Filed: Apr. 30, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-30-2007 Sugiarto v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3511 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Sugiarto v. Atty Gen USA" (2007). 2007 Decisions. Paper 1187. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1187 This decision is brought to you for free and open access by the Opini
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-30-2007 Sugiarto v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3511 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Sugiarto v. Atty Gen USA" (2007). 2007 Decisions. Paper 1187. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1187 This decision is brought to you for free and open access by the Opinio..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-30-2007
Sugiarto v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3511
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Sugiarto v. Atty Gen USA" (2007). 2007 Decisions. Paper 1187.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1187
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NOT PRECEDENTIAL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
___________
No. 05-3511
___________
TONY DJAJADI SUGIARTO;
HONNI SUGIARTO; ANGELINA
NATASHA LEVAKAR,
Petitioners
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
___________
Petition for Review of an Order of the
Board of Immigration Appeals
(Nos. A79-730-981, A97-486-224, A97-486-225)
Immigration Judge: Miriam K. Mills
___________
Submitted Under Third Circuit LAR 34.1(a)
April 11, 2007
Before: SMITH, NYGAARD, and HANSEN,* Circuit Judges.
*Honorable David R. Hansen, Senior Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
(Filed: April 30, 2007)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Petitioners Tony Djajadi Sugiarto, Honni Sugiarto and their daughter,
Angelina Natasha Levakar, appeal from the denial of their application for asylum and for
withholding of removal under the Immigration and Nationality Act, and their request for
relief under the United Nations Convention Against Torture and Other Forms of Cruel,
Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”). For
the reasons stated below, we will deny the petition.
I.
Because we write solely for the benefit of the parties, we recite only those
facts necessary to our analysis. Petitioners are natives and citizens of Indonesia, of
Chinese ethnicity, and were admitted to the United States on or about April 30, 1999 as
non-immigrants with authorization to remain in this country for a period not to exceed six
months. They remained beyond that date without permission and were served with a
Notice to Appear charging them with removability under Section 237(a)(1)(B) of the INA
for remaining in the United States longer than permitted. Petitioners conceded
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removability for remaining in this country without permission, but requested a grant of
asylum, withholding of removal, and in the alternative, voluntary departure.
Petitioner claims they were persecuted in Indonesia on account of their
Christian Chinese identity and that they suffered harm in Indonesia in the form of
discrimination during childhood, theft by natives, curses and spells by neighbors and co-
workers, unwanted sexual touching of Honni Sugiarto in public, the assault of Tony
Sugiarto by soccer fans after a match in 1999, stones thrown at their church and
firecrackers thrown at their home, the robbery of Honni Sugiarto in 1997, and various
incidents of verbal abuse. Appendix 311-317.
After a hearing, Immigration Judge Miriam K. Mills determined that the
Petitioners did not have individualized fears of future persecution. Additionally, the IJ
found that the Petitioners failed to timely file for asylum, overstayed their visas before
filing and , that there were no extraordinary circumstances which would have justified a
waiver of the one-year filing deadline. Also, the IJ discredited Petitioners’ fears of harm
because their family members (older siblings and other family members) remain in
Indonesia unharmed. Thus, the IJ concluded that Petitioners failed to show by a
preponderance of the evidence that they would be harmed if they returned to Indonesia on
the basis of their ethnicity or their religion. The Board of Immigration Appeals adopted
and affirmed the IJ's decision, finding Petitioners subject to removal as charged and
denying their application for asylum as not timely filed.
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II.
We begin by noting that we lack jurisdiction to review the asylum claim.
Under the teachings of Tarrawally v. Ashcroft, we have no power to examine the BIA's
determination that the Petitioners’ asylum papers were not filed within the one-year
limitations period. 338 F.3d 180, 185 (3d Cir. 2003) (interpreting 8 U.S.C. § 1158, which
states that no court shall have jurisdiction to review the Attorney General's determination
that an alien has filed an asylum application in an untimely fashion). We also lack the
authority to review any judgment that the one-year limit was not tolled by extraordinary
circumstances. Id; see also Sukwanputra et al. v. Attorney General,
434 F.3d 627, 633
(3d Cir. 2006).
III.
We do have jurisdiction to review the denial of Petitioner's claim for
withholding of removal and relief under the CAT. For withholding of removal under 8
U.S.C. § 1231(b)(3)(A), an alien must demonstrate “a clear probability” of persecution to
avoid deportation. Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997). In other words, an
alien must show it is “more likely than not” that because of “race, religion, nationality,
membership in a particular social group, or political opinion,” 8 U.S.C. § 1231(b)(3)(A),
he will be subjected to “threats to life, confinement, torture, and economic restrictions so
severe that they constitute a threat to life or freedom.” Li Wu Lin v. INS,
238 F.3d 239,
244 (3d Cir. 2001); Fatin v. INS,
12 F.3d 1233, 1240 (3d Cir. 1993). For relief under the
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CAT, an alien must show that “it is more likely than not that he or she would be tortured
if removed to the proposed country of removal.” August v. Ridge, 395 F.3d 123, 151 (3d
Cir. 2005).
The record here, particularly the Petitioners’ testimony, does not compel a
conclusion contrary to that reached by the IJ and the BIA. The robberies and other
offenses that victimized the Petitioners in Indonesia do not constitute past persecution,
nor were they sufficiently “severe” to justify a finding of past persecution or a
well-founded fear of persecution in the future. We have often stated that random incidents
of violence are not persecution warranting withholding of removal under the INA. See,
e.g., Lie v. Ashcroft, 396 F.3d 530, 534, 536 (3d Cir. 2001). Additionally, the record
clearly supports the IJ’s determination that Petitioners failed to establish a well-founded
fear of future persecution were they to return to Indonesia. The record demonstrates that
members of the Petitioners’ family remain in Indonesia. As the record reveals, the
Petitioners only provided vague generalities about the alleged treatment of ethnic Chinese
Christians in Indonesia and failed to present any evidence concerning threats to their
remaining family members safety and well-being.
We find that substantial evidence supports the IJ’s determination that the
petitioners failed to establish that it is “more likely than not” that they would be subject to
persecution if they were to return to Indonesia. See Lie, 396 F.3d at 537.
IV.
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Accordingly, the petition for review will be DISMISSED insofar as it
relates to the asylum claim and will be DENIED insofar as it relates to withholding of
removal and relief under the Convention Against Torture.
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