Filed: Dec. 16, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-16-2004 Hartono v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-4243 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Hartono v. Atty Gen USA" (2004). 2004 Decisions. Paper 68. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/68 This decision is brought to you for free and open access by the Opinions o
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-16-2004 Hartono v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-4243 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Hartono v. Atty Gen USA" (2004). 2004 Decisions. Paper 68. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/68 This decision is brought to you for free and open access by the Opinions of..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-16-2004
Hartono v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4243
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Hartono v. Atty Gen USA" (2004). 2004 Decisions. Paper 68.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/68
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4243
SETIAWAN HARTONO; YENNY IRAWATI DOLLY; FIDELIA HARTONO,
Petitioners
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review from the Board of Immigration Appeals
Agency No. A79-307-567, A79-307-568, A79-307-569
Submitted Under Third Circuit LAR 34.1(a): November 12, 2004
Before: McKEE and CHERTOFF, Circuit Judges, and
Buckwalter,* Senior District Judge.
(Filed December 16, 2004)
OPINION
Chertoff, Circuit Judge.
*
Honorable Ronald Buckwalter, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
Setiawan Hartono (“Hartono”) along with his wife, Yenni Dolly (“Dolly”), and
minor daughter, seek review of a final order of removal issued by the Board of
Immigration (“BIA”). We will affirm the decision of the BIA and deny petition for
review.
I.
Hartono, a native of Indonesia and former resident of Semarang, arrived in the
United States with his wife and minor child on November 10, 2000, on visitor visas.
They were authorized to stay in the United States until May 9, 2001. The petitioners
remained in the United States beyond that time. They were later served with a Notice to
Appear charging that they were subject to removal as aliens without valid entry
documents.
Petitioners applied for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”), on grounds that they would be persecuted in
Indonesia on account of their Chinese ethnicity and Christian religion. At a hearing
before an Immigration Judge (“IJ”), Hartono based his claims on six different events:
(1) During the Semarang riots in 1980, Hartono’s home was stoned and his
neighbor’s house was burned. Hartono’s father was struck by a stone during the rioting.
Hartono was unable to return to school for approximately two to three weeks. Hartono
testified that he believes his family was targeted because they were Chinese.
(2) In 1996, when Hartono was driving children to Sunday school, a native
2
Indonesian pulled up alongside his vehicle, grazed it, and then confronted him. When
Hartono told the man he was taking the children in his car to Sunday school, the man
grabbed him by the shirt and broke the mirror of Hartono’s car. The children started
screaming and the assailant drove off. Hartono testified that he did not report the
incident to the police because he believed it would have been futile to do so.
(3) In 1996 or 1997, Hartono’s church received two bomb threats in a two-week
period. Hartono’s church was closed twice for a three-week period due to the threats.
Hartono testified that he did not know who made the threats but presumed that they were
made because it was a Christian church.
(4) In 1997, Hartono and Dolly (then Hartono’s fiancee) were confronted by five
or six teenage native Indonesian boys on their way to Dolly’s home. The boys allegedly
teased them for being Chinese. The boys then attacked Hartono until he fell to the
ground. One of the boys also touched Dolly in an inappropriate fashion. At that time, a
police officer came to the scene. The police officer eventually scared the boys off. The
police officer then asked Hartono if he was Chinese. He told Hartono that he was not
allowed on the road where the assault took place. Hartono testified that he did not know
what the police officer meant, but assumed that it had to do with him being Chinese.
(5) On May 13, 1998, Hartono’s daughter, Fidelia, was born. Hartono and Dolly
had great difficulty getting to the hospital due to a series of riots that broke out at that
time. Hartono testified that he stayed in the hospital for five days because it was too
3
dangerous to go outside. On cross-examination, however, Hartono conceded that he left
the hospital during those five days to go the ATM and “buy things.”
(6) Hartono owned a trucking company that he inherited from his parents. Out of
the eight drivers employed by Hartono, only one of them was Chinese. The rest of the
drivers were Indonesian. During the 1998 riots, Hartono’s trucks were broken into six or
seven times and the merchandise in the trucks was stolen. Hartono testified that he
reported the break-ins to the police, but the police did nothing. Hartono testified that he
believed the police did nothing because they thought they could not find the culprit.2
The IJ denied petitioners’ claims for asylum, withholding of removal, and CAT
protection. The IJ found that the petitioners had failed to present credible evidence to
support their requests for asylum and that petitioners’ application for asylum was
knowingly frivolous. The IJ also found that, even assuming petitioners were credible,
that they had failed to present substantial evidence of any prior persecution or any
reasonable fear of future persecution if they were returned to Indonesia. As a result, the
IJ determined, petitioners also failed to meet their burden of proof required for
withholding of removal and CAT.
The BIA affirmed the IJ decision. The BIA, however, overruled the IJ’s finding
that petitioners had filed a frivolous asylum application.
2
Dolly’s corroborative testimony was roughly identical to Hartono’s testimony, but for
some minor differences in detail.
4
II.
