Siahaan v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-25-2008
Siahaan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3819
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 06-3819
JULIETTA SIAHAAN;
JOHNSON MARLULAN;
ALICIA LUBIS;
AGATHA LUBIS,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
Petition for Review of an Order
of the Board of Immigration Appeals
(Agency File Nos. A96-264-077, 78, 79, 80)
Submitted pursuant to Third Circuit LAR 34.1(a)
February 4, 2008
Before: McKEE and AMBRO, Circuit Judges,
and IRENAS, District Judge*
(Opinion filed: March 25, 2008)
OPINION
McKEE, Circuit Judge.
Julietta Siahaan, Johnson Marlulan, Alicia Lubis and Agatha Lubis petition for
*
The Honorable Joseph E. Irenas, Senior District Judge of the United States
District Court for the District of New Jersey, sitting by designation.
1
review of an order of the Board of Immigration Appeals affirming the decision of the
Immigration Judge denying their application for Siahaan for asylum, withholding of
removal and relief under the Convention Against Torture (“CAT”), as well as Julietta
Siahaan’s derivative asylum applications on behalf of Johnson Marlulan and Alicia and
Agatha Lubis. For the reasons that follow, we will deny the petition for review.1
I.
Because we write primarily for the parties, we need not recite the factual or
procedural background of this case except insofar as is necessary to our discussion.
Siahaan claimed she is eligible for relief because she is a member of the Batak
ethnic group and because she is a Christian. At her hearing before the IJ she introduced
approximately seventy-nine articles and reports2 in support of her claim. The IJ found
Siahaan was not credible. He also found that the evidence did not establish country-wide
persecution of Batak Christians. While Siahaan’s background materials and various
country reports show significant violence between Christians and Muslims in Sulawesia
and the Moluccas, they do not show violence in Jakarta (where she is from). The IJ
1
Although there are multiple requests for relief, inasmuch as they are all
derivative of Julietta Siahann’s claim, we will refer only to Julietta’s claim. See 8 U.S.C.
§ 1158(B)(3) (spouse and children may be “granted the same status as the alien. . . “).
2
The parties stipulated to the IJ taking administrative notice of the U.S.
Department of State’s 2003 Country Reports on Human Rights Practices for Indonesia,
the State Department’s 2004 International Religious Freedom Report for Indonesia, and
the Annual Report of the United States Commission on International Religious Freedom
dated May 2004.
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concluded that the only religious conflict in Jakarta concerned the establishment of
churches without municipal permits and that there is no evidence that such requirements
are not applicable to places of worship. He also found that Siahaan did not produce any
evidence that Bataks were targeted for violence along with ethnic Chinese during the
May 1998 civil riots, or that ethnic Bataks are targeted for violence based on their
ethnicity. Finally, the IJ found that Siahaan did not present sufficient evidence to
establish that she will more likely than not be tortured upon her return to Indonesia or
that the government would be complicit even if such torture were to occur. In lieu of
removal, the IJ granted the petitioners’ requests for voluntary departure.
On appeal to the BIA, Siahaan argued, for the first time, that there was a pattern or
practice of persecution against Batak Christians in Indonesia. In an opinion dated July
21, 2006, the BIA reversed the IJ’s finding that Siahaan was not credible, but it agreed
with the IJ’s finding that Siahaan failed to meet her burden of proving that she was
eligible for asylum, withholding and relief under the CAT.
The BIA held that there was not a pattern or practice of persecution of Batak
Christians by the government of Indonesia or forces the government was unable or
unwilling to control. It explained, “It is clear that ethnic and religious tensions and
violence do exist, and in particular, [Siahaan’s] documentary evidence confirms this, as
do the Country Reports from government agencies,” but the Country Reports also
indicate that in general inter-religious tolerance and cooperation improved in 2004. . . .”
