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


7-9-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5189




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-5189



                       RIYANTO; MARIA SAPTANINGROEM,
                                                 Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent


                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                      BIA Nos. A96-251-992 and A96-251-993
              (U.S. Immigration Judge: Honorable Charles M. Honeyman)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 23, 2007

       Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN*, Circuit Judges.

                                  (Filed: July 9, 2007)



                              OPINION OF THE COURT



SCIRICA, Chief Judge.

   *
    The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
         Riyanto1 and Maria Saptaningroem, his wife, petition for review of the Board of

Immigration Appeals’ November 9, 2005, order affirming an Immigration Judge’s denial

of their application for asylum. We will deny the petition and affirm the BIA’s order.

                                             I.

         Riyanto and Saptaningroem are natives and citizens of Indonesia. Saptaningroem

entered the United States in December 2001, followed by Riyanto in May 2002, both on

nonimmigrant visitor visas. Riyanto applied for asylum in February 2003, claiming he

had suffered past persecution in Indonesia on account of his religious beliefs.2 Riyanto

identifies himself as a Charismatic Christian, a former member of two churches in

Indonesia, and, after his arrival here, a member of a church in Philadelphia. He also

sought withholding of removal under § 241(b)(3) of the Immigration and Nationality Act,

8 U.S.C. § 1231(b)(3). His application was also considered as a request for relief under

the Convention Against Torture. In April 2003, both petitioners were served by the INS

with Notices to Appear charging they had overstayed the terms of their visas and were

removable from the United States.

         In his asylum application, Riyanto described a motorcycle robbery in the Spring of

1998 during which he was injured. Riyanto contended that, although the robbery was

initially economically motivated, his assailants discovered an identity card that identified


   1
       Riyanto has no given name.
   2
     Saptaningroem did not file her own application for asylum, but was found by the IJ
to be a derivative asylum applicant.

                                              2
him as a Christian, and that this knowledge contributed to their mistreatment of him. He

also described being caught up in civil disturbances in 1999 in Ambon, Indonesia, where

he was working for a contractor, and his ultimate evacuation from the area by the

government to a military facility. He subsequently lived and worked in the Indonesian

capital, Jakarta, before traveling to the United States.

       After a hearing, the IJ denied Riyanto’s application in a September 14, 2004, oral

decision, finding that although his testimony was credible, Riyanto failed to show a

reasonable possibility that he would be singled out for persecution in the future because

of his religious beliefs. The IJ considered evidence of the general conditions for

Christians in Indonesia, and determined that although there are pockets of the country that

may be less safe for Christians than others, there is no pattern or practice of persecution

of Christians on a countrywide basis. The IJ noted Riyanto’s decision to remain in

Jakarta for nearly two years, without incident, before coming to the United States

bolstered this conclusion.

       Separately, specifically evaluating Riyanto’s claims under the Convention Against

Torture, the IJ again found Riyanto to be credible, but determined it was unlikely he

would suffer any human rights abuses at the hands of state actors or agents. The IJ denied

Riyanto’s asylum application and his wife’s derivative application, and ordered the

couple removed to Indonesia.

       Among other evidence, the IJ considered Riyanto’s affidavit and testimony, State

Department reports on Indonesia and religious freedom, a news article about the bombing

                                              3
of the Australian Embassy in Jakarta, and other materials on conditions in Indonesia.

Riyanto, when asked why he had stayed in Jakarta for roughly two years before leaving

for the United States—several months after his wife’s departure—said he had to arrange

for care of his son, who remained in Indonesia in the care of Saptaningroem’s parents,

and that he wanted to complete a work assignment. The IJ found the evidence was

insufficient to show Riyanto suffered past persecution. The IJ also determined the record

did not show an objectively plausible and defensible basis for Riyanto’s subjectively

genuine concern about returning to Indonesia.

      Riyanto appealed the IJ’s decision to the BIA. The BIA affirmed without opinion

under 8 C.F.R. § 1003.1(e) on November 9, 2005, rendering the IJ’s decision the final

BIA determination. This petition for review followed.

                                            II.

      The BIA had jurisdiction to review the IJ’s order under 8 C.F.R. § 1003.1(b)(3).

We have jurisdiction to review the BIA’s final order under 8 U.S.C. § 1252.

      Where the BIA affirms the IJ’s decision without opinion under 8 C.F.R. §

1003.1(e), we review the IJ’s decision. Partyka v. Attorney General, 

, 411

(3d Cir. 2005). We review legal determinations de novo, subject to established principles

of deference. Smriko v. Ashcroft, 

, 282 (3d Cir. 2004). Under 8 U.S.C. §

1252(b)(4)(B), “administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Factual findings must be

upheld if they are “supported by reasonable, substantial, and probative evidence on the

                                            4
record considered as a whole.” INS v. Elias-Zacarias, 

, 481 (1992). This

substantial evidence standard applies to determinations whether an alien has experienced

or has a well-founded fear of persecution. See Abdille v. Ashcroft, 

, 483–84

(3d Cir. 2001).

