Tumundo v. Attorney General of the United States

Citation: 342 F. App'x 788Docket: No. 08-2027

Court: Court of Appeals for the Third Circuit; August 27, 2009; Federal Appellate Court

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Richard Tumundo, a Christian from Indonesia, petitions for review of the Board of Immigration Appeals (BIA) final order of removal. Tumundo entered the U.S. on a non-immigrant visa in December 1994 and remained beyond his visa's expiration, leading to removal proceedings where he conceded his removability. In 2004, he sought withholding of removal and relief under the Convention Against Torture (CAT). During his 2006 testimony, Tumundo recounted being kidnapped by his girlfriend's family in 1994 after they learned of her planned conversion to Christianity and their intention to marry. He was held captive for about a month, during which he suffered a swollen jaw but no severe injuries, and he escaped before traveling to the U.S.

Tumundo expressed fear of returning to Indonesia due to threats from his girlfriend's family, who adhere to a tradition known as 'siri', which mandates vengeance for perceived shame. He indicated that he could not rely on Indonesian police for protection and believed he could not safely relocate within Indonesia. Although the Immigration Judge (IJ) found his testimony credible, he denied Tumundo's requests for relief, concluding that the incidents described did not constitute past persecution and that Tumundo failed to demonstrate a likelihood of future persecution. The IJ noted the significant time elapsed since the abduction and indicated that the family lacked the means to pursue Tumundo outside their island. 

On appeal, the BIA concurred with the IJ's findings regarding CAT relief and conducted its own analysis for withholding of removal, ultimately affirming the IJ's decision. The BIA emphasized that Tumundo's experiences did not rise to the level of persecution and that he had not sufficiently shown that he would likely face persecution upon returning to Indonesia or that he could not avoid such threats by relocating within the country.

Tumundo failed to seek protection from the Indonesian government and did not provide adequate evidence to support his claim that the Indonesian police would be unwilling to protect him due to the tradition of siri. The Board of Immigration Appeals (BIA) dismissed his argument regarding a pattern of persecution against Christians in Indonesia. Tumundo is now petitioning the Court to review the BIA's decision, specifically the denial of his request for withholding of removal. The Court has jurisdiction under 8 U.S.C. § 1252(a)(1) and will review the BIA's decision rather than the Immigration Judge's (IJ) decision, applying a substantial evidence standard. To qualify for withholding of removal under 8 U.S.C. § 1231(b)(3), an applicant must demonstrate a likelihood of persecution based on specific protected grounds if returned to their country. 

The BIA found that Tumundo did not prove it is more likely than not that he would face persecution in Indonesia, as he did not establish that the government was unable or unwilling to control the actions of his girlfriend's family. His assertion that seeking government protection would be futile due to the tradition of siri was unsubstantiated. Moreover, the Court referenced a prior case, Wong, where it was determined that the evidence did not compel a finding of a pattern of persecution against Christians in Indonesia. Tumundo's reliance on older country reports did not provide compelling evidence of such a pattern. Consequently, the Court will deny Tumundo's petition for review. Additionally, Tumundo did not contest the BIA's rejection of his request for relief under the Convention Against Torture (CAT), resulting in a waiver of that issue.