3
Ohio App. 10. The BIA also concluded that while “[t]he reports on religious freedom express
concern over continuing religious tension and violence,” they do not establish that the
government of Indonesia or forces the government was unable or unwilling to control
engaged in a pattern or practice of persecution of Christians or Bataks. Id. The BIA
affirmed the IJ’s grant of voluntary departure. This petition for review followed.
II.
Where, as here, the BIA issued a decision on the merits rather than merely
summarily affirm the IJ, we review the BIA's decision, not the IJ’s. Gao v. Ashcroft, 299
F.3d 266, 271 (3d Cir.2002); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001).
We must uphold the BIA's factual findings if they are “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” INS v.
Elias-Zacarias, 502 U.S. 478, 480 (1992). We should find substantial evidence lacking
only where the evidence “was so compelling that no reasonable factfinder could fail to
find the alien eligible for asylum or withholding of removal.” Id. at 483-84; see also 8
U.S.C. § 1252(b)(4)(B); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
III.
The Attorney General has discretion to grant asylum to a removable alien. See 8
U.S.C. § 1158(a). However, that discretion can only be exercised if the alien first
establishes that he/she is a “refugee.” Id. A “refugee” is:
any person who is outside any country of such person's
nationality or, in the case of a person having no nationality, is
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outside of any country in which such person last habitually
resided, and who is unable or unwilling to avail himself or
herself of the protection of that 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 asylum applicant must present some evidence that
removal will result in persecution “on account of” one of the five statutory grounds in
order to establish eligibility for asylum.
An applicant who offers credible testimony regarding past persecution is presumed
to have a well-founded fear of future persecution. Berishaj v. Ashcroft, 378 F.3d 314,
323 (3d Cir.2004) (citation omitted). The “well-found fear of persecution” standard
involves both a subjectively genuine fear of persecution and an objectively reasonable
possibility of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). The
subjective prong requires a showing that the fear is genuine. Mitev v. INS, 67 F.3d 1325,
1331 (7th Cir.1995). The objectively reasonable prong requires ascertaining whether a
reasonable person in the alien's circumstances would fear persecution if returned to a
given country. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003) (citation omitted).
“To satisfy the objective prong, the asylum petitioner must show he or she would be
individually singled out for persecution or that ‘there is a pattern or practice in his or her
country . . . of persecution of a group of persons similarly situated to the applicant on
account of race, religion, nationality, membership in a particular social group, or political
5
opinion.’” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006) (quoting 8 C.F.R.
§ 208.13(b)(2)(iii)(A)). Although “pattern or practice,” is not defined, we have explained
that “the persecution of the group must be systematic, pervasive, or organized” to
constitute a pattern or practice. Id. (citation omitted). “In addition, as with any claim of
persecution, the acts must be committed by the government or forces the government is
either unable or unwilling to control.” Id. (citation omitted).
Withholding of removal is mandatory once “the Attorney General determines that
[the] alien's life or freedom would be threatened” because of a protected trait or activity.3
8 U.S.C. § 1231(b)(3)(A). An alien must establish a “clear probability,” i.e., that it is
more likely than not, that he/she would suffer persecution. See INS v. Stevic, 467 U.S.
407, 429-30 (1984). Because this standard is higher than that governing eligibility for
asylum, an alien who fails to qualify for asylum is necessarily ineligible for withholding
of removal. Zubeda, 333 F.3d at 469-70.
IV.
Siahaan argues that the BIA’s ruling is not supported by substantial evidence. We
disagree. 4,5 We disagree.
3
An application for asylum is deemed at the same time to be an application for
withholding of removal. 8 C.F.R. § 1208.3(b).
4
Siahaan also argues that the IJ did not consider all of the record evidence in
determining whether there was a pattern or practice of persecution against Bataks and
Christians. However, as noted, because the BIA issued a decision on the merits and did
(continued...)
