Njo v. Attorney General of the United States , 230 F. App'x 222 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-2-2007
Njo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1298
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Njo v. Atty Gen USA" (2007). 2007 Decisions. Paper 630.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/630
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 06-1298
_______________
EVA MIDAWATI NJO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A96-266-628
Immigration Judge: Miriam K. Mills
Submitted under Third Circuit LAR 34.1(a)
Thursday, May 24, 2007
Before: BARRY and CHAGARES, Circuit Judges,
and TASHIMA,* Senior Circuit Judge.
(Filed August 2, 2007)
OPINION OF THE COURT
__________________
*
Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
TASHIMA, Senior Circuit Judge.
Eva Midyawati Njo,1 an Indonesian citizen, petitions for review of a Board of
Immigration Appeals (“BIA”) decision summarily affirming an immigration judge's (“IJ”)
denial of her application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Njo, who is Christian and ethnically Chinese,
contends that she was persecuted on account of her religion and race in Indonesia.
I.
Njo entered the United States on a tourist visa in July 2002. After overstaying her
visa, Njo applied for asylum in April 2003. She was subsequently placed in removl
proceedings, where she conceded removability and renewed her application for asylum,
withholding of removal, and CAT protection. Njo’s application was denied by an IJ in an
oral decision following a merits hearing.
At her hearing before the IJ, Njo testified regarding two forms of alleged past
persecution: an incident in which she was beaten by her neighbors, and harassment that
she regularly experienced in the streets of Indonesia. According to Njo, on one occasion
in 1988 she was beaten by her neighbors, who were native Indonesians and Muslims. Njo
said that the neighbors intervened after Njo argued with a Muslim tenant of hers, and that
she suffered bruises to her head from the beating. The same neighbors allegedly called
1
We adopt the spelling of Njo’s name that she used in her initial asylum application, and
before the immigration judge and Board of Immigration Appeals.
2
Njo racial epithets.
Njo also testified that harassment in the streets prevented her from going to church.
She said that on her way to church on major Christian holidays, “taxi drivers would touch
me improperly.” She also said, “when I walk on the street, people on the street would . . .
touch me on my arm, on my back, and call me names like Chink.” She described the
touching as “groping on my back.” When asked how this harassment affected her, Njo
said that she “had a miscarriage and . . . felt threatened.” The IJ then asked, “what do you
think would happen to you if you returned to Indonesia?” Njo answered, “I’m afraid of
the bomb threats [toward churches].” When the IJ asked if Njo was afraid of anything
else, Njo said no.
In her decision, the IJ first found that Njo was not credible regarding her inability
to attend church in Indonesia. The IJ noted that although Njo testified at the hearing that
harassment had prevented her from attending church, Njo had failed to include that
information in her written asylum application. The IJ also pointed out that Njo failed to
present affidavits to corroborate her claim that her family members remaining in
Indonesia had similarly been prevented from attending church, though Njo said she spoke
to her family there by phone every other day.
The IJ then found that Njo had not shown that she suffered past persecution. The
IJ first noted Njo’s allegation that she was beaten in 1988 by Muslim neighbors who used
racial epithets against her. With regard to generalized persecution against Indonesians of
Chinese ethnicity, the IJ recognized that the U.S. State Department’s 2003 Country
3
Report on Human Rights Practices for Indonesia (“Country Report”) described societal
and systemic discrimination against ethnic Chinese. The IJ stated, however, that “none of
the background articles [submitted by Njo] evidence that the harm[s] against [Indonesians
of Chinese ethnicity] rise to the level of persecution.” As to religious persecution, the IJ
found that bombings of churches had subsided and more recent bombings had not
occurred in Njo’s home region of Indonesia. The IJ added that the fact that Njo had
traveled to the United States and returned to Indonesia twice previously, in 2000 and
2001, without applying for asylum tended to confirm that Njo had not experienced past
persecution and “had no well-founded fear” of future persecution. Based on this
reasoning, the IJ denied Njo’s request for asylum, withholding of removal, and CAT
protection. The BIA summarily affirmed the IJ’s decision.
II.
Where, as here, the BIA affirms the IJ’s decision without opinion, we review the
IJ’s decision and reasoning directly. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003)
(en banc). We will uphold the IJ’s factual findings if they are supported by substantial
evidence. Id. at 247-48. Overturning the IJ’s factual findings is warranted only if “any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B).
III.
An asylum applicant bears the burden of establishing her eligibility for asylum. 8
C.F.R. § 1208.13(a). To be eligible, the applicant must qualify as a refugee; this requires
4
a showing that she “is unable or unwilling to return to . . . [her] country because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A). The applicant can meet this burden by: (1) showing past persecution,
which creates a rebuttable presumption of a well-founded fear of persecution, or (2)
establishing a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b).
In this case, substantial evidence supports the IJ’s finding that Njo did not establish
past persecution. We have adopted the BIA’s definition of persecution as including
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom,” while recognizing that persecution “does not
encompass all treatment our society regards as unfair, unjust or even unlawful or
unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (citing Matter of
Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985)).
