Filed: Mar. 07, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-7-2007 Kusuma v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-5369 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Kusuma v. Atty Gen USA" (2007). 2007 Decisions. Paper 1516. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1516 This decision is brought to you for free and open access by the Opinions o
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-7-2007 Kusuma v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-5369 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Kusuma v. Atty Gen USA" (2007). 2007 Decisions. Paper 1516. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1516 This decision is brought to you for free and open access by the Opinions of..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-7-2007
Kusuma v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5369
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Kusuma v. Atty Gen USA" (2007). 2007 Decisions. Paper 1516.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1516
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 2007 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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No.: 05-5369
MONA DEWI KUSUMA,
Petitioner,
v.
ATTORNEY GENERAL OF THE
UNITED STATES
______________________
On Petition for Review of Final Decision of the
Board of Immigration Appeals
BIA No.:A95-144-305
Immigration Judge: Miriam K. Mills
______________________
Submitted Pursuant to Third Circuit Rule L.A.R. 34.1(a)
February 16, 2007
Before: SMITH, FISHER, Circuit Judges,
and DOWD, District Judge.*
(Filed: March 7, 2007)
____________________
OPINION
___________________
DOWD, Senior United States District Judge.
*
Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern
District of Ohio, sitting by designation.
Petitioner Mona Dewi Kusuma seeks review of an order of an Immigration Judge
(“IJ”) denying her application for (1) asylum, (2) withholding of removal, and (3) relief
under the Convention Against Torture (“CAT”), an order that was adopted and affirmed
by the Board of Immigration Appeals (“BIA”). We will deny Kusuma’s petition for
review.1
Mona Dewi Kusuma is a 43-year-old female native and citizen of Indonesia. On
August 31, 2001 Kusuma filed an application for asylum and withholding of removal. In
that application, she claimed to have suffered past persecution in Indonesia, and to fear
future persecution there, because she is a Christian of Chinese ethnicity. Petitioner
claimed she was robbed in February 2000 under threat of being raped and killed. She
described another personal assault during the civil rioting in Jakarta in May 1998 in
which she was pulled from a van, stripped naked and stretched out on a sidewalk to be
raped spared only when it was determined she was having her period. Petitioner also
stated at the hearing, yet not in her asylum application, that she was raped in 1988 during
a robbery and that she gave birth to a daughter as a result. All of the attacks Kusuma
described were perpetrated by the ethnic majority in Indonesia, by men who are ethnic
pribumis by birth.
1
We have jurisdiction to review the final order of the BIA under 8 U.S.C. § 1252.
Where, as here, the BIA adopts the opinion of the IJ, we review the decision of the IJ.
Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
2
The IJ concluded that petitioner’s asylum application was time barred because it
was filed more than one year after the alien’s arrival in the United States. 8 U.S.C. §
1158(a)(2)(B). We lack jurisdiction to review that determination. 8 U.S.C. § 1158(a)(3).
Accordingly, we will dismiss Kususma’s petition to the extent it relates to asylum.
Petitioner also waives argument concerning appeal of his CAT claim for failure to raise
the matter in her appeal. Accordingly, the panel affirms the decision of the IJ to deny
relief on the CAT claim. See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993).
The remaining issue is did the IJ correctly deny Petitioner’s request for
withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)? The IJ found petitioner’s
testimony not credible due to inconsistencies in the testimony. The affidavit filed in
support of Petitioner’s 2001 asylum application contained no mention of the 1988 rape
that led to the birth of her child. The allegation was made two years later in a
supplemental affidavit. The Court agrees with the IJ and the BIA that testimonial
inconsistencies, primarily the omission of the rape allegation from the asylum application
and Kusuma’s inability to offer a plausible reason for the omission “strike at the heart” of
Petitioner’s credibility. A.R.2. Further, the Court would agree with the IJ that assuming
the credibility of the allegations, the 1988 incident and the robbery in 2000 fail to
establish a targeted animus based on ethnicity or religion as the evidence demonstrated
they were robberies and random violent attacks.
3
The IJ considered Kusuma’s testimony as a whole incredible including testimony
offered in support of what the IJ referred to as the worst of the harms alleged, the May
1998 attack during the civil riots in Indonesia. The Court is not willing to say that the
allegation itself is unrelated to ethnic strife. Indeed, the IJ noted that the U.S. Department
of State Country Reports on Human Rights Practice for Indonesia for 2003 refers to the
fact that during the 1998 riots ethnic Chinese women were targets for rape, although there
is no evidence that they have been targeted for such attacks based on their ethnicity since
that time.
With respect to the allegations of future harm, the IJ wrote as to current country
conditions:
Assuming arguendo that she was credible with respect to the harm that she
suffered in Indonesia, the evidence does not show that she will more likely
than not be persecuted because of her ethnicity and/or religion in light of
the country conditions as reported by the Department of State in its Country
Reports and Religious Freedom Report.
A.R. 5.
To obtain withholding of removal under 8 U.S.C. § 1231(b)(3), an alien must
demonstrate a “clear probability” of persecution according to one of the five statutory
grounds, which include ethnicity and religion. In other words, the petitioner must
demonstrate that “it is more likely than not” that she would be subject to such persecution
if returned to her native land. INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987). On
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appeal, we review the IJ’s denial of relief to determine if the conclusion is supported by
substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
The IJ did not err in concluding that Kusuma had not suffered persecution in the
past as we have defined that term for these purposes. In Fatin v. INS, 12 F.3d 1233 (3d
Cir. 1993), we stated that “the concept of persecution 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.”
Id. at 1240 (footnote omitted).
For the most part, Kusuma’s evidence, if believed, showed violence not rising to
the level of persecution as we have defined it perpetrated by fellow citizens which was
not the result of government action or acquiescence.
Kusuma also alleged a vicious attack during the May 1998 civil unrest, a time
when there is evidence that Chinese women were singled out for attack based on their
ethnicity. The IJ found it incredible that petitioner could recount the graphic details of the
1998 event yet not mention the 1988 attack that led to the birth of her child. The IJ is in
the best position to assess an alien’s credibility. See Chen v. Gonzales, 434 F.3d 212 (3d
Cir. 2005). In this case, there was no documentary or other evidence offered to challenge
the IJ’s findings. We will sustain a challenge to an adverse credibility determination only
when “any reasonable adjudicator would be compelled to conclude to the contrary” of the
5
IJ. 8 U.S.C. § 1252(b)(4)(B); Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). After
reviewing the record as a whole, we conclude that the IJ’s decision denying Kusuma’s
application based on an adverse credibility determination was supported by substantial
evidence.
Substantial evidence therefore supports the IJ’s determination that petitioner failed
to establish that it is “more likely than not” that she would be subject to persecution if she
were to return to Indonesia. The record demonstrates that members of petitioner’s
immediate family remain in Indonesia and practice their religion without hindrance. See
Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).
Accordingly, the petition for review will be DISMISSED insofar as it relates to
asylum and will be DENIED insofar as it relates to withholding of removal and relief
under the Convention Against Torture.
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