Andokho v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-20-2008
Andokho v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4817
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IMG - 068 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-4817
___________
MULIANAWATI ANDOKHO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A97-976-157)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
MAY 7, 2008
Before: SLOVITER, STAPLETON AND COWEN, Circuit Judges
(Opinion filed: May 20, 2008)
___________
OPINION
___________
PER CURIAM
Mulianawati Andohko, a native and citizen of Indonesia, petitions for review of a
decision by the Board of Immigration Appeals (“BIA”) dismissing her appeal of an
immigration judge’s denial of her application for asylum, withholding of removal, and
relief under the Convention Against Torture. For the following reasons, we will deny the
petition for review.
Andokho is an approximately forty-five-year-old unmarried female of Chinese
ethnicity. She was admitted to the United States in 2003 as a non-immigrant visitor with
authorization to remain in the United States until November 30, 2003, but stayed beyond
that date. On February 11, 2004, Andohkho was served with a Notice to Appear charging
her with being subject to removal pursuant to Immigration and Nationality Act (INA) §
237(a)(1)(B), 8 U.S.C. § 1227, for remaining in the United States beyond the authorized
time. Andokho applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT).
In support of her application, Andokho testified before the Immigration Judge
(“IJ”) that she was psychologically traumatized by her experience during the May1998
riots in Indonesia and as a result of other incidents. On May 15, 1998, she was in her
office in Jakarta when violence broke out near her building. She escaped from her office
building and hid in a nearby apartment complex. After a period of time, Andokho left her
hiding place and went to a nearby hotel where she stayed for three days. Andokho was
not physically attacked or injured during the May 1998 riots. Andokho also claimed to
have been impacted psychologically by another riot at a university where students were
killed. Andokho was apparently disturbed after seeing blood stains on the campus after
the incident. Andokho claimed she was further traumatized when she found out that a
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bomb had exploded in the parking lot where she herself had been one week before.
Andokho also testified about being upset by reports of church bombings and rapes, as
well as by various anonymous threats she received.
As a result of these events, Andokho testified that she became depressed. She
went to see a doctor in Indonesia, who prescribed her vitamins. In 2002, Andokho’s boss
gave her some time off for a vacation so that she could come to the United States. After
remaining in the United States for less than a month, she returned to Indonesia. When her
depression recurred, she returned to the United States a year later in 2003. As of the time
of her hearing before the IJ, Andokho had not yet sought psychological counseling in the
United States.
The IJ denied Andokho’s application for asylum, withholding of removal, and
relief under CAT. The IJ found Andokho to be credible, but determined that she had not
suffered past persecution. The IJ concluded that Andokho did not qualify as a refugee
because the psychological harm she suffered as a result of the May 1998 riots “has no
nexus to her in terms of any persecutor targeting her individually.” The IJ also concluded
that the other incidents she described did not constitute persecution because the harm they
caused was not sufficiently severe. Moreover, the IJ concluded that the anonymous
threats she experienced did not constitute past persecution because they were not
sufficiently imminent or threatening. In addition, the IJ concluded that Andokho had
failed to establish a pattern or practice of persecution in Indonesia or a reasonable
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probability of future persecution. In this regard, the IJ stated that there is “no pattern or
practice of persecution of Chinese Christians in Indonesia according to the Third Circuit
and there is nothing in this record that would disturb that finding today.” 1 The IJ further
observed that Andokho’s family remained in Indonesia and that there was no evidence
that the family had been specifically targeted.
The BIA affirmed, finding that Andokho failed to establish that she had been
persecuted in the past, or that she would be persecuted in the future, “and also failed to
meet the higher burdens of proof for withholding of removal and for relief under the
Convention Against Torture.” The BIA specifically rejected Andkho’s argument that the
Immigration Judge had improperly relied on Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005).
The BIA observed that the IJ had “clearly [taken] into consideration recent country
reports information . . . and properly found no indication that the evidence would require
a result different from the Third Circuit’s decision in Lie.” Following the BIA’s
dismissal of her appeal, Andokho filed a timely petition for review in this Court.
