Wowor v. Atty Gen USA , 220 F. App'x 162 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-4-2007
Wowor v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1535
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Case No: 06-1535
_______________
ERENS ROBERT WOWOR,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES; SECRETARY OF DEPARTMENT
OF HOMELAND SECURITY,
Respondent
_______________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A96-249-177)
_______________
Submitted Under Third Circuit LAR 34.1(a)
March 27, 2007
Before: FISHER, JORDAN and ROTH, Circuit Judges,
(Filed: April 4, 2007)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Erens Robert Wowor, a citizen and native of Indonesia, petitions for review from a
final order of removal by the Board of Immigration Appeals (“BIA”) denying his
applications for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). We have jurisdiction to review the BIA’s order pursuant to 8 U.S.C. §
1252(a)(1). For the following reasons, we will deny the petition.
I.
Wowor was admitted to the United States as a non-immigrant alien in transit in
December of 2002 and was authorized to remain until January 6, 2003. On June 16,
2003, Wowor was served a Notice to Appear, which charged him with removability under
§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1227(a)(2)(A)(iii), because Wowor had remained in the United States beyond the
authorized date. Wowor subsequently requested asylum, withholding of removal, and
relief under the CAT.
Wowor claims that, if he returns to Indonesia, he will be killed because he is a
Christian. He says that, in October 2002, he was assaulted by members of a group called
the “Front Muslim Defenders,” commonly known in Indonesia as the “FPI.” The assault
occurred when he interrupted an FPI parade by inadvertently obstructing marchers with
his automobile. When Wowor drove his car into their path, members of the FPI directed
him to stop his car. Instead of stopping, Wowor slowed down, and members of the FPI
began to kick his car. When Wowor rolled down his window to find out why the
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marchers were attacking his car, one of them struck him in the face. Wowor then got out
of his car to confront his assailant. He alleges that the FPI marchers then saw that he had
a cross hanging on his rearview mirror and some stickers indicating that he was a
Christian. Wowor claims they began insulting him because he was Christian. One of
them drew a knife. Wowor tried to grab the knife, but the attacker cut his hand and
stabbed him in the stomach. The parade continued, with Wowor left behind bleeding in
the street. He alleges that he solicited help from the police, but when the police
discovered he was a Christian, they did nothing to assist him. He claims that the police
knew he was a Christian because they saw the cross he wore around his neck and the
cross hanging on his car mirror. Wowor went to a hospital, received stitches in his
stomach, and was released after a “very short” period of time.
Wowor also complained that in 2001 he and other members of the West
Indonesian Protestant Church were attacked with rocks during a ceremony to
commemorate the laying of the foundation for a new building. Wowor was not hit, but
one of his fellow members was. Because of that incident, the pastor decided to resume
services in their prior meeting place.
An “International Religious Freedom Report” for Indonesia [the “Report”] issued
by the United States Department of State, indicates that the FPI physically attacks
nightclubs, bars, and billiard clubs in the name of religion, claiming that those
establishments are immoral. However, the Report also suggests that many of those
attacks are linked to extortion and kickback schemes rather than religion. According to
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the Report, the Philippine government has responded by charging the FPI’s leader with
inciting violence. The Report further states that the Indonesian government has made
some progress in promoting religious freedom by controlling religious violence, but
violence does continue. However, that violence is limited primarily to specific parts of
Indonesia, such as Central Sulawesi and the Malukus. Wowor testified that neither he nor
his family, which consists of his wife, mother, and three children, had ever been
prevented from practicing their religion in Indonesia.
The Immigration Judge (“IJ”) denied Wowor’s application for asylum, his
application for withholding of removal, and his application for relief under the CAT.
Wowor subsequently appealed the IJ’s decision to the BIA. The BIA issued an order on
the merits upholding the IJ’s decision. It concluded that although the stabbing during the
parade and the stoning at the site of the new church were “clearly traumatic,” those
incidents “were not so severe as to rise to the level of past persecution.” The BIA also
concluded that Wowor had not established “that his life or freedom would be threatened
in the future if he were to return to Indonesia.” Because the religious violence generally
is limited to specific parts of Indonesia, the BIA determined that Wowor “could avoid
future persecution by living in parts of Indonesia where there are not attacks against
Christians.” According to the BIA, the fact that members of Wowor’s family are living in
Indonesia and continue to practice their religion without harm is evidence that Wowor
would be able to do so as well.
