Lie v. Atty Gen USA ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
2-7-2005
Lie v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-4106
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PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________________________________
NO. 03-4106
_________________________________________
IMELDA LAURENCIA LIE
SOYONO LIEM
ANDRE YULIUS SUYONO
Petitioners
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
__________________________________
On Petition for Review of Orders of the
Board of Immigration Appeals
(Board Nos. A78 696 420, A 78 696 421, A 78 696 422)
__________________________________
Argued: December 13, 2004
Before: NYGAARD, ROSENN, and BECKER, Circuit Judges.
(Filed: February 7, 2005)
David E. Piver
W. John Vandenberg (Argued)
150 Strafford Avenue
Suite 115
Wayne, PA 19087
Attorneys for Petitioner
Linda S. Werney
Douglas E. Ginsburg
John M . McAdams, Jr.
Kathleen M. Zapata (Argued)
United States Department of Justice
Office of Immigration
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
_____
OPINION OF THE COURT
BECKER, Circuit Judge.
Imelda Laurencia Lie, her husband, Soyono Liem, and her
minor son, Andre Yulius Suyono, petition for review of an order of
the Board of Immigration Appeals (BIA) denying their application
for asylum and withholding of removal. 1 This case tracks a now
familiar fact pattern: Lie is an Indonesian citizen who alleges that
she and her husband were persecuted because they are ethnically
Chinese and Christian. More specifically, Lie alleges, as is
common in these cases, that she and her husband were robbed on
1
Lie filed the application with the former Immigration and
Naturalization Service (INS), and included her husband and son as
derivative applicants. The application also included a claim based
on the Convention Against Torture (CAT). On appeal, however,
Lie has not raised any argument regarding the denial of her CAT
claim except by mentioning the Convention in her concluding
paragraph; nor did she rebut the government’s argument that she
has waived this issue in her reply brief or at oral argument. As
such, we deem her appeal of the CAT claim to have been waived.
See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (holding that
absent “extraordinary circumstances” appellant must present an
argument in support of each issue raised on appeal or such issues
are abandoned and waived).
2
separate occasions by unknown individuals who targeted them
because of their ethnicity and their religion.
However, substantial evidence supports the BIA’s
conclusion that these robberies were not motivated by religion or
ethnicity, and that, at all events, such robberies were not
sufficiently severe so as to rise to the level of persecution.
Moreover, we agree with the BIA’s conclusion that Lie has not
established a well-founded fear of persecution if she were to return
to Indonesia. Therefore, we will deny the petition for review.
I. FACTS AND PROCEDURAL HISTORY
Lie became a naturalized Indonesian citizen around the time
she married her husband in 1990. Lie and her husband lived
separately for work reasons in towns about four hours apart. As
noted above, both Lie and her husband are ethnically Chinese and
are Christians. In the late 1990s, Indonesia’s Chinese Christian
population became the target of widespread attacks perpetrated by
Muslim Indonesians. The 1999 United States State Department
country report for Indonesia noted that “[i]nterreligious violence
and violence against ethnic minorities continued. Attacks against
houses of worship continued, and the lack of an effective
government response to punish perpetrators and prevent further
attacks led to allegations of official complicity in some incidents.”
U.S. Dep’t of State, 1999 Country Reports on Human Rights
Practices – Indonesia, Feb. 25, 2000 (“1999 Country Report”). In
May 1998, there were “serious and widespread attacks” on
Chinese-owned businesses and homes by Muslim Indonesians,
which led to the deaths of over one thousand people. Id. Thus,
1998 represented a period of significant violence and rioting
against individuals of Chinese origin throughout Indonesia.
Lie alleges that at the start of this tumultuous period, in
1997, several native, Muslim Indonesians entered her husband’s
store, threatened him with a knife, called him a “Chinese pig,” and
then robbed him. Traumatized as a result of the robbery, her
husband left for the United States in December 1997.
