Firmansjah, Yulia v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3111 & 03-3965
YULIA FIRMANSJAH,
Petitioner,
v.
ALBERTO R. GONZALES,1
Respondent.
____________
On Petitions for Review of Orders
of the Board of Immigration Appeals.
No. A75 979 022
____________
ARGUED JUNE 17, 2004—DECIDED SEPTEMBER 16, 2005
____________
Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Yulia Firmansjah, a citizen
of Indonesia, entered the United States as a student and
overstayed her visa. She subsequently filed an application
for asylum and withholding of removal. After a hearing, the
immigration judge denied Firmansjah’s asylum request on
the ground that Firmansjah was firmly resettled in Singa-
pore prior to her arrival in the United States. The immigra-
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we
have substituted the current Attorney General of the United
States, Alberto R. Gonzales, as the named respondent.
2 Nos. 03-3111 & 03-3965
tion judge also denied her request for withholding of
removal, reasoning that she had not shown a clear probabil-
ity that she would be persecuted if removed to Indonesia.
The Bureau of Immigration Affairs affirmed without
discussion, and Firmansjah appeals. For the reasons that
follow, we find that substantial evidence supports the
immigration judge’s determinations and deny the petitions
for review.
I. BACKGROUND
Yulia Firmansjah was born in Indonesia and is an
Indonesian citizen. She is ethnically Chinese. At her asylum
hearing, she recounted that in 1986, when she was twelve
years old, she and her family moved from their home in
Jakarta, Indonesia to the western outskirts of Jakarta in an
effort to avoid anti-Chinese violence in the city. In 1988, at
the age of sixteen, she moved with her family to Singapore,
where she attended high school for four years. She lived
with her family in Singapore from 1988 to 1992 when, at
the age of nineteen, she entered the United States on a
student visa. She studied at the University of Dayton,
where she received a bachelor’s degree in environmental
engineering technology and a master’s degree in business
administration.
Firmansjah testified that in approximately 1990, her
father removed all his money from Singapore and re-
invested it in business in Indonesia. In 1995 or 1996, after
her siblings finished high school and she was already living
in the United States, her parents moved back to Indonesia.
In 1998, as a result of anti-Chinese violence in Indonesia,
her parents twice left Indonesia and headed to Singapore.
She testified that as of December 2000, her parents lived in
Indonesia but retained their residency in Singapore.
Firmansjah’s most recent visa expired on December 26,
1997, and she acknowledged that she stayed in the United
Nos. 03-3111 & 03-3965 3
States beyond her visa’s expiration. She stated that at
the time of her graduation from college, she had planned to
return to Indonesia. However, after riots in Indonesia
in May 1998 during which ethnic Chinese persons were
harmed, her parents advised her not to do so. Instead, she
completed an application for asylum. On her application for
asylum dated September 16, 1998, she stated that she had
a “Singapore residence permit” and was “entitled to return
to Singapore for residence reasons.” At her hearing, she
testified that although her parents were still Singapore
residents, she no longer had “residency” in Singapore
because it had expired in March of 2000.
Firmansjah asserted that if returned to Indonesia, she
feared persecution based on her ethnicity (Chinese), religion
(Catholic), and status as a young westernized Chinese
woman. She expressed fear that the government was unable
to control violence towards Christians or Chinese in
Indonesia. She also testified that she did not know anyone
personally who had been the victim of anti-Chinese violence
in Indonesia.
The immigration judge denied Firmansjah’s request
for asylum on the ground that she had firmly resettled
in Singapore prior to entering the United States. The
immigration judge also denied her request for withhold-
ing of removal, reasoning that she had not established a
clear probability that she would face persecution if returned
to Indonesia. Her request for voluntary departure was
granted, with an alternative order of removal to Indonesia.
Firmansjah appealed the immigration judge’s decision to
the Board of Immigration Appeals, which summarily
affirmed the immigration judge’s decision without opinion.
II. ANALYSIS
Firmansjah raises two issues in her petition for re-
view. First, she contends that the immigration judge erred
4 Nos. 03-3111 & 03-3965
when he determined that she had firmly resettled in
Singapore prior to her arrival in the United States. In
addition, she maintains that the immigration judge’s
finding that she was not entitled to withholding of removal
was not supported by substantial evidence. Where, as here,
the Board of Immigration Appeals affirms the immigra-
tion judge’s decision without opinion, we review the decision
of the immigration judge as the “final agency determina-
tion.” Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th Cir.
2004).
A. Asylum
To be eligible for a discretionary grant of asylum, an
applicant must establish that she is a “refugee” within
the meaning of the Immigration and Nationality Act. 8
U.S.C. § 1158(b)(1); Jamal-Daoud v. Gonzales, 403 F.3d
918, 922 (7th Cir. 2005). The Act defines a “refugee” as one
who is unable or unwilling to return to her native country
“because of persecution or a well-founded fear of persecu-
tion on account of race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A). The petitioner carries the burden of estab-
lishing eligibility for asylum. Jamal-Daoud, 403 F.3d at
922; 8 C.F.R. § 208.13(a).
Although it has not always been the case, under the
current statute, an alien is not eligible for asylum if she
was “firmly resettled in another country prior to arriving in
the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi);2 see Abdille
2
This provision applies to aliens who, like Firmansjah, file
asylum applications on or after April 1, 1997. See Pub. Law No.
104-208, 110 Stat. 3009 (1996). Effective October 1, 1990, the
Immigration and Naturalization Service amended its regulations
to provide that a finding of firm resettlement mandated the denial
(continued...)
Nos. 03-3111 & 03-3965 5
v. