Anton Suharso; Yunita Wulansari v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3123
ANTON SUHARSO;
YUNITA WULANSARI,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA Nos. A96-264-431 & A96-264-432)
Immigration Judge: Honorable Donald Ferlise
__________
Submitted Under Third Circuit LAR 34.1(a)
on September 30, 2009
Before: RENDELL, AMBRO, AND WEIS, Circuit Judges.
(Filed: October 6, 2009)
OPINION OF THE COURT
RENDELL, Circuit Judge.

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2
Anton Suharso and his wife, Yunita Wulansari, petition for review of an order of
the Board of Immigration Appeals (“BIA”) denying their application for asylum and
withholding of removal. The facts in this case reflect a familiar pattern: Christian
Indonesians of Chinese descent alleging persecution by Muslim Indonesians. The
Immigration Judge (“IJ”) concluded, and the BIA agreed, that the intimidation and
harassment alleged by petitioners—including an episode in which a gang of Muslims
assaulted Suharso with a knife—were not sufficiently severe to constitute persecution.
Because we agree that petitioners neither suffered past persecution nor possess a well-
founded fear of future persecution on account of their religion or ethnicity, we will deny
the petition for review.
Suharso and his wife, Wulansari, are natives and citizens of Indonesia, and are
ethnically Chinese Catholics. At the hearing on their application for asylum and
withholding of removal, Suharso testified that he suffered verbal harassment and was
frequently “stopped or attacked” by Indonesian Muslims, and that, on one occasion in
March 2002, a gang of Muslims confronted him on his walk to church, seized and
stomped his prayer book, and cut him with a knife—incidents that failed to deter Suharso
from attending church. A. 111.
Suharso’s experience reflected a wider pattern of aggression toward Chinese
Christians by elements of the Muslim community between 2000 and 2002. During that
period, Suharso testified that radical Muslims regularly targeted churches: bomb attacks
and bomb threats against churches “happen[ed] everywhere.” A. 116. An expert retained

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3
by petitioners, Dr. Jeffrey Winters, corroborated Suharso’s testimony, indicating that on
Christmas Eve in 2000, unknown terrorists bombed or attempted to bomb 34 Christian
churches in 10 cities. Episodic rioting, involving attacks on Chinese homes and
businesses, continued thereafter in different parts of the country. These attacks, Winters
stressed, reflected longstanding animus toward Chinese Christians, perceived as
unwelcome outsiders. Winters also described an array of discriminatory laws enforced
against ethnically Chinese Indonesians.
Government efforts to stem religious and ethnic violence have had mixed results.
Winters opined that the Indonesian government, which has a “severely degraded” legal
and security apparatus, has had difficulty controlling fanatical fringes, which continue to
terrorize Chinese Christians. A. 221. Suharso testified that his church, for example, was
forced to close after the government was unable to protect congregants against Muslim
extremists. A second expert retained by petitioners, Jana Mason, noted that crimes
against Chinese Christians are rarely prosecuted, and that a “significant risk” of ethnic
violence has remained since 1998—the last wave of nationwide looting and
rioting—reflecting the government’s inability to stem the “growing militancy of Islam.”
A. 233-34.
One month after his assault at knife-point, Suharso and his wife celebrated their
honeymoon in the United States. Suharso explained that, “at first it was our intention [to
come to the United States] for honeymooning (sic),” but, after touring the country, “we
felt the situation in here, we do not want to return.” A. 126. After immigration officials

