Iwan Soetiono v. Atty Gen USA ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1847
___________
IWAN SOETIONO; FENNY RATNAWATI LIGITO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A095-838-336 and A095-838-337)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 8, 2011
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: June 14, 2011)
___________
OPINION
___________
PER CURIAM.
Petitioners Iwan Soetiono and Fenny Ratnawati Ligito seek review of the
Board of Immigration Appeals‟ (“BIA”) final order of removal. For the following
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reasons, we will deny the petition for review.1
I.
Petitioners are husband and wife, and natives and citizens of Indonesia who
entered the United States in August 2001, and stayed beyond the permissible period.
Petitioners were thereafter issued a Notice to Appear and conceded removability.
Soetiono (as the lead respondent) filed an application for asylum, withholding of
removal, protection under the Convention Against Torture (ACAT@) and, alternatively,
voluntary departure, claiming that they had suffered persecution in the past on the basis
of their ethnicity (Soetiono is one-half Chinese and one-half Javanese, and Ligito is
Chinese), their religion (Catholic), and their membership in a “wealthy social class.”
Soetiono testified regarding the alleged acts of persecution that he had
suffered when he lived in Surabaya.2 Ligito, as a derivative applicant, did not testify. At
1
Having determined that oral argument is not necessary, we will deny
petitioners‟ request.
2
As accurately summarized by the Immigration Judge (“IJ”), Soetiono testified
that he suffered harm in the following ways: 1) he was forced to join a “konvoi” (a large
political demonstration) and was later beaten up by a group of Javanese when he left; 2)
he was insulted and threatened by a taxi driver; 3) he was threatened with robbery at a
“red-light incident” during which three young Indonesians struck his car with bats while
shouting demands for money; 4) he witnessed his mother being “molested” at a shopping
mall (e.g., a group of four Indonesians surrounded them on an escalator and began
touching his mother in an inappropriate manner); 5) he was knocked off of his
motorcycle and beaten by a group of political demonstrators; 6) he was cheated by
customers in his business; and 7) while attending mass, a gang of native Indonesians
stopped in front of the church, made loud noises with their motorcycles and then threw
rocks at the church windows. Soetiono wrapped up his testimony by recounting another
incident involving a bomb found in a church, although the church was not one that
2
the conclusion of the hearing, the IJ denied petitioners the relief requested. While noting
her belief that Soetiono=s testimony was generally truthful, the IJ found an absence of
evidence amounting to persecution. The IJ also concluded that Soetiono=s fear of
returning to Indonesia simply because he was Chinese was not sufficient to sustain an
asylum claim. His claim based on membership in a wealthy social group fared no better
because, as noted by the IJ, wealth is not a recognized ground for asylum. The IJ thus
concluded that Soetiono failed to establish that he suffered past persecution on account of
a protected ground, and likewise failed to establish that he will suffer future persecution.
There was no evidence of torture presented.
The BIA thereafter denied petitioners‟ appeal, as well as a motion to
reopen/reconsider. Review of both orders was sought in this Court. The details of the
ensuing consolidated proceedings need not be set forth at length here. Suffice it to say
that the government eventually filed an unopposed motion seeking to have the petition
for review dismissed and the matter remanded to the BIA for further consideration of
petitioners= claims. We granted that request. On remand, the BIA vacated its orders
summarily affirming the IJ=s decision denying relief and denying petitioners= motion to
reopen and for reconsideration. Accordingly, the BIA remanded the matter to the IJ for
further proceedings. The IJ was instructed to afford all parties the opportunity to update
Soetiono belonged to or attended, and of an incident that occurred in March 2001, during
which he witnessed the destruction of a car driven by a Javanese who attempted to pass
through a large demonstration.
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the record and to provide additional testimony, if appropriate.
Petitioners took advantage of the opportunity to supplement the record and
filed, inter alia, an affidavit from Dr. Jeffrey Winters, who has been recognized by the
Immigration Court as an expert witness on the background conditions in Indonesia, and
the Department of State Report on Human Rights Practices for Indonesia for 2007.
