Lauw v. Atty Gen USA

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-25-2006
Lauw v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4648
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 04-4648/05-2639
LAN PING LAUW
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES *
Respondent
Petition for Review of an order
of the Board of Immigration Appeals
(No. A79-331-374)
Immigration Judge: Charles M. Honeyman
Submitted Under Third Circuit LAR 34.1(a)
May 8, 2006
Before: BARRY and SMITH, Circuit Judges, and RODRIGUEZ ** , District Judge
(Filed: May 25, 2006)
*
Amended pursuant to Rule 43(c)(2), Federal Rules of Appellate Procedure.
**
The Honorable Joseph H. Rodriguez, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
RODRIGUEZ, District Judge.
Lan Ping Lauw, a native and citizen of Indonesia, petitions this Court for review of
a final order of the Board of Immigration Appeals (“BIA”) reversing the Immigration
Judge’s (“IJ”) grant of her application for asylum and affirming the IJ’s denial of
withholding of removal. She also petitions for review of the BIA’s denial of her motion
for reconsideration. We will deny the petition.
I.
Petitioner’s testimony before the IJ was as follows. She is of Chinese ethnicity and
practices Roman Catholicism, which has subjected her and her family to repeated threats
and attacks by native Indonesian Muslims, known as pribumi. The first attack occurred in
March of 1998, when Petitioner was approached by ten pribumi who took her bible and
threw it in the trash as she was walking to church. In April of 1998, the second attack
occurred when the Petitioner and her family were threatened by a pribumi taxi driver who
said, “You Chinese Christians will be killed brutally.” Several days after this incident,
Petitioner received a telephone call at her home with the same message repeated.
The third incident occurred in May of 1998. Petitioner, a bus driver for a Catholic
school, was approached by a group who ultimately burned the school van she drove after
she escaped. In the same month, Petitioner’s husband’s business was destroyed by a fire.
2
Additional similar incidents occurred in November and December of 1998.
On October 18, 2000, Petitioner arrived in the United States at Los Angeles
International Airport as a nonimmigrant visitor for pleasure with permission to remain
until April 16, 2001. Instead of leaving the United States, she filed an application for
asylum and withholding of removal on June 9, 2001. The Immigration and Naturalization
Service placed her in removal proceedings on August 7, 2001. After a hearing on May
23, 2003, her application was granted.
In his oral opinion, the IJ found that Petitioner did not meet her burden of proof
and persuasion that she suffered past persecution within the meaning of the Immigration
and Nationality Act, regulations and applicable case law. The IJ further found that
Petitioner did not meet her burden as to whether she faces a reasonable possibility of
future persecution leading to a well-founded fear determination. However, the IJ found,
based on the two most recent reports on international religious freedom by the
Department of State, the arguments of counsel, and the relevant portions of the credible
source materials that were submitted, that “there is a ‘pattern or practice’ of persecution
of Chinese Christians by forces of the government or by forces . . . the government [is]
unwilling or unable to control.” (App. at 19.) Accordingly, the IJ granted the application
for asylum based on the pattern or practice finding and did not reach Petitioner’s other
applications for relief.
The Department of Homeland Security appealed the IJ’s determination. Petitioner,
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rather than filing a brief in opposition, advised the BIA that she would rely on the IJ’s
decision. On November 19, 2004, the BIA vacated the IJ’s order granting asylum and
ordered Petitioner removed to Indonesia. The BIA reasoned that Petitioner did not
establish that there is a pattern or practice of persecution against Chinese Catholics in
Indonesia for three reasons: (1) the most recent country reports, while describing
widespread conflict between Muslims and Christians in certain parts of Indonesia, did not
indicate that conflict existed on Petitioner’s home island of Java or in her hometown of
Jakarta; (2) the most recent country reports indicated that racially motivated attacks
against Sino-Indonesians have dropped sharply since mid-1998; and (3) the testimony of
Petitioner indicated that her family members, who remain in Indonesia, have not been the
victims of violence since November 2001.
Following the BIA’s vacatur, Petitioner motioned for reconsideration before the
BIA and petitioned this Court to review the decision. On April 29, 2005, the BIA denied
Petitioner’s motion for reconsideration as follows:
The respondent first cites two cases decided in the United States Court
of Appeals for the Ninth Circuit, which are not binding upon the [BIA] in this
case because the respondent’s case arises in the Third Circuit. See Lie v.
Ashcroft, 396 F.3d 530 (3d Cir. 2005) (finding that Indonesian Chinese
Christian had not shown a pattern or practice of persecution). Second, the
respondent argued that the [BIA] had failed to cite to case law in its decision.
However, the [BIA] did cite to regulation and did cite to a variety of evidence
contained in the record of proceedings in its decision. Third, the respondent
contends that the [BIA] incorrectly found that the respondent had not suffered
past persecution and did not have a well-founded fear of future persecution.