Lie further claims that in July 1998, two people knocked on
the door of her home, called her a “Chinese pig,” and demanded
entry. They knocked down the door brandishing a knife, threatened
to burn down her house, and demanded that she give them money.
3
The intruders took some of Lie’s money and jewelry and struck her
in the left forearm with the knife when she tried to defend herself.
When they left, Lie called the police, but claims that no one at the
police station answered the phone. Lie received several stitches for
the knife wound. However, for the next twenty-one months, Lie
and her son continued to live in the same house without incident.
Lie and her son did not leave Indonesia until March 2000,
when they came to the United States as non-immigrant visitors. On
August 14, 2000, Lie filed an asylum application with her husband
and son as derivative applicants. On September 26, 2000, the INS
commenced removal proceedings against Lie, her husband, and her
son. The Immigration Judge (IJ) initially indicated he would
grant asylum subject to the admission of additional evidence from
both parties, including evidence confirming that Lie is a Catholic.
Because Lie did not provide the information in time, the IJ denied
her asylum application. Lie filed a timely motion to reopen the
case and produced evidence that she is a Catholic and attends mass
every Sunday. The IJ then reopened the case and granted the
motion for asylum.
The IJ made credibility findings in Lie’s favor, including
that the IJ had “no reason to dispute the veracity of [the] claim that
[Lie] and her husband are ethnically Chinese” and that Lie was in
fact Catholic. The main issue addressed by the IJ was the
motivation of the individuals who robbed Lie’s husband and Lie.
While finding that the attackers had some interest in simple
robbery, the IJ concluded that, “taking into account the context in
which the respondent’s claim arises, it is reasonable to conclude
that those who robbed the respondent and her husband were
motivated at least in part by a desire to punish them because of
their ethnicity.” In addition to Lie’s testimony about the incident,
the IJ relied on evidence of the 1998 anti-Chinese riots and other
violence directed against ethnic Chinese during this period
documented in the 1999 Country Report. Therefore, the IJ found
that Lie and her husband had suffered past persecution, and that the
presumption of future persecution had not been rebutted by
evidence of changed conditions in Indonesia.
The government appealed to the Board of Immigration
Appeals (BIA), which overturned the IJ’s grant of the Lies’ asylum
petition. The BIA found that “with regard to the single incident of
abuse [Lie] has described, a robbery of her store, there was no
4
evidence that it was motivated by her religion. As for her claim that
the robbery was motivated by her Chinese ethnicity, the only
evidence to support that claim was her testimony that her attackers
said ‘you Chinese pig, I want your money,’” which the BIA found
to be insufficient. 2
The BIA further reasoned that even if the ethnic slur was
sufficient to establish that the intruders were motivated by Lie’s
ethnicity or religion, the robbery incident did not constitute
persecution. See Fatin v. INS, 21 F.3d 1233, 1240 n.10 (3d Cir.
1993) (holding that persecution denotes “extreme conduct”). The
BIA found significant that Lie’s Chinese neighbors were not
robbed, that Lie tried only once to contact the police, and that she
lived for nearly two years after the attack without incident before
fleeing to the United States. It therefore rejected the IJ’s finding
that Lie had suffered past persecution.
Similarly, the BIA concluded that Lie lacks a well-founded
fear of future persecution. In its view, the fact that she remained
in Indonesia for nearly two years after the robbery because her son
was in school undermined her claim that her “primary motivation
for requesting refuge in the United States is ‘fear,’ i.e., a genuine
apprehension or awareness of danger in another country.” Matter
of Acosta, 19 I. & N. Dec. 211, 221 (BIA 1985). In addition, the
BIA noted that all of Lie’s and her husband’s siblings remain in
Indonesia and have been unharmed during this period—a factor
which the BIA had previously held would reduce the
reasonableness of alien’s fear of future persecution. See Matter of
A-E-M, 21 I. & N. Dec. 1157, 1160 (BIA 1998).
Concluding that Lie had failed to establish past persecution
or a well-founded fear of persecution, the BIA overturned the IJ’s
decision and denied asylum, withholding of removal, and Lie’s
CAT claim. Lie now petitions for review on her asylum and
withholding of removal claims. We set forth the by now familiar
principles governing our jurisdiction and scope and standard of
2
The BIA seems to have conflated Lie’s testimony about
the earlier robbery of her husband’s store with her testimony about
the subsequent break-in and robbery at her home. This mistake,
however, does not appear to undermine the outcome of the BIA’s
reasoning.
5
review in the margin.3
II. DISCUSSION
Under 8 U.S.C. § 1158(b)(1), the Attorney General may
grant asylum to an alien who is a “refugee” within the meaning of
8 U.S.C. § 1101(a)(42). Generally speaking, an applicant must
show that he or she
is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of
[the country of such person’s nationality or in which
such a person last habitually resided], 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). A showing of past persecution gives
rise to a rebuttable presumption of a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b)(1).
Lie challenges the BIA’s finding that she did not suffer past
3
We have jurisdiction to review final orders of the Board of
Immigration Appeals under section 242(a)(1) of the Immigration
and Nationality Act, 8 U.S.C. § 1252(a)(1) (1999). As the petition
for judicial review was filed within thirty days of the BIA’s
decision, the petition is timely. 8 U.S.C. § 1252(b)(1).
Where, as here, the BIA issued a decision on the merits and
not simply a summary affirmance, we review the BIA’s, not the
IJ’s, decision. 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).
6
persecution and its conclusion that she has failed to establish a
well-founded fear of future persecution.
A. Past Persecution
Lie claims that the intrusion into her home and the robbery
of her husband’s store constituted past persecution on account of
her Chinese ethnicity and Christian religion. As noted above, the
BIA concluded that Lie had not established the intruders were
motivated by her ethnicity or religion, and that, even if they had
such motivation, the incident was not sufficiently severe so as to
rise to the level of past persecution. We agree with the BIA’s
conclusion and similarly hold that Lie has not established her claim
of past persecution.
1. “On Account Of”
An asylum applicant must prove that she suffered past
persecution or has a well-founded fear of future persecution “on
account of” one of five enumerated grounds: “race, religion,
nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b)(1).
The Supreme Court, in INS v. Elias-Zacarias, held that while an
asylum-seeker would not “be expected to provide direct proof of
his persecutors’ motives,” nevertheless,
since the statute makes motive critical, he must provide
some evidence of [motive], direct or circumstantial.
And if he seeks to obtain judicial reversal of the BIA’s
determination, he must show that the evidence he
presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of
persecution.
502 U.S. 478, 483-84 (1992).
We have recognized that “[a] persecutor may have multiple
motivations for his or her conduct, but the persecutor must be
motivated, at least in part, by one of the enumerated grounds.”
Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003); see also
Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997) (finding
persecution on account of political opinion where persecutor’s
action was “motivated, at least in part” by the applicant’s political
7
opinion).
Even though Lie testified that during both the robbery of her
husband’s store and the robbery of her home the attackers called
each of them a “Chinese pig,” the BIA determined that “a single
ethnic slur” was insufficient to establish that the thieves were
motivated by Lie’s or her husband’s ethnicity. Indeed, the BIA
cited significant evidence supporting the conclusion that the
attackers were motivated by money: the attackers fled after
stealing her jewels and money; her Chinese neighbors were not
robbed; the robbery of relatively wealthy individuals such as the
Lies was not uncommon in Indonesia; and Lie and her son lived in
peace for almost two years following the attack.
While the 1999 Country Report did provide evidence that
there was widespread animus against ethnic Chinese, the BIA was
nevertheless entitled to rely on the evidence that, in Lie’s particular
case, the robberies were motivated by money. We find that the
evidence of general ethnic difficulties would not compel a
reasonable factfinder to conclude that the intrusions were “on
account of” Lie’s ethnicity or religion. Therefore, the BIA’s
decision to deny Lie’s claim on this basis was supported by
substantial evidence in the record.
