Lolong v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARJORIE KONDA LOLONG, 
Petitioner, No. 03-72384
v.
 Agency No.
A77-427-355
ALBERTO GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 5, 2004—San Francisco, California
Filed March 18, 2005
Before: Betty B. Fletcher, John T. Noonan, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Betty Binns Fletcher
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
3343
LOLONG v. GONZALES 3345
COUNSEL
Hilari Allred, Law Office of Robert B. Jobe, San Francisco,
California, for the petitioner-appellant.
Lyle D. Jentzer, United States Department of Justice, Civil
Division, Office of Immigration Litigation, for the
respondent-appellee.
3346 LOLONG v. GONZALES
OPINION
B. FLETCHER, Circuit Judge:
Marjorie Konda Lolong seeks asylum. Immigration Judge
(“IJ”) Miriam Hayward granted relief, but the Board of Immi-
gration Appeals (“BIA”) reversed. We grant the petition for
review because compelling evidence establishes that Lolong
has a well-founded fear of future persecution on account of
her Chinese ethnicity were she returned to Indonesia. Specifi-
cally, Lolong has demonstrated that Indonesians of Chinese
ethnicity are a significantly disfavored group and that she is
particularly at risk because she is also a Christian and a
woman.
I.
Lolong has provided a voluminous record that documents
ongoing discrimination and violence against the ethnic Chi-
nese minority in Indonesia. We commented in detail on the
long history of ethnic Chinese-Indonesian persecution in a
similar case, Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004).
In Sael, we noted that there is a “cycle of waxing and waning
violence” against ethnic Chinese-Indonesians. Id. at 929. Dur-
ing periods of heightened social, economic, or political unrest,
anti-Chinese sentiment erupts into wide-scale, severe vio-
lence, but even during periods of “relative calm,” ethnic
Chinese-Indonesians suffer discrimination and harassment, as
well as violent attacks. Id. at 925-26, 929. When anti-Chinese
violence erupted in May 1998, over a thousand ethnic
Chinese-Indonesians were killed. Id. at 925-26.
Although the Indonesian government has made some over-
tures to the ethnic Chinese community, official anti-Chinese
discrimination persists, and various forms of anti-Chinese vio-
lence continue to occur. Numerous signs of economic, social,
and political instability indicate that more severe anti-Chinese
violence is likely to erupt again in the future. There is also
LOLONG v. GONZALES 3347
evidence that rogue elements within the armed forces con-
tinue to provide support to the nongovernmental forces that
are responsible for ethnic and religious persecution.
While all ethnic Chinese who remain in Indonesia face
some risk of future persecution, two sub-groups are particu-
larly at risk: ethnic Chinese women and Christians. Even dur-
ing periods of relative calm, ethnic Chinese women can
expect to be subjected to racial and sexual harassment when-
ever they leave their homes. During the 1998 riots, at least
dozens, possibly hundreds, of ethnic Chinese women were
systematically raped. None of the perpetrators have been
prosecuted. Should anti-Chinese sentiment erupt into more
severe outbreaks of violence again, women will most likely be
targeted again. Meanwhile, an Islamic fundamentalist move-
ment continues to gain strength in Indonesia, and inter-
religious conflict has been increasing. Not surprisingly, the
combination of religious intolerance and ethnic prejudice has
caused violent forces to target churches and homes in ethnic
Chinese communities.
Lolong left Indonesia after completing high school, because
quotas limit the number of ethnic Chinese who are admitted
to universities there. She was studying in the United States in
May 1998, when the worst anti-Chinese rioting in Indonesia’s
history occurred. After learning that one of her friends had
been raped and her uncle had been severely beaten, Lolong
decided to apply for asylum. In December 1998, Lolong filed
a timely application. On November 16, 2000, after conducting
an extensive hearing, Judge Hayward held that Lolong was
eligible for asylum. She found Lolong to be fully credible and
Lolong’s fear of future persecution on account of her ethnicity
to be both subjectively and objectively reasonable. Subse-
quently, in a divided opinion (2-1) the BIA sustained the Ser-
vice’s appeal and vacated the petitioner’s application for
asylum. Lolong timely petitioned for review.
