Ming Ming Wijono v. Alberto Gonzales ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1515
___________
Ming Ming Wijono, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
___________
Submitted: December 16, 2005
Filed: March 8, 2006
___________
Before BYE, BOWMAN, and GRUENDER, Circuit Judges.
___________
BOWMAN, Circuit Judge.
Ming Ming Wijono petitions for review of an order of the Board of Immigration
Appeals (BIA) denying his application for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture (CAT). Wijono is an
Indonesian citizen who alleges that he fears persecution in Indonesia based on his
Chinese ethnicity and Christian religion. Because we lack jurisdiction to review the
denial of Wijono's application for asylum and conclude that substantial evidence
supports the BIA's denial of withholding of removal and relief under the CAT, we
deny the petition for review.
I.
Wijono last entered the United States on January 18, 1997, as a nonimmigrant
visitor for business. He was authorized to stay in the United States until February 17,
1997, but he remained past that date. On December 7, 2001, Wijono filed an
application for asylum, withholding of removal, and protection under the CAT on
grounds that he would be persecuted in Indonesia on account of his Chinese ethnicity
and Christian religion. On March 22, 2002, the Immigration and Naturalization
Service (INS) initiated removal proceedings against Wijono by issuing a Notice to
Appear, which charged that Wijono was removable from the United States as an alien
who remained in the United States without authorization from the INS after his period
of admission had expired. See 8 U.S.C. § 1227(a)(1)(B) (2000).
At a hearing before an immigration judge (IJ), Wijono admitted the allegations
in the Notice to Appear and conceded removability, but renewed his request for
asylum, withholding of removal, and protection under the CAT. The IJ determined
that Wijono was ineligible for asylum because he failed to file his application for
asylum within one year of his arrival in the United States as required by section
208(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(B)
(2000). The IJ further concluded that Wijono failed to prove that he was entitled to
withholding of removal or relief under the CAT. In lieu of removal, however, the IJ
granted Wijono the privilege of voluntarily departing the United States.
Wijono appealed to the BIA. The BIA affirmed the IJ's decision and dismissed
Wijono's appeal. Wijono now files a petition for review of the BIA's order.
II.
We begin by addressing Wijono's claim for asylum. The BIA concurred with
the IJ's determination that Wijono was statutorily ineligible for asylum because he
-2-
failed to file an asylum application within one year of arriving in the United States as
required by 8 U.S.C. § 1158(a)(2)(B). The BIA also concluded that Wijono did not
demonstrate the existence of either extraordinary or changed circumstances sufficient
to waive the one-year filing requirement. See id. § 1158(a)(2)(D). Based on these
conclusions, the BIA did not consider the merits of Wijono's asylum claim.
Wijono concedes that he did not file his application for asylum within one year
of arriving in this country but argues that the IJ erred by not permitting him to
establish the presence of circumstances sufficient to waive the time requirement. We
have no jurisdiction to review the BIA's determinations concerning waiver of the one-
year filing requirement. See id. § 1158(a)(3) ("No court shall have jurisdiction to
review any determination of the Attorney General under paragraph (2)."); Ignatova
v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (ruling that whether circumstances
exist to permit a late filing "is a discretionary judgment of the Attorney General" that
is "unreviewable by this court"). Wijono attempts to invoke our jurisdiction, however,
by asserting that his Fifth Amendment due-process rights were violated in the IJ's
processing of his asylum claim.1 Pursuant to the Real ID Act of 2005, we do have
jurisdiction to review constitutional claims and questions of law. 8 U.S.C.A.
§ 1252(a)(2)(D) (2005); Salkeld v. Gonzales, 420 F.3d 804, 809 (8th Cir. 2005). But
even our consideration of Wijono's asylum claim via the constitutional route is
foreclosed: Wijono failed to raise his due-process argument in his appeal to the BIA.
Wijono's failure to exhaust his administrative remedies precludes our review of his
argument at this stage. See Frango v. Gonzales, No. 04-2663, 2006 WL 287957, at
1
Wijono argues that the IJ denied him a "full and fair hearing" because the IJ
(1) neglected to inform him of his right to present evidence and testimony on his own
behalf and (2) inadequately explained how he could establish an exception to the one-
year filing requirement. Petitioner's Opening Brief at 25; see also Al Khouri v.
Ashcroft, 362 F.3d 461, 464–65 (8th Cir. 2004) (ruling that "[t]he Fifth Amendment's
due process clause mandates that removal hearings be fundamentally fair" and that,
when an alien appears pro se, an IJ has a duty to ensure that the record is fully
developed).
-3-
*3 (8th Cir. Feb. 8, 2006) ("[I]t was to the BIA, not to this court, that Mr. Frango
should have first raised his allegations that the IJ deprived him of a fair hearing.");
Kimumwe v. Gonzales, 431 F.3d 319, 323 (8th Cir. 2005) ("We decline to consider
Kimumwe's contentions that he was denied due process in the hearing before the
Immigration Judge, because he failed to present those issues in an appeal to the
BIA."); Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th Cir. 2005) (recognizing a
"strong rationale for a court-imposed issue exhaustion requirement" in immigration
cases); 8 U.S.C. § 1252(d)(1) (2000) ("A court may review a final order of removal
only if the alien has exhausted all administrative remedies . . . .").2
III.