We exercise jurisdiction to review the BIA’s final order of removal under INA
§ 242(a), 8 U.S.C. § 1252(a). Because the BIA appears to have substantially relied on the
findings of the IJ, we have jurisdiction to review the decisions of both the BIA and the IJ.
See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
1
The IJ took judicial notice of the 2004 Country Report on Human Rights Practices
and the 2004 International Religious Freedom Report for Indonesia.
4
Our review of these decisions is for substantial evidence, considering whether they
are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS,143 F.3d 157, 161 (3d Cir. 1998)
(quotation omitted). The decisions must be affirmed “unless the evidence not only
supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471
(3d Cir. 2003) (quotation omitted).
The legal precepts underlying Andokho’s claim are well established. To establish
eligibility for asylum, an applicant must demonstrate past persecution or a well-founded
fear of persecution that is both subjectively and objectively reasonable. Singh v.
Gonzales, 406 F.3d 191, 195 (3d Cir. 2005). An applicant who establishes that she has
suffered past persecution on account of one of the five grounds enumerated in the INA
“triggers a rebuttable presumption of a well-founded fear of future persecution, as long as
that fear is related to the past persecution.” Id. at 196 (citing 8 C.F.R. § 208.13(b)(1))
(quotation omitted). Whereas asylum is discretionary, withholding of removal under INA
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), is mandatory if the applicant meets a more
stringent standard – that it is “more likely than not” that she will be persecuted on account
of race, religion, nationality, membership in a particular social group, or political opinion
if deported to his or her home country. Id. (quoting Lukwago v. INS, 329 F.3d 157, 182
(3d Cir. 2003)). To obtain relief under the Convention Against Torture, an applicant must
establish that it is more likely than not that she would be tortured if removed to the
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proposed country of removal. Toure v. Attorney General of the United States, 443 F.3d
310, 317 (3d Cir. 2006).
Before this Court, Andokho contends that the IJ erred in finding that her
experiences did not rise to the level of past persecution because she “set forth in
considerable detail the trauma she suffered as a result of being in such close proximity to
the riots and [demonstrated] that ethnic Chinese were often targeted during these riots.”
Andokho’s psychological trauma as a result of her “close proximity” to the riots of May
1998 did not constitute persecution. Persecution encompasses only grave harms such as
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” See Fatin v. INS, 12 F.3d 1233, 1240 (3d
Cir.1993). Andokho was not harmed during the riots and, as found by the IJ, she was not
targeted directly by a persecutor. Accordingly, we conclude that the BIA’s determination
that she failed to establish that she suffered past persecution is supported by substantial
evidence.
Nor has Andokho established a well-founded fear of future persecution. Andokho
failed to show that she would be individually singled out for persecution or that there is a
pattern or practice of persecution against Chinese Christians. See 8 C.F.R. §
208.13(b)(2)(iii)(A). On appeal, Andokho argues that “[a]s a Chinese Christian in
Indonesia, Petitioner clearly is similarly situated to other Chinese who have been targeted
because of their ethnicity.” We have previously held that violence directed against
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Chinese Christians in Indonesia “does not appear to be sufficiently widespread as to
constitute a pattern or practice,” Lie, 396 F.3d at 537, and agree with the BIA that the
record in this case does not warrant a contrary conclusion.
Because we conclude that Andokho has failed to establish her eligibility for
asylum, we necessarily conclude that she has not satisfied the more stringent requirements
for withholding of removal. See Paripovic v. Gonzales, 418 F.3d 240, 246 (3d Cir.
2005). With respect to her CAT claim, Andokho has failed to demonstrate that she is
likely to be tortured by, or with the acquiescence of, government officials if removed to
Indonesia. See 8 C.F.R. §§ 1208.16(c),1208.18(a).2
For the foregoing reasons, we will deny the petition for review.
2
In her petition for review, Andokho also referenced a due process claim, but this
claim was not raised or discussed in her supporting brief. Therefore, we deem this claim
to be waived. See Vente v. Gonzales, 415 F.3d 296, 299 n.3 (3d Cir. 2005). In any event,
her due process claim is without merit.
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