Swie Lan Ong; Roby Irawan v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1116
___________
SWIE LAN ONG;
ROBY IRAWAN,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A-098-505-622 & A-098-505-623)
Immigration Judge: R. K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed : March 17, 2010)
___________
OPINION
___________
PER CURIAM.
Swie Lan Ong and her husband, Roby Irawan (collectively, “petitioners”), seek

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review of a final order of removal entered by the Board of Immigration Appeals (“BIA”).
For the reasons that follow, we will deny the petition for review.
I.
Petitioners are natives and citizens of Indonesia of Chinese ethnicity. Ong, the
lead petitioner, is a Catholic; Irawan is a Protestant. Petitioners arrived in the United
States separately in 2003 on non-immigrant visas and overstayed. They conceded
removability before the Immigration Judge (“IJ”), and sought asylum, withholding of
removal, protection under the Convention Against Torture (“CAT”), and, alternatively,
voluntary departure. Ong claims that she suffered persecution in the form of frequent
unwanted touching and verbal abuse in public due to her ethnicity. The worst incident,
according to Ong, occurred on a public bus, when native Indonesians who had just left a
football match boarded the bus and groped Ong and another woman of Chinese ethnicity.
Irawan claims that he suffered persecution on one occasion when he was physically and
verbally abused by native Indonesians after being involved in a motorbike collision.
The IJ denied asylum and withholding of removal, concluding that the harm
suffered by petitioners does not rise to the level of past persecution, and that petitioners
failed to show that they will be persecuted in the future if returned to Indonesia. The IJ
also denied CAT relief, but granted voluntary departure.
On appeal to the BIA, petitioners challenged the denial of withholding of removal,
conceding in their brief to the BIA that “they are only eligible for relief under withholding

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Petitioners attached three documents as “new” or “additional” evidence to1
support the motion to reopen: (1) “Consolidated Report of the Republic of Indonesia on
the Implementation of the International Convention on the Elimination of all Forms of
Racial Discrimination”; (2) an “Alternative Report on ICERD” prepared by Indonesia
NGOs ; and (3) selections from a transcript of testimony by Dr. Jeffrey Winters dated
April 28, 2008, given in a different immigration matter.
Although not reflected in the record before this Court, respondent notes (and2
petitioners do not dispute) that the BIA denied the motion to reopen and reconsider.
3
of removal.” A.R. at 181. On December 17, 2008, the BIA dismissed the appeal. The
BIA noted that petitioners appealed as to withholding only, and it concluded that, while
Ong’s reported sexual harassment is “reprehensible,” petitioners failed to show that they
were persecuted in the absence of any showing of a threat to their life or freedom. Like
the IJ, the BIA entered a voluntary departure order.
Petitioners timely filed a petition for review in this Court from the BIA’s
December 17, 2008, decision. They also filed a motion with the BIA to reopen and
reconsider the asylum and withholding of removal claims, arguing that the BIA erred in
failing to find past persecution, that country conditions have deteriorated, and that they
have evidence to show a pattern or practice of persecution against ethnic Chinese
Christians in Indonesia. The BIA denied the motion to reopen and reconsider on June1
29, 2009. Petitioners have not filed a petition for review from this latter BIA decision.2
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s December
17, 2008, final order of removal. However, as respondent correctly notes, this Court

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Petitioners also suggest that the arguments raised in their motion to reopen and3
reconsider can be considered by this Court because their motion “is part of the current
Administrative Record.” Opening Br. at 2. This Court, however, “shall decide the
petition [for review] only on the administrative record on which the order of removal is
based.” 8 U.S.C. § 1252(b)(4)(A) (emphasis added). Petitioners’ motion to reopen and
reconsider was not part of the record considered by the BIA in issuing the order of
removal. Thus, while that motion is physically part of the current administrative record,
it is not properly considered on this petition for review.
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lacks jurisdiction to review the subsequent decision denying the motion to reopen and
reconsider because petitioners did not file a petition for review from that decision. See
Stone v. INS, 514 U.S. 386, 401 (1995). Petitioners suggest that this Court should review
the motion to reopen and reconsider because, they contend, their actual removal from the
United States “mooted” the motion, and thus they should be permitted to raise arguments
from that motion to this Court in the first instance. Opening Br. at 2. We reject this
attempt to manufacture jurisdiction over the motion to reopen and reconsider.
When an alien seeks to introduce new evidence after entry of a final order of
removal, the proper course, which petitioners at least initially followed here, “is to file a
motion to reopen with the BIA on account of new evidence.” Al-Fara v. Gonzales, 404
F.3d 733, 743 (3d Cir. 2005). If petitioners wanted to obtain judicial review of the
decision denying that motion, the next step in the process was to file a petition for review
in this Court. See id. Because they did not file a petition for review, we do not have
jurisdiction to review the motion to reopen and reconsider. See Camara v. Att’y Gen.,
580 F.3d 196, 201 n.10 (3d Cir. 2009).3