We turn to Wijono's challenge to the denial of his application for withholding
of removal. To qualify for withholding of removal, Wijono must establish that there
is a "clear probability" that his life or freedom will be threatened on account of a
protected ground—in this case ethnicity or religion—if he is returned to Indonesia.
Mompongo v. Gonzales, 406 F.3d 512, 514 (8th Cir.) (citing 8 U.S.C.
§ 1231(b)(3)(A)), cert. denied, 126 S. Ct. 425 (2005). Said differently, withholding
of removal will be granted only if Wijono proves "that it is more likely than not that
he will be persecuted" upon return to Indonesia. Madjakpor v. Gonzales, 406 F.3d
1040, 1044 (8th Cir. 2005). "Persecution is the 'infliction or threat of death, torture,
or injury to one's person or freedom, on account of' a protected characteristic." Id.(quoting Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002)). "Low-level
intimidation and harassment alone do not rise to the level of persecution, nor does
harm arising from general conditions such as anarchy, civil war, or mob violence
2
We recognize that courts may excuse a failure to satisfy the issue-exhaustion
requirement in limited circumstances where injustice might otherwise result, see
Frango, 2006 WL 287957, at *2, but we find nothing that would justify an exception
in this case.
-4-
ordinarily support a claim of persecution." Id. (internal quotation marks and citations
omitted).
The BIA concluded that Wijono failed to establish the clear probability of
persecution essential to justify withholding of removal. The BIA determined that
Wijono "did not establish persecution under the Act" or "a nexus between any
incidents described, which appear to be random criminal acts, and a protected ground
under the Act." Admin. Rec. at 2 (Jan. 28, 2005, Decision of the BIA).
We review the BIA's decision denying Wijono's request for withholding of
removal under the substantial evidence standard. See Salkeld, 420 F.3d at 809. Under
this standard, we must uphold the denial unless Wijono shows that the evidence he
presented was so compelling that no reasonable factfinder could fail to find the
requisite probability of persecution. Id.Wijono presented evidence that, since he was a child, he has been called names
and harassed in Indonesia because of his Chinese ethnicity and Christian faith. While
in high school in 1988, Wijono was detained by Indonesian police officers for three
hours on the basis that the new motorcycle he was driving required an inspection.
When Wijono attempted to speak to the officers, they slapped his face and made anti-
Chinese statements. In 1994, an unknown man, whom Wijono believed to be Muslim,
approached Wijono on the street with a kitchen knife and attempted to rob him. But
Wijono fought the man and threw him into a canal. Finally, in 1996, a mob of seven
or eight unknown individuals broke into Wijono's father's business, forcing Wijono,
his father, and three employees to flee. According to Wijono, members of the mob
yelled, "No more Christians on our land! Wipe infidelity out from our land! Moslem
reign forever!" Admin. Rec. at 235 (Affidavit of Wijono). Wijono's father retrieved
cash from the business office and ran from the mob. His father was caught by mob
members, who then beat him and stole the cash. Wijono's father died as a result of the
injuries he sustained in the beating. While being chased by the mob, Wijono stumbled
-5-
and sustained minor bruises. These incidents were reported to the Indonesian police,
but the police took no action.
The evidence lends some support to Wijono's alleged fear of persecution. We
cannot say, however, that the evidence was so compelling that the BIA could not have
reasonably arrived at its conclusion that Wijono failed to meet the clear-probability
standard for withholding of removal. First, there is no clear indication that the
incidents described were motivated by the ethnicity or religion of Wijono and his
father. Although some of the attackers made anti-Chinese statements, this alone is
insufficient to establish a nexus between the attacks and a protected ground. See Lie
v. Ashcroft, 396 F.3d 530, 535–36 (3d Cir. 2005) (holding that ethnic slurs made
during robberies of the home and business of Chinese Christians in Indonesia were
insufficient to conclude that the intrusions were on account of ethnicity); Halim v.
Ashcroft, 109 Fed. Appx. 164, 165–66 (9th Cir. 2004) (holding that substantial
evidence supported the IJ's finding that robbery of Chinese petitioner by native
Indonesians was the result of random crime even though the robbery occurred at a
Chinese restaurant and the robbers referred to the victims as "you Chinese"). Indeed,
the attempted robbery of Wijono in 1994 and the attack of Wijono's father in 1996
could have been based on simple criminal intent, rather than ethnic or religious bias.
