Lolong v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARJORIE KONDA LOLONG, 
Petitioner, No. 03-72384
v.
 Agency No.
A77-427-355
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 5, 2006—San Francisco, California
Filed May 7, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Harry Pregerson, Pamela Ann Rymer, Andrew J. Kleinfeld,
Michael Daly Hawkins, Sidney R. Thomas,
Barry G. Silverman, M. Margaret McKeown,
Raymond C. Fisher, Ronald M. Gould, Richard A. Paez,
Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Thomas
5037
LOLONG v. GONZALES 5041
COUNSEL
Robert B. Jobe, Hilari Allred, Law Office of Robert B. Jobe,
San Francisco, California, for petitioner Marjorie Lolong.
Jonathan F. Cohn & Isaac R. Campbell, Department of Jus-
tice, Washington, D.C., for the respondent.
OPINION
BYBEE, Circuit Judge:
Marjorie Konda Lolong petitions for review of a decision
by the Board of Immigration Appeals (“BIA”) denying her
application for asylum and granting her voluntary departure.
In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004),
we held that we lack jurisdiction to review the BIA’s deci-
sions in such cases because the BIA lacks the authority to
issue final orders of departure, and the Immigration and Natu-
ralization Act (“INA”) conditions our jurisdiction on the exis-
tence of such an order. Until recently, a petitioner in Lolong’s
position could still seek habeas relief in district court, but in
the REAL ID Act of 2005, Congress eliminated this form of
relief in immigration cases. See 8 U.S.C. § 1252(a)(5).
Together with our prior decisions, this statutory change leaves
petitioners in Lolong’s position with no opportunity to obtain
judicial review of the BIA’s disposition of their cases. We
reheard this case en banc to revisit our prior jurisprudence
because this lack of judicial review raises serious constitu-
tional concerns. Having decided that our prior interpretation
of the BIA’s power under the INA was overly narrow, we
overrule Molina-Camacho and determine that we do have
jurisdiction to review the BIA’s decision in such cases. We
further conclude that substantial evidence supports the BIA’s
denial of Lolong’s asylum claim. Accordingly, we deny the
petition for review.
5042 LOLONG v. GONZALES
I
Marjorie Lolong is an Indonesian woman of ethnic Chinese
descent. She is also a Christian. Lolong first entered the
United States as a student in 1990. In May 1998, when she
was still a student in this country, Indonesia experienced the
worst anti-Chinese rioting in its history. She applied for asy-
lum in December 1998, after learning that one of her friends
had been raped and her uncle had been severely beaten during
the violence. During her removal proceedings, Lolong con-
ceded removability, and the Immigration Judge (“IJ”) deter-
mined that “removability has been established by clear and
convincing evidence.” However, in November 2000, the IJ
held that Lolong was eligible for asylum, finding her testi-
mony fully credible and her fear of future persecution to be
both subjectively genuine and objectively reasonable. The
Immigration and Naturalization Service (“INS”) appealed
and, in a divided opinion, the BIA concluded that Lolong
could not establish that her fear of future persecution in Indo-
nesia was objectively reasonable because there was evidence
that the Indonesian government had taken steps to bring mili-
tant Islamic groups—which were largely responsible for the
outbreaks of religious and ethnic violence—under control.
Consequently, the BIA sustained the appeal, vacated the IJ’s
decision, and granted Lolong voluntary departure. Lolong
then petitioned this court for review. A panel of our court
granted Lolong’s petition. 400 F.3d 1215 (9th Cir. 2005). We
vacated that decision, 452 F.3d 1027 (9th Cir. 2006), and
heard oral argument.1
II
As an initial matter, we must address the question of our
jurisdiction to review Lolong’s petition. In two prior deci-
1
Although we do not often comment on the quality of arguments, we
would like to thank both counsel for aiding the court through their excel-
lent advocacy in briefing and during oral argument.
LOLONG v. GONZALES 5043
sions, we have narrowly construed the BIA’s authority under
the INA both to enter an order of removal in the first instance,
and, as is the case here, to reinstate a prior order of removal
issued by the IJ. In the first of these decisions, Noriega-Lopez
v. Ashcroft, we noted that the BIA lacks statutory authority to
enter orders of removal and held that any attempt by the BIA
to do so was a “legal nullity.” 335 F.3d 874, 883-84 (9th Cir.
2003) (internal quotation marks omitted). Because our juris-
diction is limited to the review of final orders of removal, 8
U.S.C. § 1252(a), we held that, where the BIA issues an order
of removal in the first instance, there is no valid final order
of removal and consequently no jurisdiction in this court to
review that legal nullity, Noriega-Lopez, 335 F.3d at 884-85.
We concluded in that case that the petitioner had properly
sought collateral review of the BIA’s order of removal via a
habeas petition filed in the district court and that we had juris-
diction to review the district court’s disposition of that peti-
tion. Id. at 880-81.
