Filed: Oct. 20, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-20-2006 Sewidjaja v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4557 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Sewidjaja v. Atty Gen USA" (2006). 2006 Decisions. Paper 306. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/306 This decision is brought to you for free and open access by the Opin
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-20-2006 Sewidjaja v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4557 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Sewidjaja v. Atty Gen USA" (2006). 2006 Decisions. Paper 306. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/306 This decision is brought to you for free and open access by the Opini..
More
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-20-2006
Sewidjaja v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4557
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Sewidjaja v. Atty Gen USA" (2006). 2006 Decisions. Paper 306.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/306
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
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4557
HERU SUGIARTO SEWIDJAJA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_________________________________
On petition for review of a final order
of the Board of Immigration Appeals
File No: A75-513-390
_________________________________
Submitted pursuant to Third Circuit LAR 34.1(a)
on September 29, 2006
Before: RENDELL, ROTH, and
JOHN R. GIBSON,* Circuit Judges
(Filed: October 20, 2006)
______________________
OPINION OF THE COURT
_______________________
*
1 The Honorable John R. Gibson, Senior Circuit Judge for the United States Court
2 of Appeals for the Eighth Circuit, sitting by designation.
-1-
PER CURIAM.
Petitioner Heru Sewidjaja appeals the Order of the Board of Immigration Appeals
affirming the Immigration Judge's opinion and order denying Sewidjaja's application for
asylum, withholding of removal, and protection under the Convention Against Torture.
Pursuant to 8 U.S.C. § 1252, we have jurisdiction over this petition for review of the
Board's final determination. We will deny the petition for review.
Sewidjaja is a native of Indonesia, a Pentecostal Christian, an ethnic Chinese, and
a homosexual. He came to the United States in 2001 on a valid B-2 visa and applied for
asylum. At his March 2004 hearing before the IJ, Sewidjaja testified that he fears he will
suffer persecution on account of his race, religion, and sexual orientation if he returns to
Indonesia. He testified that he fears Muslim extremists in Indonesia will attack him
because of his sexual orientation and his ethnicity, although he did not testify to receiving
explicit threats. Sewidjaja also testified that an Indonesian police officer refused to
investigate his claim that his ex-boyfriend took money from him and that, after Sewidjaja
recovered part of the money and gave it to the officer as evidence, the officer refused to
return it. He had no evidence, however, that the officer's conduct was based on his race,
religion, or sexual orientation. Sewidjaja also testified that he has been bullied by his
Indonesian peers both as a child and as an adult and that he feels he must hide his sexual
orientation in Indonesia. The IJ denied Sewidjaja's claims for asylum, withholding of
removal, and protection under the Convention Against Torture. The Board affirmed the
IJ's decision based on Sewidjaja's failure to sustain his burden of proof.
-2-
Where, as here, the Board issued a decision on the merits, we review the Board's
decision rather than the IJ's. Lie v. Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005). We
uphold the Board's factual findings 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, 480 (1992)). The Board's findings are supported by substantial
evidence as long as Sewidjaja's evidence is not so compelling that any reasonable
factfinder would find him eligible for relief. See
Lie, 396 F.3d at 534 n.3.
The Board's findings are supported by substantial evidence in this case. To prevail
on a claim for asylum, Sewidjaja had to establish that he was unable or unwilling to
return to Indonesia 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. §§ 1158(b)(1)(B), 1101(a)(42)(A). To constitute persecution, the
harm suffered must be so severe as to be "a threat to life or freedom." Fatin v. INS, 12
F.3d 1233, 1240 (3d Cir. 1993).
Sewidjaja did not establish that he had suffered persecution in the past. The only
specific incidents of past mistreatment Sewidjaja testified about--the Indonesian police
officer's conduct and Sewidjaja's peers' harassment--do not rise to the level of being a
threat to life or freedom. Moreover, Sewidjaja produced no evidence that the police
officer's conduct was on account of any of the five statutory bases for asylum protection.
Nor did Sewidjaja establish a well-founded fear of future persecution on account
-3-
of being an ethnic Chinese, a Pentecostal Christian, or a homosexual. While he described
general fear and inhibition, he pointed to no specific threats that would show he is at an
"individualized" risk for persecution. See Lie, 396 F.3d at 537. Similarly, his evidence
that Indonesian society disfavors ethnic Chinese and harbors hostility toward
homosexuals, even when bolstered by the article he cites predicting "the emergence of
political homophobia" in Indonesia, falls short of the "systematic, pervasive, or
organized" persecution required to establish a "pattern or practice" of persecution in
Indonesia. See
id. (quoting Ngure v. Ashcroft,
367 F.3d 975, 991 (8th Cir. 2004)). Thus,
Sewidjaja presented no compelling evidence that he has suffered past persecution or that
any fear he has of future persecution is well-founded, and the Board correctly denied his
asylum claim.
Because Sewidjaja did not establish a well-founded fear of persecution, neither did
he establish the likelihood of future persecution necessary to obtain withholding of
removal. Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). He also produced no
evidence that he is likely to be subjected to torture in Indonesia, as required to obtain
relief under the Convention Against Torture. 8 C.F.R. § 1208.18(a)(1).
Sewidjaja's additional argument that the Board improperly used Lie to establish his
likelihood of persecution in Indonesia is without merit. The Board drew relevant legal
standards from Lie and properly applied those standards to Sewidjaja's case.
We will DENY the petition for review.
-4-
