Yulianty v. Attorney General of the United States

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-21-2006
Yulianty v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3398
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3398
____________
HELEN YULIANTY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A95 473 719)
Immigration Judge Miriam K. Mills
____________
Submitted Under Third Circuit LAR 34.1(a)
September 13, 2006
Before: FUENTES, FISHER and McKAY,* Circuit Judges.
(Filed September 21, 2006)
____________
OPINION OF THE COURT
____________
*
The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
FISHER, Circuit Judge.
We write only for the parties and thus will forgo lengthy recitation of the factual
and legal background to this case. Helen Yulianty petitions for review of the BIA’s
denial of her application for asylum and withholding of removal under the Immigration
and Nationality Act and the Convention Against Torture. The BIA affirmed the opinion
of the immigration judge (IJ), Miriam Mills. We review the BIA’s opinion.1
To qualify for asylum, an applicant must demonstrate a well-founded fear that if
returned to her home country she will be persecuted on account of one of the five grounds
enumerated at 8 U.S.C. § 1101(a)(42)(A). The grounds alleged here are national origin
and religion. Because the standard for withholding of removal is more stringent than for
asylum eligibility, if a petitioner fails to meet the criteria for asylum, she necessarily fails
to meet the criteria for withholding of removal. Wang v. Gonzales, 405 F.3d 134, 144 (3d
Cir. 2005).
The IJ denied Yulianty’s application on two alternative grounds: first, that her
story was not credible; second, that she would fail to meet the statutory asylum eligibility
standard even if her story were true. The BIA affirmed on the latter ground, as will we.
Assuming Yulianty’s story is true, she is an Indonesian citizen of ethnic Chinese
descent. She was born and raised a Buddhist, and later attended Christian churches and a
Christian college in Indonesia. She experienced several incidents of harassment and
1
To the extent that the BIA’s opinion adopts or defers to the IJ’s opinion, we also
review the IJ’s opinion. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).
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crime: on various occasions she heard ethnic slurs shouted at her on the streets; on at
least one occasion rocks were thrown at her house; during street riots in 1998, there was
an attempted break-in of her house; on one occasion a boy riding a bike “grabbed [her]
breasts” while riding by her on the street; on another occasion her purse was snatched by
a thief riding a motorcycle.
“Persecution” means “extreme behavior, including threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or freedom.
This definition does not include all treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003)
(internal citations omitted). Further, the acts must be carried out by the government, or
by forces that the government either will not or cannot control. Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002).
We agree with the BIA that the incidents described by Yulianty do not rise to the
level of persecution as we have defined that term. The two incidents of street crime bear
no evident connection to ethnicity or religion, nor does Yulianty allege that the
government was responsible for the incidents or is incapable of protecting her from
threats or violence. She reported the purse-snatching to the police, who took her report in
writing. Yulianty presented no evidence that ethnicity or religion played any role in the
crime or the government’s response. Nor do the State Department Country reports
substantiate the suggestion that the Indonesian police are unwilling or unable to
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investigate crimes against ethnic Chinese. What we said in Lie v. Ashcroft applies equally
to the record before us in this case:
[T]he 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 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, 393 F.3d 418, 2005 WL
14754, *3 (3rd Cir. 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.
Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).
The facts alleged in this case are far less extreme and threatening than those
alleged in Lie, see id. at 533, and the record does not include any evidence that social
4
conditions or government practices have changed sufficiently in the past year as to cast
doubt on our holding in Lie. Accordingly, the petition for review will be denied.
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