Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1108




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 07-1108

                                WAWAN GUNAWAN,

                                                Petitioner

                                             v.

                              ATTORNEY GENERAL OF
                               THE UNITED STATES,

                                             Respondent

                          Petition for Review of an Order of the
                              Board of Immigration Appeals
                                    (No. A79-734-303)

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                   March 27, 2008

              Before: McKEE, RENDELL and TASHIMA*, Circuit Judges

                             (Opinion Filed: May 27, 2008)

                                       OPINION

TASHIMA, Circuit Judge.

      Wawan Gunawan petitions for review of a Board of Immigration Appeals (“BIA”)

decision upholding an Immigration Judge’s (“IJ”) denial of his application for



      *
      Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.

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withholding of removal and relief under the Convention Against Torture (“CAT”).

Because the IJ’s decision is supported by substantial evidence and Gunawan failed to

raise all claims before the BIA, we deny in part and dismiss in part the petition for

review.

                                              I.

       Inasmuch as we write primarily for the parties, we do not set forth the factual or

procedural history except insofar as it is helpful to our brief discussion. Gunawan is an

ethnic Chinese citizen of Indonesia and a Christian. On May 15, 1998, Gunawan was the

victim of two robberies during a period of widespread rioting in his home country.

Gunawan was robbed and punched while working at his uncle’s clothing store in Jakarta.

After the robbery, Gunawan attempted to ride home on his motorcycle but was accosted

by a group of unknown people who stole his motorcycle. He sustained minor leg injuries

from the motorcycle robbery. Gunawan remained in Indonesia for six months before

fleeing to the United States on November 29, 1998. Gunawan entered the United States

as a non-immigrant visitor with authorization for a six-month stay until May 28, 1999,

and overstayed his visa. On March 11, 2003, Gunawan was served with a Notice to

Appear. He conceded removability and applied for withholding of removal and relief

under the CAT. The IJ denied his application and the BIA summarily affirmed.

                                             II.

          When, as here, the BIA summarily affirms the IJ’s decision, “we review the IJ’s

decision as the final agency determination.” Konan v. Attorney Gen., 

, 500

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(3d Cir. 2005) (citing Berishaj v. Ashcroft, 

, 322 (3d Cir. 2004)). We review

the IJ’s decision under the “substantial evidence” standard. Abdille v. Ashcroft, 

, 483 (3d Cir. 2001). “Under this deferential standard the IJ’s ‘finding must be upheld

unless the evidence not only supports a contrary conclusion, but compels it.’” Kibinda v.

Attorney Gen., 

, 119 (3d Cir. 2007) (quoting 

).

                               A. Withholding of Removal

       Gunawan contends that the IJ erred in finding that he did not qualify for

withholding of removal.1 To establish eligibility for withholding of removal, an applicant

must establish a “clear probability of persecution,” meaning that it is more likely than not

that he would be persecuted if removed to his home country. Zubeda v. Ashcroft, 

, 469 (3d Cir. 2003); see also INS v. Cardoza-Fonesca, 

, 423

(1987). Persecution includes “‘threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.’” 

(quoting Fatin v. INS, 

, 1240 (3d Cir. 1993)). A “[p]etitioner’s

burden in showing persecution is high, and . . . ‘generally harsh conditions shared by

many other persons do not amount to persecution.’” Al-Fara v. Gonzales, 

,

740 (3d Cir. 2005) (quoting Fatin,12 F.3d at 1240). The BIA has stressed that

persecution must be “inflicted either by the government of a country or by persons or an


       1
        “[T]he Attorney General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” INA § 241 (b)(3)(A), 8 U.S.C. § 1231(b)(3)(A).

                                              3
organization that the government [is] unable or unwilling to control.” Matter of Acosta,

19 I. & N. Dec. 211, 222 (BIA 1985). A finding of past persecution gives rise to a

rebuttable presumption of future persecution. 8 C.F.R. § 208.16(b)(1)(i).

       Gunawan fails to provide evidence of a “clear probability” of persecution, past or

future, in Indonesia because of his ethnicity or religion that would compel us to reverse

the IJ’s decision.

       Substantial evidence supports the IJ’s finding that Gunawan suffered no past

persecution. First, substantial evidence supports the IJ’s conclusion that Gunawan was

the victim of criminal activity, not persecution on account of his ethnicity. Gunawan

testified that both robberies were motivated by monetary gain, not by his ethnicity. While

Gunawan provided evidence of widespread rioting against ethnic Chinese people in

Indonesia during May 1998, the IJ was “nevertheless entitled to rely on the evidence that,

in [Gunawan’s] particular case, the robberies were motivated by money.” Lie v. Ashcroft,

, 535 (3d Cir. 2005). Second, the incidents do not rise to the level of

persecution because the harm suffered was not sufficiently severe. 

(“Simple robbery, in isolation, while unfortunate and troubling, does not seem to meet

[the] stringent standard [required for persecution].”).

       Substantial evidence also supports the IJ’s conclusion that Gunawan did not

establish a clear probability of future persecution. Gunawan had to show that (1) he

would be singled out for persecution, or (2) there is a pattern or practice of persecution of


                                              4
ethnic Chinese Christians in Indonesia. See 8 C.F.R. § 208.16(b)(2). Gunawan provided

no evidence that he would be singled out based on his ethnicity or religions beliefs.

Indeed, Gunawan remained in Indonesia for six months after the two robberies without

incident. Substantial evidence also supports the IJ’s determination that there was no

pattern or practice of persecution in Indonesia against ethnic Chinese Christians. Country

Reports provided by Gunawan showed that instances of discrimination and harassment

against ethnic Chinese individuals had declined in recent years and that most of

Indonesia’s population enjoyed a high amount of religious freedom. Finally, Gunawan

failed to provide evidence that the persecution was perpetrated by the Indonesian

government or by “persons . . . that the government was unable or unwilling to control.”

Matter of Acosta, 19 I. & N. Dec. at 222. Where violence is “primarily wrought by

fellow citizens,” rather than “government action or acquiescence,” an application will be

denied. 

. Thus, the evidence does not compel us to reverse the

IJ’s decision denying Gunawan withholding from removal.

       B. CAT and Due Process Claims

       Gunawan contends that the IJ erred by denying him relief under the CAT and that

his procedural due process rights were violated because the IJ failed to review all of the

evidence in the record. “[8 U.S.C.] Section 1252(d)(1) provides for judicial review of

final orders of removal ‘only if . . . the alien has exhausted all administrative remedies

available to the alien as of right.’ Thus an alien is required to raise and exhaust his or her


                                              5
remedies as to each claim or ground for relief if he or she is to preserve the right of

judicial review of that claim.” Abdulrahman v. Ashcroft, 

, 594-95 (3d Cir.

2003). The only issue raised on appeal to the BIA was whether Gunawan should be

granted withholding of removal. Thus, this court lacks jurisdiction to review Gunawan’s

CAT and due process claims.

                                             II.

       For the reasons set forth above, we will dismiss in part and deny in part

Gunawan’s petition for review.




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