Testimony was provided by petitioner Ligito and Dr. Winters. Ligito testified that she
fears returning to Indonesia because, as a Chinese woman, she could possibly be the
victim of sexual assault, murder and intimidation by native Indonesians. Besides hearing
insulting statements, Ligito did not relate any incidents which were directed towards her
personally other than what she believed were sexually harassing acts by local men while
riding on public transportation. She also recounted an incident during which her mother-
in-law was called a derogatory name by a group of men while being pushed and having a
Bible she was carrying kicked after it had been dropped.
The bulk of the testimony offered on remand came from Dr. Winters. Dr.
Winters basically testified that, in his opinion, ethnic Chinese in Indonesia have a valid
claim for asylum. While noting that Indonesia is a multiracial country, Winters stated
that ethnic Chinese make up a small percentage of the population and are, therefore,
subject to attacks undergirded by racial hatred. Winters further testified that while the
government is supposed to serve as a security force, it does not offer protection to the
ethnic Chinese. As for the changes noted in the Department of State Report, Dr. Winters
testified that those changes are merely superficial and do not change societal attitudes
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actually in existence. According to Dr. Winters, all ethnic Chinese are viewed as
Christians, and are regarded by some of the extremists as their primary opponents.
Finally, the IJ considered the report submitted by Jana Mason, whose position is that
Christians are targeted for persecution in Indonesia.
The IJ once again denied petitioners relief. The IJ noted that Ligito‟s
testimony was that she did not experience any harm in Indonesia on account of her
ethnicity or religion. The IJ further determined that the incidents recounted by Soetiono
did not rise to the level of persecution. Moreover, the IJ concluded that the information
contained in the Department of State reports does not support petitioners= position that
they would be persecuted upon their return to Indonesia on account of any of the five
enumerated grounds, and that the conflicting report of Dr. Winters was not sufficient to
establish a pattern or practice of persecution of ethnic Chinese in Indonesia. Having
failed to establish past persecution or the possibility of future persecution, the IJ
concluded that petitioners failed to establish their eligibility for asylum. The IJ continued
by determining that petitioners likewise failed to establish their eligibility for withholding
of removal under INA „ 241(b)(3), or relief under CAT. The IJ did, however, grant
petitioners= application for voluntary departure.
The BIA dismissed petitioners= appeal from that decision in an order issued
on February 26, 2010. Having conducted a de novo review, the BIA concluded that
petitioners had failed to establish past persecution or a well-founded fear of future
persecution on account of a protected ground. The BIA further concluded that petitioners
5
failed to establish that their fears are distinct from those felt by all other ethnic Chinese
Christians in Indonesia, that all ethnic Chinese Christians in Indonesia have a well-
founded fear of persecution, or that there is a pattern or practice of persecution against
ethnic Chinese Christians throughout Indonesia. The BIA continued by holding that
petitioners thus necessarily failed to satisfy the higher burden for withholding of removal,
and presented insufficient evidence to establish a possibility of Atorture@ and an
entitlement to protection from removal under the CAT.
With respect to petitioners= evidence regarding a pattern or practice of
persecution, the BIA concluded that the U.S. Department of State country reports B as
opposed to the testimony of Dr. Winters B constitute the best evidence of current
conditions of Indonesia, and that those reports do not make for a record demonstrating
persecution that is sufficiently “systemic, pervasive, or organized” so as to constitute a
pattern or practice of persecution. The BIA further found that petitioners‟ newly
submitted evidence did not warrant a remand to the IJ.3 Accordingly, the BIA dismissed
petitioners= appeal. It further denied a motion for remand that petitioners filed during the
pendency of the appeal wherein they sought to introduce the additional reports regarding
3
Petitioners submitted:
(1) “Indonesia‟s Consolidated Report of (sic) on the Implementation of
CERD – Consolidated Report of the Republic of Indonesia on the
Implementation of the International Convention on the Elimination
of all Forms of Racial Discrimination (ICERD);” and
(2) “Indonesian NGO Alternative Report – ICERD.”