[1] In Noriega-Lopez, we expressly reserved the question
of this court’s jurisdiction over petitions for review in cases
where the IJ has determined “that an alien is removable . . .
but grants relief from removal, and the BIA then rejects the
grant of relief.” Id. at 884 n.10. In Molina-Camacho v. Ash-
croft, 393 F.3d 937 (9th Cir. 2004), however, we answered
that question in the negative. In that case, as here, the alien
conceded removability, but the IJ granted his request for can-
cellation of removal under 8 U.S.C. § 1229b(b)(1)(D). Id. at
938-39. The INS appealed, and the BIA reversed, holding that
Molina-Camacho had not demonstrated that removal would
cause the “exceptional and extremely unusual hardship” to his
family that the INA requires for cancellation of removal. Id.
at 939. The BIA then ordered him removed to Mexico. Id.
[2] Molina-Camacho petitioned for review by this court,
but, extending the principles articulated in Noriega-Lopez, we
held that the BIA’s removal order was ultra vires and that we
therefore lacked jurisdiction. Id. at 939-42. We noted that the
5044 LOLONG v. GONZALES
INA extends authority to enter removal orders only to special
inquiry officers and not to the BIA. Id. at 940. Moreover, we
noted that the BIA’s role under the governing regulations is
limited to “appellate review of immigration judges’ decisions
and other administrative adjudications.” Id. (internal quota-
tions omitted). Finally, we rejected the government’s argu-
ment that the finding of removability before the IJ was
equivalent to an order of removability because this argument
“conflates the BIA’s uncontested substantive power to reverse
a finding of removability or eligibility for cancellation of
removal on appeal with the procedural power to issue the
order of removal that results from such a reversal.” Id. at 941.
Instead of simply dismissing the petition, however, we chose
to construe it as a petition for habeas relief under 28 U.S.C.
§ 2241 and transferred it to the district court. Id. at 942.
[3] The procedural posture of Lolong’s petition is essen-
tially identical to that in Molina-Camacho and presents the
same jurisdictional conundrum. Lolong conceded removabil-
ity before the IJ, and, based on this concession, the IJ held
that Lolong was removable but granted her application for
asylum. The BIA reversed, but rather than remanding
Lolong’s case to the IJ for entry of an order of removal, the
BIA itself granted her voluntary departure.
[4] Despite this similarity to Molina-Camacho, however,
we no longer have the option of construing the petition for
review as a request for habeas relief and transferring the mat-
ter to the district court. In the REAL ID Act of 2005, Con-
gress eliminated collateral review of orders of removal,
leaving direct petition to this court the sole avenue for review
of the BIA’s rulings. 8 U.S.C. § 1252(a)(5) (stating that “a
petition for review filed with an appropriate court of appeals
. . . shall be the sole and exclusive means for judicial review
of an order of removal entered or issued under any provision
of this Act”). Thus, the REAL ID Act and our decision in
Molina-Camacho together operate to deprive Lolong of any
LOLONG v. GONZALES 5045
avenue to seek review of the BIA’s decision, leaving her in
legal limbo.
[5] This limbo—in which the petitioner is subject to a void
order of removal but has no judicial remedy—may raise seri-
ous constitutional concerns because the Suspension Clause
“unquestionably” requires “some judicial intervention in
deportation cases.” INS v. St. Cyr, 533 U.S. 289, 300 (2001)
(internal quotations omitted); see U.S. Const. art. I, § 9, cl. 2.
Before we conclude that Congress intended to eliminate all
possible relief in the REAL ID Act and thereby “give rise to
[these] substantial constitutional questions,” St. Cyr, 533 U.S.
at 300, it is prudent for us first to review our own precedent
to confirm that we have correctly interpreted the INA and the
authority that statute grants to the BIA. Such a review, cou-
pled with a close examination of the INA, now convinces us
that nothing in that statute mandates the result we reached in
Molina-Camacho.
[6] The IJ’s grant of relief, whether in the form of asylum
or withholding of removal on other grounds, necessarily
requires the IJ to have already determined that the alien is
deportable. Under the INA, this determination by the IJ con-
stitutes an “order of deportation.” 8 U.S.C. § 1101(a)(47)
(defining an “order of deportation” to include both an “order
. . . concluding that the alien is deportable” and one “ordering
deportation”).2 Thus, where the BIA reverses an IJ’s grant of
relief that, by definition, follows an initial determination by
the IJ that the alien is in fact removable, an order of deporta-
tion has already been properly entered by the IJ. In such
cases, therefore, the BIA does not enter an order of deporta-
2
In this context, the terms “deportable” and “deportation” can be used
interchangeably with the terms “removable” and “removal,” respectively.
See Noriega-Lopez, 335 F.3d at 882 n.5. Compare 8 U.S.C. § 1101(a)(47)
(defining an “order of deportation”), with 8 U.S.C. § 1252(a)(1) (providing
for “[j]udicial review of a final order of removal”), and 8 U.S.C. § 1227(a)
(defining classes of aliens as “deportable” pursuant to an order of
removal).