2. Not Sufficiently Severe
The BIA also found that, even assuming, arguendo, that the
robberies were motivated by Lie’s ethnicity, the incidents did not
rise to the level of persecution because the harm suffered was not
sufficiently severe. The finding that the robberies did not
constitute persecution seems to be an appropriate application of the
standard announced in Fatin v. INS, where we defined persecution
as “threats to life, confinement, torture, and economic restrictions
so severe that they constitute a threat to life or freedom.” 12 F.3d
1233, 1240 (3d Cir. 1993).
Simple robbery, in isolation, while unfortunate and
troubling, does not seem to meet this stringent standard. See
Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004)
(“Random, isolated criminal acts perpetrated by anonymous thieves
do not establish persecution.”); Halim v. Ashcroft, 109 Fed. Appx.
164 (9th Cir. 2004) (non-precedential opinion) (holding that a
Chinese Indonesian had not suffered past persecution after begin
robbed at a Chinese restaurant by native Indonesians who said,
8
“You Chinese, give us all your belongings,” but was rather “the
victim of disturbing, but random, crime”); Djap v. Ashcroft, 2004
113 Fed. Appx. 376, 378 (10th Cir. 2004) (non-precedential
opinion) (finding that “the mistreatment [petitioner] experienced
was insufficient to rise to the level of persecution” in the case of an
ethnically Chinese Indonesian who claimed that, because of his
ethnicity, he was beaten and robbed by native Indonesians and that
his shop was looted and burned during the 1998 riots). We agree
with the Ninth and Tenth Circuits that Lie’s account of two isolated
criminal acts, perpetrated by unknown assailants, which resulted
only in the theft of some personal property and a minor injury, is
not sufficiently severe to be considered persecution.
B. Well-Founded Fear of Future Persecution
The BIA also found that Lie failed to establish a well-
founded fear of future persecution if she and her family were to
return to Indonesia. To establish a well-founded fear of future
persecution an applicant must first demonstrate a subjective fear of
persecution through credible testimony that her fear is genuine.
Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). Second, the
applicant must show, objectively, that “a reasonable person in the
alien’s circumstances would fear persecution if returned to the
country in question.” Id. To satisfy the objective prong, a
petitioner must show she would be individually singled out for
persecution or demonstrate that “there is a pattern or practice in his
or her country of nationality . . . 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 opinion . . . . ” 8 C.F.R. § 208.13(b)(2)(iii)(A).
It appears that the BIA denied Lie’s well-founded fear claim
primarily because Lie failed to establish that her fear of future
persecution was genuine. While Lie testified to having a subjective
fear of future persecution, the BIA did not credit this testimony.
Instead, the BIA relied on the fact that Lie acknowledged that she
came to the United States “to see if she wanted to settle here,” and
found that Lie did not flee Indonesia because of her fear of
persecution. Moreover, important to the BIA’s finding that Lie
lacked a subjective fear of returning to Indonesia was the fact that
Lie did not leave Indonesia with her husband after the first robbery,
and waited nearly two years after the subsequent robbery of her
9
home to come to the United States because her son was still in
school. There does not appear to be evidence in the record that
would compel us to disturb the BIA’s finding that Lie’s fear of
future persecution is not genuine or reasonable. Thus, we agree
with the BIA that Lie failed to establish the subjective prong of the
well-founded fear test.
In addition, we agree with the BIA, that Lie has failed to
establish either that she faces an individualized risk of persecution
or that there is a “pattern or practice” of persecution of Chinese
Christians in Indonesia. See 8 C.F.R. § 208.13(b)(2)(iii)(A). First,
Lie failed to show she has a reasonable, individualized fear of
persecution. The BIA noted that all of Lie’s and her husband’s
siblings remain safely in Indonesia, and found that their continued
well-being cuts against Lie’s argument that she reasonably should
fear returning to Indonesia.
