Condro Siswanto v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-1608
___________
CONDRO SISWANTO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A95-146-619)
Immigration Judge: Honorable Donald Vincent Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 2, 2008
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed April 9, 2008 )
___________
OPINION
___________
PER CURIAM
Condro Siswanto petitions for review of a final order of removal issued by the
Board of Immigration Appeals (“BIA”). We will deny his petition.

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I.
Siswanto, a native and citizen of Indonesia, entered the United States in December
1999 and failed to depart the country when his visa expired in May 2000. In July 2001,
he filed an application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). He claimed that he was persecuted in the past, and
feared persecution in the future, because he is an ethnic Chinese Christian. A notice to
appear was issued in August 2001, and Siswanto conceded his removability.
Siswanto retained the Law Office of Haian Lin to represent him. A merits hearing
was held before the Immigration Judge (“IJ”) on May 25, 2004. An attorney from Mr.
Lin’s office requested leave to withdraw from the representation on account of an alleged
fee dispute. (AR77.) The IJ denied the request. Siswanto was then provided a choice of
either going forward with the merits hearing on his own or using the attorney who was
present at the time. (AR77-78.) Although apparently confused by the choice, Siswanto
indicated that he did not want to proceed pro se and requested a continuance because he
had “not practic[ed]” his testimony with the attorney. (AR000078.) Emphasizing that the
matter had been pending for approximately four years, the IJ denied a continuance, and
the merits hearing continued as scheduled.
Siswanto then testified about prior acts of alleged persecution against him and his
family and his alleged fear of returning to Indonesia. In an oral decision, the IJ
determined that the asylum request was untimely and that Siswanto failed to establish
extraordinary or changed circumstances regarding his delay. The IJ then denied his

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requests for withholding of removal and CAT relief. Siswanto filed a counseled appeal to
the BIA. Expressly adopting the IJ’s decision and offering its own reasoning as well, the
BIA dismissed the appeal on January 17, 2006. It permitted Siswanto to depart the
country voluntarily but ordered him removed if he failed to do so. Siswanto, through
counsel, filed a timely petition for review.
II.
We have jurisdiction over this matter pursuant to 8 U.S.C. § 1252. Because the
BIA adopted the opinion of the IJ and then added its own reasoning, we must review both
the BIA’s decision and the IJ’s opinion. See, e.g., Jarbough v. Attorney General, 483
F.3d 184, 191 (3d Cir. 2007). We review their respective factual findings under the
substantial evidence standard. See, e.g., id. Siswanto argues in his counseled brief that:
(1) his due process rights were violated when the IJ denied a continuance of his merits
hearing; and (2) insufficient consideration was given to the alleged acts of past
persecution he suffered in Indonesia and whether there was a “pattern or practice” of anti-
Christian and anti-Chinese persecution in Indonesia. His two contentions, however, must
be rejected.
In order to prevail on a due process challenge to his hearing procedures, an alien
“‘must show substantial prejudice.’” Id. at 192 (quoting Singh v. Gonzales, 432 F.3d 533,
541 (3d Cir. 2006)). Siswanto claims that he never met with the attorney before the
merits hearing and had no warning that this attorney would even appear at the hearing.
He therefore allegedly was denied an opportunity to prepare for his hearing with counsel

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The IJ rejected Siswanto’s request for asylum as untimely, concluding that he failed1
to satisfy the changed or extraordinary circumstances standard for a late application. See,
e.g., 8 U.S.C. §§ 1158(a)(2)(B), (D). The BIA, in turn, expressly agreed with the IJ’s
untimeliness determination. An administrative determination that an asylum application
was untimely is generally unreviewable by this Court. See, e.g., 8 U.S.C. § 1158(a)(3).
Furthermore, Siswanto failed to brief the denial of his CAT claim, and we conclude that
any claim under the Convention was waived. See, e.g., Chen v. Ashcroft, 376 F.3d 215,
221 (3d Cir. 2004); In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003).
and “could not meaningfully or effectively present his case.” (Petitioner’s Br. at 7.)
However, in the words of the BIA, Siswanto still fails to identify “what relevant facts,
evidence, or other aspects of his claim he was prevented from adequately presenting” due
to the denial of his continuance request. (AR000003.) On the contrary, he was
questioned at the hearing by his attorney and was apparently able to provide a rather
detailed account in support of his claims for relief. Furthermore, his hearing counsel was
employed by the law firm he had previously retained. Accordingly, the IJ’s denial of a
continuance did not prevent Siswanto from reasonably presenting his case, and, as such,
we conclude that he was not deprived of due process. Jarbough, 483 F.3d at 192 (quoting
Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002)).
To obtain withholding of removal, Siswanto had to show, by a clear probability,
that his life or freedom would be threatened in Indonesia. See, e.g., id. at 190-91. The
BIA agreed with the IJ that he failed to make such a showing. Siswanto argues that the1
IJ ignored the evidence presented at his hearing. (Petitioner’s Br. at 8.) The IJ
summarized Siswanto’s testimony, apparently accepted his testimony as true, and then
concluded that the alleged incidents described by Siswanto do not amount to persecution