We have jurisdiction over Lolong’s petition pursuant to 8
U.S.C. § 1252(a). Because the BIA issued a reasoned opinion
3348 LOLONG v. GONZALES
after conducting its own review of the record, we review the
BIA’s decision for substantial evidence. Andriasian v. INS,
180 F.3d 1033, 1040 (9th Cir. 1999). In doing so, we accept
Lolong’s testimony as true. Navas v. INS, 217 F.3d 646, 652
n.3 (9th Cir. 2000) (“Where the BIA does not make an
explicit adverse credibility finding, we must assume that the
applicant’s factual contentions are true.”).
II.
[1] In order to be eligible for asylum, Lolong must establish
that she is a refugee—a person unable or unwilling to return
to Indonesia “because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion.” Sael,
386 F.3d at 924; 8 U.S.C. § 1101(a)(42)(A). The source of the
persecution must be the government or forces that the govern-
ment is unwilling or unable to control. Mashiri v. Ashcroft,
383 F.3d 1112, 1119 (9th Cir. 2004).
To be “well-founded,” an asylum applicant’s “fear of per-
secution must be both subjectively genuine and objectively
reasonable.” Sael, 386 F.3d at 924. “An applicant satisfies the
subjective component by credibly testifying that she genu-
inely fears persecution.” Id. (internal quotation marks and
citation omitted). Lolong satisfied this requirement with her
credible testimony that she fears being hurt, raped, or killed
in Indonesia.
An asylum applicant “generally satisfies the objective com-
ponent in one of two ways: either by establishing that she has
suffered persecution in the past or by showing that she has a
good reason to fear future persecution.” Id. While a well-
founded fear must be objectively reasonable, it “does not
require certainty of persecution or even a probability of perse-
cution.” Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir.
2003). “Even a ten percent chance that the applicant will be
persecuted in the future is enough to establish a well-founded
LOLONG v. GONZALES 3349
fear.” Sael, 386 F.3d at 925 (quoting Knezevic v. Ashcroft,
367 F.3d 1206, 1212 (9th Cir. 2004)).
[2] If not relying on a showing of past persecution, an asy-
lum applicant’s fear of future persecution may be based on
either individualized or group-based risk of persecution.1 See,
e.g., Hoxha, 319 F.3d at 1182-83. Where an applicant estab-
lishes that she is a member of a mistreated group, the level of
individualized targeting that she must show is inversely
related to the degree of persecution directed toward that group
generally. Id. Accordingly, if an applicant demonstrates that
she is a member of a group against which there is “a pattern
or practice” of persecution, she need not further prove that she
would be singled out for persecution. 8 C.F.R.
§ 208.13(b)(2)(iii); Kotasz v. INS, 31 F.3d 847, 852-53 (9th
Cir. 1994). If the applicant demonstrates that she is a member
of a “disfavored group,” but the group persecution does not
rise to the level of a pattern or practice of persecution, then
the applicant must also demonstrate that she is more likely to
be targeted as a member of that group. Sael, 386 F.3d at 925
(collecting cases).
A.
[3] In Sael, we found that the long history of anti-Chinese
discrimination, harassment, threats, and violence in Indonesia
established that ethnic Chinese-Indonesians are “at least a dis-
favored group.” 386 F.3d at 929. We stopped short of finding
a “pattern or practice of persecution” against ethnic Chinese-
Indonesians because of two statements in the record — “one
that the Indonesian government officially promotes ethnic tol-
erance and a second that racially motivated attacks against
ethnic Chinese dropped sharply in 1999.” Id. (quotation marks
omitted). We nonetheless concluded that these statements had
1
The IJ found that Lolong experienced harassment and discrimination
but concluded that these past experiences did not amount to past persecu-
tion. Lolong does not challenge this finding.
