Loren v. Atty Gen USA , 219 F. App'x 180 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-26-2007
Loren v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5235
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5235
BILL LOREN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
ON PETITION FOR REVIEW FROM THE DECISION OF
THE BOARD OF IMMIGRATION APPEALS
(BIA No. A96-262-735)
Immigration Judge: Miriam K. Mills
Submitted Under Third Circuit LAR 34.1(a)
February 2, 2007
Before: BARRY and ROTH, Circuit Judges,
and IRENAS, District Judge*
(Filed: February 26, 2007)
OPINION
IRENAS, Senior District Judge.
*
The Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
Petitioner Bill Loren appeals the order of the Board of Immigration Appeals
(“BIA”) affirming the Immigration Judge’s (“IJ”) opinion and order denying Loren’s
application for withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the United
Nations Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading
Treatment or Punishment (“CAT”).1 Pursuant to 8 U.S.C. § 1252, we have jurisdiction
over this timely petition for review of the BIA’s final determination. For the reasons set
forth below, we will deny the petition.
I.
Loren is an Indonesian citizen of Chinese ethnicity. He is also a Christian. He
entered the United States in July, 2001, overstayed his visitor visa, and removal
proceedings were instituted against him. After conceding removability, Loren asserted
withholding of removal and CAT claims at the removal hearing. Loren claims that if he
returns to Indonesia, he will face persecution and torture because of his Chinese ethnicity
and his religion.
Loren relies on five incidents which he asserts collectively cause him to fear
torture upon returning to Indonesia. First, sometime in 1988,2 seven unidentified men
robbed his parents, taking a watch and a necklace. The assailants beat his father, kicked
his mother, and threatened them with further harm if they reported the incident to the
1
CAT has been implemented by regulations codified at 8 C.F.R. §§ 208.16 and
208.18.
2
Loren was nine years old at the time.
2
police.
The second incident allegedly occurred in 1993. Loren’s affidavit in support of his
claims stated that he was hosting a group from church at his parents’ house when
unidentified people outside the house chanted Islamic slogans and threw stones at the
house. The next day, a neighborhood representative allegedly warned Loren’s father not
to host any more Christian meetings or else he should not “blame the Moslems if
something happens to your family.” However, as the Immigration Judge noted, Loren
recanted at the removal hearing, denying that he ever held such a meeting.
Third, Loren states that in 1996, two unidentified native Indonesians knocked him
off of his motorbike, kicked him, and stole his wallet and motorbike. The extent of his
injuries is not clear from the record.
Fourth, Loren asserts that two unidentified men threatened at knife point his
parents, his brother, and his aunt while attempting to deposit money in a bank in 1998.
The men also stole his aunt’s handbags.3 Loren states that the incident was reported to
law enforcement but nothing happened.
Lastly, while at college in 2000, Loren states that four young men beat him and
warned him not to be so arrogant as an ethnic Chinese. The extent of his injuries are not
3
The IJ’s opinion is somewhat unclear as to whether the assault and robbery on
Loren’s family members in 1998 occurred in one incident or two separate incidents; one
primarily involving Loren’s father, and another primarily involving Loren’s aunt. The
distinction, however, has no effect on the disposition of this case.
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clear from the record.4
The IJ denied both the withholding of removal claim and the CAT claim,5 holding
that Loren had not sufficiently established that he “will, more likely than not, be harmed
if he returns to Indonesia based on his ethnicity or religion.” The BIA affirmed.
The present petition seeks review of the BIA’s decision with regard to both the
withholding of removal and the CAT claims. For the reasons stated below, we will deny
the petition.
II.
The BIA’s order adopted the IJ’s decision and, in a few short sentences, explained
its decision. Thus, we review the BIA’s decision and the IJ’s opinion to the extent it was
adopted by the BIA. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005); Gao v.
Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). Factual determinations, such as whether an
applicant seeking withholding of removal demonstrated past persecution or threat of
future persecution, are reviewed for substantial evidence. Gao, 299 F.3d at 272. Denials
of CAT relief are also subject to substantial evidence review. Zubeda v. Ashcroft, 333
F.3d 463, 471 (3d Cir. 2003).
