Chandra v. Atty Gen USA , 307 F. App'x 667 ( 2009 )


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  •                                                                                                                            Opinions of the United
    2009 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    1-23-2009
    Chandra v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-4383
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 07-4383
    ANITA CHANDRA;
    TADIUS HADIPRANATA,
    Petitioners
    v.
    ATTORNEY GENERAL OF
    THE UNITED STATES,
    Respondent
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA Nos. A95-869-998 & A95-869-999
    (Immigration Judge: Honorable Charles M. Honeyman)
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    January 21, 2009
    Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
    (Filed: January 23, 2009)
    OPINION OF THE COURT
    PER CURIAM.
    Petitioners Anita Chandra and Tadius Hadipranata seek review of an order of the
    Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order
    of removal. For the reasons that follow, we will deny their petition.
    Chandra is a native and citizen of Indonesia and an ethnic Chinese Christian. She
    most recently entered the United States as a non-immigrant visitor on August 22, 2002 and
    overstayed her visa. She married Hadipranata in Indonesia in 1993. He is also a native and
    citizen of Indonesia. He entered the United States as a non-immigrant visitor on April 21,
    1998 and overstayed his visa. They have three children, all of whom remain in Indonesia,
    along with Chandra’s mother, father and two siblings. On November 13, 2002, Chandra filed
    an application for asylum, withholding of removal, and relief under the Convention Against
    Torture (“CAT”). Hadipranata sought asylum as a derivative of Chandra’s application. On
    July 19, 2004, both petitioners were charged with removability. The IJ found petitioners
    removable as charged and denied all relief. The BIA affirmed without opinion. Through
    counsel, petitioners filed a petition for review, which the Government opposes.
    We have jurisdiction over this petition for review under 
    8 U.S.C. § 1252
    . Because the
    BIA affirmed without opinion, we review the IJ’s decision as if it were the decision of the
    BIA. See Dia v. Ashcroft, 
    353 F.3d 228
    , 245 (3d Cir. 2003). We review the IJ’s factual
    findings for “substantial evidence.” See Abdille v. Ashcroft, 
    242 F.3d 477
    , 483-84 (3d Cir.
    2001). Under this standard, we will uphold these findings unless the evidence not only
    supports a contrary conclusion, but compels it. See 
    id.
    To be granted asylum, an applicant must establish that she is unable or unwilling to
    return to her country of origin “because of persecution or a well-founded fear of persecution
    on account of race, religion, nationality, membership in a particular social group, or political
    2
    opinion.” 
    8 U.S.C. § 1101
    (a)(42). To be entitled to withholding of removal, an applicant
    must prove that it is more likely than not that her “life or freedom would be threatened in that
    country” on account of a protected ground. See 
    8 U.S.C. § 1231
    (b)(3). For relief under the
    CAT, an applicant must demonstrate that it is more likely than not that she would be tortured
    if removed to her country of origin. See 
    8 C.F.R. § 208.16
    (c)(2).
    This Court has defined persecution as “threats to life, confinement, torture, and
    economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS,
    
    12 F.3d 1233
    , 1240 (3d Cir. 1993). It is clear that there must be a nexus between the alleged
    persecution and a protected ground. See 
    8 U.S.C. §§ 1101
    (a)(42), 1231(b)(3). Accordingly,
    an applicant must provide some evidence of motive, whether direct or circumstantial. See
    Lie v. Ashcroft, 
    396 F.3d 530
    , 535 (3d Cir. 2005) (citing INS v. Elias-Zacarias, 
    502 U.S. 478
    , 483-84 (1992)). An asylum applicant who has demonstrated past persecution is entitled
    to a rebuttable presumption of a well-founded fear of future persecution.                   See
    
