Chen Thien Lim v. Attorney General , 277 F. App'x 193 ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-5-2008
    Lim v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-2154
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 07-2154
    ___________
    CHEN THIEN LIM
    and RUBIN WIJAYA,
    Petitioners
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    _____________________
    Petition for Review of an Order of the
    United States Department of Justice
    Board of Immigration Appeals
    (BIA Nos. A95-149-659 and A95-149-660)
    Immigration Judge: Honorable Charles M. Honeyman
    ______________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    May 1, 2008
    Before:   RENDELL, GREENBERG, and VAN ANTWERPEN, Circuit Judges
    (Filed: May 5, 2008)
    ___________
    OPINION OF THE COURT
    ___________
    PER CURIAM
    Petitioners Chen Thien Lim and Ruben Wijaya seek review of a final order by the
    Board of Immigration Appeals (“BIA”). For the reasons that follow, we will dismiss their
    petition in part and deny it in part.
    I. Background
    Petitioners, a married couple, are ethnic Chinese Christian natives and citizens of
    Indonesia. Petitioners entered the United States in 2000 and remained unlawfully after
    the expiration of their non-immigrant visas. They were charged with removal in 2001 and
    applied for asylum, withholding of removal, and protection under the Convention Against
    Torture (“CAT”). After several hearings, the IJ issued an oral decision on December 15,
    2005. Although he found Petitioners credible, he held that they failed to meet their
    burdens of proof and persuasion. He denied the applications for asylum, withholding of
    removal, and protection under the CAT and granted the applications for voluntary
    departure. Petitioners appealed to the BIA, which affirmed the IJ’s decision and
    dismissed their appeal. This petition for review followed.
    II. Due Process
    As an initial matter, Petitioners claim the IJ failed to meaningfully review their
    objective evidence, including two 2004 State Department reports, in violation of their due
    process rights. See Sewak v. INS, 
    900 F.2d 667
    , 671 (3d Cir. 1990). In response, the
    Government argues that Petitioners failed to exhaust administrative remedies by first
    seeking relief from the BIA for the alleged due process violation. See Bonhometre v.
    Gonzales, 
    414 F.3d 442
    , 447 (3d Cir. 2005).
    Whether Petitioners were required to exhaust administrative remedies depends
    2
    upon the nature of their claim. Generally, constitutional claims are beyond the BIA’s
    jurisdiction and not subject to the exhaustion requirement. 
    Bonhometre, 414 F.3d at 448
    n.7. However, there is an exception for due process claims asserting a procedural error
    that could have been corrected by the BIA. Khan v. Atty. Gen’l of the United States, 
    448 F.3d 226
    , 236 (3d Cir. 2006).
    Here, Petitioners claim the IJ failed to make an individualized determination of
    their claims. See Abdulai v. Ashcroft, 
    239 F.3d 542
    , 549 (3d Cir. 2001). Petitioners
    should have presented this argument to the BIA so the BIA could have considered
    whether to remand to the IJ to remedy the alleged procedural flaw. See 
    Bonhometre, 414 F.3d at 447-48
    . Because they did not, we lack jurisdiction to review this aspect of the
    petition. 
    Id. at 448.
    III. Asylum
    An asylum applicant must demonstrate past persecution or a well-founded fear of
    future persecution. See Gao v. Ashcroft, 
    299 F.3d 266
    , 272 (3d Cir. 2002). This is a
    factual determination, which we review under the substantial evidence standard. 
    Gao, 299 F.3d at 272
    . To grant relief, “we must find that the evidence not only supports that
    conclusion [that Petitioners’ applications should have been granted], but compels it.” INS
    v. Elias-Zacarias, 
    502 U.S. 478
    , 481 n.1 (1992) (emphasis in original). Where, as here,
    the BIA adopted the IJ’s findings and discussed some of the bases for the IJ’s decision,
    we review both decisions. See Chukwu v. Atty. Gen’l of the United States, 
    484 F.3d 185
    ,
    3
    189 (3d Cir. 2007); Xie v. Ashcroft, 
    359 F.3d 239
    , 242 (3d Cir. 2004).
    A. Past Persecution
    First, Petitioners argue that the IJ erred in finding that they did not suffer past
    persecution. We have adopted a narrow definition of persecution, which “connotes
    extreme behavior, including ‘threats to life, confinement, torture, and economic
    restrictions so severe that they constitute a threat to life or freedom.’” Ahmad v. Ashcroft,
    
    341 F.3d 214
    , 217 (3d Cir. 2003) (quoting 
    Fatin, 12 F.3d at 1240
    ). We do not recognize
    as persecution “isolated incidents that do not result in serious injury.” Voci v. Gonzales,
    
    409 F.3d 607
    , 615 (3d Cir. 2005).
    Petitioners testified that they experienced general incidents of discrimination and
    harassment throughout their childhoods. They also described a few specific individual
    incidents of violence, crime, and harassment, including:
    C      In 1991, Lim and her father were threatened and robbed by native
    Indonesians shouting racial insults.
