Tribuwono v. Attorney General of the United States ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-5-2008
Tribuwono v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2934
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2934
BAMBANG TRIBUWONO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A96 203 898)
Immigration Judge: Rosalind K. Malloy
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 4, 2008
Before: BARRY, SMITH AND HARDIMAN, Circuit Judges
(Opinion filed: June 5, 2008)
OPINION
___________
PER CURIAM
Bambang Tribuwono, a native and citizen of Indonesia, was admitted to the United
States in August 2001, with authorization to remain for approximately one month. In
2003, the Government charged him as removable for overstaying his period of admission.
See Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)].
Tribuwono conceded the charge but sought asylum, withholding of removal, and
protection under the United Nations Convention Against Torture (“CAT”). He claimed
that a pattern or practice of persecution exists against Christian Indonesians. The
Immigration Judge (“IJ”) denied Tribuwono’s asylum application as time-barred, and
concluded that Tribuwono, although “completely credible,” was not entitled to
withholding of removal or relief under the CAT. In support of this determination, the IJ
cited Department of State reports indicating that the Indonesian government was taking
steps to curtail interreligious violence. The Board of Immigration Appeals (“BIA”)
affirmed, noting that Tribuwono testified that his family members continue to be actively
involved in their churches without incident. Tribuwono timely petitioned for review of
the BIA’s order.
We have jurisdiction over the petition pursuant to INA § 242(a)(1) [8 U.S.C.
§ 1252(a)(1)], but our review in this case is limited to issues relating to the denial of
withholding of removal.1 Because the BIA affirmed “for the reasons stated in the [IJ’s]
decision” and also commented on the sufficiency of the IJ’s determinations, this Court
reviews the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242
1
Tribuwono has stated that he is not contesting the denial of his asylum application as
untimely filed (a determination which, in any event, we are precluded from reviewing, see
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006)), or the denial of relief under
the CAT. (Petitioner’s Reply Br. at 2 n.2).
2
(3d Cir. 2004). We review the factual determinations in these decisions under the
substantial evidence standard. See Toure v. Attorney General, 443 F.3d 310, 316 (3d Cir.
2006). Under that standard, the decisions must be affirmed “unless the evidence not only
supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471
(3d Cir. 2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001)).
For withholding of removal to a particular country under the INA, an applicant
must establish by a “clear probability” that his “life or freedom would be threatened in
that country because of [his] race . . . or religion.” INA § 241(b)(3)(A) [8 U.S.C.
§ 1231(b)(3)(A)]; Chang v. INS, 119 F.3d 1055, 1059 (3d Cir. 1997). “To meet this test,
the applicant must demonstrate that there is a greater-than-fifty-percent chance of
persecution upon his or her return.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.
1998). Tribuwono attempted to meet this burden by showing that in Indonesia there is “a
pattern or practice of persecution of a group of persons similarly situated” to him, i.e.,
other Christians. 8 C.F.R. § 208.16(b)(2). “[T]o constitute a pattern or practice, the
persecution of the group must be systemic, pervasive, or organized” and must be
“committed by the government or forces the government is either unable or unwilling to
control.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (internal quotation marks
omitted).
We have held that ethnically Chinese Christians do not face systemic persecution
in Indonesia because the ongoing violence appears to be “wrought by fellow citizens” and
3
was not the result of “governmental action or acquiescence.” 2 Lie, 396 F.3d at 537-538.
Tribuwono asserts, however, that circumstances in Indonesia have deteriorated since the
decision in Lie.3 See Sukwanputra v. Gonzales, 434 F.3d 627, 637 n.10 (3d Cir.2006)
(noting that Lie does not foreclose the possibility that evidence of subsequent events
could establish a pattern or practice of persecution). After independently reviewing the
record, we conclude that the evidence does not compel a conclusion that there is a pattern
or practice of persecution on account of religion.
The IJ thoroughly considered the background material, which contains relatively
recent reports and accounts of the religious conflict in Indonesia. Although that evidence
describes incidents of continuing anti-Christian violence, it also documents examples of
government efforts to hinder conflict and promote tolerance among Muslims and
Christians. See Kayembe v. Ashcroft, 334 F.3d 231, 236 (3d. Cir. 2003) (“Just because
the State Department report cuts both ways ... does not mean that it does not constitute
substantial evidence.”). For instance, the IJ referenced the apprehension and prosecution
of religiously motivated terrorists, the facilitation of peace agreements in conflict areas,
and the general absence of religious discrimination in Indonesian law. Tribuwono’s
2
Tribuwono, who is Javanese, argues he possesses characteristics that could lead to
the perception that he is Chinese. To that extent, he asserts that his claim is based on his
imputed ethnicity.
3
The bulk of Tribuwono’s arguments are based on incidents described in the 2006
Department of State Religious Freedom Report, which he attempted to introduce on
appeal to the BIA. The Board refused to accept new evidence, and we will not consider
the Report either. See Kamara v. Attorney General, 420 F.3d 202, 218 (3d Cir. 2005).
4
claim that there is a pattern or practice of persecution is further undermined by his
testimony that his mother and four siblings, all of whom remain active in their churches,
have not suffered any specific problems since he left Indonesia. See Lie, 396 F.3d at 537.
On balance, the evidence does not point to systemic, pervasive, or organized persecution
of Christian Indonesians.4 We therefore conclude that substantial evidence supports the
conclusion that Tribuwono failed to establish a pattern or practice of persecution in
Indonesia.
Because Tribuwono has not demonstrated that it is more likely than not that he will
be persecuted upon his return to Indonesia, we will deny his petition for review.
4
Tribuwono argues that the IJ and BIA failed to consider an affidavit, executed by an
official at a humanitarian agency, that provides an assessment of human rights in
Indonesia. Neither the IJ nor the BIA need reference every document in the record. See
Morales v. INS, 208 F.3d 323, 328 (1 st Cir. 2000) (“Where, as here, the [BIA] has given
reasoned consideration to the petition, and made adequate findings, we will not require
that it address . . . each piece of evidence the petitioner presented.”). Further, the
information contained in the affidavit essentially mirrors other evidence of conditions in
Indonesia.
5