NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 27, 2012*
Decided December 13, 2012
Before
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
JOHN J. THARP, JR., District Judge**
No. 12‐2110
ANDI TJONG, Petition for Review of a Decision of the
Petitioner, Board of Immigration Appeals
v. No. A096 169 617
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Petitioner Andi Tjong is a 55‐year old Indonesian citizen of Chinese descent, and a
Christian. He last entered the United States in January 2001 and overstayed his visa. On
January 15, 2003, he applied for asylum, claiming refugee status based on his religion and
*
We granted the petitioner’s unopposed motion to waive oral argument. Thus, the
appeal is submitted on the briefs and record. See Fed. R. App. P. 34(a)(2)(C).
**
The Honorable John J. Tharp, Jr., of the United States District Court for the
Northern District of Illinois, sitting by designation.
No. 12‐2110 Page 2
nationality. The Department of Homeland Security served Tjong with a notice of removal, and
in response, Tjong asserted that he was entitled to asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). The immigration judge denied all forms of
relief, and the Board of Immigration Appeals (the “Board”) affirmed the decision on
withholding of removal and determined that the asylum and CAT claims had been abandoned.
We deny Tjong’s petition for review.
At his hearing before the immigration judge, Tjong conceded his removability but
argued that the treatment of Chinese Christians in Indonesia warranted asylum, withholding
of removal, and protection under the CAT. He admitted that he applied for asylum more than
one year after entering the United States. He explained that he did not apply earlier because “he
didn’t know anybody” and because he “didn’t understand about asylum” until 2003.
Tjong testified that he became a Christian at the age of thirteen and attended a Christian
school through sixth grade. He practiced his religion in Indonesia by attending a Methodist
church in Medan, his hometown, and another Christian Church, Bethany, when he moved to
Jakarta as a teenager. Tjong testified that practicing his religion in Indonesia was “not a
problem,” but that the Indonesian people do not like Christians and gave them “problems
going to church.” Specifically, people would “get mad and would be yelling at” the Christians,
saying “you are a pig, you eat pig Chinese.” In November 2000, Tjong’s church was attacked
by about 30 people. He ran but was caught and beaten with wood until he was “half
unconscious” and incurred a cut in his eyebrow. A policeman outside the church “didn’t do
anything.” Tjong drove himself to the hospital, where he stayed for two weeks “healing [his]
cuts” and receiving medication. On another occasion in 2000, Tjong read in a newspaper that
a different church in Jakarta had been bombed.
Tjong testified that he now attends Spanish Church in Ann Arbor, Michigan, where he
lives. He owns a restaurant and has three children (one American‐born) and a wife, although
the marriage is not official. He is “a little bit afraid” to go back to Indonesia because of the
bombing he read about in 2000 and riots he “heard from the news.” Under cross examination,
Tjong also stated that it was “correct” that he wanted to stay in the United States to “keep [his]
restaurant and continue to make money.”
Other evidence entered into the record consisted of the State Department’s reports on
conditions in Indonesia: the 2009 International Religious Freedom Report, the 2009 Background
Report, and the 2008 Human Rights Report. These reports establish that Christians are a
minority of ten percent or less of Indonesian citizens. The Indonesian constitution guarantees
freedom of religion with respect to certain “recognized” religions, which include both
Protestantism and Catholicism. However, incidents of harassment or violence of members of
minority religions have been reported, especially against unrecognized sects, and local
No. 12‐2110 Page 3
government officials sometimes fail to adequately enforce religious freedom.
The immigration judge denied Tjong’s requests for relief. First, the immigration judge
determined that the asylum claim was barred because it was untimely (in general, asylum
petitions must be submitted within one year of entry,
8 U.S.C. § 1158(a)(2)(B)) and Tjong had
not established any extraordinary circumstances or shown a material change in country
conditions that would excuse a late filing. Next the immigration judge concluded that, although
Tjong had credibly testified to being a Christian and having Chinese ancestry, he had not
established either past persecution or a well‐founded fear of future persecution based upon
those characteristics. Finally, because Tjong did not testify to fearing any treatment that rose
to the level of torture, the immigration judge denied relief under the CAT.
The Board affirmed the immigration judge’s decision. It addressed the substance of the
withholding claim but concluded that Tjong waived appeal of the asylum and CAT claims
because he failed to contest or “meaningfully address” those decisions before the Board. As
to the withholding claim, the Board concluded that Tjong had failed to establish past
persecution based on the single incident in which he was beaten outside his church and his
knowledge of a bombing at a church he never attended. The Board concluded that this
treatment, while “deplorable,” did not surpass the threshold of persecution.
