rejection of his request for1
relief under the CAT, he has waived this issue. See Voci v. Gonzales, 409 F.3d 607, 610
n.1 (3d Cir. 2005).
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removal. Because the BIA issued its own decision, we review its decision rather than the1
IJ’s decision. See Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 230 (3d Cir. 2008). We
review the BIA’s factual findings – including its conclusions regarding evidence of
persecution – for substantial evidence. Id. Under this deferential standard of review, we
must uphold the BIA’s findings “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 be entitled to withholding of removal under 8 U.S.C. § 1231(b)(3), an applicant
must show that it is more likely than not that he would face persecution on account of his
race, religion, nationality, membership in a particular social group, or political opinion if
he returned to his country of origin. See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.
2003). “[V]iolence or other harm perpetrated by civilians against [an applicant] . . . does
not constitute persecution unless such acts are committed by the government or forces the
government is either unable or unwilling to control.” Lie v. Ashcroft, 396 F.3d 530, 537
(3d Cir. 2005) (internal quotations omitted).
Substantial evidence supports the BIA’s determination that Tumundo did not
establish that it is more likely than not that he would face persecution if he returned to
Indonesia. Tumundo’s claim of individualized persecution fails because he did not show

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that the Indonesian government was or would be unable or unwilling to control the
conduct of the girlfriend’s family. Indeed, there is no evidence that he even sought
protection from the Indonesian government. Although he claimed that such an attempt
would be futile because the Indonesian police respects the tradition of siri, he did not
substantiate this claim.
As for his claim that there is a pattern or practice of persecution of Christians in
Indonesia, we recently rejected this argument in Wong. In that case, we concluded that
the record, which included the 2003 and 2004 U.S. State Department reports on
Indonesia, did not compel a finding that there is a pattern or practice of persecution
against Chinese Christians in Indonesia. See Wong, 539 F.3d at 233-35. Although not
relevant to the decision in that case, we also noted that the 2005 to 2007 country reports
documented “improved treatment of Chinese Christians in Indonesia.” Id. at 234. Here,
Tumundo relies on the 2003 and 2005 country reports, as well as several articles from
2004 and earlier. We cannot conclude that this evidence compels a finding that there is a
pattern or practice of persecution of Christians in Indonesia.
In light of the above, we will deny Tumundo’s petition for review.

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