To support her claim of past persecution, Njo has relied on one beating that
occurred almost fifteen years before her departure from Indonesia, and her experiences of
being touched and called “Chink” on the street. Even assuming that both the beating and
harassment occurred and were motivated by Njo’s race and/or religion, these incidents
were still not severe enough to qualify as persecution. See, e.g., Kibinda v. Attorney
Gen., 477 F.3d 113, 119-20 (3d Cir. 2007) (holding that five-day detention and being hit
by a prison guard, resulting in injury requiring seven stitches, did not amount to
persecution); Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005) (holding that
5
harassment of petitioner’s family on their way to weekly Catholic services did not rise to
the level of persecution); Chen v. Ashcroft, 381 F.3d 221, 223, 234-35 (3d Cir. 2004)
(holding that beating with sticks by officials which apparently did not result in any
injuries requiring medical treatment did not constitute persecution). Therefore, Njo is not
entitled to a presumption of a well-founded fear of future persecution.
Even without a showing of past persecution, however, an asylum applicant can
establish that she has a well-founded fear of future persecution if she (1) gives credible
testimony showing a genuine subjective fear of persecution, and (2) demonstrates as an
objective matter that “a reasonable person in the alien’s circumstances would fear
persecution if returned to the country in question.” Lie v. Ashcroft, 396 F.3d 530, 536
(3d Cir. 2005) (citation and internal quotation marks omitted). Here, substantial evidence
supports the IJ’s finding that Njo lacked a genuine subjective fear of persecution. When
Njo was asked what she feared if she returned to Indonesia, she mentioned only “bomb
threats.” As the IJ noted, however, Njo twice returned from the United States to
Indonesia without applying for asylum, during the height of the bombings of Christian
churches in Indonesia. On this basis, the IJ found that Njo did not have a well-founded
fear of persecution. Voluntary return to a country where the petitioner has allegedly
experienced persecution and fears future persecution may undermine the credibility of the
petitioner’s claimed fear. See, e.g., Jean v. Gonzales, 461 F.3d 87, 91 (1st Cir. 2006)
(“[Jean’s] willingness to return voluntarily to Haiti on multiple occasions undermines the
contention that Jean experienced persecution and has a well-founded fear of persecution
6
there.”). Here, the record does not compel us to overturn the IJ’s finding that Njo did not
evidence a genuine subjective fear of future persecution.
Nor does the record contain facts that would compel a reasonable fact-finder to
find that Njo had an objective basis for fearing future persecution in Indonesia. An
applicant for asylum can satisfy the objective prong either by showing that she would be
individually singled out for persecution or by demonstrating a “pattern or practice” of
persecution against persons similarly situated to her in her home country. Lie, 396 F.3d
at 536. There is almost no evidence in this record that would suggest Njo faces an
individualized threat of persecution in Indonesia. Moreover, the Country Report and
news articles in the record do not compel the conclusion that there is a pattern or practice
of persecution of ethnic Chinese and/or Christians in Indonesia. Cf. id. at 537.
Therefore, Njo has not shown an objective basis for her asserted fear of future persecution
in Indonesia, and her asylum claim fails for this reason as well.
To qualify for withholding of removal, an alien must show that her life or freedom
would be threatened on account of a protected ground if she were removed. 8 C.F.R. §
1208.16(b). Here, Njo’s failure to demonstrate her eligibility for asylum necessarily
implies that she has not met the higher standard for withholding of removal. Kibinda, 477
F.3d at 123.
As to Njo’s claim for CAT protection, we consider that issue waived due to Njo’s
failure to make any substantive argument regarding that claim. Lie, 396 F.3d at 532 n.1.
Even if Njo had not waived the issue, she has fallen far short of demonstrating that she is
7
likely to be tortured by, or with the acquiescence of, government officials if removed to
Indonesia. See 8 C.F.R. §§ 1208.16(c), 1208.18(a).
Finally, because we have fully reviewed the IJ’s decision on the merits and there is
nothing in the record to suggest that the BIA’s decision to conduct a “streamlined”
review of Njo’s appeal was arbitrary or capricious, we reject Njo’s challenge to the BIA’s
use of the summary affirmance procedure in her case. See Smriko v. Ashcroft, 387 F.3d
279, 296 & n.11 (3d Cir. 2004) (when it is “readily apparent that the decision [to
streamline review] is not arbitrary or capricious” then “the reviewing court may simply
choose to address the merits of the IJ’s decision without resolving the procedural
challenge”).2
Based on the foregoing reasons, we affirm the denial of Njo’s application for
asylum, withholding of removal, and protection under CAT. Accordingly, the petition for
review will be denied.
2
BIA regulations permit affirmance without opinion by a single member of the BIA when
the member determines that (1) the decision below was correct; (2) any errors were harmless or
nonmaterial; and (3) either precedent squarely controls the case’s outcome, or the factual and
legal issues raised in the appeal do not merit issuance of a written opinion. 8 C.F.R. §
1003.1(e)(4)(i).
8