Because petitioner failed to challenge the IJ’s decisions regarding credibility,
withholding of removal and CAT protection determinations, the only issue this Court
must address is whether Hartono met his burden of proving eligibility for asylum based
on past persecution or a well-founded fear of future persecution.3 See F.D.I.C. v.
Deglau, 207 F.3d 153, 169 (3d Cir. 2000) (challenge waived if not raised in opening
brief).
To be eligible for asylum in the United States as a refugee, an alien must
demonstrate “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). IJ or BIA findings are reviewed under the “substantial
evidence” standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under this
deferential standard, IJ or BIA “findings must be upheld unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,
242 F.3d 477, 483-
484 (3d Cir. 2001). We will examine Hartono’s claims of past persecution and well-
founded fear of persecution, in turn.
A.
Hartono first argues that the BIA’s determination that he had not established past
3
Because the government does not contest the BIA’s reversal of the IJ’s finding that
petitioner’s application for asylum was frivolous, we need not address this issue on
appeal. We also note that the resolution of this case does not rest on the IJ’s adverse
credibility finding.
5
persecution was not supported by the record evidence. We disagree.
“To establish eligibility for asylum on the basis of past persecution, an applicant
must show: (1) an incident, or incidents that rise to the level of persecution; (2) that is on
account of one of the statutorily-protected grounds, and (3) is committed by the
government or forces a government is either unable or unwilling to control.”
Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir. 2003).
Based on this standard, Hartono’s claim for past persecution must fail. The
majority of evidence put forth by Hartono is consistent with acts of private violence that
fall short of persecution on account of race, nationality, or origin. For example, the
altercation Hartono experienced with the native Indonesian while driving the children to
Sunday school, could have just as easily been motivated by road rage. The looting of
Hartono’s trucks and Hartono’s prolonged stay in the hospital appear to be the
unfortunate products of the rioting. Similarly, Hartono has furnished no evidence, short
of his own speculation, that the stoning of his home as a youth, was perpetrated on
account of race or religion rather than on account of civil strife. This leaves us with the
church bomb threats and the street fight with the teenage Indonesians, provoked by
Hartono’s race. These sporadic occurrences, even if indicative of prejudice, do not rise
to the level of persecution necessary to establish eligibility for asylum.
Moreover, Hartono has not proven that the alleged persecution he suffered at the
hands of different sets of private groups of attackers was perpetrated by persons the
6
government was unwilling or unable to control. In the majority of Hartono’s claims,
Hartono admitted that he did not seek the police’s help. In the street fight with the
teenage Indonesians, Hartono recognizes in his asylum application that “fortunately” the
police office arrived and caused the youths to “back off.” (AR 188.) In the only other
instance where Hartono sought police help, Hartono only speculates that the police did
nothing to find the culprits of the truck looting.
B.
Hartono also argues that the BIA’s determination the he failed to establish a well-
founded fear of persecution was not supported by the record evidence. Again, we
disagree.
Where past persecution is not established, an applicant for asylum can
demonstrate that he or she has a well-founded fear of persecution. Gao v. Ashcroft, 299
F.3d at 272. Demonstration of a well-founded fear of persecution carries both a
subjective and objective component. The applicant must “show that he has a subjective
fear of persecution that is supported by objective evidence that persecution is a
reasonable possibility.” Chang v. INS,
119 F.3d 1055, 1066 (3d Cir. 1997) (citing INS
v. Cardoza-Fonseca,
480 U.S. 421, 431 (1987)).
Subjective component aside, Hartono’s documentary evidence consisting of
reports on Indonesia issued by the State Department, does not establish that a reasonable
person in Hartono’s circumstances would fear persecution. To be sure, there is evidence
7
of horrific violence against Christians at the hands of Muslims (and vice-versa) in certain
parts of Indonesia. The evidence put on by Hartono, however, fails to establish that fear
of religious persecution exists country-wide. The most pertinent pieces of documentary
evidence relating to Hartono’s claims focus on the harassment and violence experienced
by Christians in the Moluccas.4 (App. 91.) There is no indication that this level of
violence has been experienced by Christians in Central Java (Semarang) where Hartono
previously resided. Abdille, 242 F.3d at 496 (upholding BIA’s determination that
petitioner failed to establish well-founded fear on the premise that record evidence did
not support a fear of persecution throughout South Africa).
Similarly, the State Department reports regarding native Indonesian treatment of
Chinese Indonesians, also fails to establish a well-founded fear of persecution. The
report notes that while there are still instances of discrimination and harassment,
“[r]acially motivated attacks against Sino-Indonesians have dropped sharply since mid-
1998...” (App. 199.) Under the deferential standard, we cannot say that such evidence
compels a conclusion contrary to the IJ and BIA’s determination that Hartono failed to
establish a well-founded fear of persecution.
III.
In sum, there is not substantial evidence on the record to reverse the IJ’s finding
that Hartono failed to establish past persecution or a well-founded fear of persecution.
4
Especially in the cities of Ambon, Keswui, Buru, Seram and other parts of the Maluku
province. (App. 98.)
8
Consequently, there is no evidence to support the higher standards required for
withholding of removal and CAT protection, even if these two issues had not been
waived on appeal. Accordingly, we will deny petition for review.
9