3350 LOLONG v. GONZALES
little relevance to Sael’s asylum claim when compared to the
voluminous evidence of continuing official discrimination and
a centuries-old pattern in which anti-Chinese sentiment erupts
into severe violence during periods of social, political or eco-
nomic unrest. Id.
Lolong has provided substantial evidence that the Indone-
sian government, despite its official position on ethnic toler-
ance, continues to discriminate against ethnic Chinese-
Indonesians. For example, the Indonesian government contin-
ues to enforce quotas limiting the number of ethnic Chinese
that can be admitted into universities; Chinese culture remains
excluded from school curriculums; and “[e]thnic Chinese con-
tinue to face discrimination, particularly when they deal with
the bureaucracy.” Although the government has begun turning
a “blind eye” to the distribution of Chinese language media,
the discriminatory laws prohibiting it remain in place.
The record further establishes that anti-Chinese attacks and
rioting are not only continuing to occur frequently but also are
spreading to areas where anti-Chinese violence has been his-
torically rare. Indeed, the Indonesian government’s decision
to permit Chinese language press and cultural displays has
caused heightened resentment and acts of retaliation. Dr. Syl-
via Tiwon, a professor of Southeast Asian Studies at the Uni-
versity of California at Berkeley whose research focuses on
Indonesia,2 testified as an expert witness at Lolong’s hearing;
she observed that there have been numerous attacks on Chi-
nese and Christian cemeteries and explained that “retaliation
against the . . . Chinese-Indonesian and the Christians hasn’t
just taken place at . . . official and publicly seen levels.” Simi-
larly, Lolong testified to receiving reports that a Chinese New
Year celebration in Solo, Central Java, was attacked. At the
time of Lolong’s immigration hearing, an ethnic Chinese
2
Dr. Tiwon has also conducted training sessions to acquaint asylum
officers in the San Francisco office with conditions in Indonesia.
LOLONG v. GONZALES 3351
human rights activist had been missing for two weeks; “disap-
pearances” of activists are not uncommon in Indonesia.
Even rioting that is not initially sparked by ethnic prejudice
usually degenerates into anti-Chinese violence. For example,
in May 2000, on the two-year anniversary of the infamous
anti-Chinese riots that took place in May 1998, a clash
between illegal vendors and police erupted into rioting;
although it does not appear that anti-Chinese sentiment was
the initial cause of the rioting, the mobs quickly turned on
shops owned by ethnic Chinese. Ethnic Chinese women were
attacked, ethnic Chinese-owned businesses were looted and
destroyed. The expert witness explained that general rioting
will continue to “turn into rioting against the Chinese”
because they “have been the traditional scapegoats” and
because the ethnic Chinese “are easily identified.”
During the pendency of Lolong’s immigration hearing,
both the Service and Lolong introduced numerous articles
describing conditions in Indonesia. The expert witness was
given the opportunity to review and comment upon these
reports. She also provided information that she has gathered
during her own research visits to Indonesia. She explained
how the information in these reports, taken together, demon-
strate that economic, social, and political conditions continue
to be highly volatile. She also explained that continued insta-
bility increases the probability that more severe outbreaks of
anti-Chinese violence will erupt again in the future. She testi-
fied that interviews she conducted with non-Chinese-
Indonesians in 2000 reveal that ethnic Chinese-Indonesians
continue to be scapegoated for the country’s widespread pov-
erty and other economic problems.