5046 LOLONG v. GONZALES
tion in the first instance when it orders the alien removed.
Rather, the BIA simply reinstates the order of removal that
has already been entered by the IJ and that would have taken
effect but for the IJ’s subsequent cancellation of removal.
Reinstating a prior order of removal by eliminating the
impediment to that order’s enforcement is entirely consistent
with the BIA’s appellate role.
This reasoning is also consistent with the approach adopted
by all of our sister circuits to have considered this issue. See,
e.g., Lazo v. Gonzales, 462 F.3d 53, 54-55 (2d Cir. 2006) (per
curiam) (stating that the BIA decision “removed an impedi-
ment to the removal that was ordered by the IJ” and disagree-
ing with Molina-Camacho); Delgado-Reynua v.Gonzales, 450
F.3d 596, 601 (5th Cir. 2006) (holding same); Solano-Chicas
v. Gonzales, 440 F.3d 1050, 1054 (8th Cir. 2006) (holding
that “where the BIA reverses the IJ’s order granting cancella-
tion of removal, the BIA, in essence, gives effect to the IJ’s
order of removability, for the BIA decision eliminates the
impediments to removal” and disagreeing with Molina-
Camacho). For example, in Delgado-Reynua, the Fifth Circuit
noted that the IJ’s grant of cancellation of removal “rested
upon the predicate determination that [the petitioner] was
deportable.” 450 F.3d at 600. This initial determination con-
stituted an “order of removal” as defined in the INA, id. (cit-
ing 8 U.S.C. § 1101(a)(47)), and the BIA’s subsequent
reversal of the “IJ’s grant of discretionary relief . . . merely
eliminated ‘impediments to removal’ and effected the original
removal order,” id. at 601. Thus, the BIA’s actions were
entirely within the scope of its powers under the INA, and the
surviving order of removal was both final and valid and there-
fore reviewable under 8 U.S.C. § 1252(a). See id.
[7] Because our decision in Molina-Camacho adopted an
overly narrow interpretation of the BIA’s authority and did
not properly construe the effect of the BIA’s reversal of the
IJ’s decision to cancel removal after having found the alien
removable, we overrule it. Instead, we hold that where the IJ
LOLONG v. GONZALES 5047
has previously determined that the alien is removable but
grants cancellation of removal, the BIA’s decision to reverse
the cancellation of removal reinstates the initial finding of
removability, which, under the statute, is effectively an order
of removal. 8 U.S.C. § 1101(a)(47). Because Lolong con-
ceded removability and the IJ found that clear and convincing
evidence supported a finding of removability, a final order of
removal was entered. We therefore have jurisdiction to con-
sider her petition for review of the BIA’s reinstatement of that
order.
III
A
Having determined that we have jurisdiction over Lolong’s
petition for review, we now address the merits of her claim.
We review the BIA’s determination that the petitioner does
not have an objectively reasonable fear of persecution for sub-
stantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). We must uphold the BIA’s determination unless
“the evidence not only supports, but compels the conclusion
that the asylum decision was incorrect.” Kataria v. INS, 232
F.3d 1107, 1112 (9th Cir. 2000) (emphasis added). Even if we
might have reached a conclusion different from that reached
by the BIA, we may not reverse unless we determine that any
reasonable factfinder would have been compelled to reach
that conclusion. Cordon-Garcia v. INS, 204 F.3d 985, 990
(9th Cir. 2000); Prasad v. INS, 47 F.3d 336, 340 (9th Cir.
1995).
B
[8] An alien is eligible for asylum relief if she can prove
that she is a refugee, which she can establish by proving either
actual past persecution or a well-founded fear of future perse-
cution. Cordon-Garcia, 204 F.3d at 990. To demonstrate a
well-founded fear of future persecution, the alien must estab-
5048 LOLONG v. GONZALES
lish that her fear is both subjectively genuine and objectively
reasonable. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir.
1998). The petitioner’s own testimony, if credible, is suffi-
cient to establish that she has a subjectively genuine fear of
future persecution. Id. at 1310. The objective component is
more demanding and “requires credible, direct, and specific
evidence,” Cordon-Garcia, 204 F.3d at 990, that the peti-
tioner faces an individualized risk of persecution or that there
is a pattern or practice of persecution against similarly situ-
ated individuals. 8 C.F.R. § 208.13; Sael v. Ashcroft, 386 F.3d
922, 925 (9th Cir. 2004). Persecution is not limited to
government-sponsored violence; it can also include
“[d]iscrimination, harassment, and violence by groups that the
government is unwilling or unable to control.” Singh v. INS,
94 F.3d 1353, 1359 (9th Cir. 1996).
[9] Lolong has satisfied her burden of showing a genuine
subjective fear of future persecution. In her testimony before
the IJ, she described her fears and gave specific examples of
violent incidents, some involving her friends and family, that
have given rise to her fears. Moreover, the IJ expressly noted
that Lolong testified credibly and was entirely forthright
throughout her removal proceedings. In short, there is no rea-
son to doubt that Lolong’s fears of persecution should she
return to Indonesia are subjectively genuine.
