Lukito Hadisaputra v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3813
___________
LUKITO HADISAPUTRA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A079-734-448)
(U.S. Immigration Judge: Honorable Rosalind K. Malloy)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 2, 2009
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed: September 10, 2009)
___________
OPINION OF THE COURT
___________
PER CURIAM.
Lukito Hadisaputra, a native and citizen of Indonesia, petitions this Court for
review of a final order of removal entered by the Board of Immigration Appeals (“BIA”).
We will deny the petition.

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In 2003, the Department of Homeland Security commenced removal proceedings
against Hadisaputra, a fifty-five-year-old ethnic Chinese Christian who entered the United
States in 1998 on a non-immigrant visitor visa. Hadisaputra conceded his overstay and
applied for asylum, withholding of removal, relief under the Convention Against Torture
(“CAT”), and, alternatively, voluntary departure. Hadisaputra sought relief due to alleged
past persecution and a fear of future persecution based on his ethnicity and religion.
At a hearing before the Immigration Judge (“IJ”), Hadisaputra testified that he is
married and has an adult child who attends a university in Indonesia. As a child in the
1960s, Hadisaputra attended a Chinese school until grade six, at which time the
Indonesian government closed the Chinese schools. After working in a family furniture
business for ten years, Hadisaputra was employed for approximately twenty-three years as
a watch repairman for the Seiko company. During that time, Hadisaputra owned a home
in a predominantly Muslim neighborhood in Surabaya, Indonesia. He was the
neighborhood’s only ethnic Chinese Christian homeowner.
On December 31, 1995, a group of young Muslim males came to Hadisaputra’s
home seeking to sell perfume. Hadisaputra refused to buy the perfume, and the group
assaulted him and his wife, and threatened to burn down the home. Hadisaputra claimed
that the assault was due to the fact that he was an ethnic Chinese Christian. Hadisaputra
suffered bruises on the back of his head. His wife was diagnosed following the incident
as having a heart condition that required surgery. Hadisaputra’s home was looted and

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damaged but not burned. Hadisaputra’s Muslim neighbors intervened and convinced the
young men not to burn the home. Hadisaputra reported the incident, but “there was no
result from the police.” Hadisaputra then moved into the home of a sibling in the same
neighborhood. He remained there for approximately three years without incident before
leaving for the United States. His wife, child, and three siblings – all ethnic Chinese
Christians – remain in Indonesia unharmed.
On cross-examination, Hadisaputra added that he once witnessed an assault by
Muslim men upon an ethnic Chinese man near a marketplace, and that these same men
also assaulted Hadisaputra, causing minor injury. In addition, he recalled an incident in
which thieves stole two motorbikes from his property. The bikes belonged to guests of
Hadisaputra’s visiting brother-in-law. Hadisaputra believed that the theft was due to his
ethnicity, and it apparently occurred prior to the 1995 assault incident. The thieves sought
a ransom for the bikes, but Hadisaputra testified that he refused to pay.
The IJ denied asylum because Hadisaputra untimely filed his application more than
five years after arriving in the United States. The IJ also denied withholding of removal
and CAT relief, but granted voluntary departure. The BIA dismissed Hadisaputra’s
appeal, noting that because Hadisaputra did not contest the denial of asylum, review was
limited to the withholding and CAT claims. The BIA held that Hadisaputra failed to
establish a clear probability of persecution on account of a statutorily protected ground if
removed to Indonesia. The BIA noted that the Indonesian government has sought to

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abolish restrictive laws directed at the ethnic Chinese, and it agreed with the IJ that the
reasonableness of Hadisaputra’s fear of persecution is undermined by the continued
presence in Indonesia of his wife, child, and siblings. The BIA also found that
Hadisaputra failed to present evidence of a pattern or practice of persecution against
ethnic Chinese Christians. Finally, the BIA agreed with the denial of CAT relief.
Hadisaputra timely filed a petition for review in this Court. We have jurisdiction
under 8 U.S.C. § 1252(a). “Where, as here, the BIA issues a decision on the merits and
not simply a summary affirmance, we review the BIA’s, and not the IJ’s, decision.”
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). “The BIA’s conclusions
regarding evidence of past persecution and the well-founded fear of persecution are
findings of fact, and we therefore review these conclusions under the deferential
substantial evidence standard.” Id. We will uphold the BIA’s conclusions if they are
supported by “‘reasonable, substantial, and probative evidence on the record considered
as a whole.’” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). “A BIA
decision can only be reversed if the evidence is such that a reasonable factfinder would be
compelled to conclude otherwise.” Id.
We must first consider which of Hadisaputra’s claims are properly before this
Court for review. Hadisaputra raised no challenge before the BIA to the IJ’s holding that
the asylum claim is time barred. Consequently, because he failed to exhaust
administrative review, see Mudric v. Att’y Gen., 469 F.3d 94, 97 (3d Cir. 2006), and