In Sael, we held that because ethnic Chinese-Indonesians
are “significantly disfavored,” asylum applicants who prove
that they are members of that group must demonstrate a
“comparatively low” level of particularized risk. 386 F.3d at
927. At a minimum, Lolong’s new evidence of ongoing dis-
3352 LOLONG v. GONZALES
crimination and violence, coupled with expert testimony sug-
gesting that larger-scale outbreaks of violence are likely to
occur again in the future, further lowers the level of particu-
larized risk that Lolong must demonstrate in order to prove
that her fear of future persecution is well-founded. Lolong’s
evidence may even be strong enough to support a finding of
a “pattern or practice” of persecution against ethnic Chinese
in Indonesia within the meaning of 8 C.F.R. § 208.13(b)
(2)(iii) (i.e. a pattern of persecution that negates the need for
Lolong to make an additional showing of particularized risk).3
However, we need not decide whether the pattern of persecu-
tion against ethnic Chinese-Indonesians rises to that level
because the record compels us to conclude that Lolong has
demonstrated sufficient particularized risk to support her asy-
lum claim.
[4] Although an asylum applicant may meet her
particularized-risk burden by proving that she had past experi-
ences that “establish a sufficient personal connection to the
general persecution directed against” the disfavored group of
which she is a member, Sael, 386 F.3d at 929, she may also
meet this burden by proving she is a member of a sub-group
that faces a heightened risk of future persecution. See Kotasz,
31 F.3d at 854 (explaining that the INS erred in construing the
terms “individualized” and “singled out” literally). Even
where members of a
disfavored group[ ] are not threatened by systematic
persecution of the group’s entire membership, the
fact of group membership nonetheless places them at
3
Although the pattern or practice of persecution against ethnic Chinese-
Indonesians does not appear to rise to the level of systematic ethnic
cleansing, we have never held that only killings or extreme violence con-
stitute “persecution.” Rather, we have repeatedly held that discrimination
and harassment, in combination with lower levels of violence, may also
constitute persecution. See, e.g., Korablina v. INS, 158 F.3d 1038, 1044
(9th Cir. 1998); Vallecillo-Castillo v. INS, 121 F.3d 1237, 1239 (9th Cir.
1996); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996).
LOLONG v. GONZALES 3353
some risk. That risk can rise to the level required for
establishing a well-founded fear of persecution either
as a result of an individual’s activities in support of
the group, or because an individual is a member of
a certain element of the group that is itself at greater
risk of persecution than is the membership of the
group as a whole.
Id. at 853 (emphasis added). Moreover, “the more serious and
widespread the threat to the group in general, the less individ-
ualized the threat of persecution needs to be.” Sael, 386 F.3d
at 925 (internal quotation marks and citations omitted).
Lolong has met her burden by proving that she is not only a
member of a significantly disfavored group but also a member
of two sub-groups that are more likely targets for persecution:
she is an ethnic Chinese Christian woman.
The growth of a militant Islamic movement that has called
for a jihad against Christian Indonesians4 — in a country
where anti-Chinese prejudice is deep-seated and widespread
and many ethnic Chinese are Christian — has led to a particu-
larized pattern of violence against ethnic Chinese Christians.
Although the anti-Chinese riots that occurred in May 1998
garnered much more international media attention, the State
Department reported that there were outbreaks of “serious
anti-Christian and anti-ethnic Chinese violence” as early as
February 1998. United States Dep’t of State, 1999 Country
Reports on Human Rights Practices: Indonesia [hereinafter
“1999 Indonesia Country Report”]. Additional anti-Christian/
anti-ethnic Chinese riots occurred in the months of September
and November, causing many deaths, injuries, and the
destruction of churches, shops, and homes in predominantly
ethnic Chinese communities.
4
Lolong provided both expert testimony and documentary evidence of
a widespread militant Islamic movement that has been gaining strength in
Indonesia, the leaders of which have been calling for a holy war and vio-
lence against Christians.
3354 LOLONG v. GONZALES
Apart from the violent outbreaks of rioting, attacks on eth-
nic Chinese Christians and Christian houses of worship in eth-
nic Chinese communities have become increasingly common.
There have also been spates of church burnings coupled with
burnings of Chinese residences. Demonstrations at Chinese
Christian churches, during which violent threats are made
against ethnic Chinese and Christian Indonesians, also occur
frequently. Lolong’s parents decided to attend church less
often after threats of violence were made during demonstra-
tions near their church and after their church received bomb
threats.
