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

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-18-2008
Dianie v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2598
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2598
ROS DIANIE; ACHMAD KARIM DJAELANI;
FADILLAH DJAELANI; RIZKY DJAELANI,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A95-460-346/347/348/349
(U.S. Immigration Judge: Honorable Rosalind K. Malloy)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 8, 2008
Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges.
(Filed: September 18, 2008 )
OPINION OF THE COURT
SCIRICA, Chief Judge.
Ros Dianie, her husband, Achmad Karim Djaelani, and their two minor sons,
Fadillah and Rizky Djaelani, all natives and citizens of Indonesia, petition for review of
an order of the Board of Immigration Appeals (BIA) dismissing their appeal and
affirming an Immigration Judge’s denial of their application for asylum, withholding of
removal, and protection under the United Nations Convention Against Torture (“CAT”).1
We will deny the petition.
I.
Dianie, an Indonesian native and citizen, entered the United States with her two
sons on non-immigrant visas on October 2, 2001. Djaelani, her husband, had similarly
been admitted as a non-immigrant visitor on May 17, 2001. On May 30, 2002, the
Government served petitioners with Notices to Appear charging them as removable under
INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for overstaying their visas. Petitioners
conceded the charges of removal but applied for asylum, withholding of removal, and
protection under the CAT. Specifically, Dianie alleged that she had been persecuted in
Indonesia on the basis of her perceived ethnicity and religious practice. Her claims of
ethnic persecution relate to a rape she suffered during the major riots that occurred in
Jakarta in May 1998. Dianie was working in her mother-in-law’s restaurant in the city at
the time. According to Dianie’s account, a group of men entered and began to destroy
property. Dianie heard one rioter state that the restaurant must be destroyed because it
belonged to Chinese people. One man grabbed her and, despite her protests that she was
not Chinese, pulled her into a storage room and raped her. Although Dianie identifies
1
Dianie is the lead petitioner. Her husband and children have derivative claims.
2
herself as ethnically Indonesian, she testified her maternal grandmother was ethnically
Chinese and she is often perceived to be Chinese by other Indonesians because of her
physical features. When Dianie and her husband reported the attack to the police the next
day—during which the riots continued—the police suggested an arrest would be unlikely,
since they did not know the identity of her assailant and had to contend with many people
who had been victimized during the riots.
Dianie’s claims of religious persecution stem from threats and physical
mistreatment by her husband’s family. Raised as a Catholic, Dianie converted to Islam,
the religion of her husband and his family, at the time of her marriage. Her husband’s
family appears to have been constantly dissatisfied with her level of religious practice and
with her upbringing of her children. Her brother-in-law, Jamal, was especially hostile and
aggressive in his disapproval, despite her husband’s attempts to protect her. On two
occasions during her pregnancies, Jamal pushed her to the floor in reaction to her
ostensibly deficient religious practices, also slapping her in the face during the second
incident. In addition, her husband’s family threatened several times to kill her if she did
not reform her religious observance. Pretending that she and her husband were divorced,
Dianie fled to another location in Indonesia, but her husband’s family tracked her down.
She then fled to yet another location, only to be found by two of her brothers-in-law, who
beat her when she refused to return with them to Jakarta. Dianie reported this attack to
the police, but they took no action, claiming to believe the statements of her brothers-in-
3
law that she was lying. Shortly thereafter, Dianie and her children left Indonesia for the
United States.
After a merits hearing, the Immigration Judge (IJ) denied petitioners’ claims for
relief in an oral decision dated April 26, 2004, finding Dianie had not met her burden of
showing past persecution, a well-founded fear of future persecution, or a likelihood of
torture. On September 30, 2005, the BIA dismissed petitioner’s appeal of the IJ’s
decision. The BIA agreed Dianie had not adequately demonstrated the violence she
suffered in the 1998 riots was on account of her real or perceived ethnicity. In the
alternative, the BIA concluded the information in the record evinced a fundamental
change in circumstances in Indonesia such that ethnically motivated violence against
Dianie in the future was unlikely. Furthermore, the BIA found Dianie had not
demonstrated the Indonesian government was unable or unwilling to protect her from her
mistreatment by her husband’s family on account of her religious practices.