II.
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When the BIA has issued a decision on the merits and not simply an affirmance,
we review the BIA’s decision rather than the IJ’s decision. Sukwanputra v. Gonzales,
434 F.3d 627, 631 (3d Cir. 2006). We are required to give significant deference to the
BIA’s decision. We will uphold the BIA’s findings of fact if they are supported by
substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We will reverse a
BIA decision only if “the evidence is such that a reasonable factfinder would be
compelled to conclude otherwise.” Chavarria v. Gonzales, 446 F.3d 508, 515 (3d Cir.
2006).
Under 8 U.S.C. § 1158(b)(1), an alien who is a “refugee” within the meaning of 8
U.S.C. § 1101(a)(42) may be granted asylum. A “refugee” is someone “unable or
unwilling to return to, and is unable or unwilling to avail himself or herself of the
protection of [the country of such person’s nationality], because of persecution or a well-
founded fear of persecution on account of ... religion ... .” 8 U.S.C. § 1101(a)(42)(A).
According to 8 C.F.R. § 1208.13, an applicant may qualify as a refugee by establishing
either that he has suffered past persecution or has a well-founded fear of future
persecution.
Wowor argues that the BIA erred in concluding that the incidents Wowor
experienced were not severe enough to establish that he had suffered past persecution.
Persecution “connotes extreme behavior, including ‘threats to life, confinement, torture,
and economic restrictions so severe that they constitute a threat to life and freedom.’”
Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (quoting Fatin v. INS, 12 F.3d
4
1233, 1240 (3d Cir. 1993)). Persecution “does not include ‘all treatment that our society
regards as unfair, unjust, or even unlawful or unconstitutional.’” Id.On the present record, a reasonable factfinder would not be compelled to conclude
the BIA erred in determining that Wowor had not suffered persecution. Persecution
connotes extreme behavior. The two alleged incidents, one involving being assaulted
after interfering in the FPI’s parade and the other involving the stoning of the site of
Wowor’s new church, are significant matters indeed but not so extreme as to compel us to
conclude that Wowor suffered past persecution. Cf. Lie v. Ashcroft, 396 F.3d 530, 536
(3d Cir. 2005) (concluding that there was no past persecution because the harm suffered
by the applicant was not sufficiently severe where two people knocked down her door,
stole some money and jewelry, then stabbed her in the left forearm with a knife);
Mohammed v. Gonzales, 400 F.3d 785, 795 (9th Cir. 2005) (finding that there was past
persecution where the female applicant suffered genital mutilation); Korablina v. INS,
158 F.3d 1038, 1045 (9th Cir. 1998) (concluding that there was past persecution where
the applicant witnessed and was subject to repeated beatings and severe harassment).
Wowor also argues that the BIA erred in concluding that he had failed to establish
past persecution based on one of the protected grounds. He contends that there was clear
evidence that his attackers were motivated, at least in part, on account of his religion.
Wowor’s argument, however, mischaracterizes the BIA’s conclusion. The BIA
determined that Wowor had failed to establish past persecution because the incidents
Wowor described were not sufficiently severe. The BIA did not decide, nor did it need to
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decide, what motivated Wowor’s attackers. It had already determined that Wowor had
not been persecuted.
Wowor’s third set of arguments relates to the BIA’s conclusion that he had failed
to establish a well-founded fear of future persecution. The BIA held that Wowor did not
demonstrate that his life or freedom would be threatened in the future if he were to return
to Indonesia. The BIA’s conclusion was based on findings from the Report that indicated
that religious violence generally takes place in specific parts of Indonesia such as Central
Sulawesi and the Malukus. Its conclusion was also based on the fact that Wowor’s
“mother, wife, and children were living in Indonesia and continued to practice their
religion without any evidence of harm.”