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1 Specifically, Suharso applied for asylum and withholding of removal; Wulansari is a
derivative applicant for asylum and also seeks withholding of removal.
2 We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. See
Briseno-Flores v. Att'y Gen., 492 F.3d 226, 228 (3d Cir. 2007). Where the BIA
substantially adopts the findings of the IJ, as the BIA did here, we review the decisions of
both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
3 Under INA § 208(b), the Attorney General has the discretion to grant asylum to
“refugees.” 8 U.S.C. § 1158(b). Section 101(a)(42)(A) of the INA defines a “refugee” as
a person unable to return to her country of “nationality . . . because of persecution or a
well-founded fear of persecution on account of race, 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 proof of establishing that he is a refugee and that he has suffered past
persecution or has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(a). If past
persecution is established, then the asylum applicant is presumed to have a well-founded
fear of persecution. See 8 C.F.R. § 1208.13(b)(1). If the alien cannot show past
persecution, he may still establish a well-founded fear of future persecution by
demonstrating a subjective fear of persecution, and that a reasonable person in the alien’s
circumstances would fear persecution if returned to the country in question. Zubeda v.
Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).
To establish entitlement to withholding of removal under section 241(b)(3) of the
INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a “clear probability” of
persecution through the presentation of evidence that it is more likely than not that he
would be subject to persecution if deported. See Mulanga v. Ashcroft, 349 F.3d 123, 132
(3d Cir. 2003). This is a more demanding standard than the standard for asylum, and,
therefore, an alien who fails to establish his eligibility for asylum “necessarily fails to
4
discovered that petitioners overstayed their visas, removal proceedings were initiated.
Petitioners conceded their removability but sought asylum and withholding of removal.1
The IJ determined, and the BIA agreed, that Suharso offered credible testimony that he
suffered persistent harassment and threats on the basis of his religion and ethnicity, but
that the indignities endured, including Suharso’s assault in March 2002, fell short of
“persecution” under the applicable law.2 Accordingly, the BIA affirmed the IJ’s decision
that petitioners were ineligible for asylum and withholding of removal.3

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meet the standard of withholding of removal under INA § 241(b)(3).” Lukwago v.
Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).
4 Although the federal Constitution does not guarantee a right to asylum, aliens facing
removal are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990).
“The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (quotation marks and citation omitted). In removal proceedings, due process has
three elements. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001). An alien: “(1) is
entitled to factfinding based on a record produced before the decisionmaker and disclosed
to him or her; (2) must be allowed to make arguments on his or her own behalf; and (3)
has the right to an individualized determination of his [or her] interests.” Id. (internal
citations omitted). Petitioners focus solely on the third element, urging that the BIA did
not render an individualized determination of their applications for asylum and
withholding of removal.
5
On appeal, Suharso makes two arguments—that his due process rights were
violated when the BIA failed to make an individualized determination of his eligibility for
asylum and withholding of removal;4 and that the BIA’s conclusion that he lacked a well-
founded fear of persecution was unsupported by substantial evidence.
We easily dispose of Suharso’s first argument, finding “sufficient indicia” that the
BIA gave “particularized consideration” to his arguments and evidence. Abdulai v.
Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001). The BIA considered–and rejected–Suharso’s
twin contentions—that the harassment that he endured rose to the level of persecution,
and that the IJ failed to consider Winters and Mason’s affidavits. In a succinct analysis,
the BIA concluded that the fact that Suharso’s family continued to reside in Indonesia
undermined his claim of persecution, that the IJ adequately addressed Winters’ affidavit,
and that the IJ’s alleged failure to consider Mason’s affidavit was not prejudicial. In

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5 We must uphold the BIA’s factual findings if they are “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” INS v.
Elias-Zacarias, 502 U.S. 478, 480 (1992). We will conclude substantial evidence is
lacking only where the evidence “was so compelling that no reasonable factfinder could
fail to find the alien eligible for asylum or withholding of removal.” Id. at 483-84; see Lie
v. Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005).
6
Abdulai v. Ashcroft, we approved a similar analysis by the BIA and rejected petitioner’s
due process claim. Id. We thus dismiss Suharso’s constitutional challenge as meritless.
Suharso’s second argument—that the BIA erroneously concluded that he had not
suffered past persecution—also fails. 5 Although the BIA credited Suharso’s accounts of
extremist attacks on Christian churches, his assault in March 2002, and persistent
harassment on account of his religion and ethnicity, the BIA properly concluded that
these isolated criminal acts were not sufficiently egregious to constitute “persecution”—a
term that we have narrowly defined as “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Lie v. Ashcroft, 396
F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)).
We believe that our recent decision in Lie v. Ashcroft, addressing similar facts, forecloses
petitioners’ argument. Id.
In Lie, we considered whether religiously and ethnically motivated violence more
severe than that directed at Suharso constituted persecution. Id. There, the petitioner, a
Chinese Christian, asserted a well-founded fear of persecution on account of her religion
and ethnicity if removed to Indonesia. Petitioner had left Indonesia in the wake of a
nationwide wave of ethnic violence that shook the country in 1998. During this

