Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2006

Gwan v. Atty
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4538




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 04-4538
                                    ___________

                        DJOEN L. GWAN and SRI INDARTI,

                                                         Petitioners

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                         Respondent
                                    ___________

                        On Petition for Review of an Order
                        of the Board of Immigration Appeals
                     (BIA Nos. A78-498-656 and A78-498-656)
                                   ___________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                January 17, 2006

              Before: ROTH, FUENTES, and BECKER Circuit Judges.

                          (Opinion Filed: February 1, 2006)

                            ________________________

                                    OPINION
                            ________________________


FUENTES, Circuit Judge:

      Petitioners Djoen L. Gwan (“Gawn”) and Sri Indarti (“Indarti”), husband and wife,
seek review of the Board of Immigration Appeals’ (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) denial of their applications for asylum, withholding of

removal, and protection under the Convention Against Torture.1 In so ruling, the BIA

affirmed without opinion the findings of the IJ that Gwan and Indarti, although credible,

did not have a well-founded fear of future persecution. For the reasons that follow, we

deny the petition for review.2




                                           I. Facts

       Because we write only for the parties, we recite only the essential facts.3 Gwan

and Indarti are an ethnically Chinese married couple who are natives and citizens of

Indonesia. They are both practicing Buddhists and allege that they were active in their

temple in Indonesia. They allege that, while in Indonesia, they suffered persecution by

nationalist Indonesians. Specifically, Gwan alleges that their home and businesses were



  1
   “A grant of asylum allows an otherwise-removable alien to stay in the United States.”
Abdulai v. Ashcroft, 

, 545 (3d Cir. 2001). On the other hand, withholding of
removal merely confers the right not to be deported to a particular country, as opposed to
the right to stay in this country. 

as here, the final order of the BIA summarily affirms or defers to the decision
of the IJ, this Court “must review the IJ’s decision.” Abdulai v. Ashcroft, 

,
549 n. 2 (3d Cir. 2001).
  3
    At their immigration hearing, Gwan was the only witness. However, the parties have
agreed that if Indarti were to testify, she would have testified consistent with her affidavit,
which is consistent with that of her husband.

                                              2
largely destroyed by robberies in April 2000. At the time of the robberies, neither Gwan

not Indarti were in the home. Gwan testified that he thought the burglary targeted him

because he is a Buddhist. However, he also testified that he did not know who committed

the burglary. Gwan alleges that he reported the robbery to the police, and that the police

arrived at the scene with dogs to track the scent of the perpetrators. However, Gwan is

not aware of whether the police ever found or arrested the perpetrators.

       Gwan also alleges that in, June 2000, he was attacked by a group of men while

walking to temple. He testified that he believes the beating was spurred by religious bias

because of a certain flag on the vehicle the men were driving, and because the men

insulted his religious beliefs. He also testified that he believes one of the men who beat

him was the son of an “official.” He alleges that, although the police took him to a

hospital, he refused treatment out of fear that the perpetrators would find him there. He

did not identify the perpetrators to the police. As a result of the attacks, he sustained

injuries resulting in scars on his forehead and forearm and the loss of some of his teeth.

He alleges that he fled town the next day, traveling to numerous cities within Indonesia

before returning home.

       Gwan also alleges that his children, who remain in Indonesia, face persecution

because of their religion and ethnicity. Gwan has children from both his current marriage

to Indarti and from a previous marriage. Gwan claims that at least some of his children

are being harassed in Indonesia by the individuals that he claims perpetrated his June



                                              3
2000 assault. He also alleges that many of his children are Christians and therefore face

harassment due to their religion. He claims that, as a result of this harassment, many of

his children have had to leave their homes and relocate within Indonesia.

       After the alleged June 2000 assault, Gwan and Indarti remained in Indonesia to sell

their property and settle their debts. Indarti entered the United States on a nonimmigrant

visa on July 29, 2000. After selling his business on September 23, 2000, Gwan entered

the United States on a nonimmigrant visa on November 28, 2000. Through service of

separate Notices to Appear on March 3, 2001, Gwan was charged with removeability

under 8 U.S.C. § 1227(a)(1)(C)(i), and Indarti was charged with removeability under 8

U.S.C. § 1277(a)(1)(B). At a December 5, 2001 hearing, Gwan and Indarti admitted the

allegations in their Notices to Appear and conceded removeability. Indarti filed a request

for asylum, withholding of removal, and protection under the Convention Against

Torture, and Gwan sought derivative status though her application pursuant to 8 U.S.C. §

1158(b)(3)(A). At the conclusion of a hearing held on October 14, 2003, the IJ denied

their requests for relief and ordered voluntary departure. On November 9, 2004, the BIA

summarily affirmed the IJ’s decision.




                                        II. Discussion

       We review the IJ’s decision under the substantial evidence standard. See Gao v.

Ashcroft, 

, 272 (3d Cir. 2002). We conclude that the IJ’s decision and the



                                              4
BIA’s affirmance of it are supported by the record.

       Substantial evidence supports the IJ’s conclusion that the incidents of harassment

and robbery that Gwan describes do not amount to persecution under the controlling law.

These isolated incidents do not rise to the level of persecution within the meaning of the

Immigration and Nationality Act. See Fatin v. INS, 

, 1240 & n.10 (3d Cir.

1993) (explaining that persecution denotes “extreme conduct” that “does not encompass

all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional”); cf. Lie v. Ashcroft, 

, 536 (3d Cir. 2005) (holding that

ethnic Chinese Indonesian’s “account of two isolated criminal acts, perpetrated by

unknown assailants, which resulted only in the theft of some personal property and a

minor injury, is not sufficiently severe to be considered persecution”). Furthermore,

there is no evidence that compels a finding that the burglary was motivated by religious or

ethnic animus. There is also no evidence of government involvement or endorsement of

any of the incidents; indeed, the police responded to both incidents and there is no

evidence that they were unwilling or unable to protect the petitioners. Regarding the

petitioners’ claims that their children are potential victims of persecution by the same

perpetrators that targeted the petitioners, Gwan’s testimony alone is insufficient to present

a nexus to a statutorily protected ground. Moreover, the petitioners have submitted no

affidavits from any family members or any evidence that would support their claims that

their children face persecution.



                                              5
         The petitioners’ claims for asylum based on past persecution and a well-founded

fear of future persecution were therefore properly denied. The petitioners’ withholding of

removal and Convention Against Torture claims fail for reasons similar to those discussed

above.

                                        III. Conclusion

         For all of the foregoing reasons, the IJ’s decision was based upon substantial

evidence. Therefore, we will deny the petition for review.




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