However, the [BIA’s] order clearly states that these issues were not raised on
appeal; the only finding that was reviewed was the [IJ’s] finding of a pattern
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and practice of persecution of Chinese Christians in Indonesia. Fourth, the
respondent argues that the [BIA] should have granted the respondent
withholding of removal, but has not supported this argument with citations to
cases or items in the record. Finally, the respondent argues that the [BIA]
erred in affirming the [IJ’s] finding in this regard, because the [IJ] did not
reach the issue of [Convention Against Torture] relief after he granted the
respondent asylum. Rather, based on the facts as found by the [IJ], we
concluded that the respondent had not shown a likelihood of torture.
(App. at 22-23.) The Petitioner once again petitioned this Court to review the BIA’s
decision. On May 20, 2005, the petitions were consolidated by this Court for purposes of
briefing and disposition.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of
removal issued by the BIA. We review the BIA’s factual determination that a petitioner
failed to prove pattern or practice under the substantial evidence standard. Lusingo v.
Ashcroft, 420 F.3d 193, 199 (3d Cir. 2005) (citing Balasubramanrim v. INS, 143 F.3d
157, 161 (3d Cir. 1998)). “To reverse the BIA finding we must find that the evidence not
only supports that conclusion, but compels it. . . .” INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992). We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Goa v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).
III.
Petitioner argues that the BIA’s finding that she failed to prove a pattern or
practice of persecution of Chinese Catholics in Indonesia is unsupported by substantial
evidence. We disagree.
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Persecution constitutes a pattern or practice when it is “systemic, pervasive, or
organized.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (quoting Ngure v.
Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)). Moreover, the “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.’” Id. (quoting Abdulrahman v. Ashcroft, 330 F.3d 587,
592 (3d Cir. 2003)).
In Lie, the petitioner argued with “some force” that “anti-Chinese violence
persists, citing evidence in the record of widespread attacks against Chinese Christians in
Indonesia, including press accounts of riots, vandalism, and robbery targeting Chinese
Christians.” Id. However, we held that “such violence does not appear to be sufficiently
widespread as to constitute a pattern or practice.” Id. We reasoned that: (1) the 1999
Country Report on Indonesia indicated that there was a sharp decline in violence against
Chinese Christians since 1998; (2) the Indonesian government officially promotes
religious and ethnic tolerance; and (3) the violence was primarily wrought by fellow
citizens, rather than the result of governmental action or acquiescence. Id.
Here, the BIA relied on the United States Department of State 2001 and 2002
Country Reports on Human Rights Practices for Indonesia and the United States
Department of State 2001 and 2002 International Religious Freedom Reports for
Indonesia. See e.g., Indonesia: Country Report on Human Rights Practices-2002, App.
6
Vol. II, at 172 (stating that Catholicism is one of five recognized religions in Indonesia
and noting that while “[c]hurches continued to come under attack during the year . . . such
incidents were much less frequent than in previous years”). Moreover, the BIA relied on
Petitioner’s testimony that her family members have remained in Indonesia free from
violence since November of 2001. See Lie, 396 F.3d at 537 (noting that an applicant’s
claim of persecution upon return to her home country is weakened when similarly-
situated family members continue to live in that country without incident). Therefore,
substantial evidence supports the BIA’s determination that Petitioner failed to show that
there is a pattern or practice of persecution of Chinese Christians in Indonesia.
IV.
Petitioner also argues that the BIA abused its discretion by denying her motion for
reconsideration. We disagree.
“We will disturb the BIA's denial of a motion to reopen or to reconsider only if it
was arbitrary, irrational, or contrary to law.” Borges v. Gonzales, 402 F.3d 398, 404 (3d
Cir. 2005) (quotation marks and citations omitted). In her application for reconsideration,
Petitioner raises claims identical to those at issue here. We conclude that the BIA's denial
was a correct application of relevant law and therefore was neither arbitrary nor contrary
to law.
V.
Petitioner’s remaining arguments were raised in her motion for reconsideration
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rather than on direct appeal to the BIA. Therefore, the issues were not properly preserved
for review by this Court. See Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989) (noting
that the exhaustion requirement “bars consideration of particular questions not raised in
an appeal to the [BIA]”); see also Seegobin v. Ashcroft, 112 Fed. Appx. 195, 197-98 (3d
Cir. 2004) (recognizing that even when a petitioner is the prevailing party before the IJ,
once an appeal is in motion, a petitioner must, in order to preserve her right to appeal
adverse determinations below, develop all points of error in her opposition to the appeal).
Accordingly, we will not discuss Petitioner’s additional arguments here.
VI.
Based on the foregoing, the BIA’s finding that Petitioner failed to establish a
pattern or practice of persecution of Chinese Christians in Indonesia is supported by
substantial evidence. Moreover, the BIA did not abuse its discretion by denying
Petitioner’s motion for reconsideration. Therefore, the petition for review will be denied.
8