Filed: Jul. 12, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 7-12-2007 Hadi v. Secretary Homeland Precedential or Non-Precedential: Non-Precedential Docket No. 06-1067 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Hadi v. Secretary Homeland" (2007). 2007 Decisions. Paper 781. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/781 This decision is brought to you for free and open access by the Opi
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 7-12-2007 Hadi v. Secretary Homeland Precedential or Non-Precedential: Non-Precedential Docket No. 06-1067 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Hadi v. Secretary Homeland" (2007). 2007 Decisions. Paper 781. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/781 This decision is brought to you for free and open access by the Opin..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-12-2007
Hadi v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1067
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Hadi v. Secretary Homeland" (2007). 2007 Decisions. Paper 781.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/781
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NOT PRECEDENTIAL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. 06-1067
___________
EDWIN SISWANTO HADI,
Petitioner
v.
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY &
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents
________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A96-265-038)
Immigration Judge: Miriam K. Mills
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 15, 2007
BEFORE: FUENTES, GREENBERG, and LOURIE,* Circuit Judges.
(Filed: July 12, 2007 )
*
The Honorable Alan D. Lourie, United States Circuit Judge for the Federal
Circuit, sitting by designation.
___________
OPINION OF THE COURT
____________
FUENTES, Circuit Judge.
Petitioner Edwin Siswanto Hadi entered the United States in April 2000 on a
tourist visa. In March 2003, he applied for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture. An immigration judge (“IJ”)
denied relief and the Board of Immigration Appeals (“BIA”) affirmed. We have
jurisdiction to review the BIA’s order under 8 U.S.C. § 1252,1 and we will deny the
petition for the reasons that follow.
I.
Hadi, a 29-year-old citizen of Indonesia, is ethnically Chinese and a Christian. In
his application and at his hearing before the IJ, he testified to the following facts. He
grew up in a predominantly Muslim neighborhood in Jember. During primary school and
high school, he was often forced to give Muslim students goods or money and was beaten
when he refused. Some of these Muslim students said they would kill him and his family
if he reported the incidents to teachers or the principal. During one incident in March
1992, Muslim students beat him up in a parking lot and stole his bike.
1
The government asserts that we do not have jurisdiction because Hadi did not file
his petition for review within thirty days of the BIA’s order. See 8 U.S.C. § 1252(b)(1).
However, the BIA dismissed his appeal on December 5, 2005, and he filed his petition
exactly thirty days later on January 4, 2006. It appears that Hadi filed his petition on
January 4 with the clerk’s office for the Eastern District of Pennsylvania, which explains
why the clerk’s office for the Third Circuit did not docket the petition until January 5.
In August 1997, three Muslims came to his family’s home and asked for a
contribution to their mosque. Hadi refused and slammed the door shut as the men
screamed and threatened him and his family, and then kicked at the door “with all their
might.” App. 28. The next morning the family discovered garbage strewn around the
front of their house and graffiti stating “Stingy Chinese. Rotten Chinese.” Id. The local
police chief, who was a Muslim, did nothing after the family reported the incident.
In May 1998, Hadi was hosting a prayer session for church members at his home
when five Muslim neighbors threw stones through the windows and yelled, among other
things, “Hey, you Christians, can’t you be quiet?” Hadi approached the men and asked
them to stop. They started beating him and then pulled out knives, stabbing him in the
arm once and cutting one of his wrists. Church members rushed him to the nearest family
doctor because he was “bleeding profusely.” App. 29. Hadi’s parents reported the
incident to the police, who demanded money. Although the parents paid, the police did
nothing. Over the next two years, Hadi and his family were subjected to verbal threats,
anonymous threatening phone calls, graffiti on their walls, and dead mice placed on their
steps.
Hadi entered the United States in April 2000 on a tourist visa and stayed in the
country after the visa expired six months later. In March 2003, he applied for asylum,
withholding of removal, and relief under the Convention Against Torture. He was served
with a Notice to Appear in May 2003, and conceded removeability in June 2003.
After a hearing in August 2004, the IJ ruled that Hadi had not demonstrated any
circumstances excusing the filing of his application more than a year after his arrival.
The IJ further determined that Hadi was not credible with regard to the May 1998 incident
and that he otherwise did not qualify for relief. The BIA denied his appeal even though it
rejected the IJ’s adverse credibility finding. The BIA explained that Hadi’s asylum
application was untimely, that the events he described did not rise to the level of
persecution, and that he had not demonstrated “a genuine fear of future persecution.”
App. 13. It noted that Hadi stayed in the country for two years after the May 1998
incident before coming to the United States, and that his family has remained in Indonesia
without serious incident.
II.
We do not have jurisdiction to review the IJ’s finding that no extraordinary or
changed circumstances excused Hadi’s failure to apply for asylum before the one-year
deadline. See Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006) (“[D]espite the
changes of the REAL ID Act, 8 U.S.C. § 1158(a)(3) continues to divest the court of
appeals of jurisdiction to review a decision regarding whether an alien established
changed or extraordinary circumstances that would excuse his untimely filing.”).
To qualify for withholding of removal, an applicant must demonstrate a “clear
probability” of persecution if removed; in other words, persecution must be more likely
than not. INS v. Stevic, 467 U.S. 407, 413, 425 (1984). We review the BIA’s denial of
withholding of removal under a substantial evidence standard. “If a reasonable fact
finder could make a particular finding on the administrative record, then the finding is
supported by substantial evidence.” Dia v. Ashcroft,
353 F.3d 228, 249 (3d Cir. 2003).
The BIA’s findings “must be upheld unless the evidence not only supports a contrary
conclusion, but compels it.” Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001).
Substantial evidence supports the conclusion that Hadi did not meet the standard
for withholding of removal. Although Hadi cites to a number of sources indicating that
religious violence in Indonesia has remained a problem, this does not establish that it is
more likely than not that he will be persecuted if returned there, especially since country
reports suggest that conditions have improved.
In addition, Hadi has not established that he is entitled to relief based on incidents
he described. We have stated that persecution “include[s] threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). While we have “not yet
drawn a precise line concerning where a simple beating ends and persecution begins, our
cases suggest that isolated incidents that do not result in serious injury do not rise to the
level of persecution.” Voci v. Gonzales,
409 F.3d 607, 615 (3d Cir. 2005). Much of the
harassment Hadi describes clearly did not rise to the level of persecution. Although we
are certainly disturbed by the May 1998 incident in which Hadi was beaten and stabbed,
this incident occurred two years before Hadi left the country. While it is possible that an
isolated violent act in concert with other harassment could constitute persecution under
some circumstances, we cannot say the evidence in this case compels a conclusion
contrary to the one reached by the BIA. Further, Hadi has failed to establish a “clear
probability” of persecution if returned to Indonesia.
Finally, Hadi has not presented additional evidence that he qualifies for protection
under the Convention Against Torture, i.e., that it is more likely than not that he will be
tortured if removed. See Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir. 2006).
Substantial evidence, therefore, supports the denial of this claim as well.
III.
Hadi has failed to demonstrate that the BIA erred in rejecting his application for
asylum, withholding of removal, and relief under the Convention Against Torture. For
the reasons discussed above, we will deny the petition.
