Wongso v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-2-2008
Wongso v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3494
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3494
___________
CHARLES WONGSO;
SWANDAJANI,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A96-262-256, A96-262-257)
Immigration Judge: Honorable Donald Vincent Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 25, 2008
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed July 2, 2008 )
___________
OPINION
___________
PER CURIAM
Charles Wongso and FNU Swandajani,1 natives and citizens of Indonesia,
1
Petitioners refer to Swandajani throughout their brief as “Ms. Fnu.” “FNU” is the
commonly used abbreviation for “first name unknown.” We will refer to petitioner by the
petition for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing
their appeal of an immigration judge’s denial of their application for withholding of
removal and relief under the Convention Against Torture (“CAT”). For the following
reasons, we will deny the petition for review.
Petitioners Wongso and Swandajani are ethnically Chinese and Christians. They
are married to each other and have two children who were born here in the United States.
Petitioners were admitted to the United States in 1998 as non-immigrant visitors with
authorization to remain until May 1999, but never left. In April 2003, the Department of
Homeland Security issued Notices to Appear charging petitioners with being subject to
removal under the Immigration and Nationality Act § 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B), for remaining in the United States beyond the authorized period.
Petitioners admitted the factual allegations in the notices, conceded removability, and
applied for asylum, withholding of removal, and protection under CAT. Petitioners
subsequently withdrew their asylum applications, which were untimely.
In support of his application for withholding of removal and protection under
CAT, Wongso testified that he was frequently insulted, pushed, and hit by Muslims when
he was growing up. Wongso also alleged that he was unable to attend college because the
colleges in Indonesia charged higher fees for Chinese students. In 1996, Wongso was
hospitalized after he was assaulted by a group of Muslims who stole his motorcycle. In
name used at the immigration hearing, Swandajani.
2
1997, his parents’ store was burned and looted and the family home was also burned
during a riot. Wongso’s father was hit until he was unconscious. Wongso testified that
he never had any problems in Indonesia due to his Christian religion. Wongso said that
he left Indonesia because he feared a recurrence of the May 1998 riots.
Swandajani testified that she was also insulted as a child by Muslims. In 1989, she
was orally insulted about her Chinese ethnicity by a group of Muslims while returning
home from church. That same year, a group of Muslims demanded money from her and
spit on her when she refused. Another time, some Muslims again demanded money from
her and pulled her hair after she refused. Swandajani’s parents’ grocery store was burned
down in May 1998 during riots in the town of Ngawi. Like her husband, Swandajani
testified that she never had any problems in Indonesia due to her Christian religion.
Swandajani claimed that she feared she may be killed by Muslims if she returns to
Indonesia.
On May 2, 2005, following a hearing, the IJ denied petitioners’ applications for
relief. The IJ found that petitioners had testified credibly, but had not proven any past
persecution or the clear probability of future persecution. The IJ found that the insults
petitioners’ recounted did not rise to the level of persecution. In addition, the IJ found
that the incidents where Muslims accosted petitioners on the street and demanded money
did not occur on account of their ethnicity or their religion. Rather, the IJ found that the
assailants were motivated by the desire to rob petitioners of money. The IJ also found
3
that, even if the monetary demands were motivated by an enumerated ground, these
actions did not rise to the level of persecution. With respect to the damage to their
parents’ homes and stores, the IJ concluded that these were “isolated criminal acts,
perpetrated by unknown assailants” that did not constitute persecution. The IJ further
found that petitioners failed to prove that there was a clear probability that they would be
singled out for persecution or that there exists a pattern or practice of persecution of
ethnic Chinese Christians. The IJ rejected petitioners’ CAT claim, but granted their
applications for voluntary departure.
Petitioners appealed and the BIA remanded the record because of an incomplete
transcription of the hearing. When the transcript was completed, the record was returned
to the BIA. The BIA then dismissed the appeal. The BIA concluded that petitioners
failed to show that the IJ erred in finding that they did not establish past persecution. The
BIA held that the incidents petitioners described did not rise to the level of persecution
because they lacked severity or they were isolated acts of criminal conduct. The BIA
further concluded that the evidence of record, specifically the 2004 Country Report for
Indonesia, indicated that instances of discrimination and harassment of ethnic Chinese
Indonesians had declined compared with previous years. In addition, the BIA observed
that petitioners’ siblings and parents continued to live and work in Indonesia without
incident. Accordingly, the BIA held that petitioners had not shown “a reasonable
possibility much less a likelihood of persecution on this record.” The BIA affirmed the
4
IJ’s grant of voluntary departure. Petitioners timely appealed from the BIA’s order
dismissing their appeal.