Wowor contends that the BIA’s conclusion that he could relocate to another part of
Indonesia to escape religious persecution is clearly erroneous because “the potential for
violence against Christians is nationwide.” That argument, however, misses the point.
To establish a well-founded fear of persecution an applicant must establish a subjective
fear of persecution and “show, objectively, that ‘a reasonable person in the alien’s
circumstances would fear persecution if returned to the country in question.’” Lie, 396
F.3d at 536 (quoting Zudeba v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003)). To satisfy
the objective prong, an applicant must show that he would be individually singled out for
persecution or establish that “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 ...
religion ... .” Lie, 396 F.3d at 536 (quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)). To
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constitute a “pattern or practice,” the persecution must be “systemic, pervasive, or
organized.” Lie, 396 F.3d at 537 (quoting Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir.
2004)). Standing alone, a potential for violence is not enough to establish a pattern or
practice of persecution. The Report on which the BIA based its conclusions suggests that
persecution against Christians is not systemic, pervasive, or organized, and Wowor has
not submitted sufficient evidence to compel us to conclude otherwise. In addition, as is
the case here, when family members remain in the applicant’s native country without
meeting harm, and the applicant has not established that he would be singled out for
persecution, “the reasonableness of a petitioner’s well-founded fear of future persecution
is diminished.” Lie, 396 F.3d at 537.
Wowor also argues that the BIA “failed to take into consideration the
reasonableness of internal relocation under 8 C.F.R. 1208.13(3)” when it concluded that
Wowor could avoid future persecution by living in parts of Indonesia where there were no
attacks against Christians.1 His argument fails because Wowor has not shown that he
needs to relocate upon returning to his previous home in Indonesia. Wowor lived in the
1
8 C.F.R. § 1208.13(3) states:
[A]djudicators should consider, but are not limited to considering, whether the
applicant would face other serious harm in the place of suggested relocation; any
ongoing civil strife within the country; administrative, economic, or judicial
infrastructure; geographical limitations; and social and cultural constraints, such as
age, gender, health, and social and familial ties. Those factors may, or may not, be
relevant, depending on all the circumstances of the case, and are not necessarily
determinative of whether it would be reasonable for the applicant to relocate.
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city of Tangerang, located in the province of Banten. The record before us does not
establish that persecution against Christians in that region is systemic, pervasive, or
organized. Furthermore, Wowor’s family members who live in that area continue to
practice Christianity without meeting harm.
Wowor contends that the IJ erred in concluding that the Indonesian government
was not complicit in the FPI’s attack on him. He claims that the BIA adopted that
erroneous conclusion, even though the BIA never addressed the issue. We have power
only to review the final order of removal. Normally the final order would be that of the
BIA, unless the BIA defers to or adopts the opinion of the IJ. Gao v. Ashcroft, 299 F.3d
266, 271 (3d. Cir. 2002). In this case, there is no indication that the BIA deferred to or
adopted any part of the opinion of the IJ. We, therefore, do not review the IJ’s
conclusions. In any event, because the BIA has determined that Wowor did not suffer
persecution, the issue of whether the Indonesian government was complicit in his
persecution is without logical foundation.
Finally, we also conclude that, because Wowor failed to satisfy the lower statutory
burden of proof required for asylum, he has also necessarily failed to satisfy the clear
probability standard required for withholding of removal. Compare INS v. Stevic, 467
U.S. 407, 413 (1984) (holding that an applicant must establish a clear probability of
persecution for withholding of removal), with INS v. Cardoza-Fonseca, 480 U.S. 421,
449 (1987) (holding that an applicant must establish “a well founded fear” of persecution
to be eligible for asylum, which does not require the applicant to prove that it is more
8
likely than not that he will be persecuted); see also Ghebrehiwot v. Attorney General of
U.S., 467 F.3d 344, 351 (3d Cir. 2006) (“Because [the standard for withholding of
removal] is higher than that governing eligibility for asylum, an alien who fails to qualify
for asylum is necessarily ineligible for withholding of removal.”). We also conclude that
Wowor does not qualify for relief under the CAT because he has not established that it is
more likely than not that he will be tortured if removed.
III.
Accordingly, for the foregoing reasons, we will deny the petition.
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