Filed: Mar. 20, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-20-2008 Pantjarini v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1497 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Pantjarini v. Atty Gen USA" (2008). 2008 Decisions. Paper 1402. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1402 This decision is brought to you for free and open access by the O
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-20-2008 Pantjarini v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1497 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Pantjarini v. Atty Gen USA" (2008). 2008 Decisions. Paper 1402. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1402 This decision is brought to you for free and open access by the Op..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-20-2008
Pantjarini v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1497
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Pantjarini v. Atty Gen USA" (2008). 2008 Decisions. Paper 1402.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1402
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
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1497
DIAN PANTJARINI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A95-377-288)
Honorable Donald Vincent Ferlise, Immigration Judge
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 14, 2008
Before: FUENTES, CHAGARES, and VAN ANTWERPEN, Circuit Judges.
(Filed: March 20, 2008)
OPINION OF THE COURT
1
VAN ANTWERPEN, Circuit Judge
Petitioner Dian Pantjarini, a native and citizen of Indonesia, seeks review of the
January 17, 2007 Order of the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) denial of Pantjarini’s petition for withholding of removal and
protection under the United Nations Convention Against Torture (“CAT”). We have
jurisdiction to review Pantjarini’s petition, and for the reasons set forth below, we will
deny the petition.
I.
Because we write solely for the benefit of the parties, we will set forth only those
facts necessary to our analysis.
Dian Pantjarini is a citizen of Indonesia. She is Javanese and a Muslim. Pantjarini
and her husband, Bambang Suprijanto,1 entered the United States in May 2000. Pantjarini
was charged with removal on March 18, 2002 because she remained in the United States
beyond the authorized date. She conceded removability on July 11, 2002. On July 27,
2005, Pantjarini appeared before the IJ and stated that she was applying for withholding
of removal and protection under CAT.2
1
Suprijanto declined to apply for relief and protection from removal. (A.R. 60). He
also declined to apply for voluntary departure. (A.R. 85-86). The IJ determined that
Suprijanto was not eligible for relief as a rider on Pantjarini’s application, and this
decision was not erroneous. Furthermore, because we will deny Pantjarini’s petition,
Suprijanto cannot claim relief from removal or protection under CAT.
2
Pantjarini conceded at this hearing that she was ineligible for asylum, as she failed to
file a claim within one year of entry into the United States. She had filed a claim for
2
Pantjarini based her claims for relief on her fear of returning to Indonesia. She
claimed that riots, demonstrations, religious conflicts, and an economic crisis caused her
to fear persecution or torture were she to return to Indonesia. She pointed to the State
Department Country Report as evidence of conflict in Indonesia. Before the IJ, Pantjarini
testified that she had given a speech at a student-led rally in 1998. Pantjarini was only a
participant in the rally, however; she was not one of the organizers. (A.R. 73). The
demonstrators at the rally, including Pantjarini, called for the Indonesian government to
end the corruption and nepotism and “clean up their acts.” (A.R. 67). During the rally,
police clashed with students, and Pantjarini testified that during one such clash, she was
struck and rendered unconscious. (A.R. 69-70). She further testified that she did not go
to the hospital. Pantjarini also told the IJ that shortly after the demonstration, her friend
was kidnapped, and that she feared she might be abducted, as well. (A.R. 71-73).
Despite her concern, however, Pantjarini did not leave Indonesia for another two years.
On cross-examination, counsel for the Department of Homeland Security
questioned Pantjarini about statements she made in her asylum application. On that form,
Pantjarini described an incident during which four students from her school had been shot
outside the school by a “spy.” (A.R. 77-78, 166). Pantjarini was not at the scene of the
shooting; she was in a laboratory when the shooting took place, and someone in the lab
asylum on February 4, 2002, almost two years after she entered the United States. Thus,
the asylum application was correctly deemed untimely.
3
told her and the other students to get down on the floor. The record indicates that there
was in fact a shooting matching the description given by Pantjarini. According to the
record, however, the shooting took place in Jakarta and not in Surabaya, where Pantjarini
went to school. (A.R. 80-81). Pantjarini testified about the shooting for the first time on
cross-examination, and her response to the Government’s inquiry as to why she did not
testify to it as part of her direct examination was: “I don’t know.” (A.R. 78). Pantjarini
also testified on cross-examination that neither her parents nor her siblings, all of whom
are still in Indonesia, have had any trouble with the authorities.
The IJ found Pantjarini not credible based on her failure to testify about the
shooting on direct examination and based on the evidence that the alleged shooting likely
took place elsewhere. The IJ further found that, even if she had testified credibly,
Pantjarini was not eligible for withholding of removal or CAT protection, as she neither
demonstrated past persecution based on a protected characteristic nor a reasonable fear of
persecution or torture were she to return to Indonesia. Pantjarini appealed to the BIA,
arguing that the IJ erred in finding her testimony not credible and in holding that she was
not eligible for withholding of removal or CAT relief. On January 17, 2007, the BIA
upheld the IJ’s finding that Pantjarini was not credible, having found no error in the IJ’s
decision. The BIA also affirmed the IJ’s determination that Pantjarini was unlikely to be
persecuted or tortured were she to return to Indonesia. Pantjarini filed a timely appeal of
the BIA’s decision with this Court.