                                            III.

       Riyanto appeals the IJ’s finding that he did not suffer past persecution and that he

does not have an objectively reasonable fear of future persecution upon his return to

Indonesia.

       “[P]ersecution does not encompass all treatment that our society regards as unfair,

unjust, or even unlawful or unconstitutional. If persecution were defined that

expansively, a significant percentage of the world’s population would qualify for asylum

in this country—and it seems most unlikely that Congress intended such a result.” Fatin

v. INS, 

, 1240 (3d Cir. 1993). An applicant has the burden of establishing

eligibility for asylum, withholding of removal, and relief under the Convention Against

Torture. The applicant may satisfy the burden through his or her own credible testimony.

Mulanga v. Ashcroft, 

, 133 (3d Cir. 2003) (citing 8 C.F.R. §§ 208.13,

208.16). However, even a credible applicant may be required to provide corroborating

evidence in order to meet their burden of proof. 

found Riyanto was credible, and that he was the victim of a robbery, as well

as some harassment and discrimination at other points in his life. Other findings were

that Riyanto was working in a part of Indonesia that was rife with civil disturbances and

                                             5
violence between Muslims and Christians. However, the IJ also found Riyanto was able

to leave the area and that he was not personally targeted, with the sole exception being the

robbery, which occurred at a time when Indonesian society was breaking down and

primarily Christians were targeted. The IJ found that the robbery was already underway

when Riyanto’s ID card was found, and that, most likely, Riyanto’s identification as a

Christian exacerbated the attack, rather than motivating it. The IJ concluded that the

single robbery was not sufficiently severe to rise to the level of persecution. Furthermore,

the IJ found that because there was no other incident in the record that rose to the level of

persecution, that Riyanto had failed to show he was the victim of any past act of

persecution.

       We hold the IJ’s factual determinations were “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” 

.

       The IJ found as a matter of law that because Riyanto had not shown he was the

victim of past persecution, he had not established a rebuttable presumption of future

persecution. 8 C.F.R. § 208.13(b)(1). We agree. Thus the IJ sought to determine

whether Riyanto had established a well-founded fear of future persecution should he be

returned to Indonesia. A well-founded fear of future persecution is shown by establishing

a subjectively genuine and objectively reasonable fear of persecution. See Gao v.

Ashcroft, 

, 273 (3d Cir. 2002). The subjective component is met where the

applicant gives credible testimony establishing a genuine fear of persecution. Lusingo v.

                                              6
Gonzales, 

, 199 (3d Cir. 2005). The objective component, however, requires

“credible, persuasive, and specific” evidence reasonably supporting that subjectively

genuine fear. 

the IJ found Riyanto’s testimony credible, and that he had shown a

subjectively genuine anxiety or fear of a return to Indonesia. To determine whether that

fear was objectively reasonable, the IJ examined the evolving conditions within

Indonesia. The IJ found that between 1998 and 2001, there were periods when the degree

of targeting of Christians in Indonesia may have been sufficient to establish a pattern or

practice of organized, systemic, or pervasive persecution of Christians as a group.

However, conditions in the year prior to the IJ’s September 2004 ruling no longer

supported such a conclusion. The IJ examined the State Department’s 2003 Religion

Report and Country Report on Indonesia, as well as the 2004 Annual Report of the United

States Commission on International Religious Freedom. The IJ concluded that with the

exception of three parts of the country, even periodic bombings or terrorist attacks aimed

at destabilzation of the country could not generally be attributed to the targeting of

Christians. The IJ’s factual findings in this regard were supported by substantial

evidence. The IJ found, therefore, that although Riyanto had credibly testified to a

subjectively reasonable fear of persecution based on his religious belief, he had not

offered evidence that established that his fear was objectively reasonable on a




                                              7
countrywide basis.3 The IJ concluded that Riyanto had not met his burden to show he

was eligible for asylum or withholding of removal. We agree.

       The IJ separately considered Riyanto’s claim under the Convention Against

Torture. To qualify for relief under Article 3 of the Convention Against Torture, an

applicant must prove that it is more likely than not that, if removed, he would be tortured

“by or at the instigation of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” 8 C.F.R. § 208.18. The IJ considered Riyanto’s

testimony, and reiterated that he was credible. However, reviewing his testimony and the

other evidence in the record of human rights abuses that do take place in Indonesia, the IJ

concluded that Riyanto was unlikely to suffer any of those abuses at the hands of state

actors or agents. Nor was it likely that Riyanto would be detained by the government or

harmed in a manner that would rise to the level of torture. We hold the IJ’s findings were

supported by the substantial evidence.

                                             IV.

       We will deny the petition and affirm the BIA’s order.




   3
     The IJ noted Riyanto was likely to return to Jakarta, where he had lived without
incident for nearly two years immediately before arriving in the United States.

                                              8