Fnu Sudarsono v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2720
FNU SUDARSONO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96-203-448
(U.S. Immigration Judge: Honorable Donald V. Ferlise)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 9, 2008
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed: May 30, 2008)
OPINION OF THE COURT
PER CURIAM.
Sudarsono petitions for review of an order of the Board of Immigration Appeals
(“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons
that follow, we will deny his petition.

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Sudarsono is a native and citizen of Indonesia and identifies himself as ethnic
Chinese and Christian. He entered the United States as a non-immigrant visitor in
November 1998 and, in May 2004, applied for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). He has a wife and two children,
all of whom reside in Bali, Indonesia.
The IJ denied all relief save Sudarsono’s request for voluntary departure, holding
that his asylum application was time-barred and that he could not satisfy the standard for
withholding of removal or CAT relief. The BIA affirmed the IJ’s decision and dismissed
the appeal, noting that Sudarsono did not challenge on appeal the IJ’s finding that his
asylum claim was time-barred, that he had failed to establish either that he faced an
individualized risk of persecution or that there was a pattern or practice of persecution
directed against ethnic Chinese Christians in Indonesia, and that he failed to show that he
would more likely than not be tortured in Indonesia. Through counsel, Sudarsono filed a
petition for review. The Government opposes the petition.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. We
review the BIA’s factual findings for “substantial evidence.” See Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001). Under this standard, we will uphold the BIA’s
findings unless the evidence not only supports a contrary conclusion, but compels it. See
id.

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To the extent Sudarsono addresses this argument to his asylum claim, we do not reach1
it, as we lack jurisdiction to review the determination that an asylum application was not
filed within the one-year limitations period and that such period was not tolled by
extraordinary circumstances. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.
2003); 8 U.S.C. § 1158(a)(3).
3
To be entitled to withholding of removal to a specific country, an applicant must
prove that it is more likely than not that his “life or freedom would be threatened in that
country because of [his] race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3); Zubeda v. Ashcroft, 333 F.3d 463,
469 (3d Cir. 2003). In the event that the applicant cannot demonstrate past persecution,
he may still be eligible for withholding of removal by demonstrating “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). For relief
under the CAT, an applicant must demonstrate that it is more likely than not that he
would be tortured if removed to his country of origin. See 8 C.F.R. § 208.16(c)(2).
Sudarsono argues that the BIA erred in concluding that he had not demonstrated
that he would more likely than not suffer persecution if returned to Indonesia. In support1
of his application, Sudarsono testified that his car was vandalized in January 1997 while
he was attending church services and that his store was looted the following year. Then,
in June 1998, ten men with guns attacked him and his cousins at his store, took his
money, and smashed his face against the safe. His cousin died as a result of his injuries.
Sudarsono testified that he reported the incident to the police, but they did not respond.

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He then closed that store and opened a small store on the island of Bali, where he moved
with his wife and family. The IJ found that, even assuming all of his testimony was
credible, Sudarsono offered no proof that any of these actions were taken against him on
account of his religion or ethnicity. Furthermore, the IJ concluded that Sudarsono had
failed to offer any proof that he would be persecuted, much less tortured, upon his return
to Indonesia. The BIA agreed with these conclusions.
Sudarsono now argues that while the incidents described above may not appear on
their face to be acts of persecution, when considered in light of “the political, social,
cultural and more importantly the factual milieu in Indonesia,” they clearly “take[] on the
nature of persecution on account of his membership in a group.” (At. Br. at 9-10.) As the
petitioner, it is Sudarsono’s burden to demonstrate an entitlement to relief. See Lie v.
Ashcroft, 396 F.3d 530, 535-38 (3d Cir. 2005). A thorough review of the record indicates
that Sudarsono failed to offer any evidence to demonstrate that the acts were “on account
of” a protected ground. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)
(“[Petitioner] must provide some evidence of [his persecutors’ motives], direct or
circumstantial. And if he seeks to obtain judicial reversal of the BIA’s determination, he
must show that the evidence he presented was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.”); see also Lie, 396 F.3d at 535-36
(“We find that evidence of general ethnic difficulties would not compel a reasonable
factfinder to conclude that the intrusions were ‘on account of’ [petitioner’s] ethnicity or

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religion.”). Additionally, as noted by the BIA, Sudarsono’s wife and children continue to
live in Indonesia, which further undermines his claim to a well-founded fear of future
persecution. See id. at 537. Nor was the evidence cited by Sudarsono sufficient to
demonstrate a pattern or practice of persecution of Chinese Christians in Indonesia. See
id. (finding petitioner’s evidence of anti-Chinese violence in Indonesia insufficient to
demonstrate “pattern or practice” where violence was “primarily wrought by fellow
citizens and not the result of governmental action or acquiescence”). Accordingly, we
agree that Sudarsono has not demonstrated an entitlement to withholding of removal.
Finally, Sudarsono failed to allege any incidents or likelihood of torture if removed
to Indonesia. Accordingly, the BIA properly denied his claim for relief under the CAT.
See 8 C.F.R. § 208.16(c)(2); Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir. 2003)
(holding that petitioner must demonstrate it is more likely than not that he will be tortured
upon his return).
Based on the foregoing, we will deny the petition for review.

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