Go Wan Tjhing v. U.S. Attorney General ( 2013 )

Case: 12-13914 Date Filed: 05/31/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13914
Non-Argument Calendar
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Agency No. A087-348-208
GO WAN TJHING,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 31, 2013)
Before CARNES, BARKETT and BLACK, Circuit Judges.
PER CURIAM:
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Go Wan Tjhing, an Indonesian citizen of Chinese ethnicity, petitions for
review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal
from the Immigration Judge’s (IJ) denial of his application for withholding of
removal under the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3). 1
The BIA concluded Tjhing did not establish past persecution entitling him to a
presumption of future persecution and, consequently, eligibility for withholding of
removal, because nationwide riots and civil strife in Indonesia in 1998 did not
constitute persecution. Tjhing argues before us that the BIA erred by concluding
he was not persecuted simply because there was rioting and civil strife. Instead,
Tjhing alleged that he was persecuted in 1998 because of his Chinese ethnicity and
Christian religion.
We agree with Tjhing that the BIA misconceived his claim. The BIA
determined Tjhing “did not demonstrate that he was persecuted in 1998 because
there were countrywide riots and general civil strife in the country at that time,
which does not constitute persecution.” While “widespread savage violence
affecting [the population of an entire country] as the result of civil strife and
anarchy” may not constitute persecution, see Matter of Sanchez and Escobar, 19 I.
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Tjhing also applied for asylum and relief under the Convention Against Torture.
Tjhing, however, does not raise any argument on appeal concerning those claims and has
therefore abandoned them. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.
2005).
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& N. Dec. 276, 284 (BIA 1985); cf. Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320,
1328 (11th Cir. 2001) (“[T]he INA does not extend eligibility for asylum to anyone
who fears the general danger that inevitably accompanies political ferment and
factional strife.” (quotation omitted)), Tjhing did not seek withholding of removal
solely on account of general civil unrest. Rather, in a statement attached to his
application for withholding of removal, Tjhing maintained that in May 1998, an
anti-Chinese riot broke out during which hundreds of people came to his house one
night shouting “[b]urn Chinese, burn the pig Chinese.” He further alleged that the
mob broke into his house and attacked him and his family. Tjhing reiterated these
assertions in his testimony before the IJ.
That general strife or mass unrest has embroiled a country in violence does
not eliminate a claim that a petitioner was persecuted on the basis of a statutorily
protected ground. See 8 U.S.C. § 1231(b)(3)(A) (prohibiting the removal of an
alien if “the alien’s life or freedom would be threatened in [the country of removal]
because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion”). The BIA in this case assumed Tjhing was credible,
and he presented evidence that he was targeted for mob violence because of his
Chinese ancestry, that is, on account of a statutorily protected ground. Thus, the
correct inquiry was whether the mob’s actions against the petitioner rose to the
extreme level of persecution, not whether civil unrest generally amounts to
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persecution. See Perlera-Escobar v. Exec. Office for Immigration, 894 F.2d 1292,
1298 (11th Cir. 1990) (“In the context of a civil war, where general conditions of
violence exist, it becomes necessary to examine the motivations of the group
threatening the alien.”).
The BIA, however, did not reach this issue, and we may not address it on
our own. “[I]n cases on appeal where the BIA has not addressed a particular issue
that a petitioner put before it, ‘the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation.’” Calle v. U.S.
Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (quoting INS v. Ventura, 537
U.S. 12, 16, (2002) (per curiam)); see also Gonzales v. Thomas, 547 U.S. 183,
185-87 (2006) (per curiam). It is immaterial that the BIA also concluded Tjhing
failed to establish a threat of future persecution. If the 1998 incident amounted to
persecution, the BIA would have to undertake a different analysis of the likelihood
of future persecution. Specifically, Tjhing would be entitled to a rebuttable
presumption of future persecution and the Government would be required to
demonstrate by a preponderance of the evidence that (1) Tjhing could relocate
within Indonesia, or (2) a fundamental change in circumstances had occurred. See
Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1237 & n.11 (11th Cir. 2007);
see also 8 C.F.R. § 1208.16(b)(1). Accordingly, we conclude remand to the BIA is
appropriate in this situation so the agency may apply its expertise to the question of
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whether Tjhing experienced persecution in 1998. See Gonzales, 547 U.S. at
186-87.
Nevertheless, substantial evidence supported the BIA’s finding that Tjhing
failed to demonstrate past persecution on the basis of a statutorily protected ground
on account of an assault that occurred in April 2000. Tjhing testified that, while he
was travelling on business, a group of people stopped him, pulled him from his car,
and beat him. Tjhing further testified he did not know why he was attacked, but he
knew that his assailants were aware of his Chinese ancestry. Tjhing conceded he
did not know why he was assaulted, and he thus presented evidence only that he
was the victim of private violence or criminal activity. Such evidence “does not
constitute evidence of persecution based on a statutorily protected ground.” Ruiz v.
U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Viewed in the light most
favorable to the BIA’s decision, the record does not compel reversal of the
administrative finding that the attack was not on account of a statutorily protected
ground. See Sanchez Jimenez, 492 F.3d at 1230. Accordingly, Tjhing’s petition
for review is denied to the extent it challenges the BIA’s findings regarding the
April 2000 assault.
PETITION GRANTED IN PART, DENIED IN PART, AND
REMANDED.
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