                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2007

Sutikno v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1011




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                                           NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT




                   No. 06-1011




          RACHMAD IDUL SUTIKNO,
                           Petitioner

                        v.

ATTORNEY GENERAL OF THE UNITED STATES,
                               Respondent


          Petition for Review of the Order
        of the Board of Immigration Appeals
                   (A97-149-841)
       Immigration Judge: Hon. R. K. Malloy




     Submitted Under Third Circuit LAR 34.1(a)
                September 17, 2007

Before: SLOVITER, SMITH, and WEIS, Circuit Judges

            (Filed: September 20, 2007)




                    OPINION
SLOVITER, Circuit Judge.

       Rachmad Idul Sutikno petitions for review of an order of the Board of Immigration

Appeals (“BIA”) adopting and affirming the denial by the Immigration Judge (“IJ”) of his

application for asylum and withholding of removal under the Immigration and Nationality

Act (“INA”) and for relief under the United Nations Convention Against Torture

(“CAT”).1 For the reasons stated below, we will deny Sutikno’s petition for review.2

                                            I.

       Sutikno is of Chinese descent and is a native and citizen of Indonesia. He entered

the United States on December 3, 1995 as a nonimmigrant visitor for pleasure with

authorization to remain until May 2, 1996. Sutikno did not file an application for asylum

until April 2003. Shortly thereafter, he received a notice to appear, charging him with

being subject to removal for remaining in the United States beyond his admission period,

in violation of Section 237(a)(1)(B) of the INA. When Sutikno appeared before the IJ, he

conceded removability but requested withholding of removal under the INA and relief

under the CAT. He was afforded a hearing before an IJ, who denied Sutikno’s



                   1
                    The BIA affirmed the Immigration Judge’s grant of
            Sutikno’s application for voluntary departure.
                   2
                     Sutikno has waived his claim under the CAT by failing to
            raise the issue in his brief. See Chen v. Ashcroft, 376 F.3d 215,
            221 (3d Cir. 2004). Even if Sutikno had raised the issue, we would
            have agreed with the denial of relief under the CAT, because
            Sutikno provided no evidence to support a finding of past or future
            torture.

                                             2
applications for asylum, withholding of removal, and relief under the CAT. Sutikno

appealed the IJ’s decision to the BIA, which adopted and affirmed the IJ’s decision. He

then filed this petition for review.3

                                              II.

       This court reviews the BIA’s factual finding that an alien has failed to demonstrate

eligibility for relief from removal under the “substantial evidence” test. Abdille v.

Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). A factual finding will fail to meet the

substantial evidence standard only if “the evidence not only supports” a contrary

conclusion, “but compels it[.]” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see

also 8 U.S.C. § 1252(b)(4)(B). Where, as here, “the BIA both adopts the findings of the

IJ and discusses some of the bases for the IJ’s decision, we have authority to review the

decisions of both the IJ and the BIA.” Chen, 376 F.3d at 222.

                                             III.

       Aliens are generally ineligible for asylum unless they file their applications within

one year of their arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The one-year

deadline will not bar an asylum application if the applicant can demonstrate “either the

existence of changed circumstances which materially affect the applicant’s eligibility for

asylum or extraordinary circumstances relating to the delay in filing an application . . . .”




                    3
                     We have jurisdiction to review this petition pursuant to 8
             U.S.C. § 1252(a)(1).

                                              3
8 U.S.C. § 1158(a)(2)(D). Because Sutikno filed his application over seven years after

his arrival in the United States and he did not demonstrate the requisite changed or

extraordinary circumstances, the IJ held that Sutikno was statutorily ineligible for asylum.

We do not have jurisdiction to review this determination. 8 U.S.C. § 1158(a)(3);

Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).

       Sutikno argues that the IJ erred in concluding that he had not suffered past

persecution and that he had failed to establish a clear probability of future persecution.

To establish eligibility for withholding of removal under Section 241(b)(3)(A) of the

INA, the applicant must demonstrate that his “life or freedom would be threatened in [the

country of removal] because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.” In order to show the requisite clear

probability of future persecution, the applicant must prove that the persecution is more

likely than not to occur. INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987).

       Sutikno first attempts to establish eligibility for withholding of removal through

proof of past persecution, which would entitle him to a rebuttable presumption that he

would be subject to future persecution. 8 C.F.R. § 1208.16(b)(1). In order to constitute

persecution, the past incidents must have been committed by the government or by forces

that the government is either unable or unwilling to control. Gao v. Ashcroft, 299 F.3d

266, 272 (3d Cir. 2002). Not all unjust or unlawful treatment amounts to persecution.

Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).



                                              4
       At his removal hearing, Sutikno testified that, during his childhood, native

Indonesians would often harass him because of his Chinese ethnicity. Additionally, while

Sutikno was in high school, a group of people once threw rocks at him on his way to

Church while deriding his Catholicism. Sutikno also testified that he was advised not to

apply to the University of Indonesia, as his Chinese heritage meant he would have a very

slim chance of admission. He did not claim any other forms of mistreatment or

persecution from his time in Indonesia. Sutikno does not want to return to Indonesia

because he “would have to experience those horrible incidents.” App. at 57-58. The IJ

found no past persecution, and therefore no presumption of future persecution, because

none of the incidents described by Sutikno “rise to the level of persecution.” App. at 44.

       An applicant may also establish eligibility for withholding of removal by showing

that there is a “pattern or practice of persecution” against a group to which he belongs,

“such that it is more likely than not that his or her life or freedom would be threatened

upon return to that country.” 8 C.F.R § 12.0816(b)(2)(i), (ii). In an apparent attempt to

establish a pattern or practice of persecution against Chinese Christians, Sutikno

submitted two State Department reports on Indonesia and various news reports detailing

attacks on Chinese Christians. Ordinary criminal activity, such as generalized

lawlessness and violence between diverse populations, usually does not amount to a

pattern or practice of persecution. Abdille, 242 F.3d at 494-95 (citing Singh v. INS, 134

F.3d 962, 967 (9th Cir. 1998)). The IJ failed to find the requisite pattern or practice of



                                              5
persecution, in part because the articles submitted by Sutikno show that the Indonesian

government had actually attempted to protect its Chinese citizens during the riots that did

occur. The IJ ultimately concluded that Sutikno had failed to prove either past

persecution or a clear probability of future persecution.

       The IJ and BIA findings, with respect to both past and future persecution, were

“supported by reasonable, substantial, and probative evidence on the record considered as

a whole.” Elias-Zacarias, 502 U.S. at 481 (quoting 8 U.S.C. § 1105(a)(4)). Because we

are also not persuaded that a “reasonable adjudicator would be compelled to conclude to

the contrary,” 8 U.S.C. § 1252(b)(4)(B), we see no reason to disturb these findings.

                                            IV.

       We conclude that the IJ’s decision that Sutikno did not suffer past persecution and

would not be subject to future persecution upon return to Indonesia were supported by

substantial evidence. Accordingly, we will deny the petition for review.




                                              6
