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


7-7-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3673




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3673
                                      ___________

                I PUTU YOGI ARYAWAN; YARNITA DARSANTI;
         I PUTU ANDRE TORA YAVITA; IMADE AUDI KRISNA YAVITA;
             MAHARINI MULA YAVITA; SARAWATI PUTRI YAVITA;
                         SANYA BRAHAM YAVITA,
                                          Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                         Respondent
                    ____________________________________

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                   BIA Nos. A98-776-270/271/272/273/274/275/276
                 (U.S. Immigration Judge: Honorable Miriam K. Mills)
                   ________________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 June 18, 2008
    Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.

                                  (Filed: July 7, 2008)
                                      ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM.

      I Puti Yogi Aryawan, the lead petitioner, along with his wife and their five minor

children (hereinafter “Petitioners”) appeal the decision of the Board of Immigration
Appeals (“BIA) affirming the Immigration Judge’s (“IJ”) denial of their applications for

asylum and withholding of removal to Indonesia. For the following reasons, we will

deny their petition.

       Petitioners are natives and citizens of Indonesia. Aryawan’s wife, Yarnita

Darsanti, converted to Hinduism from Islam in order to marry him. Their five children

include twin boys with epilepsy and three daughters. In 2004, petitioners entered the

United States on B-2 visitors visas and overstayed. In 2005, the government served

petitioners with Notices to Appear, charging them as removable under INA §

237(a)(1)(B). They admitted the allegations and conceded the charges, but filed

applications for asylum and withholding of removal, or, in the alternative, voluntary

departure. On April 14, 2006, the IJ denied their asylum and withholding of removal

claims, but granted their request for voluntary departure in lieu of removal. On August

13, 2007, the BIA affirmed without opinion. Petitioners timely appealed.

       We have jurisdiction over this petition for review under 8 U.S.C. § 1252(b).

When the BIA affirms the IJ’s decision without opinion, we examine the IJ’s decision.

See Partkya v. Att’y Gen., 

, 411 (3d Cir. 2005). We review the IJ’s factual

findings for substantial evidence, and uphold those findings as conclusive unless the

record evidence would compel a reasonable factfinder to conclude to the contrary. See 8

U.S.C. 1252(b)(4)(B); see Abdulrahman v. Ashcroft, 

, 597 (3d Cir. 2003).




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                                               I.

       In order to be eligible for a grant of asylum, petitioners must prove that they are

“refugee[s],” meaning that they are people “outside any country of such person[s’]

nationality . . . who [are] unable or unwilling to return to, and [are] unable or unwilling to

avail . . . [themselves] of the protection of that country because of persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership in a

particular social group or political opinion.” 8 U.S.C. § 1101(a)(42). Establishing

eligibility for asylum on the basis of past persecution requires a showing of: “(1) an

incident, or incidents, that rise to the level of persecution; (2) that is on account of one of

the statutorily-protected grounds; and (3) is committed by the government or forces the

government is either unable or unwilling to control.” Gao v. Ashcroft, 

,

271-72 (3d Cir. 2002)(internal citation omitted). To establish eligibility on the basis of

future persecution, applicants must demonstrate “that [they] have a genuine fear, and that

. . . reasonable person[s] in . . . [their] circumstances would fear persecution” if returned

to their native country.” 

that they suffered past persecution, because their twin sons were

denied treatment for epilepsy on account of petitioner-wife’s conversion to Hinduism

from Islam, and that the lead petitioner suffered assaults from his wife’s brother because

of her religious conversion. As to the first ground, petitioners claim that medical

personnel at two large hospitals in Jakarta refused to treat the twins’ epilepsy after



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learning of petitioner-wife’s religious conversion. Evidently, the nurses inferred that she

had converted, because unlike the other members of her family who have Hindu last

names, hers is Muslim. Additionally, the petitioner-wife wrote on hospital forms that she

was Hindu, and her ID card also indicated her religion. Nurses at both hospitals criticized

the petitioner-wife for her religious conversion, implying that her son’s epilepsy was a

curse, and that they should instead seek the assistance of a shaman in Bali.

       With regards to the second ground, the lead petitioner testified that he was

assaulted on two different occasions by his brother-in-law, a member of a “fanatic

Muslim” organization, over his wife’s conversion. He also testified that he never

reported the assaults to the authorities, “Because in Indonesia, we rely on our families to

settle our problems.”

       Our review of the record reveals that substantial evidence supports the IJ’s

conclusion that these claims cannot avail the petitioners of eligibility for asylum under 8

U.S.C. § 1101(a)(42). As the IJ noted, the petitioners have not shown that the

discrimination they experienced at the hospital was condoned by the government either

explicitly or by its acquiescence. As to the lead petitioner’s claim that he suffered

persecution from his wife’s family on account of her religious conversion, substantial

evidence supports the IJ’s conclusion that these instances of assault were nothing more

than a private, family matter. A private matter only rises to the level of persecution for

the purposes of asylum when it is committed by forces that the government is unwilling



                                              4
or unable to control. See Gao v. Ashcroft, 

, 272 (3d Cir. 2002). Not only

has the lead petitioner failed to show government acquiescence in the private assaults

inflicted upon him by his brother-in-law, but he refused to involve the authorities in the

incident. As he testified, “we rely on our families to settle our problems.”

       Additionally, we find substantial evidence supporting the IJ’s conclusion that the

petitioners have failed to established a well-founded fear of persecution, because they

have not carried their burden of proving that the danger of their twins’ being denied

treatment account of their mother’s religious conversion is countrywide. 8 U.S.C. §

1101(a)(42).   As the IJ noted, the petitioners’ failed to seek out medical treatment at any

of Indonesia’s other hospitals aside from the two they visited in Jakarta and the one in

Bali. Moreover, neither the petitioners nor the State Department Reports show that

Hindus or other non-Muslims are being denied medical treatment throughout Indonesia

on account of their religion. Therefore, substantial evidence supports the IJ’s conclusion

the petitioners are ineligible for asylum, because they have failed to prove that they have

faced persecution or a have a well-founded fear of persecution on account of their Hindu

religion. Accordingly, we will deny their petition for review on this claim.

                                             II.

       In order to qualify for withholding of removal, petitioners must prove that it is

more likely than not that their “[lives] or freedom would be threatened in that country

because of [their] race, religion, nationality, membership in a particular social group, or



                                              5
political opinion.” 8 U.S.C. § 1231(b)(3); Zubeda v. Ashcroft, 

, 469 (3d Cir.

2003). If the applicants cannot demonstrate past persecution, they must show that “in that

country there is a pattern or practice of persecution of a group of persons similarly

situated to the applicant” on account of a protected ground. See 8 C.F.R. § 208.16(b)(2).

       We find substantial evidence supporting the IJ’s conclusion that the petitioners

have not demonstrated that it is more likely than not that their lives or freedom would be

threatened if they return to Indonesia because of the petitioner-wife’s religious conversion

and the family’s Hindu religion. As we have noted, in light of their failure to seek out

treatment at other large hospitals in Indonesia, the fact that two large hospitals in Jakarta

refused to treat the twins does not rise to the level of past persecution, and it does not

suggest that they will be denied treatment in the future. Moreover, as the IJ pointed out,

the evidence does not support a finding that there is a pattern or practice of denying

medical treatment to non-Muslims or religious converts in Indonesia. Nor are the two

occasions of assault against the lead petitioner by his brother-in-law availing as examples

of past persecution under this standard, given that the evidence shows only that these

incidents were private, family matters. Accordingly, we will deny their petition for

review on this claim.




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