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Petitioners do not seek review of their CAT claims.4
Petitioners concede that they did not assert the asylum claims in their brief to the5
BIA, but they argue that they exhausted administrative remedies by referencing those
claims in their notice of appeal to the BIA. Opening Br. at 5; Reply Br. at 2-4. We have
held that “our case law does not foreclose judicial review of an issue that was sufficiently
raised in a notice of appeal to the BIA, but never argued in the brief subsequently
submitted to the agency.” Hoxha v. Holder, 559 F.3d 157, 161 (3d Cir. 2009); see also
Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004) (“[I]f the issue is not complex,
no brief is required as long as the notice of appeal does precisely what it is intended to do
– place the BIA on notice of what is at issue.”). Hoxha and Bhiski, however, are of no
help to petitioners. Even assuming that petitioners adequately advised the BIA through
their notice of appeal that they wished to raise the asylum claims, they subsequently filed
a brief with the BIA, and in that brief, their counsel expressly conceded that withholding
of removal provided the only potential avenue for relief. The BIA apparently took note
of petitioners’ concession, as it found that they “only appealed the issue of withholding
of removal,” and thus limited its analysis to that issue. A.R. at 174. Unlike Hoxha,
therefore, this is not a case where petitioner presented an issue in the notice of appeal but
simply failed to argue that issue at the briefing stage; rather, petitioners here effectively
told the BIA at the briefing stage not to review claims other than withholding of removal.
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There is another jurisdictional issue to consider. Petitioners seek review in this
Court of the denial of both their asylum and withholding of removal claims. Respondent4
argues that this Court lacks jurisdiction to review the asylum claims because petitioners
failed to exhaust administrative remedies. We agree. The record reflects that petitioners
abandoned all but their withholding of removal claims on administrative appeal inasmuch
as they expressly conceded in their brief to the BIA that “they are only eligible for relief
under withholding of removal.” A.R. at 181. Consequently, because they did not exhaust
review in the BIA before seeking judicial review, we lack jurisdiction over the asylum
claims. See 8 U.S.C. § 1252(d)(1); Lin v. Att’y Gen., 543 F.3d 114, 120 (3d Cir. 2008);
Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).5

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On these facts, we agree with respondent that petitioners failed to exhaust the asylum
claims, and thus this Court lacks jurisdiction over those claims.
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We turn to the merits of petitioners’ withholding of removal claims. We review
the BIA’s denial of withholding of removal, which was based on its finding of an absence
of past persecution, for substantial evidence, and as such we ask only whether the BIA’s
finding is “‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)); Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002). “[W]e may decline to uphold the BIA’s findings only if the evidence compels
a contrary conclusion.” Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003).
To qualify for withholding, petitioners had to show that it is more likely than not
that they will face persecution if returned to Indonesia. See INS v. Cardoza-Fonseca, 480
U.S. 421, 430 (1987). A successful showing of past persecution would entitle petitioners
to a rebuttable presumption of future persecution. See 8 C.F.R. § 208.16(b)(1)(i).
Our review of the record reveals no error in the BIA’s analysis. Ong’s claim for
withholding is based on a history of unwanted touching and verbal abuse, and she relies
in particular upon an incident on a public bus when she was groped because of her
ethnicity. The BIA no doubt was correct to label the treatment that Ong experienced
“reprehensible,” but it does not rise to the level of persecution. See, e.g., Jarbough v.
Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007) (observing that “[a]busive treatment and

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While the BIA did misstate the record when it suggested that Irawan did not6
testify at the hearing before the IJ, see A.R. at 174 n.1, petitioners have not shown that
this oversight affected the BIA’s analysis or resulted in any prejudice to petitioners.
Indeed, petitioners’ arguments focus almost exclusively upon Ong’s claim.
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harassment, while always deplorable, may not rise to the level of persecution”); Fatin v.
INS, 12 F.3d 1233, 1243 (3d Cir. 1993) (explaining that persecution “is an extreme
concept that does not include every sort of treatment our society regards as offensive”).
The record simply does not compel the conclusion that Ong’s experiences were so severe
as to constitute persecution. The same is clearly the case with respect to Irawan, as well.6
Petitioners contend that the BIA erred by failing to account for the mental
suffering that Ong experienced, and they argue that because Ong claims to have suffered
harassment “daily,” her cumulative experiences amount to persecution. Opening Br. at
15-16. The BIA was correct, however, that the hallmarks of persecution are “threats to
life, confinement, torture, and economic restrictions so severe that they constitute a threat
to life or freedom.” Fatin, 12 F.3d at 1240. Ong’s experiences do not compel a
conclusion that she faced such a threat to life or freedom. See id. (explaining that
persecution does not include “all treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional”).
Finally, petitioners argue that they are entitled to withholding of removal because
they can show a “pattern or practice” of discrimination against ethnic Chinese Christians

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Respondent argues that the pattern or practice claim is unexhausted, but we7
disagree. Petitioners argued withholding of removal in their brief to the BIA, including a
pattern or practice argument. See A.R. at 184-85. They also set forth a pattern or
practice argument in their notice of appeal to the BIA. Id. at 229.
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in Indonesia. However, petitioners seeks to establish this claim based solely upon the7
evidence that they submitted in support of their motion to reopen and reconsider. See
note 1, supra. As we have explained, see note 3, supra, petitioners cannot rely upon
evidence outside of the administrative record to make their arguments in this Court.
Because their pattern or practice argument relies entirely upon evidence that is not before
this Court, see Opening Brief at 17-24, Reply Br. at 5-8, that argument is not properly
considered on this petition for review.
III.
For the foregoing reasons, we will deny the petition for review.

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