4
II.
This Court has jurisdiction over Pantjarini’s appeal from the BIA’s final decision
pursuant to 8 U.S.C. § 1252(a)(1). Pantjarini timely filed her petition. 8 U.S.C. §
1252(b)(1). Venue is proper under 8 U.S.C. § 1252(b)(2), as the removal proceedings
were completed in Philadelphia, Pennsylvania.
In considering Pantjarini’s petition, we review both the IJ’s opinion and that of the
BIA, as the BIA in this case both adopted the findings of the IJ and discussed some of the
underlying bases for the IJ’s decision. See Chukwu v. Attorney General, 484 F.3d 185,
189 (3d Cir. 2007); Xie v. Ashcroft,
359 F.3d 239, 242 (3d Cir. 2004). We review the
findings of the IJ and the BIA under the highly deferential “substantial evidence”
standard; thus, we will uphold the findings of the IJ and the BIA “if they are supported by
reasonable, substantial, and probative evidence on the record as a whole.” Chen v.
Gonzales,
434 F.3d 212, 216 (3d Cir. 2005); see also
Chukwu, 484 F.3d at 189. We will
only reverse the findings of the IJ and the BIA where the evidence in the record would
compel a reasonable adjudicator to conclude to the contrary. See 8 U.S.C. §
1252(b)(4)(B).
III.
Pantjarini challenges the BIA and IJ’s determination that she is not eligible for
5
withholding of removal or protection under CAT.3
A. Eligibility for Withholding of Removal
To be eligible for withholding of removal, an alien must show that were she to be
removed to the destination country, there is a “clear probability” that her “life or
freedom” would be threatened based on one of the protected grounds set forth in the
statute: race, religion, nationality, membership in a particular social group, or political
opinion. See 8 U.S.C. § 1231(b)(3)(A); Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.
2005). An alien can meet this burden by demonstrating either past persecution, which
raises a rebuttable presumption that the alien will be persecuted in the future, or a clear
probability that the alien will suffer future persecution if returned to her country. See 8
C.F.R. § 208.16(b). In order to show a clear probability of future persecution, the alien
must show both a subjective fear of persecution and that that fear is objectively
3
Pantjarini does not appear to contest the IJ’s adverse credibility finding. In fact, she
states in her brief that the IJ found her testimony “credible, since it was consistent with
known country conditions.” Pet. Br. at 7; see also id. at 9 (“The IJ found no reason to
doubt female Petitioner’s credibility, and consequently reliance may be had upon the
recital of events contained in Petitioner’s testimony, her asylum application, and her
sworn statement, supplemented by the United States Department of State Country Reports
on Human Rights Practices: Indonesia 2000, 2001, and 2002.”). Given the IJ’s statement
that he “believes that the respondent is not credible,” Pantjarini clearly misstates the IJ’s
conclusion. (A.R. 43) (emphasis added). Because Pantjarini does not challenge the IJ’s
adverse credibility finding, we will not address that finding. Furthermore, for the
purposes of this appeal, Pantjarini has waived any challenge to the adverse credibility
finding because she did not raise this issue in her brief. See Laborers’ Int’l Union of N.
America, AFL-CIO v. Foster Wheeler Corp.,
26 F.3d 375, 398 (3d Cir. 1994); Wisniewski
v. Johns-Manville Corp.,
812 F.2d 81, 88 (3d Cir. 1987).
6
reasonable. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). The objective
element can be shown by evidence that the alien would be singled out for persecution or
that there is a “pattern or practice” of persecuting individuals in the alien’s country based
on a protected ground. See 8 C.F.R. § 208.16(b)(2)(i).
1. Past Persecution
Substantial evidence supports the BIA’s conclusion that Pantjarini is not eligible
for withholding of removal because she did not suffer past persecution. Initially,
Pantjarini has not demonstrated that her persecutors were motivated, even in part, by one
of the statutorily-protected grounds. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992) (requiring at least some proof that the persecutor was motivated in part by the
alien’s protected status); Lie v. Ashcroft,
396 F.3d 530, 535 (3d Cir. 2005) (requiring a
showing that the persecution suffered was “on account of” an enumerated ground).
Pantjarini is Javanese and a Muslim, both of which are majorities in Indonesia, and the
only evidence of ethnic or religious persecution that Pantjarini cites in her brief is
evidence of the persecution suffered by ethnic Chinese persons in Indonesia. There is
also no evidence in the record that suggests that Pantjarini was persecuted for her political
opinion or that the soldiers at the rally stopped her from speaking. It was only as part of a
general riot of violence that Pantjarini was injured, and she did not demonstrate that she
was targeted for violence because of her role in the rally. Additionally, neither the
kidnapping incident nor the school shooting was directed at Pantjarini. Thus, these acts
7
were not perpetrated “on account of” Pantjarini’s beliefs or her membership in a
particular social or political group. See 8 C.F.R. § 1208.13(b)(1).
