Onggalia v. Attorney General of the United States

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-3-2005
Onggalia v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4037
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4037
________________
LITAWATI ONGGALIA,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review from an Order of the Board of Immigration Appeals
(Agency No. A95 161 027)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
July 1, 2005
Before: ROTH, MCKEE AND ALDISERT , CIRCUIT JUDGES
(Filed : November 3, 2005)
_______________________
OPINION
_______________________
PER CURIAM.
Litawati Onggalia petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming the denial of her application for asylum, withholding of
removal, and protection under the United Nations Convention Against Torture (“CAT”).
For the reasons that follow, we will deny the petition.
Onggalia, a native and citizen of Indonesia who is ethnically Chinese and
Christian, entered the United States on July 5, 2000, with authorization to remain until
January 4, 2001. In November 2001, the former Immigration and Naturalization Service
issued a Notice to Appear in which it charged her as removable for having overstayed her
admission period. See Immigration and Nationality Act (“INA”) § 237(a)(1)(B).
Onggalia conceded removability, and applied for asylum, withholding of removal, and
relief under the CAT.
Onggalia claimed that she was subjected to persecution on account of her ethnicity
and religion. In support of her application, Onggalia stated that while attending school
she was often verbally harassed and inappropriately touched by native Indonesians. She
also described three specific incidents of alleged persecution that occurred when she was
an adult. In May 1999, while driving alone at night, three native Indonesians approached
her car at a red light, knocked on her window, and demanded money. Onggalia gave the
robbers 500 rupiahs, but they became angry, called her a “Chinese pig,” and threatened to
damage her car if she did not pay. Onggalia gave them all her money and drove away
quickly. A few weeks later, while riding on a public bus, she witnessed native
Indonesians beating a Chinese Christian man. The “most frightening” of these three
incidents occurred in December 1999, when Onggalia, driving alone to work, was
approached by three street performers. Because she was “so accustomed to this [sort] of
thing, [Onggalia] simply rolled down the window and handed them coins.” One of the
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men, however, pointed a knife at Onggalia’s face and demanded her bag, which contained
a cellphone, wallet, and checkbook. Onggalia reported the incident to the police, who
advised her that they “could do nothing for the loss,” but took a report and assisted her in
“blocking [her] bank” account.
The Immigration Judge (“IJ”) denied asylum, concluding that Onggalia’s
application was untimely because it was filed more than one year after her arrival and that
there were no changed or extraordinary circumstances sufficient to excuse the late filing.
See INA § 208(a)(2)(B) (requiring that asylum application be filed within one year of
arrival). The IJ also denied the application for withholding of removal and CAT relief,
finding that the incidents described by Onggalia, even if considered cumulatively, did not
establish that it is more likely than not that her life or freedom would be threatened, or
that she would be tortured by a public official, if removed to Indonesia. After the Board
of Immigration Appeals (“BIA”) dismissed the appeal, Onggalia timely filed a petition for
review in this Court.
We have jurisdiction to review a final order of removal under 8 U.S.C.
§ 1252(a)(1). Where, as here, the BIA adopts the IJ’s opinion, we review the IJ’s
decision. See Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The IJ’s findings of
fact are reviewed under the substantial evidence standard. See Tarrawally v. Ashcroft,
338 F.3d 180, 184 (3d Cir. 2003). We therefore must uphold the IJ’s findings if they are
“supported by reasonable, substantial, and probative evidence on the record considered as
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a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Onggalia challenges only the rejection of her claim for withholding of removal.1
For withholding of removal to a particular country under the INA, an applicant must
establish by a “clear probability” that his “life or freedom would be threatened in that
country because of [his] race . . . or religion.” INA § 241(b)(3)(A); Chang v. INS, 119
F.3d 1055, 1059 (3d Cir.1997). “To meet this test, the alien must demonstrate that there
is a greater-than-fifty-percent chance of persecution upon his or her return.” Senathirajah
v. INS, 157 F.3d 210, 215 (3d Cir. 1998). The applicant can seek to establish eligibility
either by demonstrating past persecution or by showing a likelihood of future persecution.
See 8 C.F.R. § 1208.16(b). Notably, the “clear probability” standard applicable to a
withholding claim is higher than the “well-founded fear of persecution” standard
applicable to an asylum claim. See Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir.
2003).
We find ample support for the IJ’s decision. As the IJ determined, the insults,
robberies, molestations, and the assault that Onggalia witnessed – viewed either
1
We note that even if Onggalia had challenged the conclusion that her asylum
application was untimely, and that no exceptional or changed circumstances tolled the
one-year filing period, we would not have jurisdiction to review that determination. See
INA § 208(a)(3); Tarrawally, 338 F.3d at 185. Moreover, had Onggalia not waived her
claim for CAT relief by failing to pursue it in her brief to this Court, see Lie v. Ashcroft,
396 F.3d 530, 532, n. 1 (3d Cir. 2005), we would nevertheless conclude that she did not
meet her burden of establishing that it is more likely than not that she would be tortured
by a public official if removed. See Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.
2002).
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individually or collectively – do not amount to past persecution under the controlling law.
See Lie, 396 F.3d at 536 (holding that ethnic Chinese Indonesian’s “account of two
isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft
of some personal property and a minor injury, is not sufficiently severe to be considered
persecution”). Indeed, persecution denotes “extreme conduct,” including “threats to life,
confinement, torture and economic restrictions so severe that they constitute a threat to
life or freedom.” Fatin v INS, 12 F.3d 1233, 1240 & n.10 (3d Cir. 1993). The incidents
Onggalia described, while certainly unpleasant and frightening, are akin at most to
“[m]ere generalized lawlessness and violence between diverse populations” that will not
support relief. Abdille v. Ashcroft, 242 F.3d 477, 491-92 (3d Cir. 2001). Thus, the IJ
properly denied Onggalia’s claim for withholding based on past persecution.
Furthermore, after a review of the record, we are satisfied that substantial evidence
supports the IJ’s determination that Onggalia did not establish a well-founded fear of
future persecution. See Lie, 396 F.3d at 538 (finding that petitioner “failed to establish
either that she faces an individualized risk of persecution or that there is pattern or
practice of persecution of Chinese Christians in Indonesia”). In particular, the State
Department Country Reports and other documents submitted in support of Onggalia’s
application do not compel a finding different than that reached by the IJ. See Shardar v.
Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). Thus, the IJ’s determinations respecting
future persecution were supported by substantial evidence in the record.
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For these reasons, we will deny the petition for review.
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