The expert witness testified that ethnic Chinese-
Indonesians’ risk of persecution increases with the rise of
anti-Christian sentiment and violence. She also explained that
the movement to “Islamisize business” is a movement to
“take it out of the hands of the Chinese.” After describing out-
breaks of anti-Christian and anti-Chinese violence, a State
Department report similarly concluded that the link between
anti-Christian and anti-Chinese violence is not coincidental:
“Attacks on churches clearly reflect religious tensions, but
other contributing factors are underlying socioeconomic and
political tensions between poor Muslims and relatively more
affluent ethnic Chinese Christians.” 1999 Indonesia Country
Report.
The record also establishes that the sub-group of ethnic
Chinese Christian women is subject to a particularized risk of
persecution. During periods of heightened ethnic and religious
violence, there is a pattern of violence against women that
rises to the level of persecution. During the May 1998 riots,
dozens — possibly hundreds — of Chinese women were
“systematically raped.”5 Mob clashes with police in Jakarta’s
5
It is well-established that rape and other forms of sexual or gender-
based violence can constitute persecution on account of a protected
ground. See, e.g., Shoafera v. INS, 228 F.3d 1070, 1075-76 (9th Cir. 2000)
(holding where rape of asylum applicant was motivated at least in part by
applicant’s ethnicity, applicant was persecuted “on account” of ethnicity
as required for asylum eligibility).
LOLONG v. GONZALES 3355
Chinatown, CNN.com, May 13, 2000; 1999 Indonesia Coun-
try Report (noting that “[a]t least 85 instances of violence
against women, including 66 rapes during the 1998 riots were
verified” by a fact-finding team that included both govern-
mental and nongovernmental investigators); Chris McCall,
Ethnic Chinese Find a Voice, South China Morning Post,
May 13, 2000 (reporting that a team of volunteers identified
163 ethnic Chinese rape victims from the 1998 riots and not-
ing that the number of reported rapes may be low because
volunteers found that women stopped coming forward after a
victim who agreed to testify was murdered); Indonesian Chi-
nese Call For Human Rights Investigation, World News Con-
nection, May 12, 2000 (reporting that the Indonesian Ethnic
Chinese Reforms Party collected data that suggested at least
300 ethnic Chinese women were raped during the 1998 riots);
see also 1999 Indonesia Country Report (noting that violence
against women and rapes are believed to be “seriously under-
reported” in Indonesia). Two of Lolong’s friends from high-
school were among the many ethnic Chinese women who
were attacked. Although one friend managed to escape, the
other was raped. Ever since, both young women have been
afraid to leave their homes.
Although the scale of the systematic raping of ethnic Chi-
nese women during the 1998 riots is unmatched in Indonesian
history, there is evidence that those attacks are reflective of a
broader pattern in which Chinese and Christian minority
women are singled out for abuse. For example, informal
reports suggest that ethnic Chinese women were also the vic-
tims of rape and/or attempted rape during the riot that took
place in May 2000, on the two-year anniversary of the 1998
riots. Multiple reports confirm that both governmental and
nongovernmental forces often use rape as a means of oppres-
sion, but that the crime is rarely prosecuted. Even during peri-
ods of relative calm, ethnic Chinese and Christian girls and
women face a very high risk of being subjected to racial and
sexual harassment and abuse, and ethnically and religiously
motivated attacks against women continue to occur. The
3356 LOLONG v. GONZALES
expert witness also testified that ethnic-Chinese women face
a greater risk of being harassed or abused.
