Eti v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-6-2007
Eti v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4545
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-4545
___________
ETI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
.
_______________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A 96 257 816)
Immigration Judge: Miriam K. Mills
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2007
BEFORE: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.
(Filed: March 6, 2007)
___________
OPINION OF THE COURT
____________
FUENTES, Circuit Judge.
Eti challenges the Board of Immigration Appeals’ denial of her application for
asylum, withholding of removal, and relief under the United Nations Convention Against
Torture.1 For the reasons that follow, we will deny the petition.
I.
Eti is a Chinese Christian citizen of Indonesia. She was born in 1970 on the island
of Sumatra. Eti came to the United States on February 9, 2002, overstayed her visa, and
applied for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”) on February 7, 2003.
At her hearing before an immigration judge (“IJ”), Eti testified that during her
childhood, she and her family were harassed by native Indonesians because they were
ethnically Chinese. On one occasion, a native Indonesian attempted to rape her sister and
then stabbed her brother leaving him blind in one eye. When she was seven years old, her
father was fatally poisoned by a neighboring business owner and, according to Eti, the
authorities did not investigate the matter. As a teenager, she often was harassed on public
transportation by men who sometimes fondled her breasts. During her last year of high
1
On her I-589 application, petitioner listed “Eti” as her first name and stated
“N/A” for her last name. A.R. 366.
2
school, a native Indonesian pulled her skirt up at a local market, and the police refused to
help her. The following year, a native Indonesian man grabbed her breast and laughed at
her. During riots in May 1998, a group of men carrying weapons approached her saying
they were going to beat up a Chinese girl. A policeman helped her escape back to a home
protected by her landlord where she hid in the attic for three days. In addition, two of her
family’s businesses were burned down during the riots.
Eti also claims that she was persecuted on the basis of her religion. She became a
Christian in 1990 and subsequently had trouble finding a place to live because people
would not rent to Christians. When she did find a place, Muslims threw stones at her
house and broke the windows. Eti also described an incident where native Indonesians
vandalized a funeral home and defaced the body of her friend’s mother. In December
2001, while traveling with a Christian music group, she was approached by men who
threatened to assault her because of her religion. She fell as she was running away and
injured herself. Soon before she left the county, Muslim neighbors destroyed a wall her
family had built. Eti also testified that although some of her family is Christian, two of
her brothers have converted to Islam to avoid persecution.
In addition, a minister named Bruce McDowell testified at the hearing about Eti’s
involvement with his church in Philadelphia. Finally, Leonard Swidler, professor of
religion at Temple University, testified that religious tensions in Indonesia were greater
than the U.S. State Department reports indicated and that he believed Eti was at high risk
of suffering harm if she returned.
3
The IJ denied Eti’s application for relief, and the Board of Immigration Appeals
(“BIA”) affirmed without an opinion. The IJ determined that Eti’s testimony was not
entirely consistent or credible. First, the IJ noted that Eti described the incident during
the May 1998 riots as the worst example of her persecution, but then later testified that
the incident while touring with her music group was the worst harm she suffered.
Second, the IJ observed that Eti had not included the Christian music group incident in
her I-589 application. The IJ did not believe that Eti offered any reasonable explanation
for these inconsistencies.
In addition, the IJ concluded that the incidents Eti described did not constitute past
persecution or provide a reasonable basis upon which to fear future persecution. The IJ
stated that conditions in Indonesia had improved for ethnic Chinese citizens, and noted
that Eti lived in Indonesia for almost four years after the 1998 riots. In terms of her
claims based on religion, the IJ explained that Eti’s mother and sister both attend church
regularly and that conditions had improved in Indonesia for Christians.
II.
We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252. When the
BIA summarily affirms an IJ’s decision, we consider the IJ’s decision. Partyka v.
Attorney Gen. of the United States, 417 F.3d 408, 411 (3d Cir. 2005). We review the
IJ’s factual and discretionary determinations, including credibility findings, under a
substantial evidence standard. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir.
2006). “If a reasonable fact finder could make a particular finding on the administrative
4
record, then the finding is supported by substantial evidence.” Dia v. Ashcroft, 353 F.3d
228, 249 (3d Cir. 2003). The IJ’s findings finding “must be upheld unless the evidence
not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d
477, 483-84 (3d Cir. 2001).
III.
Eti’s only argument on appeal is that the IJ failed to properly consider whether
there is a “pattern and practice” of persecution against ethnic Chinese and Christians in
Indonesia. As Eti notes, applicants for asylum can establish a well-founded fear of future
persecution by showing “that there is a pattern or practice in his or her country of
nationality . . . of persecution of a group of persons similarly situated to the applicant on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 C.F.R. § 208.13(b)(2)(iii)(A). We have explained that “to constitute a
‘pattern or practice,’ the persecution of the group must be systemic, pervasive, or
organized.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (internal quotation marks
omitted). Acts of “violence or other harm perpetrated by civilians against the petitioner’s
group [do] not constitute persecution unless such acts are committed by the government
or forces the government is either unable or unwilling to control.” Id. (internal quotation
marks omitted).
We agree with Eti that the IJ could have more fully discussed the possibility of a
pattern and practice, especially with regard to religious persecution. For example, while
the 2003 International Freedom Report for Indonesia does note that there have been
5
advances in interreligious cooperation, it also describes a government which has “on
many occasions failed to punish perpetrators and further attacks” and that has “at times
tolerated the abuse of religious freedom by private groups.” App. 48. Nevertheless, the IJ
did consider the reports and other materials submitted by Eti and concluded that she did
not have a well-founded fear based on general conditions in Indonesia. Although the
evidence presented establishes that religious violence in Indonesia remains a significant
problem, we do not believe the record compels the conclusion that there is a pattern and
practice of persecution. The IJ’s determination that Eti had not established a well-
founded fear of persecution is therefore supported by substantial evidence.2
We also agree with the IJ that Eti does not qualify for withholding of removal or
protection under CAT. Eti did not demonstrate a “clear probability” of persecution if
removed, see INS v. Stevic, 467 U.S. 407, 413 (1984), and she has not argued on appeal
that she qualifies for protection under CAT, i.e., that it is more likely than not that she
will be tortured if removed, see Ayuk Ako Obale v. Attorney Gen. of the United States,
453 F.3d 151, 161 (3d Cir. 2006).
IV.
2
We note that substantial evidence also supports the IJ’s determination that Eti did
not establish a well-founded fear of being individually targeted for persecution in
Indonesia. Eti does not appear to challenge this determination on appeal, though she does
argue that the IJ’s adverse credibility finding was error. However, Eti’s failure to
mention the Christian music group incident in her I-589 application was noteworthy both
because she testified that it was the “worst” incident she experienced and because it
occurred within a couple of months of when she left Indonesia.
6
Eti has failed to demonstrate that the BIA or IJ erred in rejecting her application
for asylum, withholding of removal, and relief under CAT. For the reasons discussed
above, we will deny the petition.
7