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country conditions in Indonesia and the Ninth Circuit=s decision in Wakkary v. Holder,
558 F.3d 1049 (9th Cir. 2009). The BIA found the reports to be essentially cumulative of
the record evidence and insufficient to establish a pattern or practice of persecution, and
the Ninth Circuit case immaterial to its decision. A timely petition for review followed.
II.
On review, petitioners challenge the BIA‟s determination that Soetiono did
not suffer past persecution in Indonesia, as well as its conclusion that petitioners failed to
show a pattern or practice of persecution of ethnic Chinese Christians.4 We have
jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA “issue[d] its own decision on
the merits, rather than a summary affirmance, we review its decision, not that of the IJ.”
Catwell v. Att‟y Gen., 623 F.3d 199, 205 (3d Cir. 2010) (citing Sheriff v. Att‟y Gen., 587
F.3d 584, 588 (3d Cir. 2009)). “The BIA‟s ruling on an asylum petition is „conclusive
unless manifestly contrary to the law and an abuse of discretion.‟ 8 U.S.C. §
1252(b)(4)(D). We review the facts upon which the BIA‟s decision rests to ensure that
they are supported by substantial evidence from the record considered as a whole,
Espinosa-Cortez v. Att‟y Gen., 607 F.3d 101, 106 (3d Cir. 2010), and we will reverse
based on a factual error only if any reasonable fact-finder would be „compelled to
conclude otherwise,‟ 8 U.S.C. § 1252(b)(4)(B).” Huang v. Att‟y Gen., 620 F.3d 372,
379 (3d Cir. 2010). The BIA‟s legal conclusions are reviewed de novo. Id.4
Petitioners do not argue their CAT claim, thus we deem it waived. See Lie v.
Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).
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III.
We must reject petitioners‟ contention that the record evidence compels a
conclusion contrary to the BIA‟s determination that the harm Soetiono suffered was not
sufficiently severe – even when considered in the aggregate and in the context of the
apparent “ethnic motivation” behind it – to constitute persecution. As petitioners
themselves recognize, we have consistently held that ethnic taunts and isolated criminal
acts similar to those recounted by Soetiono, though reprehensible and unfortunate, are not
sufficiently severe to constitute persecution. See, e.g., Lie, 396 F.3d at 536. While
Soetiono experienced two acts of physical violence and received a threat, we cannot
conclude that his case is sufficiently distinguishable from Lie so as to compel a finding of
past persecution where neither attack resulted in the need for him to seek medical
attention, the threat by the taxi driver was never acted upon in any respect, and he
suffered no physical harm from any of the other noted incidents. See id. at 533, 536(explaining that the BIA correctly applied this Court‟s standard for determining past
persecution in concluding that an ethnic Chinese woman in Indonesia had not suffered
past persecution where, inter alia, her husband‟s store was robbed, her house was broken
into, she was subjected to racial epithets, money and jewelry were stolen from her, and
she was stabbed); see also Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) ( “[O]ur
cases suggest that isolated incidents that do not result in serious injury do not rise to the
level of persecution.”).
Moreover, although we have “defined persecution as „threats to life,
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confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom,‟” Camara v. Att‟y Gen., 580 F.3d 196, 202 (3d Cir. 2009) (quoting Fatin
v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993), the record is bereft of any evidence
regarding the specific economic impact of any acts of discrimination or harassment
Soetiono suffered or of any particular mental suffering that resulted from his
experiences.5 Accordingly, because the mistreatment documented in the record presented
is along the same lines as that in Lie, we can find no fault with the BIA‟s conclusion that
it did not rise to the level of persecution.
Petitioners‟ argument that they face a clear probability of persecution
because the evidence established a “pattern or practice” of persecution of ethnic Chinese
Christians in Indonesia fares no better. In rejecting petitioners= pattern or practice claim,
the BIA found that the country conditions report in evidence did not establish “systemic,
pervasive, or organized persecution” of ethnic Chinese in Indonesia. On the record
presented, we cannot conclude that the BIA=s findings are not supported by substantial
evidence. Despite their contention to the contrary, petitioners have not distinguished
their argument, or the record it is built on, from similar claims that this Court has rejected
in the past. See, e.g., Wong v. Att‟y Gen., 539 F.3d 225, 233-34 (3d Cir. 2008) (rejecting
as “without merit” the contention that “the [2003 and 2004] State Department reports and
5
As respondent notes, the BIA appears to have considered Ligito‟s claim as well
despite her status as a derivative applicant. See Certified Administrative R. (A.R.) at 3-5.