The dispute instead centers on whether her fears are objec-
tively reasonable. The IJ, citing the experiences of Lolong’s
family and friends during the riots as well as the Indonesian
government’s apparent unwillingness or inability to control
the militant Islamist groups responsible for much of the anti-
Chinese and anti-Christian violence, determined that Lolong’s
fears were in fact objectively reasonable. According to the IJ,
even though most Chinese Christians in Indonesia were not
subject to physical attacks, occasional continuing violence
was sufficient to show that the government could not or
would not protect the Chinese Christian population generally
and that Lolong’s fears were therefore objectively reasonable.
LOLONG v. GONZALES 5049
Reviewing the IJ’s factual findings de novo, however, the
BIA found otherwise. The BIA concluded that, absent evi-
dence that the Indonesian government was either unable or
unwilling to control these militant groups, “the mere fact that
some attacks on Chinese or on Christians continue to occur”
was insufficient to support a finding that Lolong’s fear of
future persecution was objectively reasonable.3 Citing State
Department reports on Indonesia from 1999 and 2000, the
BIA determined that “despite evidence that some anti-Chinese
discrimination exists in Indonesia, and that there is continuing
conflict between Muslims and Christians in certain regions,
the government of Indonesia has nevertheless shown its gen-
eral commitment to freedom of religion and its lack of institu-
tional discrimination against the ethnic Chinese minority.”
The BIA then concluded that Lolong had not established that
the Indonesian government was unable or unwilling to control
the perpetrators of ethnic and religious violence.
[10] The BIA’s denial of Lolong’s asylum claim is consis-
tent with governing law. We have consistently held that a
general, undifferentiated claim of the type brought by Lolong
3
The Dissent contends that the BIA applied the incorrect standard of
proof in reaching this conclusion, adopting the “more likely than not”
standard that is used in withholding of removal cases and specifically
rejected by the Supreme Court in the asylum context. Dissent at 5059-60
(citing INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)). This objection is
misplaced. Although the BIA’s language could have been better crafted,
it clearly recognized the difference between the “well-founded fear” and
“more likely than not” standards. After referring to the two standards in
the alternative, the BIA expressly applied the former to Lolong’s asylum
claim and the latter to her withholding claim. In fact, in determining that
Lolong’s fear of persecution was not objectively reasonable because she
had not demonstrated a “reasonable possibility that [she] would be perse-
cuted if she must return to Indonesia,” the BIA employed language drawn
directly from the Court’s decision in Cardoza-Fonseca. See Cardoza-
Fonseca, 480 U.S. at 440 (noting that “ ‘it need not be shown that the situ-
ation will probably result in persecution, but it is enough that persecution
is a reasonable possibility’ ” (emphasis added) (quoting INS v. Stevic, 467
U.S. 407, 424-25 (1984))).
5050 LOLONG v. GONZALES
does not render an alien eligible for asylum. See, e.g., Ros-
tomian v. INS, 210 F.3d 1088, 1089 (9th Cir. 2000) (rejecting
asylum claim based on general civil strife); cf. Martinez-
Romero v. INS, 692 F.2d 595, 595-96 (9th Cir. 1982) (noting
that granting asylum based on claims of generalized civil
strife “would permit the whole population [of the asylum-
seeker’s country]” to remain in the United States “indefinite-
ly” and holding that “[t]here must be some special circum-
stances present before relief can be granted”). Furthermore,
we have required that petitioners alleging a pattern or practice
of persecution by non-government actors also prove that the
government is unable or unwilling to control those actors.
See, e.g., Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir.
2005) (rejecting a pattern and practice claim because the State
Department’s Country Reports on Human Rights noted that
“the Bangladesh government did not countenance attacks
against Christians and intervened in such attacks to the extent
that it was able”); Mansour v. Ashcroft, 390 F.3d 667, 673
(9th Cir. 2004) (rejecting a pattern and practice claim by a
Coptic Christian because the State Department Profile indi-
cated that Egyptian government was not “unable or unwilling
to control” anti-Christian terrorists).
[11] Notably, before the BIA, Lolong did not make any
argument that she feared being individually targeted for persecu-
tion.4 Instead, she relied entirely on fears common to ethnic
Chinese Christian women generally: a “pattern of rapes” per-
petrated upon Chinese women, “a historical pattern of rioting”
leading to “ethnically based violence” against ethnic Chinese,
discrimination against ethnic Chinese women by the courts
and the police, and the government’s inability or unwilling-
4
Although Lolong provided evidence of violence directed at a friend
and at members of her family, this evidence does not show—and she has
not argued, either before us or before the BIA, that it shows—that she is
more likely to be targeted for persecution or harassment than any other
member of Indonesia’s Chinese Christian community. Rather, it shows
only the type of undifferentiated claim that we have held is insufficient for
purposes of asylum.
