Jong v. Atty Gen USA , 283 F. App'x 937 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-30-2008
Jong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3278
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3278
___________
GIOVANNI ESTERITA JONG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A79 479 558
Immigration Judge: Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 18, 2008
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed June 30, 2008 )
___________
OPINION
___________
PER CURIAM
Giovanni Esterita Jong, a native and citizen of Indonesia, petitions for review of an
order of the Board of Immigration Appeals (“Board” or “BIA”). The Board’s order
adopted and affirmed the decision of an Immigration Judge (“IJ”), which found the
petitioner removable and denied her application for asylum, withholding of removal, and
protection under the United Nations Convention Against Torture (CAT). For the reasons
that follow, we will deny the petition.
I.
Jong entered the United States in September 2000 on a visitor’s visa, and stayed
longer than authorized. She filed a timely request for asylum and related relief. Jong,
who is a Chinese Christian, testified before an Immigration Judge (IJ) that she was
harassed and touched inappropriately by native Indonesians in the 1970s when she was a
teenager in school. She also testified that during the May 1998 riots in Jakarta, her
father’s shop was burned and destroyed and the office where she worked was burned.
She also testified that her sister and brother-in-law have a bakery, and that drunken men
would often throw rocks at the bakery, steal things, and urinate in front of the store. They
also would ask for money, and her sister and brother-in-law sometimes had to give them
money to prevent further harassment.1
The IJ found that Jong was credible, but that the experiences she described did not
rise to the level of past persecution. The IJ also concluded that Jong had not proven that
she would be singled out for persecution in the future, nor that there was a pattern or
practice of persecution against Chinese Christians in Indonesia. The IJ denied all relief.
1
After reviewing the record, we agree with the Government that “Petitioner makes
several assertions in her brief that do not appear in the record.” Appellee’s brief at 5, n.3.
As the Government notes, there is no support in the record for Jong’s assertions that she
was “robbed, raped, refused health care treatment, forbidden to celebrate Chinese
holidays or learn the Chinese language, or prevented from attending church services.” Id.
2
The BIA assumed that Jong was credible, but agreed that she had “described
incidents of discrimination and not persecution under the Act.” A.R. 2. The BIA stated
that Jong had not established “past persecution or a well-founded fear of future
persecution,” and that she had not established a “‘pattern or practice’ of persecution
against Christians in Indonesia.” Id. Jong filed a timely, counseled, petition for review.
II.
We have jurisdiction to review final orders of removal under section 242(a)(1) of
the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), as amended by the REAL ID
Act of 2005. When the Board issues a decision on the merits, we generally review only
the Board’s order. See Li v. U.S. Attorney General, 400 F.3d 157, 162 (3d Cir. 2005);
Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001). Where the Board adopts the
reasoning of the IJ with some discussion of the bases for the IJ’s decision, we also review
the order of the IJ. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We use a
substantial evidence standard to review factual findings; Tarrawally v. Ashcroft, 338 F.3d
180, 184 (3d Cir. 2003), as well as findings of an applicant’s past persecution or
“well-founded fear of future persecution,” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002). Under the substantial evidence standard, findings are upheld “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir. 2005). We review the
Board’s legal conclusions de novo, subject to the principles of deference articulated in
3
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984). Briseno-Flores v. Attorney Gen., 492 F.3d 226, 228 (3d Cir. 2007).
Petitioner raises essentially three issues on appeal. Jong argues that the IJ erred in
finding that she did not suffer past persecution; that the IJ erred as a matter of law in
requiring that she show she would be “singled out individually for persecution”; and, that
the Board “failed to provide a meaningful review of the IJ’s decision.”
The record does not compel a conclusion that Jong experienced persecution in the
past. Persecution is defined as “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Lie v. Ashcroft, 396
F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)).
Although the incidents that Jong suffered are unfortunate, her account of isolated criminal
acts and harassment does not rise to the level of persecution that would compel a
conclusion contrary to the determinations of the IJ and the BIA. See Lie, 396 F.3d at 536.
Jong argues that the IJ erred in stating that she needed to show she would be
“singled out” for persecution. The IJ did not make a legal error in his analysis. To
establish a well-founded fear of future persecution an applicant must demonstrate that
besides having a genuine subjective fear of persecution, “a reasonable person in the
alien’s circumstances would fear persecution if returned to the country in question.” Lie,
396 F.3d at 536 (citation omitted). A petitioner may satisfy the reasonable person test by
either showing that “she would be individually singled out for persecution” or by
4
demonstrating 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.” Id. (citations
omitted). Thus, absent a showing that there is a pattern or practice of persecution of
Chinese Christians, Jong was required to show that she would be singled out for
persecution. After review of the record, we find that substantial evidence supports the
BIA’s conclusion that Jong did not establish a well-founded fear of future persecution.
We further disagree that the Board “failed to provide a meaningful review of the
IJ’s decision.” The Board indicated its agreement with the IJ’s decision, cited case
authority, and discussed Jong’s particular claims, with citations to the record. The
Board’s decision reflects an individualized assessment and is adequate for our review.
Toussaint v. Attorney General, 455 F.3d 409, 414 (3d Cir. 2006).
For the foregoing reasons, we will deny the petition for review.