The BIA reissued its decision on May 1, 2007. This timely appeal followed.
Although petitioners’ original petition for review included a claim for relief under the
CAT, petitioners have conceded they did not adequately raise this issue before the BIA.
Petr.’s Reply Br. 17-18; see 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d
587, 594-95 (3d Cir. 2003) (“[A]n alien is required to raise and exhaust his or her
remedies as to each claim or ground for relief if he or she is to preserve the right of
4
judicial review of that claim . . . .”). Accordingly, we consider below only the claims for
asylum and withholding of removal.2
II.
To qualify for asylum, an applicant must establish she is a “refugee” under 8
U.S.C. § 1158(b), that is, a person unable or unwilling to return to the country of removal
“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). Persecution involves “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom,” Fatin v.
I.N.S., 12 F.3d 1233, 1240 & n.10 (3d Cir. 1993), and includes only acts “committed
either by the government or by forces that the government is either unable or unwilling to
control,” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Once an applicant
establishes persecution on account of one of the specified grounds, there is a presumption
that her fear of future persecution is well-founded. That presumption may be rebutted by
a finding that there has been a fundamental change in circumstances in the applicant’s
2
We have jurisdiction over the petition under 8 U.S.C. § 1252. Where, as here, the
BIA discusses and adopts some of the bases for the IJ’s decision, we may consider the
decisions of both the BIA and the IJ. Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 276
(3d Cir. 2007). We review administrative determinations as to asylum and withholding of
removal for substantial evidence. Under this “extraordinarily deferential” standard,
Abdulrahman, 330 F.3d at 598, the agency’s determinations “must be upheld unless the
evidence not only supports a contrary conclusion, but compels it,” Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001).
5
country of nationality such that she no longer has a well-founded fear of persecution, or
that the applicant could avoid future persecution by relocating to another part of that
country. 8 C.F.R. 1208.13(b)(1). In the absence of past persecution, an alien may
establish a well-founded fear of persecution by demonstrating “both a subjectively
genuine fear of persecution and an objectively reasonable possibility of persecution.”
Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (emphasis omitted).
A.
Substantial evidence supports the BIA’s determination that Dianie was not
persecuted on account of her real or perceived ethnicity. We agree with petitioners that it
was improper for the IJ to conclude, on the basis of her own observations of the physical
features of Chinese and Indonesians, that Dianie’s testimony that she is often viewed by
other Indonesians as ethnically Chinese was incredible. But the BIA rightly criticized this
finding as inappropriate and did not rely on it in its opinion. Even if we accept as true the
entirety of Dianie’s account of the 1998 incident in Jakarta, we cannot say the record
compels a conclusion contrary to that reached by the BIA. Rape is certainly the kind of
severe crime that may rise to the level of persecution. Indeed, “[r]ape can constitute
torture.” Id. at 472. But a reasonable factfinder could find, as the BIA did, that
petitioners have not adequately demonstrated Dianie was raped on account of her
ethnicity. That one of the rioters allegedly stated the restaurant should be destroyed
because it belonged to Chinese does not compel a contrary determination. In Lie v.
6
Ashcroft, another case involving the anti-Chinese violence in Indonesia in the late 1990's,
we agreed with the BIA that neither a “single ethnic slur,” nor “evidence of general ethnic
difficulties” during the time period in question was sufficient to demonstrate that an
attack was motivated by the perceived ethnicity of the victim. 396 F.3d 530, 535 (3d Cir.
2005). In Lie, the petitioners alleged that their attackers had called each of them a
“Chinese pig” during two different robberies. Here, the evidence Dianie was singled out
for attack because of her perceived ethnicity is even less conclusive. The sole anti-
Chinese statement was directed against the owners of the restaurant and not specifically
against Dianie. Furthermore, Dianie informed her attacker she was not Chinese, and he
replied he did not care. These circumstances do not present a stronger case for an
ethnically motivated attack than existed in Lie. Even assuming the rape was ethnically
motivated, there is no evidence that it was committed by the government or by forces that
the government was unable or unwilling to control. While the police expressed
skepticism that, given the circumstances, they would be able to bring the perpetrator to
justice, there is no indication that the police were generally unwilling or unable to control
rapes of ethnically Chinese women. Petitioners argue that because “the Indonesian police
did not protect [Dianie], they were unable and unwilling to do so.” Petr.’s Reply Br. 2.