We agree that when family members remain in petitioner’s
native country without meeting harm, and there is no individualized
showing that petitioner would be singled out for persecution, the
reasonableness of a petitioner’s well-founded fear of future
persecution is diminished. See Hakeem v. INS, 273 F.3d 812, 816
(9th Cir. 2001) (“An applicant’s claim of persecution upon return
is weakened, even undercut, when similarly-situated family
members continue to live in the country without incident . . . .”);
Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004) (“The
reasonableness of a fear of persecution is diminished when family
members remain in the native country unharmed, and the applicant
himself had not been singled out for abuse.”). In this case, there is
little evidence that Lie would face an individualized risk of
persecution any more severe than that faced by her family members
or other Chinese Christians in Indonesia.
Second, the evidence in the record does not establish that
there is a pattern or practice of persecution of Chinese Christians
in Indonesia. The INA regulations do not define what country
conditions constitute a “pattern or practice of persecution,” and this
court has yet to provide further clarification of the standard. At the
threshold, we agree with other courts that have held that, to
constitute a “pattern or practice,” the persecution of the group must
be “systemic, pervasive, or organized.” Ngure v. Ashcroft, 367
F.3d 975, 991 (8th Cir. 2004); see also Woldemeskel v. INS, 257
F.3d 1185, 1191 (10th Cir. 2001). At all events, as with any claim
10
of persecution, violence or other harm perpetrated by civilians
against the petitioner’s group does not constitute persecution unless
such acts are “committed by the government or forces the
government is either ‘unable or unwilling’ to control.”
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003); see
also Yan Lan Wu v. Ashcroft, --- F.3d ---, 2005 WL 14754, *3 (3rd
Cir. Jan. 4, 2005).
Petitioners argue, with some force, that anti-Chinese
violence persists, citing evidence in the record of widespread
attacks on Chinese Christians in Indonesia, including press
accounts of riots, vandalism, and robbery targeting Chinese
Christians. Nevertheless, such violence does not appear to be
sufficiently widespread as to constitute a pattern or practice. The
1999 Country Report on Indonesia indicated that there was a sharp
decline in violence against Chinese Christians following the period
of intense violence in 1998, and noted that the Indonesian
government officially promotes religious and ethnic tolerance.
Moreover, this violence seems to have been primarily wrought by
fellow citizens and not the result of governmental action or
acquiescence. Given these considerations, we are not compelled
to find that such attacks constitute a pattern or practice of
persecution against Chinese Christians.4
4
In Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), the Ninth
Circuit found that an ethnically Chinese citizen of Indonesia
established a well-founded fear of persecution. In Sael, the panel
did not find sufficient evidence of a “pattern or practice” of
persecution of Chinese Christians in Indonesia, but rather required
a lower level of individualized fear of future persecution because
Chinese Christians were at least a “disfavored group.” Id. at 925-
27. A group may be deemed “disfavored” on the basis of evidence
of mistreatment that is less pervasive and less severe than would be
required to establish a “pattern or practice” of persecution,
although “the ‘more serious and widespread the threat’ to the group
in general, ‘the less individualized the threat of persecution needs
to be.’” Id. at 925 (quoting Mgoian v. INS, 184 F.3d 1029, 1035 n.4
(9th Cir. 1999)). We disagree with the Ninth Circuit’s use of a
lower standard for individualized fear absent a “pattern or practice”
of persecution and, similarly, we reject the establishment of a
11
In sum, Lie has failed to demonstrate she has a subjective
fear of persecution, which alone would be sufficient to foreclose
her claim. Even if she could establish she subjectively fears
persecution upon her return to Indonesia, Lie has not established
the objective prong of the well-founded fear test because she has
failed to establish an individualized risk of persecution or that there
is pattern or practice of persecution of Chinese Christians in
Indonesia. For the foregoing reasons, we will deny the petition for
review
“disfavored group” category.
12