Anton Tanumihardja v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-1699
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ANTON TANUMIHARDJA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A96-251-991)
Immigration Judge: Honorable Rosalind Malloy
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Submitted Under Third Circuit LAR 34.1(a)
April 10, 2008
Before: SMITH, HARDIMAN and ROTH, Circuit Judges.
(Filed: April 17, 2008)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Petitioner Anton Tanumihardja seeks review of an order of the Board of
Immigration Appeals (BIA), which dismissed his appeal of an order of removal by the
Immigration Judge (IJ). We will deny the petition for review.
I.
Tanumihardja was admitted into the United States at Washington, D.C. as a non-
immigrant visitor. In violation of the terms of his visa, Tanumihardja took a job as a
waiter in Philadelphia. After he overstayed his visa, Tanumihardja was served with a
notice to appear and conceded removability. He then applied for asylum and withholding
of removal under the Immigration and Naturalization Act (INA), as well as protection
under the Convention Against Torture (CAT). Tanumihardja claimed that he would be
persecuted if forced to return to Indonesia because he is an ethnic Chinese, a Catholic,
and a homosexual.
The IJ conducted a hearing on the merits at which Tanumihardja testified. After
stating that he was a 40 year-old ethnic Chinese whose family had converted to
Catholicism when he was a teenager, Tanumihardja explained that he had lived in a
province in Indonesia that was 90% Muslim. During his childhood, Muslim neighbors
harassed Tanumihardja’s family because of their ethnicity by pestering them for money
and smearing feces on the door of their house. In addition, the neighbors broke one of
Tanumihardja’s teeth and slapped his sister. Tanumihardja also claimed that a bomb

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exploded in the parking lot of his church on Christmas Eve of 2000; although he was not
hurt, Tanumihardja stated that he felt traumatized by the event, and stayed away from the
church for three months.
Although Tanumihardja failed to note his sexual orientation in his initial asylum
application, at the hearing he insisted that he had experienced harassment that caused him
to “stay in the closet” because of the danger inherent in being openly homosexual in a
Muslim country such as Indonesia. Tanumihardja also related three instances of
discrimination or harassment that he had experienced or witnessed in Indonesia. The first
involved an openly-gay friend at work who was fired after refusing the employer’s
demand to hide his sexual orientation. Tanumihardja admitted, however, that he had
worked at the company for three years, that no one there knew he was gay, and that the
company did not harass or discriminate against him. The second anecdote involved his
arrest and interrogation for 12 hours during a raid in an area where “drag queens”
loitered. Although Tanumihardja admitted that he was merely questioned and warned not
to return to the area, he stated that he saw one officer order a drag queen to perform
fellatio on him in front of the other detainees. Finally, Tanumihardja stated that while
attending a gay party in a city outside Jakarta in June 2000, he was forced to flee the
gathering when he heard an angry mob yelling “burn them, burn them and kill them.”
In sum, Tanumihardja stated that he left Indonesia because his ethnicity, religion,
and sexual orientation exposed him to persecution; if forced to return, he feared being

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killed. Tanumihardja admitted, however, that he did not relate any of these alleged
episodes of harassment in any of his applications for asylum.
It is also noteworthy that Tanumihardja stated that he had visited Bali, Indonesia
on holiday and felt safe there because of the relatively tolerant attitude of the people.
Tanumihardja did not consider relocating to Bali because the cost of living there was too
high and he had no family or friends there. Tanumihardja conceded, however, that the
cost of living in Bali, high as it was, was still lower than the cost of living in Philadelphia,
and admitted that he has no relatives in the United States. He added that his first choice
was to emigrate to Australia — where he had been schooled and had family and friends
— but his older sister had urged him to move to the United States instead.
At the conclusion of the hearing, the IJ denied Tanumihardja’s application orally,
explaining that the incidents he related failed to establish past persecution, a well-founded
fear of future persecution, or a likelihood that he would be tortured upon his return to
Indonesia. The BIA adopted the findings of the IJ, affirmed its decision, and dismissed
the appeal.
II.
“Where as here, the BIA adopts the findings and reasoning of the IJ, the IJ’s
opinion forms the substance of the final order and we must review it accordingly.”
Chukwu v. Attorney General, 484 F.3d 185, 189 (3d Cir. 2007) (citation omitted). To the
extent that the BIA has adopted the IJ’s findings, we review those findings under the