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on account of a protected ground. In such circumstances, we must reject Siswanto’s
assertion of a “cavalier dismissal of the record.” (Id.)
Furthermore, the finding that the described incidents do not amount to past
persecution is supported by substantial evidence in the record. Siswanto refers in his
brief to “a racially motivated assault and robbery, racially motivated burning and looting
of his family’s business [during the 1998 riots] and racially motivated sexual assaults
against one of his sisters and a number of his friends when he was with them.” (Id.
(citations omitted).) However, there is adequate evidentiary support to find that such
unfortunate criminal acts, committed by non-governmental actors, are insufficiently
severe to constitute persecution. See, e.g., Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.
2005) (“Simple robbery, in isolation, while unfortunate and troubling, does not seem to
meet this stringent standard.”); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (stating
that “concept of persecution does not encompass all treatment that our society regards as
unfair, unjust, or even unlawful or unconstitutional.”). For instance, Siswanto testified
that his female friends and sisters were inappropriately touched by native Indonesians.
However, he actually admitted that his friends did not report the inappropriate contact
because they considered it a “small incident.” (AR000095.) Likewise, the incident when
native Indonesians threatened and mugged him with a knife while he was on a motorbike
occurred more than ten years before he left the country, and he did not apparently suffer
any physical harm as a result. It further appears that neither Siswanto nor his family was
physically harmed during the 1998 riots and that his family members have continued to

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He did testify that his parents were allegedly humiliated at the market while2
bargaining with a vendor who asked them “why you Chinese” bargain. (AR000098.)
Such an alleged slur is clearly not severe enough to constitute persecution.
live in Indonesia without any physical harm.2
Siswanto further argues that he was entitled to withholding of removal on account
of an alleged pattern or practice of persecution. See, e.g., 8 C.F.R. § 1208.16(b)(2).
According to Siswanto, the BIA’s rejection of his “pattern or practice” allegations was
erroneous because of our suggestion in Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir.
2006), that “it was far from a settled matter whether a pattern or practice of persecutory
treatment of Chinese Christians in Indonesia exists, casting Petitioner’s testimony and
evidence, and whole case, in a new and different framework.” (Petitioner’s Br. at 8-9.)
However, we simply held that the IJ erred in failing to even consider the petitioners’
claim of a pattern or practice of persecution against Chinese Christians. Sukwanputra,
434 F.3d at 637. We further refused to find “that the Lie decision establishes that [such a
pattern or practice] does not exist” because the current record included a 2001 country
report not before the Court in Lie. Id. at 637 n.10. In this case, the BIA and the IJ did
consider Siswanto’s claim, with the BIA specifically stating that he “has not identified
any evidence in support of this vague assertion [of a pattern or practice], which we do not
find is supported by the record.” (AR000003.) Furthermore, the 2000 country and 2001
religious freedom reports, which are included the administrative record, confirm that the
Indonesian government generally respected freedom of worship, at least officially
promoted ethnic and religious tolerance, and that attacks against ethnic Chinese citizens

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continued to drop since 1998. See, e.g., Lie, 396 F.3d at 537-38 (concluding that there
was no pattern or practice of persecution against ethnic Chinese Christians in Indonesia
based in part on 1999 country report showing sharp decline in violence since 1998 riots).
Therefore, the BIA committed no reversible error in rejecting his “pattern or practice”
allegations, and we must ultimately hold that substantial evidence supports the denial of
withholding of removal.
III.
For the foregoing reasons, we will deny the petition for review.

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