Ang v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-14-2006
Ang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3312
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3312
THIAN HOK ANG;
UNTARI KUSUMA DEWI,
Petitioners
v.
ATTORNEY GENERAL OF
THE UNITED STATES
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(Nos. A95-838-364, A95-838-365)
Immigration Judge: Donald Vincent Ferlise
Submitted Under Third Circuit LAR 34.1(a)
June 13, 2006
Before: FISHER, ALDISERT and LOURIE * Circuit Judges
(Filed June 14, 2006)
OPINION OF THE COURT
*
The Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.
ALDISERT, Circuit Judge.
Thian Hok Ang and Untari Kusuma Dewi petition for review from a final order of
the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”)
denial of their applications for asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s order
pursuant to 8 U.S.C. § 1252. We will deny the petition.
I.
The parties are familiar with the facts and proceedings before the BIA and the IJ,
so we will only briefly revisit them here. Petitioners Ang and Dewi, who are both citizens
and natives of Indonesia, contended that they would be subject to discrimination, threats
and possible violence on account of their Chinese ethnicity and Buddhist religion were
they to be returned to Indonesia.
II.
Because the BIA adopted “the findings of the IJ and discuss[ed] some of the bases
for the IJ’s decision,” we will review the decisions of both the IJ and the BIA. He Chun
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Whether a petitioner has
demonstrated past persecution or a clear probability of future persecution are factual
determinations subject only to the highly deferential substantial evidence standard. INS
v. Elias-Zacarias, 502 U.S. 478, 483-484 (1992); Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002). Under the substantial evidence standard, this Court will uphold the findings
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of the BIA unless the evidence “not only supports a contrary conclusion, but compels it.”
Abdille v. Ashcroft, 242 F.3d 477, 483-484 (3d Cir. 2001).
III.
In their brief to this Court, Ang and Dewi waived any appeal of their applications
for protection under CAT, and have not appealed the IJ’s denial of their asylum
applications as being untimely, a determination which in any event we lack jurisdiction to
review. See 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185-186 (3d
Cir. 2003). We are therefore asked to review solely the IJ and BIA’s rejections of their
applications for withholding of removal.
An alien seeking withholding of removal must establish by a “clear probability”
that his life or freedom would be threatened in his country of origin because of, inter alia,
his race or religion. Chang v. INS, 119 F.3d 1055, 1059 (3d Cir. 1997). To meet this
burden, the applicant must demonstrate that it is more likely than not that he will be
persecuted upon his return, Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998), which
a petitioner can show by proving either past persecution or a likelihood of future
persecution. See 8 C.F.R. § 1208.16(b). Indeed, even if petitioners fail to prove past
persecution, which would have created a rebuttable presumption of future persecution, 8
C.F.R. § 208.16(b)(1)(i), petitioners can demonstrate a clear probability of future
persecution by showing either that it’s more likely than not that they would be singled out
individually for persecution or that there is a “pattern or practice of persecution of a group
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of persons similarly situated to the applicant on account of race [or] religion . . ..” 8
C.F.R. § 208.16(b)(2).
IV.
Our review of the record leads us to agree that substantial evidence supports the
IJ’s determination that Ang and Dewi do not qualify for withholding of removal. First,
we are satisfied that the incidents of which Ang and Dewi complain do not “rise to the
level of persecution because the harm suffered was not sufficiently severe.” Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding that petitioner, a Chinese Indonesian,
did not qualify for asylum relief, a less onerous standard than withholding of removal,
when petition was based upon two isolated incidents of robbery by native Indonesians).
The BIA and this Court 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.’” Ahmed v.
Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d
Cir. 1993)). “[P]ersecution does not encompass all treatment that our society regards as
unfair, unjust, or even unlawful or unconstitutional.” Fatin, 12 F.3d at 1240.
Here, there is no indication that either Ang or Dewi has suffered persecution.
Neither testified that they were ever prevented from practicing Buddhism while they lived
in Indonesia. Moreover, although Ang witnessed the riots in 1997 and 1998, and Dewi
observed the 1998 riot, nothing happened to either one of them in those riots aside from
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having a general fear of harm evoked within them. Before the IJ, Ang himself
acknowledged that nothing had ever personally happened to him in Indonesia and that he
is just generally afraid for his safety should he be returned. Similarly, there are no
indications that Dewi has personally suffered any harm that rises to the level of
persecution. We agree with the IJ that the one incident she does introduce – her being
accosted in a restaurant by four native Muslim Indonesians – was, as the IJ
acknowledged, an instance of criminality, not persecution. Accordingly, we conclude that
neither has been the victim of past persecution.
We also conclude that Ang and Dewi have failed to show either that they will be
individually targeted for persecution or that there is a pattern or practice of persecution of
ethnic Chinese in Indonesia. See 8 C.F.R. § 1208.16(b)(2). The record contains no
evidence that Ang and Dewi would face an individualized risk of persecution upon return
to Indonesia. To this end, although Ang and Dewi indicated that they have numerous
close family members in Indonesia, they neither testified nor presented evidence
indicating that these family members had been persecuted. See Hakeem v. INS, 273 F.3d
812, 816 (9th Cir. 2001) (“An applicant’s claim of persecution is weakened, even
undercut, when similarly-situated family members continue to live in the country without
incident . . .”) (cited by Lie, 396 F.3d at 537). Consequently, “[i]n this case, there is little
evidence that [Ang and Dewi] would face an individualized risk of persecution any more
severe than that faced by [their] family members” who remain in Indonesia in apparent
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well-being. Lie, 396 F.3d at 537.
Moreover, we do not agree with Ang and Dewi’s contention that there is a pattern
or practice of persecution of ethnic Chinese in Indonesia. Indeed, in Lie, in which we
addressed the treatment of Chinese Christians in Indonesia rather than ethnic Chinese as a
whole, we rejected a nearly identical argument. Therein, we considered similar citations
to press accounts of riots, vandalism and robbery of Chinese Christians, but found that the
situation for Chinese Christians had improved markedly since 1998, and that the cited
incidents of violence did not “appear to be sufficiently widespread as to constitute a
pattern or practice.” Lie, 396 F.3d at 537. We indicated that this violence appears to
have been “wrought by fellow citizens” and was not the result of “governmental action or
acquiescence.” Id. Here, notwithstanding their citation to various articles detailing the
maltreatment of ethnic Chinese, Ang and Dewi have not presented any evidence that
would compel us to break with Lie and conclude that there is a pattern or practice of
persecution against Indonesians of Chinese ethnicity. Accordingly, we reject their
argument that there is a clear probability that they would be the victims of future
persecution upon return to Indonesia.
*****
We have considered all contentions presented by the parties and conclude that no
further discussion is necessary. The petition for review will be denied.
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