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Sukwanputra v. Gonzales

January 19, 2006


On Petition for Review from an Order of the Board of Immigration Appeals (D.C. No. 0313-2: A-79-312-251; D.C. No. 03-3-2: A-79-312-252) Immigration Judge: Hon. Donald Vincent Ferlise.

The opinion of the court was delivered by: Cowen, Circuit Judge.


Argued October 18, 2005

BEFORE: SCIRICA, Chief Judge, VAN ANTWERPEN and COWEN, Circuit Judges.


Ellyana and Yulius Sukwanputra petition for review of an order of the Board of Immigration Appeals ("BIA") which adopted and affirmed an Immigration Judge's ("IJ") decision denying the application for asylum and withholding of removal pursuant to the Immigration and Nationality Act ("INA"), and protection under the Convention Against Torture ("CAT"). For the reasons stated below, we will grant the petition, vacate the order of the BIA, and remand for further proceedings consistent with this opinion.


Ellyana Sukwanputra and her husband, Yulius Sukwanputra,*fn1 are natives and citizens of Indonesia. Petitioner claims persecution in Indonesia on account of her Chinese ethnicity and Catholic religion. In support, she relates numerous incidents of persecution spanning a twenty year period from her childhood until the late 1990s. Three of the incidents are relevant to our decision, which we discuss below.

First, Petitioner alleges that in 1985, in her hometown of Malang, a mob of native Indonesians burned down her father's store as part of widespread attacks on Chinese-owned stores. Petitioner, who was a child at the time, allegedly remembers hearing rioters say, "Burn it down, this belong to Chinese!" Despite the widespread destruction and looting, the police and army in Indonesia allegedly did nothing to stop the attacks.

Petitioner claims that similar governmental inaction led to the prolongation of riots in Unjung Pandang in September 1997. Prompted by the prospect of marriage, Petitioner alleges that she and her then-future husband traveled to the Island of Sulawesi, Unjung Pandang, so that she could meet his parents who lived there. Petitioner laments that during their visit, a group of native Indonesians allegedly burned down her husband's family restaurant. Petitioner allegedly recalls hearing the rioters yell, "Burn and kill the Chinese!" After escaping the restaurant, petitioner and her husband stayed at the local police station for two days until the riots ended.

Third, petitioner cites to the massive riots that plagued Jakarta in May 1998. Petitioner asserts that following her graduation from college, she was living in Jakarta looking for employment when massive riots broke out there. Petitioner relates that during the riots many Indonesian women were raped and killed. Petitioner allegedly hid with friends inside a house, but could hear the voices of rioters on the streets and the sounds of them beating on the house. Petitioner recalls that after the riots she fled to Malang to stay with her parents.

On May 17, 1999, petitioners entered the United States on non-immigrant visitor's visas. They were authorized to remain in the United States until November 16, 1999, and both overstayed their visas. On June 25, 2001, they were placed in removal proceedings.


On or about May 4, 2001, petitioner filed an application for asylum and withholding of removal under the INA, and protection under CAT. The case was referred to Immigration Judge Donald Ferlise, who conducted a hearing on the merits. In addition to her own testimony, petitioner presented to the IJ documentary evidence in support of her application. The IJ admitted some of the documents into evidence, including petitioner's written application, her sworn affidavits, and a country package which included the 2001 Department of State Report on Human Rights Practices. However, the IJ refused to give any weight to the following documents: petitioners' birth certificates, their marriage certificate, petitioner's husband's Indonesia identification card, a death certificate for petitioner's brother, and their child's birth certificate. The IJ reasoned that the documents were not certified as required under 8 C.F.R. § 287.6.

On October 28, 2002, the IJ issued a decision denying the application for asylum, withholding of removal, and CAT protection. The IJ found that the asylum application was untimely and that petitioner had failed to establish changed circumstances materially affecting her eligibility for asylum or extraordinary circumstances relating to the delay. The IJ also found that petitioner had not demonstrated entitlement to withholding of removal or protection under CAT. The IJ premised his finding, in part, on the purported implausibility that petitioner was present "at all of these [three] major events even though they were quite far apart in distance." (Decision at 10.) As to these three critical events, the IJ found petitioner's testimony not to be credible. (Decision at 10.)

On August 5, 2005, the BIA entered its order affirming and adopting the IJ's decision. The BIA rejected petitioner's claim that the IJ exhibited bias violating their due process rights. The BIA concluded that while some of the IJ's statements were "injudicious," there was insufficient evidence to show ...

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