But if this were true, then any ethnically motivated crimes perpetrated by private
citizens—or, on a narrower interpretation of petitioners’ proposition, at least those that
remain unsolved by the police—would qualify the victim for asylum. Such a result would
7
reduce the requirement of a meaningful nexus between the government and the
persecutional acts to a virtual nullity. For these reasons, we conclude the BIA’s finding
there was no past persecution is supported by substantial evidence.
We also agree that petitioners have not succeeded in demonstrating a well-founded
fear she would be singled out for future ethnic persecution, or that there is a pattern or
practice of persecution in Indonesia against ethnic Chinese. As the BIA pointed out, the
record shows the treatment of ethnic Chinese in Indonesia has improved since the 1998
riots. In Lie, we found no pattern or practice of persecution against ethnic Chinese
existed because the violence in Indonesia is insufficiently widespread and appears to be
“wrought by fellow citizens” rather than caused by “governmental action or
acquiescence.” Lie, 396 F.3d at 537-38. Nothing in the record demonstrates subsequent
developments compelling a revision of that determination. See Sukwanputra v. Gonzales,
434 F.3d 627, 637 n.10 (3d Cir. 2006); see also Wong v. Att’y Gen., No. 06-3539, 2008
U.S. App. LEXIS 17720, at *19-21 (Aug. 20, 2008) (affirming the continuing validity of
Lie’s finding in light of more recent reports of Indonesian conditions).
B.
Petitioners are similarly unable to show no reasonable factfinder could conclude,
as did the BIA, that Dianie was not subject to religious persecution. In their briefs,
petitioners vigorously contest the BIA’s and IJ’s finding that inconsistencies in Dianie’s
and her husband’s accounts of his family’s mistreatment undercut the credibility of her
8
allegations. But accepting her allegations of abuse, we find sufficient evidence to support
the BIA’s and IJ’s determination that this abuse was not the product of governmental
acquiescence but rather a matter of private actors. Petitioners cite Matter of S-A-, 22 I. &
N. Dec. 1328 (BIA 2000), for the proposition that family abuse over differences in
religious practice can constitute persecution, but that case is distinguishable. In Matter of
S-A-, the BIA found the abuse inflicted on petitioner by her father amounted to
persecution, but the Board emphasized that in Morocco, the proposed country of removal,
it would have been “not only unproductive but potentially dangerous” for the petitioner to
have sought governmental protection. Testimony by the petitioner and her aunt, as well
as reports by the U.S. government, demonstrated that “the judicial procedure is skewed
against” women who complain of domestic abuse. The record in this case is insufficient
to compel such a finding regarding the Indonesian authorities. Only one incident was
reported to the police—the beating of Dianie by two of her brothers-in-law after she had
fled Jakarta.3 Although the police apparently did not believe her, this fact does not
compel a finding that the Indonesian police were generally unwilling to protect her or
other women from domestic abuse, nor does the record demonstrate that the police would
be unwilling to protect her in the future, or that there is a pattern or practice of
governmental acquiescence to domestic abuse. In short, substantial evidence supports the
3
Although Dianie’s husband initially told her he had reported to the police his family’s
attempt to abduct and circumcise their son, apparently he had not actually done so. A.R.
198.
9
BIA’s finding that petitioners do not qualify for asylum because they have not established
past persecution or a well-founded fear of future persecution on account of Dianie’s
religious practice.
III.
In order to qualify for withholding of removal, petitioners must show a clear
probability that their “[lives] or freedom would be threatened in [the country of removal]
because of [their] race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A); Chen v. Gonzales, 434 F.3d 212, 216 (3d
Cir. 2005). This is “a more rigorous standard than the ‘well-founded fear’ standard for
asylum. Thus, if an alien fails to establish the well-founded fear of persecution required
for a grant of asylum, he or she will, by definition, have failed to establish the clear
probability of persecution required for withholding of deportation.” Zubeda, 333 F.3d at
469-70 (citation omitted). Having found petitioners have not demonstrated eligibility for
asylum, we must also find they have not established their entitlement to withholding of
removal.
For the foregoing reasons, we will deny the petition for review.
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