We have jurisdiction to review final orders of the BIA under section 2424(a)(1) of
the INA, 8 U.S.C. § 1252(a)(1). Where, as here, the BIA issued a decision on the merits
and not simply a summary affirmance, we review the BIA’s, not the IJ’s, decision. See
Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We must uphold the BIA’s factual
findings if they are “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We
should find substantial evidence lacking only where the evidence “was so compelling that
no reasonable factfinder could fail to find the alien eligible for asylum or withholding of
removal.” Id. at 483-84; see also 8 U.S.C. § 1252(b)(4)(B).
The Attorney General must grant withholding of removal if he “decides that the
alien’s life or freedom would be threatened” in the country of removal “because of the
alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of proving that he will
more likely than not face persecution on account of a protected ground. See INS v.
Stevic, 467 U.S. 407, 429-30 (1984). “To meet this test, the alien must demonstrate that
there is a greater-than-fifty-percent chance of persecution upon his or her return.”
Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). If the alien can demonstrate past
persecution, then that finding will raise a rebuttable presumption that the alien’s “life or
5
freedom would be threatened in the future . . . .” 8 C.F.R. § 1208.16(b)(1)(i). Past
persecution requires proof of “(1) one or more incidents rising to the level of persecution;
(2) that is ‘on account of’ one of the statutorily-protected grounds; and (3) is committed
either by the government or by forces that the government is either unable or unwilling to
control.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Under our cases,
“‘persecution’ is an extreme concept that does not include every sort of treatment our
society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir.1993). It
encompasses only grave harms such as “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom.” Id. at 1240.
Persecution “does not include all treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003)
(internal quotation omitted).
An applicant who has not suffered past persecution may demonstrate that his or her
life or freedom would be threatened in the future if the applicant establishes that there is a
pattern or practice 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. 8 C.F.R. § 208.16(b)(2)(i). To qualify as a “pattern or practice,” the
persecution must be “systemic, pervasive, or organized.” Lie v. Aschcroft, 396 F.3d 530,
537 (3d Cir. 2005).
To prevail on a CAT claim, an applicant must “establish that it is more likely than
6
not that he or she would be tortured if removed to the proposed country of removal.” 8
C.F.R. § 208.16(c)(2). See also Toure v. Attorney General of the United States, 443 F.3d
310, 317 (3d Cir. 2006).
The BIA’s conclusion that petitioners failed to establish past persecution is
supported by substantial evidence in the record. On appeal, petitioners claim that they
suffered past persecution because they were regularly harassed, they were robbed, and
their parents’ homes and businesses were destroyed during separate riots in 1997 and
1998.2 Although the harm described by petitioners is unfortunate, it does not constitute
past persecution. See Lie, 396 F.3d at 536 (holding that an ethnic Chinese Indonesian’s
account of two isolated criminal acts by unknown assailants, which resulted only in the
theft of some personal property and a minor injury, was not sufficiently severe to
constitute persecution); Konan v. Attorney General, 432 F.3d 497, 506 (3d Cir. 2005)
(generalized lawlessness and violence between diverse populations is generally
insufficient to show past persecution); Fatin,12 F.3d at 1243 (“persecution is an extreme
concept that does not include every sort of treatment our society regards as offensive.”).
Moreover, as found by the BIA, petitioners testified that they did not encounter any
2
Petitioners also contend that they suffered past persecution because Wongso was
forced to take Muslim education classes and faced extortion when attempting to pay
college tuition or obtain government controlled documents. Petitioners did not make any
arguments based on these incidents before the BIA and therefore they are not properly
before us. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (holding
that this Court does not have jurisdiction to review arguments not raised before the BIA
because they are unexhausted).
7
problems in Indonesia based on their Christian religion.
Petitioners also failed to demonstrate that they would more likely than not face
persecution on account of a protected ground. On appeal, petitioners argue that they are
members of a group of similarly situated persons who are subject to persecution because
they are ethnic Chinese Christians. The record does not show that the treatment of ethnic
Chinese Christians in Indonesia is the result of government action or acquiescence, or that
it constitutes a pattern or practice of persecution. We have held that violence directed
against Chinese Christians in Indonesia “does not appear to be sufficiently widespread as
to constitute a pattern or practice,” Lie, 396 F.3d at 537, and petitioners failed to adduce
evidence that would have warranted a contrary conclusion in this case. Indeed, the 2004
Country Report relied on by the BIA indicated that instances of discrimination and
harassment of ethnic Chinese had declined compared with previous years.
Petitioners’ argument that their due process rights were violated because the BIA
failed to review the entire record and made little more than a cursory evaluation of their
claims is without merit. The BIA’s opinion evidences its consideration of the individual
circumstances of the petitioners’ applications. See Abdulai v. Ashcroft, 239 F.3d 542,
550 (3d Cir. 2001).
Finally, with respect to their CAT claim, petitioners have failed to demonstrate that
they are likely to be tortured by, or with the acquiescence of, government officials if
removed to Indonesia. See 8 C.F.R. §§ 1208.16(c),1208.18(a).
8
For the foregoing reasons, we will deny the petition for review.