However, Ligito provided no testimony regarding economic impact and – with respect to
mental suffering – expressed only general feelings of apprehension when walking past
crowds. Id. at 313.
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other background materials document a pattern or practice of persecution of Chinese
Christians in Indonesia”); Lie, 396 F.3d at 537-58 (finding that the 1999 Country Report
indicated a sharp decline in violence against Chinese Christians in Indonesia and that the
evidence of violence submitted was not sufficiently widespread as to constitute a pattern
or practice). Although petitioners relied on the State Department Country Report for
2007 (released in March 2008), our most recent decisions have noted that the reports
from 2005 to 2007 document a trend toward “similar or improved” treatment for Chinese
Christians. See, e.g., Wong, 539 F.3d at 233-34. We thus agree with respondent that the
Department of State report for 2007 does not appear to assist the petitioners in
distinguishing their case from Lie and Wong.
We have likewise reviewed the affidavit and testimony of petitioners‟
expert and cannot conclude that they establish “systemic, pervasive, or organized”
persecution against Chinese Christians in Indonesia. While Dr. Winters‟ testimony
criticizes the government‟s “piecemeal” reform efforts, A.R. 347, and predicts future
violence, A.R. 342–53, the BIA chose to base its factual findings on the State Department
reports. The BIA chose this course “[a]fter reviewing all of the evidence in this case,
including the testimony from the [petitioners‟] expert witness.” A.R. 5. Regardless of
the criticism petitioners lodge against those reports, we can find no reversible error with
respect to the BIA‟s decision in this regard as we have previously stated that “Country
reports … are the most appropriate and perhaps the best resource for information on
political situations in foreign nations.” Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d
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Cir. 2003).
Of course, having failed to establish petitioners‟ eligibility for asylum, the
BIA correctly concluded that they could not satisfy the higher burden required for
withholding of removal. Chen v. Ashcroft¸ 376 F.3d 215, 223 (3d Cir. 2004).
Finally, insofar as petitioners may be seeking to challenge the BIA‟s
determination that a remand was not warranted, we find no abuse of discretion on the part
of the BIA in declining petitioners‟ invitation to return this matter to the IJ for a plenary
hearing. See Huang v. Att‟y Gen., 620 F.3d at 390. Petitioners‟ contention that the BIA
never addressed the new evidence is erroneous. We have repeatedly stated that the BIA
need not write an exegesis on every document submitted, see Wong, 539 F.3d at 231, and
petitioners have failed to satisfy their burden of showing that the BIA actively failed to
consider the evidence. See Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001). The
BIA noted that the Ninth Circuit decision arises outside of this Circuit, and determined
that the CERD Report and the NGO Report are “essentially cumulative of evidence
previously of record and fail to establish that there is a pattern or practice of persecution
against ethnic Chinese Christians throughout Indonesia.” A.R. 6. Petitioners challenge
the BIA‟s determination that the evidence is cumulative in nature, but the CERD Report
itself notes that the developments covered therein primarily span the period from 1999 to
2004. A.R. 90.
Moreover, under our deferential standard of review, we cannot agree with
petitioners that their submissions demonstrated changed country conditions. The NGO
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Report, which petitioners describe as a “scathing” commentary on the Indonesian
government‟s summary of its record on human rights and discrimination, see Pet‟rs‟ Br.
at 10, is more equivocal and technical than petitioners imply. Although the report
criticizes the government‟s response to past atrocities like the May 1998 riots, notes the
inefficiencies of the country‟s court system in dealing with discriminatory acts, and takes
issue with the manner and pace in which the government has implemented reforms, we
can find no fault with the BIA‟s implicit determination that it did not show changed
country conditions implicating renewed persecution of ethnic Chinese Christians.
Accordingly, petitioners failed to demonstrate that a remand was warranted.
IV.
For the foregoing reasons, we deny the petition for review.
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