The government argues that Lolong’s fear of future perse-
cution is not reasonable because there is no evidence that
Lolong’s “parents or brothers” have been harmed in any way
in Indonesia on account of their ethnicity or religion. While
the government correctly points out that the experiences of
similarly situated friends or family who remain in the country
are relevant to Lolong’s asylum claim, Hoxha, 319 F.3d at
1184, it conveniently ignores the fact that Lolong’s friends
were attacked and raped, and continue to live in fear — afraid
to even leave their homes. In other words, the experiences of
persons most similarly situated to Lolong — two ethnic Chi-
nese Christian women of Lolong’s age group and from the
same community — support Lolong’s claim. That other mem-
bers of Lolong’s family have not suffered from similar attacks
is not surprising — Lolong is the only woman of the same age
group in her family.6
Furthermore, contrary to the government’s assertion, many
of Lolong’s family members have experienced at least some
harm on account of their ethnicity or religion. Lolong’s father
was arrested, detained for weeks at a time, and beaten, several
times in the 1960’s, when the Indonesian government
attempted to purge Indonesia of its ethnic Chinese minority
by conducting “anti-communist” pogroms. More recently,
several Indonesian youths attempted to rob Lolong’s uncle,
but even after discovering that he was not carrying any
money, they beat him so severely that he required surgery on
his face. As noted above, the church to which Lolong’s par-
ents belong has received bomb threats. As a result, her par-
ents’ religious freedom has been curtailed. Although it is true
6
The “lack of evidence of harm” to one of Lolong’s brothers is irrele-
vant, for he no longer lives in Indonesia. The other is currently unem-
ployed; he believes that he cannot find employment, at least in part,
because of ethnic discrimination.
LOLONG v. GONZALES 3357
that Lolong’s mother has never been physically harmed, this
is most likely due to the fact that she rarely leaves home, and
only does so when accompanied. The loss of religious and
personal freedom is a form of harm. Even if that harm does
not rise to the level of persecution, it would be perverse to
deny the reasonableness of Lolong’s fear on the ground that
some of her family members have been able to avoid persecu-
tion by giving up those fundamental freedoms.
B.
In rejecting Lolong’s claim of a well-founded fear of future
persecution, the BIA concedes that discrimination and vio-
lence targeting both ethnic Chinese and Christians continues
to occur, yet, inexplicably, it insists that there is no evidence
that the Indonesian government is unwilling or unable to con-
trol the perpetrators. This conclusion is not supported by sub-
stantial evidence.
The substantial evidence of ongoing discrimination, harass-
ment, and violence against ethnic Chinese-Indonesians could,
without more, compel us to conclude that the Indonesian gov-
ernment is “unable” to control the perpetrators. But Lolong
did not rest her case on that evidence alone.
The expert witness explained in detail why the Indonesian
government’s authority is weak, and its ability to prevent eth-
nic and religious violence is limited, despite its express com-
mitment to promoting freedom of religion and ethnic
tolerance. A State Department report similarly concludes that,
notwithstanding the public positions of tolerance
adopted by senior government officials, lower level
officials frequently were alleged to be reluctant to
facilitate and protect the rights of religious minori-
ties. Minority houses of worship particularly have
been targeted for damage or destruction during riots
. . . Attacks against minority houses of worship and
3358 LOLONG v. GONZALES
the lack of an effective government response to pun-
ish perpetrators and prevent further attacks led to
allegations of official complicity in some of the inci-
dents or, at a minimum, allowing them to occur with
impunity.
United States Dep’t of State, Annual Report on Int’l Religious
Freedom for 1999: Indonesia.
There is substantial evidence that rogue elements within the
Indonesian military are supporting the nongovernmental
forces behind ethnic and religious persecution throughout the
country. Various observers, including the State Department,
have reported that the military has been supplying numerous
unaccountable militias with arms and instigating political,
religious, and ethnic violence. Government security forces
may even be directly responsible for much of the violence. In
1999, the State Department reported that “[s]ecurity forces
also were responsible for numerous instances of indiscrimi-
nate shooting of civilians, torture, rape, beatings and other
abuse” and that “[r]apes by security forces continued to be a
widespread problem . . . .” 1999 Indonesia Country Report.