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7
tumultuous period, which witnessed serious and widespread attacks on Chinese-owned
businesses and homes, thousands of Chinese were killed, raped, or beaten, and their
homes, looted and torched. Petitioner was an unfortunate victim of this violence. In
1997, at the very outset of the turmoil, Muslim Indonesians entered her husband’s store
and, shouting “Chinese pig,” robbed petitioner’s husband at knife-point. Several months
later, two intruders knocked down the door of petitioner’s home, demanding money.
Calling petitioner a “Chinese pig” and threatening to burn down her house, the assailants
seized her money and jewelry and, when petitioner attempted to defend herself, slashed
her left forearm with a knife; the resulting laceration required several stitches. Two years
later, in March 2000, petitioner left Indonesia. The BIA concluded, and we agreed, that
the acts of robbery and violence directed at petitioner, “while unfortunate and troubling,”
fell short of “persecution.” Id. at 536. Adopting the holdings of two other courts of
appeals, we stated, “We agree with the Ninth and Tenth Circuits that Lie’s account of two
isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft
of some personal property and a minor injury, is not sufficiently severe to be considered
persecution.” Id. at 536.
Lie strongly supports our conclusion that the violence directed at Suharso does not
rise to the level of persecution. Lie makes clear that verbal harassment, and isolated
criminal acts resulting in minor injuries or property damage, do not rise to the level of

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6 Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir. 2008) (“Discrimination in Indonesia
does not, without more, qualify a Christina Indonesian national for asylum.”); Pulisir v.
Mukasey, 524 F.3d 302, 308-309 (1st Cir. 2008); Kho v. Keisler, 505 F.3d 50, 58 (1st Cir.
2007); Susanto v. Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006).
7 Winters observed, “[T]here has been no massive upsurge of violence against the
ethnic Chinese on the scale seen in 1998.” A. 221.
8 Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006); see 8 C.F.R.
§ 208.13(b)(2)(iii)(A).
8
persecution. Further, courts have distinguished legal discrimination from persecution.6
The most significant act of retaliation identified by Suharso—an altercation with Muslim
gang members in which his forearm was cut and his prayer book destroyed—was less
severe than the repeated acts of violence visited upon Lie and her husband, whose homes
and businesses were ransacked, who were twice robbed, beaten, and knifed, and who
were told that their home would be torched. And, although some evidence suggests a
resurgence of religious violence—specifically, bombings, or threats to bomb, Christian
churches—Winters explained that 1998 represented an even more dangerous period for
Chinese Christians.7 Because we determined in Lie that the conditions in Indonesia in
1998 did not rise to the level of persecution, the BIA properly found that the smaller,
ensuing wave of religious violence did not entitle Suharso to relief.
We also agree with the BIA that Suharso did not demonstrate a well-founded fear
of future persecution—a requirement satisfied by proof that the petitioner was
individually singled out for persecution, or that a pattern or practice of persecution against
similarly situated individuals exists.8 Analyzing the former avenue—whether an

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9 Lie, 396 F.3d at 537 (noting that “when family members remain in petitioner’s native
country without meeting harm,” the “reasonableness of a petitioner’s well-founded fear of
future persecution is diminished”); see Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th
Cir. 2004); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001).
9
individualized risk of persecution exists—the BIA initially credited Suharso’s testimony
that, after his arrival in the United States, his family received death threats, that his church
was demolished by Muslim radicals, and that his home was periodically peppered with
rocks. The BIA emphasized, however, that Suharso’s family, who was never harmed,
stayed in Indonesia.9 The BIA also observed that Suharso’s prior assault was a “random
act of violence by street hoodlums”—not an attack directed at him in particular. A. 69.
On this record, the BIA concluded–quite appropriately–that Suharso failed to establish an
individualized risk of persecution if he returned to Indonesia. See Lie, 396 F.3d at 537
(requiring proof that asylum applicant had been “singled out” for persecution). Because
Suharso has failed to adduce evidence on appeal “so compelling” that no reasonable
factfinder could fail to find that he faced a particularized risk of persecution, we will not
disturb the BIA’s determination of this issue. Id. at 534 n.3.
Alternatively, Suharso seeks relief based on a pattern or practice of persecution
against Chinese Christians. In rejecting petitioner’s argument, the BIA discounted
Winters’ affidavit, which identified a risk of renewed violence toward Chinese Christians,
underscored the government’s inability to control Muslim radicals, and noted the
inadequate prosecution of crimes perpetrated against Chinese Christians. The BIA
credited, instead, a State Department report indicating a general reduction in ethnic and