    8 C.F.R. § 1208.13
    (b)(1). Absent a showing of past persecution, an applicant must
    demonstrate a subjective fear of future persecution and show that a reasonable person in her
    situation would fear persecution if returned to her country of origin.                  See 
    8 C.F.R. § 1208.13
    (b)(2). An applicant can meet this objective prong either by showing that
    she would be individually singled out for persecution upon her return or that a pattern and
    practice of such persecution exists. See 
    8 C.F.R. § 1208.13
    (b)(2)(iii).
    3
    We agree with the IJ that Chandra failed to demonstrate past persecution or a
    likelihood of future persecution should she be returned to Indonesia. In support of her
    application, Chandra testified that she was sexually harassed on at least two occasions as a
    child, that during the riots in 1998 her car was attacked by a mob and she was robbed, and
    that in 2002 she and her sister were driving during a rainstorm when her car got stuck in the
    rain and some people blocked the car and demanded money. According to Chandra, neither
    she nor her parents ever reported any of these incidents to the police because they did not
    have money to pay their bribes and did not think the police would believe them. Chandra
    explained that she is afraid to return to Indonesia because she believes it is unsafe for her and
    that such incidents will happen to her again. She testified that since first entering the United
    States in February 1999, she has returned to Indonesia three times to see her children, who
    remain there with her parents.
    The IJ found that, while Chandra’s testimony was credible, the incidents she related
    were not sufficiently severe and extreme to constitute past persecution, and that there was
    no evidence in the record to suggest that Chandra might be singled out for future persecution
    if she and her husband were to return to Indonesia. Additionally, the IJ found that neither
    our case law nor the evidence in the record supported a finding of a pattern and practice of
    persecution of ethnic Chinese Christians in Indonesia. In her petition for review, Chandra
    argues that the IJ ignored the nature and gravity of the incidents described by Chandra in her
    testimony, erred in concluding that she had not established a nexus between the incidents she
    described and a protected ground, and did not adequately consider the evidence in the record
    4
    indicating that ethnic Chinese Christians continue to be discriminated against by native
    Indonesians. We have reviewed Chandra’s arguments as well as the record before the IJ, and
    we cannot conclude that the evidence presented compels a contrary conclusion.
    Chandra claims that the IJ failed to accord sufficient weight to the sexual nature of the
    attacks against her, and challenges the IJ’s conclusion that she failed to demonstrate a
    sufficient nexus between the attacks she described and a protected ground. She relies in part
    on Matter of O-Z- & I-Z-, 
    22 I. & N. Dec. 23
     (BIA 1998), in which the asylee’s son was
    forced to pull down his pants in school to prove that he was circumcised, a fact which was
    cited by the BIA as proof that he was targeted for harassment based on his religion. 
    Id. at 25-26
    . She also argues that her case is distinguishable from Lie v. Ashcroft, 
    396 F.3d 530
    (3d Cir. 2005), in which we held that “the evidence of general ethnic difficulties would not
    compel a reasonable fact finder to conclude that the intrusions were ‘on account of’ Lie’s
    ethnicity or religion.” 
    Id. at 535-36
    . In the instant case, however, Chandra set forth no
    evidence that any of the attacks against her, sexual or otherwise, were motivated by her
    religion or ethnicity.
    Next, Chandra contests the IJ’s conclusion that she failed to establish a pattern and
    practice of persecution of ethnic Chinese Christians in Indonesia. Chandra argues that the
    IJ failed to adequately consider the background materials she submitted, which she contends
    demonstrate that such persecution is ongoing. We considered such material in Wong v.
    Attorney General, 
    539 F.3d 225
     (3d Cir. 2008), in which we held that petitioner had not
    demonstrated a pattern and practice of persecution of ethnic Chinese Christians in Indonesia
    5
    based on the 2003 and 2004 State Department reports. See 
    id. at 233-34
    ; see also Lie v.
    Ashcroft, 
    396 F.3d 530
     (3d Cir. 2005) (concluding no pattern and practice of persecution
    based on 1999 State Department report). Additionally, we noted in dicta that the more recent
    State Department reports published between 2005 and 2007 document similar or improved
    treatment of Chinese Christians in Indonesia. See Wong, 
    539 F.3d at 234
    .
    Based on the foregoing, we cannot conclude that the evidence in the record compels
    a conclusion contrary to that reached by the IJ. Additionally, we conclude that Chandra’s
    claim that the BIA erred in affirming the decision if the IJ without opinion is without merit.
    See 
    8 C.F.R. § 1003.1
    (e)(4); Smriko v. Ashcroft, 
    387 F.3d 279
    , 294 (3d Cir. 2004).
    Accordingly, we will deny the petition for review.
    6