During Lolong’s hearing, the Service made much of Presi-
dent Wahid’s statements regarding his commitment to pro-
moting ethnic tolerance, but ignored an August 2000 speech
made by Wahid to the People’s Consultative Assembly, the
highest legislative body in Indonesia, in which he conceded
that the Indonesian economy had been “pulverized,” that
security forces were unable to cope with violent religious con-
flicts, and that the “rule of law was far from being estab-
lished.” The Indonesian Minister of Defense has also
announced publicly that “he cannot control various elements
within the army.”
There has been no prosecution — no arrests, no charges
filed — in any of the rape crimes committed during the 1998
riots and their aftermath, even though a government inquiry
LOLONG v. GONZALES 3359
confirmed reports by human rights groups that at least dozens
of rapes were committed. Lolong testified that when one of
her friends who was attacked during the riots reported the
crime to the police, the police did nothing. Perpetrators
reportedly intimidated surviving victims and witnesses. In the
most extreme case, a rape victim who was willing to testify
was murdered, and her body placed in the center of Jakarta.
Supporters of the victims report that the police have done
nothing to prevent or counteract this campaign of intimida-
tion.
Not surprisingly, the State Department has also found that
the Indonesian government “did not resolve fully many cases
of attacks on religious facilities and churches that occurred
during riots and, in other cases, did not investigate such inci-
dents at all.” 1999 Indonesia Country Report (internal citation
omitted).
The Indonesian government has not even followed the rec-
ommendations of the fact-finding team that it commissioned
to investigate the May 1998 riots. According to the State
Department, the team “found evidence that some elements of
the military may have been involved in provoking the vio-
lence, which included attacks against Sino-Indonesian
women, and urged further investigation in the matter.” 1999
Indonesia Country Report. Instead of prosecuting these ele-
ments of the military, the People’s Consultative Assembly
passed a resolution holding that “the army would not be held
culpable for crimes against humanity committed before
1999.” There is also evidence that some military officers who
are alleged to be responsible for instigating and orchestrating
much of the violence are regaining power in Indonesia.
[5] In its opinion, the BIA suggests that Lolong’s claim
can, despite all of this evidence, be defeated by the mere fact
that senior officials within the Indonesian government have
publicly expressed their commitment to ethnic equality and
religious freedom and instituted some reforms. However, this
3360 LOLONG v. GONZALES
evidence of the government’s willingness to control the perpe-
trators of ethnic and religious violence in Indonesia fails to
rebut the overwhelming evidence of the government’s inabil-
ity to control those forces. Cf. Avetova-Elisseva, 213 F.3d
1192, 1198 (9th Cir. 2000) (“It does not matter that financial
considerations may account for [the government’s] inability
to stop elements of ethnic persecution. What matters instead
is that the government is unwilling or unable to control those
elements of its society committing the acts of persecution.”
(internal quotation and citation omitted) (emphasis in origi-
nal)); Ladha v. INS, 215 F.3d 889, 894, 902 (9th Cir. 2000)
(finding government “unwilling or unable to control” non-
governmental forces where the government generally
responded quickly to violence yet continued to experience a
“serious law and order problem”).
[6] In sum, Lolong has established by compelling evidence
that she is a member of a significantly disfavored group, and
that she is a member of sub-groups that are at a substantially
greater risk of persecution than the group as a whole. As a
result, she has met her burden of demonstrating that she faces
a particularized risk of future persecution. The record also
compels the conclusion that the Indonesian government is
either unwilling or unable to control the forces behind ethnic
and religious persecution in Indonesia. Accordingly, we find
that Lolong’s fear of future persecution is well-founded.
III.
For the foregoing reasons, we grant the petition for review
and hold that substantial evidence establishes Lolong’s eligi-
bility for asylum. We remand so that the Attorney General
may exercise his discretion to grant asylum.7
PETITION GRANTED; REMANDED.
7
We do not address withholding of removal or relief under the Conven-
tion Against Torture because Lolong has not pursued those claims on
appeal.