6
The record contains no probative evidence of the persecution of Bataks in
Indonesia. Indeed, Siahaan’s counsel admitted that her claims were based primarily on
her religion rather than her ethnicity. The only evidence she introduced concerning
possible persecution of Bataks is a 1990 article discussing the Indonesian government’s
cancellation of the Congress of Batak Protestant Churches. The article noted that the
primary reason the government cancelled the Congress was because church leaders had
intervened on behalf of villagers affected by a pulp factory. A.R. 356.
Her claim of a pattern or practice of persecution of Christians in Indonesia fares no
better. In Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005), in denying Chinese Christian
petitioners’ applications for asylum and withholding, we wrote:
Petitioners argue, with some force, that anti-Chinese violence
persists, . . . Nevertheless, such violence does not appear to be
sufficiently widespread as to constitute a pattern or practice. .
. . Moreover, this violence seems to have been primarily
wrought by fellow citizens and not the result of governmental
action or acquiescence.
Id. at 537-538. Siahaan is not a Chinese Christian, and the documentary evidence here, as
4
(...continued)
not simply affirm the IJ, we review the BIA’s decision, not the IJ’s.
5
Siahaan claims, without any legal or factual argument, that the IJ erred in denying
her claim for relief under the CAT. However, as noted above, we are reviewing the
BIA’s decision. Moreover, she makes her CAT claim in a perfunctory manner.
Accordingly, she has waived this issue. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d
Cir. 1993) (“[c]asual mention of an issue in a brief is cursory treatment insufficient to
preserve the issue on appeal.”). We add, however, that the record here does not support a
CAT claim in any event.
7
in Lie, states that inter-religious tolerance and cooperation improved in 2004. The
International Religious Freedom for Indonesia in 2004 stated that “notable advances in
interreligious tolerance and cooperation occurred during the period covered by this
report.” The Annual Report of the U.S. Commission on International Religious Freedom
noted that although the government has been unable to halt all religiously-related
violence, the situation has improved since 2001.
Siahaan claims that the government is complicit in violence against Christians.
However, the BIA’s finding to the contrary is supported by substantial evidence. The
Religious Freedom Report states that the government “cracked down on terrorists and
other extremists who carried out attacks in the name of religion. . . .” 6 The Report also
noted that the government prosecuted a number of others implicated in the Christmas Eve
church-bombings. In fact, The Human Rights Watch Report that Siahaan provided stated
the government’s crackdown on religious violence has caused some Muslims to believe
the government is siding with Christians.
The articles Siahaan introduced also show how the government attempted to stop
violence against Christians and others. By way of examples, an article in the Christian
Post reported that in early 2004, unidentified assailants attacked two Protestant Churches
6
The Report also noted that the “government tried and convicted at least 79 terror
suspects and accomplices involved in religiously motivated attacks” during the period
covered by the Report. One of those arrests was of Abdul Jabar, who was convicted of
involvement in two church bombings on Christmas Eve in 2003.
8
in Palu, Central Sulawesi – an island far from Jakarta. The government later dismissed
the police chief for negligence in not following a directive to boost police protection at
places of worship ahead of the Christmas and New Year period. Another provincial
police chief ordered that all churches be guarded by two uniformed and two plainclothes
policemen. The President of Indonesia ordered security tightened in major cities such as
Jakarta.
Moreover, Muslim Indonesians are not a unified, fundamentalist force. The
Religious Freedom Report stated that “[i]n general, Islam in [Indonesia] remained
overwhelmingly tolerant, with a pluralistic outlook.” It noted that “[t]en percent or fewer
of the country’s Muslims advocate creating an Islamic state. . . .”
Another article Siahaan introduced stated that efforts to extend sharia [Islamic law]
to the entire country [were] opposed even by the leaders of the leading Islamic
organizations.
In sum, substantial evidence supports the BIA’s finding that there is no pattern or
practice of persecution of Christians in Indonesia.
V.
For all of the above reasons, we will deny Siahaan’s petition for review.
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