We review the decisions of both the Board and immigration judge where the Boardʹs
decision adopts and affirms the immigration judgeʹs conclusion as well as providing its own
analysis. Familia Rosario v. Holder,
655 F.3d 739, 743 (7th Cir. 2011). Although it does not alter
the outcome, we note that the provisions of the REAL ID Act, Pub.L. No. 109–13,
119 Stat. 231
(May 11, 2005), do not apply to Tjong’s case because he applied for asylum and other relief
before its effective date. Instead, the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub.L. No. 104–208,
110 Stat. 3009 (Sept. 30, 1996), governs.
We first turn to the claims that the Board deemed waived, for if Tjong did not take his
arguments to the Board first, we cannot review them on appeal. See
8 U.S.C. § 1252(d)(1) (1996).
The government argues (with some support from our case law—see, e.g., Margos v. Gonzales,
443
F.3d 593, 599 (7th Cir. 2006)), that this is a jurisdictional bar, but we have previously
endeavored to clarify that misunderstanding. Issaq v. Holder,
617 F.3d 962, 968 (7th Cir. 2010)
(Rather than being “a jurisdictional rule in the strict sense,” the exhaustion requirement is “a
case‐processing rule that limits the arguments available to an alien in this court when those
arguments have not been raised properly at the agency level.”); Long‐Gang Lin v. Holder,
630
F.3d 536, 542 (7th Cir. 2010). Because it is not strictly jurisdictional, the exhaustion requirement
is subject to exceptions. Arobelidze v. Holder,
653 F.3d 513, 516‐17 (7th Cir. 2011).
No. 12‐2110 Page 4
However, Tjong has not established that any exception applies here; indeed, despite the
government’s waiver argument, Tjong fails even to acknowledge the Board’s holding that he
had abandoned certain claims. Instead, Tjong skips straight to arguing the merits of his asylum
claim (he does not specifically address the CAT claim). With no suggestion from Tjong that the
Board mistakenly determined that he abandoned his claims, we must conclude that Tjong failed
to exhaust his administrative remedies and deny his petition for review to the extent it purports
to appeal claims that the Board found waived. We note as well that, even if Tjong had
presented his asylum claim to the Board, this Court would have lacked jurisdiction to review
a determination that his asylum application was untimely and not excused by changed
circumstances or extraordinary circumstances. See
8 U.S.C. § 1158(a)(3); Restrepo v. Holder,
610
F.3d 962, 964 (7th Cir. 2010).
Like the Board, then, we review only Tjong’s claim for withholding of removal. We
review the Board and immigration judge’s decisions for substantial evidence, assessing
“whether [their] determination was ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole,’” and reversing “only if the evidence compels
a contrary conclusion.” Ahmed v. Ashcroft,
348 F.3d 611, 615 (7th Cir. 2003) (quoting INS v.
Elias–Zacarias,
502 U.S. 478, 481 (1992)).
An otherwise removable alien is entitled to withholding “if the Attorney General
decides that the alien’s life or freedom would be threatened in that country because of the
alienʹs race, religion, nationality, membership in a particular social group, or political opinion.”
See
8 U.S.C. § 1231(b)(3)(A). To meet this standard, an alien must show that he was subject to
past persecution or that it is more likely than not that he will suffer persecution in the future
if he is removed.
8 C.F.R. § 1208.16(b). A showing of past persecution creates the rebuttable
presumption of future persecution.
8 C.F.R. § 1208.16(b)(1). To qualify for withholding of
removal without proving past persecution, one must show “a clear probability” of future
persecution, which is a higher standard than the “well‐founded fear” of persecution that is
required for asylum. Toure v. Holder,
624 F.3d 422, 428 (7th Cir. 2010); see
8 C.F.R. §
1208.16(b)(2).
Tjong contends that he established past persecution with his testimony about the taunts
he endured based on his Chinese ancestry and the attack at his church. Neither suffices. First,
the verbal slurs—being called a “pig” or “Chinese pig”—do not rise to the level of persecution.
“Derogatory name‐calling rarely if ever surpasses mere harassment to persecution.” Borovsky
v. Holder,
612 F.3d 917, 922 (7th Cir. 2010) (slurs such as “Jewish pig,” while offensive, are not
persecution).
And despite Tjong’s contention that the church attack was “more than adequate” to
show that he was persecuted for being Christian, we cannot say that the immigration judge and
No. 12‐2110 Page 5
Board lacked substantial evidence for their conclusions otherwise. This was a single incident,
which, to qualify as “persecution” must inflict severe harm. Nzeve v. Holder,
582 F.3d 678, 683‐84
(7th Cir. 2009). Despite a two‐week hospital stay, Tjong supplied no details of his injuries other
than his testimony that he received a fingernail‐size cut on his eyebrow and was “dizzy.” This
is not the degree of injury that we have found severe. See Zhu v. Gonzales,
465 F.3d 316, 320 (7th
Cir. 2006) (head wound requiring seven stitches not sufficiently severe to be persecution); Prela
v. Ashcroft,
394 F.3d 515, 518 (7th Cir. 2005) (being detained, harassed for money, and beaten,
causing hand injury, not persecution); Dandan v. Ashcroft,
339 F.3d 567, 573‐74 (7th Cir. 2003)
(three‐day detention without food and beatings that caused facial swelling not necessarily
persecution). Tjong’s single violent encounter with unknown attackers does not compel a
finding that he suffered “the use of significant physical force . . . or the infliction of comparable
physical harm without direct application of force . . . or nonphysical harm of equal gravity.”
