Alexandra v. Atty Gen USA , 278 F. App'x 112 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-14-2008
Alexandra v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2849
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IMG-089 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2849
JOHANS ALEXANDRA,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. 79-734-450)
Immigration Judge: Honorable Rosalind K. Malloy
Submitted Under Third Circuit LAR 34.1(a)
May 14, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
Opinion filed: May 14, 2008
OPINION
PER CURIAM
Petitioner, Johans Alexandra, petitions for review of a final order of the Board of
Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.
Alexandra is a native and citizen of Indonesia who entered the United States on
September 13, 2000, on a non-immigrant visa. Alexandra remained beyond his
authorized period and was served with a Notice to Appear on March 20, 2003, charging
him as an overstay in violation of section 237(a)(1)(B) of the Immigration and Nationality
Act (“INA”). Alexandra, through counsel, conceded the removal charge and sought relief
on December 2, 2003 in the form of asylum, withholding of removal and protection under
the Convention Against Torture (“CAT”), claiming that he had suffered persecution in the
past on account of his ethnicity (Chinese) and religion (Catholic), and that he fears
persecution in the future.
In an Oral Decision and Order issued on February 7, 2006, the Immigration Judge
(“IJ”) denied Alexandra the relief requested, but granted him voluntary departure. The IJ
concluded that petitioner’s asylum application was untimely filed, and that the
explanations offered (i.e., he did not speak English and was ignorant of the asylum
process) did not amount to extraordinary circumstances sufficient to excuse the delay.
Accordingly, Alexandra was only eligible to pursue his applications for withholding of
removal and CAT relief. To that end, the IJ recounted the various incidents that
petitioner relied upon to support his claims.
Initially, petitioner asserted that, since “his father’s era,” there has been
discrimination of the ethnic Chinese in Indonesia. In response to a request for specific
incidents experienced by him personally, Alexandra alleged that he was frequently
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harassed by native Indonesians who approached him on the street asking for money.
Petitioner recounted the earliest incident of harassment that he could remember, stating
that a friend of his was punched by a few Muslim students when they were in Junior High
School for refusing to give up money. On other occasions, gangs of ethnic Indonesians
would stop in front of his house and demand money while threatening to burn his house
down if he did not give it to them. On no occasion, however, was petitioner ever
physically injured. Finally, Alexandra testified that he had owned a small grocery store
which he eventually had to close because of financial problems, including the high taxes
that were imposed by the government.
While finding no credibility problems with Alexandra, the IJ nonetheless
concluded that the actions taken against petitioner – even if asserted in a timely filed
asylum petition – did not fall within the contours of the law regarding persecution. The IJ
recounted Alexandra’s testimony that he was never harmed on account of his ethnicity or
his religion, nor was he ever prevented from practicing his religion. The IJ further placed
emphasis on a submission by petitioner’s father which indicated that Alexandra came to
the United States to find work after his grocery store went bankrupt. To this the IJ
factored in petitioner’s testimony that all of his family members (including his four
siblings and his adult son born of his first marriage) were ethnic Indonesians and
Christian, with some being Catholic, and that all remained in Indonesia without having
suffered any harm on account of a protected ground. Finally, the IJ noted that, while
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problems still remained and extremist Muslims still exist, the government of Indonesia
has taken steps to fully integrate the Chinese population into Indonesian society and has
recognized Catholicism as one of the five major religions in that country. Accordingly,
the IJ concluded that she could not find that Alexandra suffered past persecution, nor did
he demonstrate that there is a clear probability he would be harmed upon return to
Indonesia. Given the total lack of any allegations of torture, his CAT request was denied
as well. Petitioner was, however, granted voluntary departure.
The BIA affirmed the IJ’s decision. The BIA first noted that Alexandra did not
challenge on appeal the IJ’s determination that his asylum application was untimely filed.
The BIA, citing to this Court’s decision in Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005),
noted its agreement with the IJ’s determination that the events petitioner described do not
reach the level of past persecution nor establish a clear probability that Alexandra would
be harmed in Indonesia on account of his ethnicity or religion. The BIA further
concluded that Alexandra offered no controlling precedential decision to support his
position that there is currently a pattern or practice of persecution against ethnic Chinese
Catholics in Indonesia. Accordingly, the BIA dismissed petitioner’s appeal. Alexandra
has filed a petition for review of the BIA’s order.
We have jurisdiction over the petition pursuant to 8 U.S.C. § 1252(a)(1). Our
review of the BIA and IJ’s decisions, see Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.
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2004), is limited to the issues relating to the denial of withholding of removal.1 We
review questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n.2 (3d Cir.
2001). Factual findings are reviewed for substantial evidence. See Butt v. Gonzales, 429
F.3d 430, 433 (3d Cir. 2005).
The INA mandates withholding of removal of an alien whose life or freedom
would be threatened on account of a protected ground (such as his ethnicity or religion).
8 U.S.C. § 1231(b)(3)(A). To obtain mandatory withholding of removal under the INA,
Alexandra must “establish by a ‘clear probability’ that [his] life or freedom would be
threatened in the proposed country of deportation.” Zubeda v. Ashcroft, 333 F.3d 463,
469 (3d Cir. 2003). A “‘[c]lear probability’ means that it is ‘more likely than not’ that an
alien would be subject to persecution.” Id.