LOLONG v. GONZALES 5051
ness to control the groups responsible for this violence. The
Dissent argues we must remand this case because the BIA
“failed to address” the pattern-or-practice claim on which
Lolong’s asylum petition was based and disregarded the evi-
dence supporting that claim. Dissent at 5054-56. As noted
above, however, the BIA did specifically address Lolong’s
pattern-and-practice claim and concluded that “the mere fact
that some attacks on Chinese or on Christians continue to
occur” did not render her fear of persecution objectively rea-
sonable, particularly given that Lolong had not established
that the government was unable or unwilling to control the
groups responsible for the violence.
Moreover, the BIA’s conclusions are supported by substan-
tial evidence. The government does not contest—and the
record confirms—that sporadic violence against ethnic Chi-
nese Christians persisted in Indonesia at least until 2000. We
too are well aware of the long history of ethnic and religious
strife in Indonesia. See Sael, 386 F.3d at 925-27. However,
the record supports the BIA’s conclusion that Lolong has not
shown that the Indonesian government is unable or unwilling
to control the perpetrators of this violence. As the BIA noted,
the State Department’s Country Reports (“Country Reports”)
indicated that “the government of Indonesia has [ ] shown its
general commitment to freedom of religion and its lack of
institutional discrimination against the ethnic Chinese minori-
ty.”5 Beyond this general commitment, moreover, the record
5
As the Dissent points out, we have held that Country Reports are insuf-
ficient to rebut evidence that the petitioner faces an individualized threat
of persecution in her home country. See Dissent at 5056-59. Lolong’s fail-
ure to allege that she faces an individualized threat distinguishes this case
from our prior decisions. In each of the cases cited by the Dissent, the peti-
tioner had presented some evidence that he or she faced a unique risk of
persecution upon return that was distinct from the petitioner’s mere mem-
bership in a disfavored group. See Marcos v. Gonzales, 410 F.3d 1112,
1120-21 (9th Cir. 2005) (holding that Country Reports could not be used
to rebut petitioner’s testimony that he received numerous death threats);
Lal v. INS, 255 F.3d 998, 1010 (9th Cir. 2004) (holding that the Country
5052 LOLONG v. GONZALES
contains evidence suggesting that the government has taken
concrete steps to suppress ethnic and religious violence and to
encourage reconciliation between opposing groups. We there-
fore cannot conclude that “the evidence . . . compels the con-
clusion that the asylum decision was incorrect.” Kataria, 232
F.3d at 1112 (emphasis added). Cf. Gomes, 429 F.3d at 1267
(rejecting pattern-and-practice claim where “Bangladesh gov-
ernment did not countenance attacks against Christians and
intervened in such attacks to the extent that it was able”
(emphasis added)).
[12] In sum, Lolong has provided no evidence that she has
been, or is likely to be, specifically targeted for persecution by
any individual or group in Indonesia. The fear she has of
harassment, discrimination, and sporadic violence may be a
fear shared by millions of ethnic Chinese Christians in Indo-
nesia, and given the sporadic violence that has recurred in that
country over the past decades, Lolong is understandably ner-
vous about returning to Indonesia. As we noted above, this
may make her fear subjectively genuine; this subjective fear
alone, however, is insufficient to render her eligible for asy-
lum absent an individualized risk of persecution or a pattern
and practice of persecution. Lolong has provided nothing that
suggests that her fears are distinct from those felt by all other
ethnic Chinese Christians in Indonesia. Nor has she shown
that all ethnic Chinese Christians in Indonesia have, based on
the circumstances there, a well-founded fear of persecution.
Report did not address “the specific facts on the record that differentiate
Mr. Lal’s case from” other members of his ethnic group). Even in Sael v.
Ashcroft, which dealt with Indonesia, the petitioner had presented some
evidence of an individualized threat. 386 F.3d at 927-30. In light of that
evidence, we simply held that the Country Reports were insufficient to
support “the denial of asylum in Sael’s case.” Id. at 929. Where, as here,
the petitioner does not allege an individualized risk of persecution but
raises only a pattern-or-practice claim, it is entirely appropriate to rely on
Country Reports in determining whether such a pattern or practice of per-
secution exists.
LOLONG v. GONZALES 5053
Although we are sympathetic to the plight of such peoples, we
understand the BIA’s decision to preclude a general grant of
asylum to Indonesian Chinese Christians, and the record sup-
ports such a decision.6
IV
The petition for review is DENIED.
THOMAS, Circuit Judge, with whom PREGERSON,
FISHER, and PAEZ, Circuit Judges, join, concurring in part
and dissenting in part:
I concur in Section II of the majority opinion, which over-
rules Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.
