Lesmana v. Attorney General of the United States

331 F. App'x 160
CourtCourt of Appeals for the Third Circuit
DecidedJune 11, 2009
Docket08-1377
StatusUnpublished
Cited by1 cases

This text of 331 F. App'x 160 (Lesmana v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lesmana v. Attorney General of the United States, 331 F. App'x 160 (3d Cir. 2009).

Opinion

OPINION

PER CURIAM.

Petitioners Keke Lesmana and Cassandra E. Prasetyo seek review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“U”) final order of removal. For the reasons that follow, we will deny their petition.

Petitioners are husband and wife, natives and citizens of Indonesia, and ethnic Chinese Christians. They entered the United States as non-immigrant visitors on March 28, 2000, and were placed into removal proceedings after Lesmana, the lead respondent, applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on August 22, 2000. Prasetyo later filed a separate application seeking the same forms of relief. The IJ found petitioners *161 removable as charged and denied all relief and the BIA affirmed. Petitioners filed a petition for review.

We have jurisdiction over this petition for review under 8 U.S.C. § 1252. In cases such as this one, where the BIA “invokes specific aspects of the IJ’s analysis and factfinding in support of [its] conclusions,” we review both the decisions of the IJ and the BIA. See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir.2005). We review factual findings, including “conclusions regarding evidence of past persecution and the well-founded fear of persecution” for substantial evidence. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006) (citing Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001)). Under this standard, we will uphold these findings unless “the evidence is such that a reasonable factfinder would be compelled to conclude otherwise.” See id.

To be granted asylum, an applicant must establish that she is unable or unwilling to return to her country of origin “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). To be entitled to withholding of removal, an applicant must prove that it is more likely than not that her “life or freedom would be threatened in that country” on account of a protected ground. See 8 U.S.C. § 1231(b)(3). For relief under the CAT, an applicant must demonstrate that it is more likely than not that she would be tortured if removed to her country of origin. See 8 C.F.R. § 208.16(c)(2).

We have defined persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). Additionally, there must be a nexus between the alleged persecution and a protected ground. See 8 U.S.C. §§ 1101(a)(42), 1231(b)(3). An asylum applicant who has demonstrated past persecution is entitled to a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). Absent a showing of past persecution, an applicant must demonstrate a subjective fear of future persecution and show that a reasonable person in her situation would fear persecution if returned to her country of origin. See 8 C.F.R. § 1208.13(b)(2). An applicant can meet this objective prong either by showing that she would be individually singled out for persecution upon her return or that a pattern and practice of such persecution exists. See 8 C.F.R. § 1208.13(b)(2)(iii).

In support of her application, Prasetyo testified that she was taunted by Indonesian Muslim students when she was 11 years old and from then on always waited 15 minutes after school before leaving for home. On another occasion, she was groped on the school bus while in high school and thereafter began carrying heavy books close to her chest to prevent that from happening again. She decided to become an Indonesian citizen when she was 21 because it made it easier to obtain documentation for school and to find a job. In order to do so, she was required to change her name. Her husband testified that he changed his name and was forced to naturalize in order to continue his education. He claimed that, in trying to do so, he was treated poorly by the clerks who worked at the immigration office because he was Chinese.

Both petitioners testified about the events occurring in 1998 during the riots in Jakarta. On May 13, 1998, both of them were at work when they learned of rioting and homes and businesses being looted and set on fire in their vicinity. According *162 to Prasetyo, most of the residences being targeted were occupied by ethnic Chinese, and the police did not appear to take any action in response. While the riots were occurring, she could hear shouts of epithets regarding people of Chinese ancestry. On May 14, 1998, petitioners were awakened by sirens. The leader of their housing complex told them a mob was approaching and advised them to evacuate to a nearby gym. The next morning, after the mob had subsided, petitioners and the other residents of them housing complex emerged from the gym to find that their houses had been ransacked. A week later, when they were permitted to leave their home, they went to Prasetyo’s mother’s house in a different section of Jakarta, where they remained until May of 1999. Prasetyo quit her job, began to experience nightmares, and feared life in Jakarta. Petitioners then moved to Surabaya in East Java, about nine hours from Jakarta by train. After approximately one year in Surabaya, petitioners decided to seek asylum in the United States, explaining that they did not believe they would ever feel safe in Indonesia.

The IJ found that, while their testimony was credible, the incidents they related were not sufficiently severe and extreme to constitute past persecution, and that there was no evidence in the record to suggest that either of them might be singled out for future persecution if they were to return to Indonesia. In particular, the IJ noted that they were able to live and worship safely in Surabaya, and could return there, where Lesmana’s family lives.

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Related

Lesmana v. Attorney General of the United States
493 F. App'x 327 (Third Circuit, 2012)

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Bluebook (online)
331 F. App'x 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lesmana-v-attorney-general-of-the-united-states-ca3-2009.