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substantial evidence standard, upholding them “unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v.
Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).
Tanumihardja claims that he carried his burden of proving that he is a “refugee,”
see 8 U.S.C. § 1158(b)(1)(B)(I), by demonstrating a well-founded fear of persecution on
the basis of a privileged ground. See Sun Wen Chen v. Attorney General, 491 F.3d 100,
105 (3d Cir. 2007) (citation omitted). “In order to establish persecution, an applicant
must show past or potential harm rising to the level of persecution on account of a
statutorily enumerated ground that is committed by the government or by forces the
government is unable or unwilling to control.” Valdiviezo-Galdamez v. Attorney General,
502 F.3d 285, 288 (3d Cir. 2007). Race, religion, and sexuality are all privileged
grounds. See INA § 208(b)(1), 8 U.S.C. 1101(a)(42)(A); see also Amanfi v. Ashcroft, 328
F.3d 719, 730 (3d Cir. 2003) (concluding that imputed status as homosexual is a
cognizable theory of social group membership). To establish a well-founded fear of
future persecution, an applicant must show a subjective fear as well as an objectively
reasonable possibility that he would suffer such persecution if he were deported. See 8
C.F.R. § 1208.13(b)(2)(I).
Applying the foregoing legal standards to this case, we find that there is substantial
evidence to support the IJ’s conclusion that Tanumihardja failed to establish past
persecution. At its most forceful, Tanumihardja’s testimony established only that

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Indonesians had aggressively panhandled him because he was of Chinese ethnicity, that
Muslim neighbors had assaulted him when he was a child, and that someone detonated a
bomb in his church parking lot. But there is no evidence that these occurrences — which
were either remote in time, caused him no injury, or both — were perpetrated by “forces
the government is unable or unwilling to control.” Valdiviezo-Galdamez, 502 F.3d at
288. Evidence of “mere generalized lawlessness and violence between diverse
populations” is not, without more, persecution. See Zubeda v. Ashcroft, 333 F.3d 463,
469 (3d Cir. 2003).
The same can be said of two of the three anecdotes that Tanumihardja related
about his experience as a gay man in Indonesia, viz., his recollection of a friend who was
fired because of his sexual orientation, and his description of the angry mob which broke
up a party. There is no evidence that these incidents of private discrimination occurred
with the knowledge or approval of the Indonesian government. Absent some indication
that these acts were committed by forces the government was unable or unwilling to
control, neither amounts to persecution. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592
(3d Cir. 2003); see also Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003).
As for the police roundup of men in the company of “drag queens,” we agree with
the IJ that the police conduct was consistent with the enforcement of Indonesia’s laws
against prostitution, especially given Tanumihardja’s admission that drag queens “were
cruising some guys who were interested [in] having sex for fun.” Law enforcement is not

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persecution. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 91 (3d Cir. 2004) (a Ukranian
alien’s trouble with police not persecution when based on his failure to follow the law).
Although the conduct of the officer who allegedly demanded fellatio of a drag queen is
disturbing, there is no evidence in the record that this was part of a “systematic,
pervasive, or organized” pattern of official persecution of homosexuals in Indonesia, as
opposed to an isolated instance of police misconduct which was not directed at
Tanumihardja. Such conduct, while reprehensible, is not persecution. See Kibinda v.
Attorney General, 477 F.3d 113, 120 (3d Cir. 2007). Furthermore, because Tanumihardja
was not a “drag queen,” there is no reason to believe he would be singled out for such
treatment, which is consistent with the fact that he was detained for a few hours and
released unharmed. See, e.g., Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir.
2006) (no persecution on account of his sexual orientation when petitioner detained
briefly and released unharmed). Thus, this episode does not rise to the level of
persecution. See Lie, 396 F.3d at 537.
In sum, we agree with the IJ’s determination that Tanumihardja failed to establish
a well-founded fear of future persecution on account of his race, religion, or sexual
orientation. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). Although
Tanumihardja described general fear and intimidation — mostly on account of his
sexuality and, to a lesser extent, his religious beliefs — he pointed to no specific threats
which demonstrate that he is at an “individualized” risk for persecution. See Lie, 396

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F.3d at 537. We also note that Tanumihardja admitted that he felt safe on the Indonesian
island of Bali, and the regulations preclude a finding of a “well-founded fear of
persecution if the applicant could avoid persecution by relocating to another part of the
applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(2)(ii).
For the foregoing reasons, the petition for review will be denied.

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