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The government argues that Hadisaputra has waived the past persecution issue1
by failing to provide analysis or legal argument in his brief to support it. We conclude
that Hadisaputra does offer a supporting analysis (albeit a poorly developed analysis),
and thus we will address this issue on the merits.
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because, in any event, we lack jurisdiction to review a determination that an asylum
application is time barred, Tarrawally v. Ashcroft, 338 F. 3d 180, 185 (3d Cir. 2003), we
do not review the asylum claim. In addition, we agree with the government that
Hadisaputra’s brief in this Court does not properly assert a challenge to the BIA’s
rejection of his CAT claim, and thus that issue is waived. See Lie v. Ashcroft, 396 F.3d
530, 532 n. 1 (3d Cir. 2005). Our review, therefore, is limited to withholding of removal.
Hadisaputra contends that the BIA erred because his evidence established that he
suffered past persecution in Indonesia, and assuming there is insufficient evidence of past
persecution, he fears future persecution because of a pattern or practice of persecution
against ethnic Chinese Christians in Indonesia.1
“The threshold for establishing eligibility for withholding of removal is higher
than that for establishing entitlement to asylum and requires the alien to demonstrate a
‘clear probability’ that, upon removal to the country of origin, his or her ‘life or freedom
would be threatened on account of one of the statutorily enumerated factors.’” Obale v.
Att’y Gen., 453 F.3d 151, 161 (3d Cir. 2006) (quoting Senathirajah v. INS, 157 F.3d 210,
215 (3d Cir. 1998)). Hadisaputra can establish eligibility for withholding of removal
either by demonstrating past persecution, which creates a rebuttable presumption of future

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persecution, or by showing that it is more likely than not that he will suffer future
persecution. See 8 C.F.R. § 1208.16(b)(1)-(2).
Hadisaputra appears to argue that the treatment he received in Indonesia – the
closing of his elementary school in the 1960s; the 1995 assault in his home; the assault in
the marketplace; and the motorbike theft – cumulatively amount to past persecution.
While we agree that these incidents are troubling, the record does not compel the
conclusion that they rise to the level of “persecution.” See Fatin v. INS, 12 F.3d 1233,
1240 (3d Cir. 1993) (defining persecution as “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom,” and
explaining that persecution “does not encompass all treatment that our society regards as
unfair, unjust or even unlawful or unconstitutional”); Wong v. Att’y Gen., 539 F.3d 225,
236 (3d Cir. 2008) (observing that “harassment and discrimination do not constitute
persecution”); Lie, 396 F.3d at 536 (holding that “two isolated criminal acts, perpetrated
by unknown assailants, ... [are] not sufficiently severe to be considered persecution”).
As to future persecution, Hadisaputra makes no claim that he will be singled out
upon return to Indonesia, and he argues instead that there exists a “pattern or practice” of
discrimination against ethnic Chinese Christians. This argument, however, is
indistinguishable from those that we have rejected in the past. See Wong, 539 F.3d at
233-34 (rejecting as “without merit” the contention that “the State Department reports and
other background materials document a pattern or practice of persecution of Chinese

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Hadisaputra’s request for a stay of removal pending this Court’s review, see2
Petitioner’s Br. at 13, is denied as moot in light of our disposition.
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Christians in Indonesia” and observing that more recent State Department reports
describe improved conditions); Lie, 396 F.3d at 537-38 (rejecting claim that evidence of
past attacks upon Chinese Christians in Indonesia amounts to pattern or practice of
persecution). The BIA also correctly observed that the continued presence in Indonesia
of Hadisaputra’s wife, adult child, and siblings undermines his claimed fear of future
persecution. See Wong, 539 F.3d at 236; Lie, 396 F.3d at 537.
For these reasons, we will deny the petition for review.2

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