Chandra v. Attorney General of United States , 307 F. App'x 667 ( 2009 )

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
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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).
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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
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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
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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.
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