    C      In 1998, Lim was harassed, insulted based on her race, chased, and
    assaulted. When attempting to run away, she fell and suffered a head
    injury.
    C      In 1998, while her family was attempting to move to a new neighborhood,
    native Indonesians threatened and shouted racial slurs at them and coerced
    Lim’s family into giving them money.
    C      In 1997, Indonesians burned down Wijaya’s aunt’s antique shop.
    C      Because his father was a Christian pastor, Muslim neighbors threw stones
    and feces at Wijaya’s house and defaced his father’s church.
    4
    In addition, Petitioners testified to generalized episodes of violence against ethnic
    Chinese Christians in Indonesia, including rioting in 1998 and church bombings from
    1994 to 2000.
    A reasonable adjudicator would not be compelled to conclude that these incidents
    were sufficiently severe to constitute persecution. See 
    Lie, 396 F.3d at 536
    . In Lie, we
    held that isolated criminal acts resulting in property theft and a minor injury did not
    qualify. 
    Id. Similarly, Petitioners
    described a small number of isolated events which did
    not result in serious injury. Although Petitioners argue that their claims are
    distinguishable from Lie, we cannot say that their cumulative experiences varied
    sufficiently from those in Lie so as to compel an adjudicator to conclude that Petitioners
    suffered persecution. See 
    Fatin, 12 F.3d at 1240
    .
    B. Future Persecution
    Petitioners also attempted to establish a well-founded fear of future persecution.
    Both the IJ and BIA held that Petitioners did not succeed. Petitioners now contend that
    the IJ inappropriately failed to review current country conditions in Indonesia to
    determine whether a pattern or practice of persecution of Chinese Christians exists.
    Petitioners were required to demonstrate a “pattern or practice of persecution of a
    group of persons similarly situated to the applicant. . . .” 8 C.F.R. § 208.16(b)(2).
    Petitioners proffered two 2004 State Department reports concerning the treatment of
    ethnic Chinese Christians in Indonesia. See A.R. 0098-139. The IJ considered the
    5
    reports. See A.R. 0058. Although he expressed concerns over the treatment of Chinese
    Christians in Indonesia, he held that, in light of the relevant case law – including our
    decision in Lie, 
    396 F.3d 530
    , and the BIA’s decision in In re A-—, 23 I&N Dec. 737
    (BIA 2005) – the evidence did not support a pattern or practice finding. A.R. 0058.
    We have not conclusively addressed whether a pattern or practice of persecution of
    ethnic Chinese Christians in Indonesia exists at the present time. See Sukwanputra v.
    Gonazles, 
    434 F.3d 627
    , 637 n.10 (3d Cir. 2006). We note that in contrast to Lie, where
    the applicant presented a 1999 State Department report, Petitioners presented two 2004
    State Department reports. However, the IJ could reasonably conclude that the 2004 State
    Department reports do not reflect a pattern or practice of persecution of ethnic Chinese
    Christians in Indonesia.1 Because the evidentiary record does not compel a contrary
    conclusion, see 
    Elias-Zacarias, 502 U.S. at 481
    n.1, the decision rests upon substantial
    evidence.2
    1
    For example, the 2004 State Department Country Report on Human Rights Practices
    states, “[t]he Government [of Indonesia] officially promotes racial and ethnic tolerance. . .
    . Instances of discrimination and harassment of ethnic Chinese Indonesians declined
    compared with previous years.” A.R. 0122. Similarly, while the 2004 State Department
    Report on International Religious Freedom discusses instances of inter-religious violence
    between Christians and Muslims in Indonesia, A.R. 0134-36, it also notes that “[s]ome
    notable advances in interreligious tolerance and cooperation occurred . . . [and]
    Government officials together with Muslim and Christian community leaders continued
    to work together to diffuse tensions in conflict areas. . . .” A.R. 0128.
    2
    Petitioners also sought withholding of removal pursuant to INA § 241(b)(3)(A) [8
    U.S.C. § 1231(b)(3)(A)]. The bar is higher for demonstrating eligibility for withholding
    of removal than for asylum. See Zubeda v. Ashcroft, 
    333 F.3d 463
    , 469-70 (3d Cir.
    2003). Because Petitioners failed to demonstrate past persecution or a well founded fear
    6
    IV. Convention Against Torture
    To qualify for protection under the CAT, Petitioners were required to show by a
    preponderance of objective evidence that they would be tortured if removed to Indonesia.
    See Sevoian v. Ashcroft, 
    290 F.3d 166
    , 174-75 (3d Cir. 2002). Petitioners point to no
    evidence that compels us to reverse the IJ’s and BIA’s finding that they failed to
    demonstrate eligibility for protection under the CAT.
    V. Conclusion
    For the foregoing reasons, we will deny the petition in part and dismiss it in part.
    of future persecution for asylum purposes, it follows that they also failed meet the more
    rigorous standard for withholding of removal. 
    Id. 7