Mei Ping Ie v. Atty Gen USA , 117 F. App'x 201 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-10-2004
Mei Ping Ie v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4288
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4288
MEI PING IE,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A79-309-103)
Submitted Under Third Circuit LAR 34.1(a)
November 29, 2004
Before: RENDELL, ALDISERT and MAGILL*, Circuit Judges.
(Filed: December 10, 2004)
OPINION OF THE COURT
* Honorable Frank J. Magill, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
RENDELL, Circuit Judge.
Ming Ping Ie 1 (“Ie”) petitioned this Court for review of the Attorney General’s denial of
her claims for asylum and relief from removal. W e have jurisdiction under 8 U.S.C. §
1252(a). For the reasons stated below, we will deny the petition for review.
I.
Ie, a native and citizen of Indonesia, entered the United States as a non-immigrant
visitor with authorization to remain in the country until March 16, 2001. Respondent’s
Br. at 2. When she remained beyond that time, she was placed in removal proceedings.
She conceded removability, but claimed eligibility for asylum and requested withholding
of removal as well as relief under the United Nations Convention Against Torture
(“CAT”) because of persecution in her home country on account of her Chinese ethnicity
and Catholic religious beliefs.
As we write solely for the parties, our recitation of the facts will be limited to those
necessary to our determination. In her application for asylum and at a hearing before the
Immigration Judge (“IJ”), Ie described multiple incidents which, she alleged, were
evidence of harassment as a result of her ethnicity and religious beliefs. These incidents
included being bullied as a child by other school children, robberies by persons she
believed to be ethnic Indonesian Muslims, and the destruction of her home and business
1
Ming Ping Ie’s son, Rikie Tjahjadi, is also a part of Ms. Ie’s petition for asylum
and withholding of removal, however, his claims are derivative of Ms. Ie’s. 8 U.S.C. §
1158(b)(3)(A).
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during widespread riots in Jakarta in M ay 1998.
The IJ found that Ie failed to establish her eligibility for asylum on the grounds that
there was no basis to conclude that Ie had suffered past persecution in her home country
or that she will suffer future persecution on the basis of her ethnicity or religion. Id. at
19. The IJ also held that Ie failed to demonstrate that she was under a discernable threat
of torture should she return to Indonesia and, therefore, failed to establish eligibility for
relief under the CAT. Id. at 19-20. The IJ’s order denying Ie’s application for asylum
and withholding of removal to Indonesia and denying her relief under the CAT was
affirmed without opinion by the Board of Immigration Appeals (“BIA”) pursuant to 8
C.F.R. § 1003.1(e)(4). Id. at 2. Ie then filed a petition for review with this Court alleging
that the IJ’s assessment of her claims of past persecution and her fear of future
persecution was not based on substantial evidence in the record.
II.
Where, as here, the BIA defers to the IJ’s opinion and affirms without opinion, we
review the IJ’s decision to address substantive challenges. Gao v. Ashcroft, 299 F.3d
266, 271 (3d Cir. 2002). Whether an applicant for asylum has demonstrated past
persecution, or a well-founded fear of future persecution, is a factual question which we
review under the substantial evidence standard. Id. at 272. We will uphold the IJ’s
decision if her conclusions are supported by “‘reasonable, substantial and probative
evidence on the record considered as a whole’” and will reverse “‘only if there is
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evidence so compelling that no reasonable factfinder could conclude as the [IJ] did.’”
Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003) (quoting Kayembe v. Ashcroft,
334 F.3d 231, 234 (3d Cir. 2003)).
III.
To qualify for a grant of asylum, Ie must prove that she meets the statutory
definition of a refugee, i.e., that she is an alien who is unable or unwilling to return to her
home country “because of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). To qualify for withholding of removal, Ie must
show that, if deported, there is a “clear probability” that she will be persecuted on account
of a specified ground, in this case ethnicity or religion, if returned to Indonesia. See
Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). This standard requires a showing
that “it is more likely than not that the alien would be subject to persecution” upon return
to the alien’s home country. INS v. Stevic, 467 U.S. 407, 424 (1984).
IV.
The IJ found that none of the incidents reported by Ie rose to the level of
persecution required for a grant of asylum. While Ie testified to incidents of alleged
discrimination from her childhood to adulthood, she failed to establish that these incidents
were motivated by animus towards her ethnicity or religion. In each of her confrontations
with ethnic Indonesians, her assailants apparently demanded money or possessions, and
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every incident concluded without physical violence to Ie. Id. The IJ interpreted these
incidents as street crimes that “could happen anywhere in the world because a person
wanted something that was possessed by someone else,” rather than evidence of ethnic or
religious persecution. Id. at 18.
Regarding the 1998 riots in Jakarta which reportedly destroyed Ie’s home and
shop, Ie was not in the city when the riots occurred and was never in immediate physical
danger. Id. at 17. While Ie testified she did not rebuild after the riots for fear of a
recurrence, she did remain in the country, without similar incident, for two years before
leaving Indonesia for the United States. Since the 1998 riots, there have been favorable
changes in Indonesia directed at improving religious and ethnic tolerance. Id. at 71-73.
These changes included the repeal on government prohibitions on teaching the Chinese
language and celebration of the Chinese New Year as well as a decrease in racially
motivated attacks in Indonesia. Id. Ie also has an adult son who still lives in Jakarta. Id.
at 74-75, 87-88 & 91. He is of ethnic Chinese descent and a Catholic, like Ie, but he
continues to reside in Indonesia apparently without any problems or indication that he
wishes to flee the country for fear of ethnic or religious persecution. Id.
Based on the evidence presented, the IJ concluded that Ie failed to demonstrate
past persecution on the basis of her ethnicity or religious beliefs and was not entitled to a
presumption of future persecution. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d
Cir. 2003). Without such a presumption, Ie must present evidence to establish a
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“well-founded fear of future persecution” by showing “that she has a genuine fear, and
that a reasonable person in her circumstances would fear persecution if returned to her
native country.” Gao, 299 F.3d at 272. This subjective fear of future persecution must be
“supported by objective evidence that persecution is a reasonable possibility.” Chang v.
INS, 119 F.3d 1055, 1066 (3d Cir. 1997). The IJ found that Ie failed to present objective
evidence to establish a reasonable fear of future persecution on the basis of her ethnicity
or religion, and failed to establish her eligibility for a grant of asylum.
The standard for eligibility for withholding of removal is more exacting than that
for asylum. Zubeda, 333 F.3d at 469-70. Having failed to establish a well-founded fear
of persecution required for a grant of asylum, by definition, Ie has also failed to establish
the clear probability of persecution required for withholding of removal. Id.V.
There is substantial evidence to support the IJ’s denial of Ie’s application for
asylum and withholding of removal. For the foregoing reasons, we will DENY the
petition for review of the decision of the Board of Immigration Appeals.
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