Second, the harassment Wijono suffered was sporadic and did not rise to the level of
persecution necessary to establish eligibility for withholding of removal. See Setiadi
v. Gonzales, No. 04-3409, 2006 WL 250273, at *2 (8th Cir. Feb. 3, 2006) ("Even
minor beatings or limited detentions do not usually rise to the level of past
persecution."); Berte v. Ashcroft, 396 F.3d 993, 996 (8th Cir. 2005) ("Low-level
intimidation and harassment alone do not rise to the level of persecution."); see also
Marbun v. Gonzales, No. 05-9519, 2005 WL 3551174, at *2 (10th Cir. Dec. 29, 2005)
(holding that "discrimination and anti-Christian sentiment in Indonesia" suffered by
Chinese Christians was "deplorable" but did not "compel a finding of persecution").
Third, Wijono's mother, sisters, and brother continue to live in Indonesia without
incident. "The reasonableness of a fear of persecution is diminished when family
-6-
members remain in the native country unharmed, and the applicant himself had not
been singled out for abuse." Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir.
2004).
Wijono argues that even if the evidence did not establish that he will be singled
out individually for persecution if returned to Indonesia, he is nonetheless eligible for
withholding of removal because there is a "pattern or practice of persecution" of
Chinese Christians in Indonesia, "such that it is more likely than not that his . . . life
or freedom would be threatened upon return to that country." 8 C.F.R.
§ 208.16(b)(2)(i)–(ii) (2005). In an attempt to establish a pattern or practice of
persecution, Wijono submitted documentary evidence detailing attacks on Indonesia's
Chinese Christian population by Muslim Indonesians. According to the 2001 United
States Department of State Indonesia Country Report on Human Rights Practices
(2001 Report) and news articles, the most significant attacks occurred in 1998 when
Muslim Indonesians looted and burned Chinese-owned businesses, raped Chinese
women, and murdered an untold number of Chinese citizens. The 2001 Report further
mentioned that in 2000 Christians were tortured by Muslims in certain areas of the
country when they refused to convert to Islam.
While it is clear from the record that violence against Chinese Christians
persists in Indonesia, we cannot say that such violence necessarily constitutes a pattern
or practice of persecution. 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). The 2001 Report indicates that there has been a sharp decline in
violence against Chinese Christians since the 1998 riots. The Indonesian government
officially promotes ethnic and religious tolerance, and Indonesia recently repealed
prohibitions on teaching the Chinese language and celebrating the Chinese New Year.
The 2001 United States Department of State International Religious Freedom Report
on Indonesia further states that the continued attacks against Christians are perpetrated
by groups of Muslim extremists and are geographically isolated, not country-wide.
-7-
Moreover, the evidence indicates that religious persecution in Indonesia appears to be
inflicted by fellow civilians and not the result of governmental action or acquiescence.
Given these considerations, we conclude that the BIA's determination that Wijono is
not eligible for withholding of removal is supported by substantial evidence.3
IV.
Finally, Wijono asserts that the BIA erred in denying him relief under Article
III of the CAT. Relief under the CAT is available only if an alien proves "that it is
more likely than not that he or she would be tortured if removed to the proposed
country of removal." 8 C.F.R. § 208.16(c)(2) (2005). Torture is narrowly defined as
an act causing severe pain or suffering inflicted by or with the acquiescence of a
person acting in an official capacity. Id. § 208.18(a)(1). It is limited to "extreme
form[s] of cruel and inhuman treatment." Id. § 208.18(a)(2).
Wijono argues that the BIA erred by failing to analyze his request for relief
under the CAT independently of his asylum and withholding claims. Independent
analysis is only required, however, "when there is evidence that the alien might be
tortured for reasons unrelated to [the alien's] claims for asylum and withholding of
removal." Alemu v. Gonzales, 403 F.3d 572, 576 (8th Cir. 2005). Because Wijono
alleged the same factual basis for all three claims, a separate analysis was not
necessary. The BIA's conclusions that warrant denial of Wijono's withholding of
3
Wijono asks us to follow the lead of the Fifth Circuit in concluding that a
pattern of persecution of Christians exists in Indonesia. See Eduard v. Ashcroft, 379
F.3d 182, 192 (5th Cir. 2004). For the reasons stated in our opinion, however, we
conclude that the record does not establish that a pattern or practice of persecution of
Chinese Christians exists in Indonesia. See Lie, 396 F.3d at 537 (holding that
violence against Chinese Christians in Indonesia did not constitute a pattern or
practice of persecution).
-8-
removal claim also warrant denial of relief under the CAT. See id.; Madjakpor, 406
F.3d at 1046.4
We deny the petition for review.
______________________________
4
Wijono has moved to supplement the administrative record with country
reports and news articles not presented to the IJ or BIA. We deny the motion. In
deciding a petition for review, we may only consider "the administrative record on
which the order of removal is based." 8 U.S.C. § 1252(b)(4)(A) (2000); see also
Berte, 396 F.3d at 997 (refusing to consider country reports not submitted to the IJ
because of the limit imposed by 8 U.S.C. § 1252(b)(4)(A)). We note that all of the
newly proffered country reports and many of the newly proffered news articles were
in existence and available at the time of the 2002 and 2003 removal hearings before
the IJ.
-9-