Alexandra initially argues that the IJ erred by failing to define what constitutes
persecution. With respect to this contention, we must agree with respondent’s position
that the IJ is not required to provide definitions for the legal terms set forth in a decision.
Additionally, to the extent that Alexandra is actually attempting to challenge the BIA’s
decision to uphold the IJ’s findings that the incidents he experienced did not rise to the
1
Not only are we statutorily precluded from reviewing the determination that the
asylum application is untimely, see Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.
2006), but also Alexandra, despite a few references to basic “asylum law” in his opening
brief, has waived his claims for asylum and CAT relief. See Fed. R. App. P. 28(a)(8)-(9);
Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (“When an issue is either not set forth in
the statement of issues presented or not pursued in the argument section of the brief, the
appellant has abandoned and waived that issue on appeal.”).
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level of past persecution for purposes of granting his request for withholding of removal,
we can find no fault with those determinations given the specifics of the incidents upon
which Alexandra’s claim for relief rests. See Lie, 396 F.3d at 536. “[T]his court has held
that persecution connotes extreme behavior, including ‘threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom.’” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003), quoting Fatin v. INS,
12 F.3d 1233, 1240 (3d Cir. 1993). While Alexandra’s complaints of discrimination and
minor criminal acts against him, as well as his friends and family are disturbing, the
record does not compel a conclusion contrary to that reached by the agency. Alexandra
himself essentially conceded that he has not experienced anything amounting to
persecution. See A.R. 42-43; 130; 131 (“So it, truly, nothing happened to me as far as
persecution or being hit, but mostly money demand [by street gangs]....”. Alexandra thus
failed to prove that he suffered past persecution and that he consequently would face an
individualized risk of persecution on return to Indonesia. See Jarbough v. Attorney
General, 483 F.3d 184, 191 (3d Cir. 2007) (“Abusive treatment and harassment, while
always deplorable, may not rise to the level of persecution.”); Lie v. Ashcroft, 396 F.3d at
536 (holding that isolated, criminal acts do not rise to the necessary level of persecution).2
Alexandra also contends that the IJ and BIA failed to consider whether a pattern or
2
As in Lie, Alexandra’s fear of persecution is further undermined by the fact that he
has family members, including a son, who safely remain in Indonesia. Cf., 396 F.3d at
537.
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practice of persecution of Chinese Christians exists. The IJ, however, specifically noted
that Alexandra would be entitled to withholding of removal if he could establish the
existence of a pattern or practice of persecution, see A.R. at 50-51, but ultimately
determined that the evidence presented in this case did not warrant such a conclusion. Id.
at 58-59. It was petitioner’s obligation to demonstrate a “pattern or practice of
persecution of a group of persons similarly situated to the applicant. . . .” 8 C.F.R. §
208.16(b)(2)(i). The Administrative Record contains, inter alia, various proffered
Department of State Reports for 2002 through 2004 concerning the treatment of ethnic
Chinese Christians in Indonesia. See A.R. 181-192, 193-207, 351-379, and 380-393. The
IJ considered the reports. See I.J.’s Oral Decision at 21-23, A.R. 58-60. See also BIA’s
Order at 1-2, A.R. 2-3. Although the IJ recognized that there exists discrimination against
the Chinese and that a group of extremist Muslims continues with its attempt to make
Indonesia a Muslim country, she implicitly found that the evidence did not support a
“pattern or practice” finding. Given the IJ’s findings, the BIA upheld that determination
in the absence of any controlling precedential decision to the contrary.
While we have not conclusively addressed whether a pattern or practice of
persecution of ethnic Chinese Christians in Indonesia exists at the present time, see
Sukwanputra v. Gonzales, 434 F.3d 627, 637 n.10 (3d Cir. 2006), the IJ could reasonably
conclude that these later Department of State Reports do not reflect a pattern or practice
of persecution of ethnic Chinese Christians. The State Department’s 2004 Report on
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Human Rights Practices in Indonesia – the most recent official report in the record –
notes that “[t]he Government officially promotes racial and ethnic tolerance,” and the
“[i]nstances of discrimination and harassment of ethnic Chinese Indonesians declined
compared with previous years.” A.R. 205. Similarly, while the 2004 State Department
Report on International Religious Freedom discusses instances of inter-religious violence
between Christians and Muslims in Indonesia, it also notes that “[s]ome notable advances
in interreligious tolerance and cooperation occurred,” A.R. 181, and that “the
Government made significant efforts to reduce interreligious violence.” A.R. 187.
Although Alexandra submitted other record evidence indicating that conditions remain
dire throughout Indonesia for individuals similarly situated, this evidence does not
compel reversal of the BIA’s decision. The agency acted within its discretion in choosing
to give greater weight to the State Department’s assessment of prevailing conditions in
the country. Because the evidentiary record does not compel a contrary conclusion, see
Elias-Zacarias, 502 U.S. at 481 n.1, the decision rests upon substantial evidence.
Accordingly, for the foregoing reasons, we will deny the petition for review.
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