“If a reasonable fact finder could make a particular finding on the administrative
record, then the finding is supported by substantial evidence. Conversely, if no
4
Loren also relied upon the Country Report on Human Rights Practices for 2003 and
the International Religious Freedom Report for 2003.
5
Loren initially asserted an asylum claim before the IJ, see 8 U.S.C. § 1158, but
withdrew it because it was time-barred.
4
reasonable fact finder could make that finding on the administrative record, the finding is
not supported by substantial evidence.” Berishaj v. Ashcroft, 378 F.3d 314, 322-23 (3d
Cir. 2004) (quoting Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)(en banc)).
III.
A.
An applicant is entitled to withholding of removal if he demonstrates a clear
probability that his life or freedom will be threatened on account of his race, religion,
nationality, membership in a particular social group, or political opinion. 8 U.S.C.
§ 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407, 413 (1984); Toure v. Atty. Gen. of the
U.S., 443 F.3d 310, 317 (3d Cir. 2006). The question under this standard is whether it is
more likely than not that the applicant would be subject to persecution. Toure, 443 F.3d
at 317 (quoting Stevic). An applicant can establish eligibility for withholding of removal
either by demonstrating past persecution or by showing a likelihood of future persecution.
8 C.F.R. § 1208.16(b). “Persecution” is “‘extreme conduct’” such 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, 534, 536 (3d Cir. 2005) (quoting Fatin
v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)).
In Lie, this Court held that an Indonesian asylum applicant of Chinese origin failed
to submit sufficient evidence in support of her claims that she had suffered past
persecution because she had failed to establish that the two robberies of which she was
the victim were “on account of,”--i.e., motivated by-- her ethnicity, and were sufficiently
5
serious to amount to persecution. Lie, 396 F.3d at 535-36. The robberies described in Lie
are similar to the incidents that Loren and his family experienced. In both cases, the
incidents were unrelated, isolated criminal acts perpetrated by unknown assailants. In
both cases, the assailants uttered a single ethnic slur. Indeed, a majority of the incidents
Loren relies upon neither involve any ethnic or religious slur nor show any other
indication that the assailants were motivated by Loren’s ethnicity or religion. For
example, as the IJ observed, the assault and robbery in 1998 “was not shown to be
anything other than crime for economic gain.”
Thus, we conclude that the BIA’s determination that Loren had not suffered past
persecution or is more likely than not to suffer future persecution on account of his
ethnicity or religion was supported by substantial evidence. Loren’s case is even more
clear than Lie. Lie asserted an asylum claim, which has a lower burden of proof than
Loren’s burden with respect to his withholding of removal claim. Chen v. Ashcroft, 376
F.3d 215, 223 (3d Cir. 2004) (contrasting burdens of proof for asylum and withholding of
removal claims and explaining, “[a]n alien who fails to establish that he or she has a
well-founded fear of persecution, so as to be eligible for a grant of asylum, necessarily
will fail to establish the right to withholding of removal”).
Accordingly, we hold that the denial of withholding of removal was supported by
substantial evidence.
B.
A CAT applicant must establish that “it is more likely than not” that he will be
6
tortured if removed to the proposed country of removal. 8 C.F.R. § 208.16(c)(2). In
other words, the applicant has the burden to demonstrate “a greater than 50% probability
that he would face torture.” Kamara v. Atty. Gen. of the U.S., 420 F.3d 202, 213-14 (3d
Cir. 2005). “Torture is defined as any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person . . . by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1)(emphasis added).
We hold that the denial of CAT protection was supported by substantial evidence
because Loren presented no evidence of any governmental involvement in the incidents
he recounts. He testified at the removal hearing that he did not even report the 2000
incident to authorities. Moreover, Loren did not submit any evidence that any Indonesian
official acquiesced in the attacks which he asserts amounted to torture.
Accordingly, we hold that the denial of CAT relief was supported by substantial
evidence.
IV.
Based on the foregoing, we will deny Loren’s Petition for Review in its entirety.
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