Sunarjo v. Attorney General of the United States

376 F. App'x 267
CourtCourt of Appeals for the Third Circuit
DecidedApril 20, 2010
DocketNo. 09-4374
StatusPublished

This text of 376 F. App'x 267 (Sunarjo 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
Sunarjo v. Attorney General of the United States, 376 F. App'x 267 (3d Cir. 2010).

Opinion

OPINION

PER CURIAM.

Petitioners Erla Sunarjo and Iman Mah-moud Chañad seek review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The Government has moved for summary affirmance of the BIA’s decision. Because the appeal presents no substantial question, we will grant the motion and deny the petition for review.

[268]*268I.

Lead petitioner Erla Sunarjo is an ethnic Chinese, native and citizen of Indonesia, and a practicing Christian. Iman Mochamad, her husband and dependent respondent, is also a native and citizen of Indonesia. Sunarjo filed an application for asylum and withholding of removal less than one year after her arrival in the United States. Her application was not based on any allegations of past persecution in Indonesia, but on her fear of future persecution based on a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. The Immigration Judge (“IJ”) denied relief because the record did not support a pattern or practice finding. AR 31. In conducting a de novo review of the dispositive legal issues on appeal, the BIA concluded that the IJ correctly found that Sunarjo faded to meet her burden of proof for asylum and withholding of removal because she had not established a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. AR 2. The BIA found that the IJ had correctly applied Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.2005), and Matter of A-M, 23 I & N Dec. 737, 741-42 (BIA 2005), in reaching its conclusion that no pattern or practice was established by the record in this case. AR 3. The BIA also affirmed the IJ’s decision to deny Sunarjo’s motion for a continuance to obtain the testimony of a recently-discovered expert witness, finding that Sunarjo had failed to demonstrate “good cause” for the continuance or show that her hearing was in any way unfair. Id.

Sunarjo filed a timely petition for review arguing (1) that the Board erred in affirming the IJ’s denial of her motion for a continuance, and (2) that the Board erred in finding that she had not met her burden of proving that she and her husband face a reasonable possibility of persecution in Indonesia. The Government moved for summary affirmance of the BIA’s decision.

II.

We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than the IJ’s. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006).

We have jurisdiction to review an IJ’s decision to deny a continuance, and do so for abuse of discretion. Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir.2008). We review agency factual determinations for substantial evidence. Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir.2008). The Board’s conclusions regarding evidence of the well-founded fear of future persecution are findings of fact. Id. We will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted). Where an appeal presents no substantial question, we may take summary action. See Third Circuit LAR 27.4.

III.

We first consider Sunarjo’s claim that the BIA incorrectly determined that the record evidence did not establish a pattern or practice of persecution against Chinese Christians in Indonesia. In order to show a fear of future persecution the applicant must show a well-founded subjective fear, “supported by objective evidence that persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997). The objective prong is satisfied either by showing that the applicant would [269]*269be individually singled out for persecution, or that “ ‘there is a pattern or practice in his or her country of nationality ... of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006) (quoting 8 C.F.R. 208.13(b)(2)(iii)(A)). To constitute a “pattern or practice,” the persecution of the group must be “systemic, pervasive, or organized.” Wong v. Att’y Gen., 539 F.3d 225, 233 (3d Cir.2008). In addition, the acts of persecution must be committed by the government or forces the government is either unable or unwilling to control. Sukwanputra, 434 F.3d at 637. The question of whether a pattern or practice exists is a question of fact that must be determined based on the individual record before the court. Id. at n. 10 (emphasizing that a pattern or practice finding was not foreclosed by previous holding because that case had relied on different country conditions evidence).

Sunarjo’s claim is not that she would be singled out for persecution upon return to Indonesia, but that there is a “pattern or practice” of discrimination against ethnic Chinese Christians like herself. In rejecting Sunarjo’s pattern or practice claim, the BIA found that the country conditions report in evidence did not establish “systemic, pervasive, or organized persecution” of ethnic Chinese in Indonesia, and concluded that although “the door is still open for a finding of pattern or practice” in future cases, “we are not persuaded that such has been shown here.” AR 3. The BIA’s findings are supported by substantial evidence. Sunarjo has not distinguished her argument, or the record it is built on, from similar claims that we have rejected in the past. See Wong, 539 F.3d at 233-34 (rejecting as “without merit” the contention that “the [2003 and 2004] State Department reports and other background materials document a pattern or practice of persecution of Chinese Christians in Indonesia”); Lie v. Ashcroft, 396 F.3d 530

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376 F. App'x 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sunarjo-v-attorney-general-of-the-united-states-ca3-2010.