2004). I respectfully dissent, however, from the majority’s
outright denial of the petition for review on the merits. In this
case, the immigration judge (“IJ”) granted asylum, but the
Board of Immigration Appeals (“BIA”) reversed. In its rever-
sal, the BIA made serious legal errors in its analysis and failed
to fully address the claims made by the petitioner. Unlike the
IJ, who relied on actual evidence, the BIA treated the aspira-
tional goals of a government as a proxy for actual governmen-
tal control of those who would mercilessly persecute
individuals based on their religion and national origin. There-
fore, I would grant the petition and remand the case for fur-
6
We do not read the BIA’s decision as a determination that no ethnic
Chinese or Christian in early 2000 could have an objectively reasonable
fear of persecution. Rather, we understand the BIA’s decision to require
that asylum petitioners prove something more than their status as female
members of Indonesia’s Chinese Christian community. The BIA’s posi-
tion is well established in our precedents. See Melkonian, 320 F.3d 1061,
1069 (9th Cir. 2003) (noting that petitioner had shown both membership
in disfavored group and an individualized threat of persecution); Ros-
tomian, 210 F.3d at 1089; Kotasz v. INS, 31 F.3d 847, 853-54 (9th Cir.
1994).
5054 LOLONG v. GONZALES
ther consideration by the BIA pursuant to INS v. Ventura, 537
U.S. 12 (2002).
I
The analysis used by the BIA was incorrect as a matter of
law and cannot be sustained. The BIA’s analysis is legally
flawed because it (1) failed to address a core element of the
petitioner’s claim; (2) based its decision on grounds that are
insufficient as a matter of law and in conflict with controlling
case precedent; and (3) used the wrong standard of proof for
asylum petitions. Each of these independent reasons requires
a remand to the BIA for it to re-examine the case using the
correct legal standards. See Ornelas-Chavez v. Gonzales, 458
F.3d 1052, 1058 (9th Cir. 2006) (“[W]here the BIA applies
the wrong legal standard to an applicant’s claim, the appropri-
ate relief from this court is remand for reconsideration under
the correct standard . . . .”).
A
The BIA failed to address Lolong’s primary claim that
there was a pattern or practice of persecution against Chinese
Christian women that the Indonesian government was either
unable or unwilling to control. All the BIA opinion decides is
that the Indonesian government, in the BIA’s view, is willing
to oppose discrimination and persecution of Christians and the
ethnic Chinese, stating that the Indonesian government has
“shown a general commitment to freedom of religion” and “a
lack of institutional discrimination.” The BIA never discusses
the Indonesian government’s ability to control the violence.
Because there was substantial evidence of the government’s
inability to control the violence regardless of its intentions,
and because the IJ so found, the BIA’s reversal without expla-
nation was error.
The BIA is obligated to consider and address in its entirety
the evidence submitted by a petitioner. Mejia v. Ashcroft, 298
LOLONG v. GONZALES 5055
F.3d 873, 879-80 (9th Cir. 2002); Kamalthas v. INS, 251 F.3d
1279, 1283-84 (9th Cir. 2001). The BIA must “indicate with
specificity that it heard and considered petitioner’s claims.”
Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.
2004) (quoting Arrozal v. INS, 159 F.3d 429, 433 (9th Cir.
1998)). The BIA commits reversible error when it “merely
repeat[s] petitioners’ claims and summarily dismisse[s] them
without even purporting to engage in any substantive analysis
or articulating any reasons for its decision.” Rodriguez-Lariz
v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002).
Here, the IJ’s factual finding that the central Indonesian
government has been unable to control the forces of persecu-
tion is amply supported by the voluminous record, but the
BIA never addresses it. The record indicates that not only has
the government been unable to control rogue forces in Indo-
nesian society, but it has been unable to control its own mili-
tary forces, which evidence suggests have carried out some of
the grossest human rights abuses against Chinese and Chris-
tian minority groups.
Since the 1998 riots and the ouster of President Suharto, the
record shows that religious violence by Muslim fundamental-
ists against the Christian population has actually increased,
often with the aid of military elements uncontrolled by the
central government.1 Lolong presented substantial expert tes-
1
For example, the record contains evidence that Indonesian Army units
have been caught on tape “providing covering fire for Muslim gunmen
attacking Christian neighborhoods.” Ron Moreau, An Island Holy War,
Newsweek, August 7, 2000. The civilian Defense Minister reported that
“members of the Army have become a major cause of the clashes,” and
victimized Christians have reported seeing “military uniforms beneath the
Jihad fighters’ white robes.” Ian Timberlake, Indonesians see Suharto
Behind Religious War; Survivors of Attack Blame Soldiers Loyal to ex-
Leader, USA Today, August 2, 2000. “Instead of protecting them as
promised, the Indonesian government soldiers joined in the slaughter” of
Christians, witnesses say. Id. Members of the United States Congress have
gone so far as to demand that the United States not lend any military
expertise to Indonesian “military officers who approve of the killing of
innocent women and children.” See USDS Pitts Decries Indonesian Mili-
tary’s Role in Violence, Asia Pulse, July 26, 2000.