Even if Pantjarini could show that her alleged persecutors were led to attack and
harass her based on one of the grounds enumerated in the statute, she has not
demonstrated that the harm she suffered was so severe as to rise to the level of
persecution. See Lie, 396 F.3d at 536 (noting that the harm suffered by the petitioner was
not so severe as to constitute persecution). Pantjarini cites only one incident of violence,
during which she was beaten and knocked unconscious. She did not seek medical
attention after she was struck, nor has she demonstrated that she suffered long-term,
serious harm. See Voci v. Gonzales,
409 F.3d 607, 615 (3d Cir. 2005) (noting that Third
Circuit precedent suggests that “isolated incidents that do not result in serious injury do
not rise to the level of persecution”); see also Jarbough v. Attorney General,
483 F.3d
184, 191 (3d Cir. 2007) (“Abusive treatment and harassment, while always deplorable,
may not rise to the level of persecution.”); Fatin v. INS,
12 F.3d 1233, 1243 (3d Cir.
1993) (noting that persecution “is an extreme concept that does not include every sort of
treatment our society regards as offensive”). Furthermore, the school shootings and the
kidnapping of her friend are insufficient to show that Pantjarini herself was persecuted, as
the violence was committed against someone else. See
Lie, 396 F.3d at 537 (requiring
“individualized” persecution). Thus, Pantjarini has not demonstrated that the harm she
suffered rises to the level of “persecution.”
8
Because the evidence presented by Pantjarini does not compel a finding that she
was persecuted in the past based on a statutorily-protected ground, the BIA’s conclusion
was not error.
2. Fear of Future Persecution
With regard to the likelihood of future persecution, there is nothing in the record to
compel a finding that Pantjarini is either subjectively or objectively fearful of being
persecuted were she to return to Indonesia. In terms of the subjective requirement,
Pantjarini’s testimony was deemed not credible; thus, she has not demonstrated a
subjective fear of persecution. See Lie, 396 F.3d at 536-37.
Additionally, Pantjarini has not demonstrated an objective fear of persecution.
There is insufficient evidence in the record to compel a factfinder to conclude that she has
an individualized fear of persecution, as she was not targeted for violence based on any of
the protected grounds and she did not testify credibly. Furthermore, the fact that her
parents and siblings are not suffering, combined with her inability to demonstrate an
individualized fear of persecution, cuts against any claim of an objective fear of
persecution. See id. at 537. With regard to whether there is a “pattern or practice” of
persecuting Indonesians like Pantjarini, there is nothing in the record to compel a finding
that Pantjarini met her burden of demonstrating that people of her race, religion,
nationality, social associations, or political views are being persecuted. Most of the
evidence cited by Pantjarini before the BIA and in this appeal deals with the persecution
9
of ethnic Chinese persons or incidents of general unrest.4 This evidence is insufficient to
warrant reversal of the BIA’s determination.
There is nothing in the record that would compel a reasonable factfinder to
conclude that Pantjarini is subjectively fearful of persecution or that she has an objective
fear based on an individualized fear or a “pattern or practice” of persecuting persons like
Pantjarini. Thus, the BIA and the IJ did not err in finding Pantjarini ineligible for
withholding of removal, as substantial evidence supports that finding.
B. Protection under CAT
In order to establish eligibility under CAT, the burden of proof falls upon the alien
to demonstrate that it is “more likely than not that he or she would be tortured if removed
to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). The feared torture must be
inflicted “by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). The alien
can carry her burden of demonstrating a likelihood of torture by her testimony alone, if it
is deemed credible. 8 C.F.R. § 208.16(c)(2).
For the same reasons discussed in Part III.A, supra, the BIA and the IJ did not err
in determining that Pantjarini is ineligible for protection under CAT. Pantjarini did not
4
Pantjarini states in her brief that the IJ failed to consider the Country Reports. Pet.
Br. at 12. The IJ’s opinion specifically references the Country Reports, however, and
notes that the statements in them are inapplicable to Pantjarini’s petition. (A.R. 40, 46).
Thus, there is no merit to Pantjarini’s argument that the IJ failed to consider this evidence.
10
testify credibly, according to the BIA and the IJ, nor did she present sufficient evidence in
the record to demonstrate a likelihood that she would be tortured were she returned to
Indonesia. Substantial evidence supports the denial of CAT protection, and the BIA and
IJ therefore did not err in finding Pantjarini ineligible.
IV.
We have considered all other arguments made by the parties on appeal, and
conclude that no further discussion is necessary. For the foregoing reasons, Pantjarini’s
petition for review will be denied.
11
