Wiendarta v. Attorney General of the United States ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-15-2009
Wiendarta v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2186
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IMG-089 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2186
_____________
WIENDARTA,
Petitioner
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
Agency No. A78 203 028
Immigration Judge: Lawrence O. Burman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 11, 2009
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: June 15, 2009)
OPINION OF THE COURT
___________
PER CURIAM
Wiendarta petitions for review of an order of the Board of Immigration Appeals
(“BIA”), dismissing his appeal from an Immigration Judge’s (“IJ’s”) final order of
removal. We will deny the petition for review.
Wiendarta is a sixty-four year old native and citizen of Indonesia who entered the
United States in 1998 on a tourist visa and who stayed longer than permitted. Wiendarta
filed an application for asylum, withholding of removal and protection under the
Convention Against Torture (“CAT”), asserting that he fears persecution if removed to
Indonesia because he is a Chinese Christian.
Wiendarta testified that a store he owned and operated was looted and burned by
Muslim Indonesians during the political unrest of 1965.1 He was financially unable to
reopen his store and instead worked for an oil company and then as a taxi driver. He later
opened a second store in a predominantly Muslim area. He testified that the second store
was robbed and looted in 1996 by the family of his daughter’s Muslim boyfriend, of
whom Wiendarta disapproved. Wiendarta could not afford to open another store.
Wiendarta also pointed to an incident in 1997 during which stones were thrown at his
church. On July 28, 2006, the IJ concluded that his asylum application was time-barred
and denied Wiendarta’s remaining claims for relief. The IJ concluded that although these
events constituted discrimination and harassment, they did not rise to the level of past
persecution. As the IJ further explained, although Wiendarta claimed that the destruction
of his stores and the continuing threat from Indonesian Muslims who hate Chinese
1
Wiendarta first testified that the looting occurred in October 1995, but when his
attorney asked how many years before 2006 the event occurred, he said “41 years ago.”
Hearing Transcript at 41.
2
Christians effectively ruined his chances for economic livelihood if he were to return to
Indonesia, he has two sons still living in Indonesia who can support him, as well as a son
and a daughter in the United States who could also provide financial support for him.
The IJ also noted that Wiendarta waited until his youngest child graduated from college
before leaving for the United States.
On March 25, 2008, in a short opinion, the BIA affirmed the IJ’s decision on the
merits. The BIA agreed with the IJ’s finding that Wiendarta’s asylum claim was untimely
and that no exception applied. The BIA held that the incidents Wiendarta described from
his past did not rise to the level of persecution, and that he had not shown that it was more
likely than not that he would be persecuted in the future. The BIA also held that
Wiendarta had not shown that it was more likely than not that he would be tortured in
Indonesia. Wiendarta filed a timely petition for review.
In most cases, we have jurisdiction to review a final order of removal involving the
denial of asylum. 8 U.S.C. § 1252(a)(1). However, 8 U.S.C. § 1158(a)(3) provides that
no court shall have jurisdiction to review any determination regarding the timeliness of an
asylum application and the applicability of the exceptions. See Tarrawally v. Ashcroft,
338 F.3d 180, 185 (3d Cir. 2003). Although the subsequently enacted REAL ID Act
amended the Immigration and Nationality Act to allow constitutional claims or questions
of law to survive its jurisdiction-stripping provisions, see REAL ID Act
§ 106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D), Wiendarta has not raised any legal or
3
constitutional claims regarding the IJ’s determination that his asylum claim was untimely.
Because we lack jurisdiction to consider whether Wiendarta’s asylum application was
timely, our review is confined to consideration of whether the BIA properly affirmed the
denial of withholding of removal.2
To be eligible for withholding of removal, Wiendarta must demonstrate that it is
more likely than not that his life would be threatened in Indonesia on account of race,
religion, nationality, membership in a particular social group, or political opinion.
Tarrawally, 338 F.3d at 186; 8 U.S.C. § 1231(b)(3)(A). We may reverse the BIA’s
decision only if the record would compel a reasonable factfinder to conclude that the
requisite fear existed. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Wiendarta argues that he suffered past persecution on account of his Chinese
ethnicity and his Christian religion when (1) he twice suffered the loss of his business
when it was looted and damaged in 1965 and again in 1986; (2) he was struck on the face
by a wooden stick during the 1986 incident and had to get stitches in his lip; and (3) he
saw that the windows of his church had been broken. We conclude that Wiendarta has
not shown that the record compels a finding that he suffered past persecution, as opposed
to discrimination or harassment, on account of his ethnicity or religion. Fatin v. I.N.S., 12
2
Wiendarta’s brief contains a conclusory statement in a caption that this Court has
jurisdiction to review the denial of his CAT claim, but contains no argument concerning
relief under the CAT. Such a statement is not sufficient to bring the issue before the
Court, and we deem the issue waived. De Araujo v. Gonzales, 457 F.3d 146, 153 (1 st Cir.
2006); Voci v. Gonzales, 409 F.3d 607, 610 n.1 (3d Cir. 2005).
4
F.3d 1233, 1240 (3d Cir. 1993) (“persecution does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or unconstitutional”).
Wiendarta also argues that there is a pattern or practice of persecution against
Chinese Christians in Indonesia. We have held that in order to constitute a “pattern or
practice,” the persecution of a group must be “systemic, pervasive, or organized.” Lie v.
Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005). In Wong v. Attorney General, 539 F.3d 225
(3d Cir. 2008), we held that the United States Department of State’s 2003 and 2004
Country Reports regarding Indonesia did not demonstrate a pattern or practice of
persecution against Chinese Christians. Id. at 233. We noted that the 2005 and 2006
Country Reports documented improved treatment of Chinese Christians in Indonesia. Id.,
539 F.3d at 234. 3 The record here contains the 2005 Country Report, which notes a
reduction in inter-religious violence and a government initiative to prosecute extremists.
Wiendarta states in his brief that “there is abundant evidence in the record that the
Indonesian government has condoned religious violence against the Chinese Christians . .
. [and] has selectively prosecuted perpetrators of /Chinese Christian-Muslim conflict that
has resulted in a disproportionate number of Chinese Christian victims” but he does not
3
Wiendarta argues that we should be persuaded by the decision in Eduard v. Ashcroft,
379 F.3d 182 (5 th Cir. 2004), where the Court found a pattern or practice of persecution of
Chinese Christians in Indonesia. However, in Wong we examined the decision in Eduard
and we found that it was based on country conditions in 2000, and that it was not
persuasive regarding conditions in Indonesia as reflected in later (2004) reports. Wong,
539 F.3d at 234-35.
5
point to any particular part of the record in support of this claim. We note that much of
the evidence Wiendarta submitted in support of his asylum application dated from 1998
through 2000, and Wiendarta has not explained how any of the later materials, which
mainly concern three Christian women accused of “Christianizing” Muslim children, have
any relevance to the likelihood that he will be persecuted on account of his religious
practice.4
We conclude that Wiendarta has not shown that the record compels a finding that
his life would be threatened if removed to Indonesia so as to entitle him to withholding of
removal. Tarrawally, 338 F.3d at 186. We will deny the petition for review.
4
Wiendarta also argues, citing Sael v. Ashcroft, 386 F.3d 922 (9 th Cir. 2004), that
because he is a member of a disfavored group, he need show only a “comparatively low”
level of individualized risk. As the Government notes, we have rejected the “disfavored
group analysis in Sael.” Wong v. Attorney General, 539 F.3d 225, 235, n. 5 (3d Cir.
2008).
6