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10
religious violence. The BIA also found that the Indonesian government had neither
perpetrated nor acquiesced to violence against Chinese Christians, but rather strove to
reduce ethnic tensions—efforts that Suharso himself acknowledged at the removal
hearing. Mason noted, moreover, that the Indonesian government had begun to repeal
discriminatory laws targeting ethnically Chinese Indonesians.
On appeal, Suharso asserts, however, that ethnic and religious violence escalated,
rather than subsided, after 2002. Suharso cites the 2005 International Religious Freedom
Report, indicating a doubling in the number of churches attacked over the prior year.
Suharso also stresses that a recent State Department report found continued legal
discrimination against Chinese Christians, who encounter numerous roadblocks in
registering marriages, divorces, and births. Suharso maintains that the BIA erred in
giving short-shrift to these reports and to Mason and Winters’ affidavits, which suggested
a continued risk of ethnic and religious violence.
Notwithstanding Mason and Winters’s affidavits, we find substantial evidence to
support the BIA’s conclusion that there is no widespread pattern or practice of
persecution of Chinese Christians, and that the Indonesian government has not condoned
or acquiesced to attacks by private actors. To the contrary, the State Department Country
Report noted a significant drop in violence towards Chinese Christians and improved
respect for religious freedom. Although the Report suggested that the government
occasionally tolerated hostilities toward Chinese Christians, it also noted that the

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10 See Kayembe v. Ashcroft, 334 F.3d 231, 236 (3d Cir. 2003) (noting that just because
“the State Department report cuts both ways . . . does not mean that it does not constitute
substantial evidence”).
11 We have previously observed that the State Department Country Report of 2005
reflects improved treatment of Chinese Christians in Indonesia and a reduction in ethnic
tensions. See Wong v. Att’y Gen., 539 F.3d 225, 234 (3d Cir. 2008) (noting that State
Department Country Report of 2005 documents improved treatment of Chinese Christians
in Indonesia); Budiono v. Mukasey, 548 F.3d 44, 46 (1st Cir. 2008) (finding that the State
Department Country Report of 2005, indicating a decrease in discrimination and
harassment of ethnic Chinese, undercuts petitioner’s assertion of a pattern and practice of
discrimination against Chinese Christians in Indonesia).
11
government made “significant efforts to reduce inter-religious violence.” A. 177.10 The
State Department Country Report on Human Rights Practices of 2005 found, similarly,
that “Police made stronger efforts to investigate, arrest, and prosecute” acts of religious
violence.11 A. 186. Although the report noted that police, which lacked adequate
resources, often failed to stop closures of churches, most closures were temporary.
Suharso also testified that the government attempted in good-faith, albeit unsuccessfully,
to prevent the closure of his local church and to protect congregants from extremist
violence at other houses of worship. Hence, as we recently observed in Wong v. Att’y
Gen., “[E]ach of the other circuits to address the issue has declined to find a pattern or
practice of persecution of Christian Indonesians of Chinese descent.” 539 F.3d 225, 234
(3d Cir. 2008) (internal citations omitted). On this record, we cannot say that the
evidence is “so compelling that no reasonable factfinder could fail to find the alien
eligible for asylum or withholding of removal.” Lie, 396 F.3d at 534 n.3.

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12 See Yunaidi v. Att’y Gen., 324 Fed. Appx. 762, 2009 WL 1066944, *2 (11th Cir.
Apr. 22, 2009) (unpublished) (rejecting petitioner’s contention that the 1998 wave of
ethnic violence, which resulted in destruction of petitioner’s church and family business
and forced the petitioner to flee, rose to the level of persecution).
12
Our conclusion that Suharso does not face a well-founded risk of future
persecution is buttressed by our opinion in Lie. There, as discussed, we considered
whether the petitioner faced a risk of future persecution in the wake of a wave of ethnic
and religious violence—a pandemic that, Winters acknowledged, was more lethal and
more widespread than the more recent period of turmoil. Despite the virulence of the
1998 attacks, which we noted produced “significant violence and rioting against
individuals of Chinese origin throughout Indonesia,” culminating in the deaths of over
one thousand people, id. at 533, we agreed with the BIA that the petitioner failed to
establish a pattern or practice of persecution of Chinese Christians. Because the climate
has improved–not worsened–since 1998, we agree with the BIA that Suharso has failed to
demonstrate a risk of future persecution on account of his religion or ethnicity.12
Accordingly, we conclude that the BIA properly denied petitioners’ application for
asylum and withholding of removal.
For the foregoing reasons, we will deny the petition for review.

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