5056 LOLONG v. GONZALES
timony on the issue, which the IJ credited and the BIA did not
dispute. The expert testimony included an analysis of the cur-
rent Indonesian regime, leading the expert to conclude that the
present government could not control anti-Chinese and anti-
Christian elements in Indonesia.
In short, the BIA did not address the pivotal point of
Lolong’s claim—that the Indonesian government, for all its
good intentions, is unable to control anti-Chinese and anti-
Christian elements. There was substantial evidence in the
record that such was the case and the IJ so found. Given the
abundance of record evidence on the matter, the BIA was not
permitted to avoid the question by claiming there was an “ab-
sence of evidence” that the government was unable to control
the violence. See Ubau-Marenco v. INS, 67 F.3d 750, 760
(9th Cir. 1995) (“the BIA must address the evidence pre-
sented, and state the reasons why . . . [it] is not sufficient”)
(internal quotation marks omitted), overruled on other
grounds in Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996);
Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir. 1981)
(holding that the BIA must “give reasons which show that it
has properly considered the facts which bear on its decision”).
While the BIA was permitted to disagree with the IJ’s finding
—a decision we could have reviewed for substantial evidence
—it was not permitted to ignore it altogether or reverse it
without explanation.
This error was significant because if the BIA properly con-
sidered the evidence in full, I believe it should have con-
cluded that the record amply supports the IJ’s conclusion that
Ms. Lolong was objectively reasonable in her fear that she
cannot rely on the government to protect her. A remand is
required so that the BIA can address Lolong’s claim on the
merits in the first instance.
B
The BIA’s decision was also insufficient as a matter of law
and contrary to controlling case precedent. It determined that
LOLONG v. GONZALES 5057
a Chinese or Christian could not reasonably fear persecution
in Indonesia in early 2000 based on conclusions it drew from
the State Department Country Reports. According to the BIA
decision, the Reports show Indonesia’s “general commitment
to freedom of religion and its lack of institutional discrimina-
tion against the ethnic Chinese minority.”
This rationale is insufficient as a matter of law. See Marcos
v. Gonzales, 410 F.3d 1112, 1120-22 (9th Cir. 2005). In Mar-
cos, we specifically rejected the sufficiency of a Country
Report statement much akin to the one at bar, which stated
that the government “generally respected” human rights. Id.
at 1120 n.7. Rather, we reiterated our long-standing rule that
the agency use an individualized analysis with respect to the
effect of State Department Country Reports.2 Id. at 1120-22.
The BIA is not entitled to deny eligibility for asylum based
on generalized conclusions in Country Reports. Lal v. INS,
255 F.3d 998, 1010 (9th Cir. 2001).
Further, the BIA’s conclusion conflicts directly with Sael v.
Ashcroft, 386 F.3d 922 (9th Cir. 2004), in which we consid-
ered the very Country Reports at issue in this case. We
detailed the “voluminous record” which documented “a his-
tory of anti-Chinese violence dating back as far as 1740.” Id.
at 925. In addition to the 1998 riots in which more than 1,000
people were killed, we noted that “ethnic Chinese found their
homes marked for destruction” in the years since the 1998
riots, and that “Chinese Christian churches and homes have
. . . been attacked in a violent merger of religious and ethnic
tensions.” Id. at 925-26. We held that the very Country
Reports at issue in this case buttressed the conclusion that
2
In this context, it is also important to underscore that the BIA’s analy-
sis of country conditions did not come as part of “changed country condi-
tions” examination, which occurs after a petitioner has established a prima
facie case of a well-founded fear of persecution. It occurred as part of its
initial examination of whether or not any reasonable person could fear per-
secution based on past events in the country.
5058 LOLONG v. GONZALES
“[g]overnment efforts to stop this cycle of scapegoating and
violence have thus far been ineffective, perhaps because eth-
nic Chinese are still targets of official discrimination.” Id. at
926. We noted that the 1999 Country Report “ ‘found evi-
dence that some elements of the military may have been
involved in provoking the violence, which included attacks
against Sino-Indonesian women’ during the 1998 riots.” Id. at
927. We found it significant that the 1999 Country Report
stated that government regulations prohibit Chinese schools,
cultural groups, and trade associations. Id.
We were not alone in reaching this conclusion. Former
Chief Judge Becker wrote for the Third Circuit that:
In the late 1990s, Indonesia’s Chinese Christian pop-
ulation became the target of widespread attacks per-
petrated 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 offi-
cial complicity in some incidents.” U.S. Dep’t of
State, 1999 Country Reports on Human Rights Prac-
tices — Indonesia, February 25, 2000. [abbr. omit-
ted]. 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.
Lie v. Ashcroft, 396 F.3d 530, 532-33 (3d Cir. 2005). Thus,
Judge Becker concluded that “1998 represented a period of
significant violence and rioting against individuals of Chinese
origin throughout Indonesia.” Id. at 533.