See Stanojkova v. Holder,
645 F.3d 943, 948 (7th Cir. 2011).
Furthermore, Tjong presented no evidence of governmental involvement in this attack,
which is the sine qua non of persecution. See Ingmantoro v. Mukasey,
550 F.3d 646, 650 (7th Cir.
2008). There are limited exceptions—government complicity in or willful failure to prevent the
harm—that Tjong did not address, except to state that after the attack he saw a single
policeman who did nothing. (Tjong did not say that he asked the police officer for help or tried
to file any report of the incident.) Indeed, in his testimony, Tjong acknowledged that the
government never tried to stop him from practicing his religion; to the contrary, he attributed
any problems he encountered in that regard to “the people.” And Tjong does not challenge the
findings that he had lived in two cities in Indonesia, attended a Christian school, and practiced
his religion without incident for most of his life until the single attack on his church.
Tjong next contends that he showed a clear probability of future persecution in
Indonesia. To make this showing, he relies on the 2010 and 2011 International Religious
Freedom Reports, which he says prove a “pattern and practice” of persecution of Christians in
Indonesia that is so “widespread, continuing, and worsening” as to show a clear probability
of future persecution. Tjong’s first problem is that these two reports are not part of the
administrative record. Tjong moved this Court to take judicial notice of the reports. We agreed
to take his motions along with the merits, and we now deny them. The reports were released
while the administrative appeal was pending—indeed, the 2010 report came out over a year
before the Board’s decision. Yet Tjong did not attempt to supplement the administrative record
and present his argument to the Board in the first instance. Exhaustion aside, we cannot
consider evidence outside the record.
8 U.S.C. § 1252(b)(4)(A)(“[T]he court of appeals shall
decide the petition only on the administrative record on which the order of removal is based.”);
Zheng v. Holder,
698 F.3d 710, 714 n.2 (8th Cir. 2012).
No. 12‐2110 Page 6
The evidence of record reflects the official recognition of Protestantism and Catholicism
by the Indonesian government and the constitutional protection of religious freedom for their
adherents. The incidents of violence, harassment, and mistreatment of religious minorities
described in the record overwhelmingly (although not exclusively) relate to the Muslim
reformist sect of the Ahmadiyya Qadiyani, with which Tjong has professed no affiliation.
Tjong essentially asks that we categorically conclude that all Chinese Christians face
persecution in Indonesia to such an extent that there is a “clear probability” that he will be
persecuted if he returns. See Mitreva v. Gonzales,
417 F.3d 761 (7th Cir. 2005) (explaining “pattern
or practice” standard). That persecution, of course, “must be perpetrated or tolerated by state
actors.”
Id. at 765. But Tjong fails to draw our attention to any particular portion of his
testimony or the State Department reports in the record that would warrant a conclusion that
Chinese Christians per se are subject to persecution by the Indonesian government.
Indeed, this Court has twice before held that a petitioner fell short of proving a pattern
or practice of persecuting ethnic Chinese Christians in Indonesia. Ingmantoro,
550 F.3d at 650;
Kaharudin v. Gonzales,
500 F.3d 619, 624 (7th Cir. 2007). We were careful to limit those holdings
to the facts presented, so as not to foreclose the argument of a future petitioner who developed
a fuller or different record of the Indonesian government’s treatment of Chinese Christians. See
Ingmantoro,
550 F.3d at 651. But Tjong’s is not that case; as far as we discern, the record here
does not materially differ from that in Ingmantoro in that it consists only of State Department
reports of a similar vintage. We repeat our caveat that a future case might produce a different
result; however, Tjong has fallen short of the evidentiary threshold that would compel the
conclusion that a pattern of persecution exists.
On appeal Tjong makes only this pattern‐or‐practice argument to justify a fear of future
persecution. He does not otherwise argue that there is a clear probability of future persecution,
and none could succeed on this record. In addition to testifying that he was only “a little” afraid
of returning and that he wished to remain in the United States to continue running his business,
he also stated that the violence he feared occurred in areas where he didn’t reside and which
he could avoid by living elsewhere in the country.
Because substantial evidence supports the denial of Tjong’s request for withholding of
removal, and because Tjong failed to present his requests for asylum and relief under the CAT
to the Board, the petition for review is DENIED.