In short, the BIA was not permitted to rely on Country
Reports to rebut Ms. Lolong’s specific evidence about her
LOLONG v. GONZALES 5059
family and her church and the general conclusions it drew
from those Country Reports are precluded by case law.
C
The BIA applied the incorrect standard of proof in its anal-
ysis. The Supreme Court has explicitly held that a petitioner
seeking asylum is not required to prove that it would be more
likely than not that she would be persecuted upon return to the
country. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
Rather, under controlling precedent, a petitioner need only
establish that there is a one in ten chance of persecution to
show that the petitioner’s fear is objectively reasonable and
that they are thus eligible for asylum. Njuguna v. Ashcroft,
374 F.3d 765, 770 (9th Cir. 2004). The BIA applied the
rejected “more likely than not” standard.3
The majority claims the BIA “clearly recognized” the dif-
ference between the two standards and applied them correctly,
but a close look at the BIA’s opinion suggests otherwise.
First, when the BIA introduced the “more likely than not”
standard, it cited the refugee definition applicable to an asy-
lum claim, I.N.A. § 101(a)(42)(A), and not the withholding of
removal statute, § 241. Second, in applying the facts to the
law on the asylum claim, it reasoned that Lolong’s fear was
not well-founded because “the large majority of ethnic Chi-
nese continue to reside in [Indonesia] without suffering physi-
cal attacks.”4 Yet if it was truly applying the correct one-in-
3
The “more likely than not” standard applies to the question of whether
a petitioner is entitled to withholding of removal. 8 C.F.R.
§ 1208.16(b)(2); INS v. Stevic, 467 U.S. 407, 429-30 (1984). Withholding
of removal and asylum “are two distinct forms of relief.” Cardoza-
Fonseca, 480 U.S. at 429 n.6. “[O]ur case law quite clearly establishes
that the legal difference between ‘clear probability’ and ‘well-founded
fear’ must be respected.” Rebollo-Jovel v. INS, 794 F.2d 441, 444 (9th Cir.
1986).
4
We know this discussion was part of the BIA’s asylum analysis
because at the end of this discussion the opinion states “[n]or has the
respondent established that . . . she would qualify for withholding of
removal.” (emphasis added).
5060 LOLONG v. GONZALES
ten standard, what happened to a “majority” of ethnic Chinese
would be irrelevant. Indeed, that it considered the plight of the
“majority,” or 51 percent, suggests it was applying the more
likely than not standard, which by definition looks to the 51
percent mark. Third, whether Lolong was eligible for with-
holding of removal was not properly before the BIA. The IJ
granted asylum relief, did not reach the question of whether
Lolong was entitled to withholding of removal, and the INS
only appealed the asylum holding.
The majority writes off any confusion by stating that “the
BIA’s language could have been better crafted,” Maj. Op. at
5049 n.3, but we have held that to avoid any confusion as to
which standard the BIA is applying, “the BIA [is required] to
make an explicit statement that it is applying a more generous
standard to the asylum claim than to the petition for withhold-
ing of deportation.” Rodriguez v. INS, 841 F.2d 865, 869 (9th
Cir. 1987) (emphasis added). Not only is the BIA less than
explicit about which standard it is applying, it never so much
as mentions the proper one-in-ten standard.
The BIA’s legal analysis is impermissible under Cardoza-
Fonseca, and this error of law requires remand for the BIA’s
reconsideration “under the proper standard.” Martinez-
Sanchez v. INS, 794 F.2d 1396, 1399 (9th Cir. 1986).
II
In sum, I concur in the majority’s conclusion that Molina-
Camacho should be overruled. However, I respectfully dis-
agree with the majority as to the merits of Ms. Lolong’s
claim. The BIA’s analysis on the merits was founded on an
improper application of law in a number of respects. It failed
to address Lolong’s claims and the evidence supporting them,
and reversed a core IJ finding without explanation. Its reason-
ing was insufficient as a matter of law and in conflict with
controlling case precedent. It applied the incorrect standard of
proof.
LOLONG v. GONZALES 5061
More disturbingly, the BIA rejected actual evidence in the
record of the Indonesian government’s inability or unwilling-
ness to control persecution in favor of the stated aspirational
goals of that government. Remand is required so that the BIA
can conduct a proper examination of the evidence under
proper legal standards.
No one doubts that Ms. Lolong has a well-founded subjec-
tive fear of future persecution if she is forced to return to
Indonesia. No one doubts her good faith, nor her contribution
to our country during the time she has spent here. The only
question in this case is whether her fear is reasonable. The
undeniable fact is that over a thousand Chinese Indonesians
were killed, churches were burned, and Chinese-Christian
women raped just prior to the time when Lolong asked for
asylum. By any objective measure, her specific fear of perse-
cution was reasonable, and the BIA should have considered
it on the merits of the evidence, under proper legal standards.
For these reasons, I respectfully dissent.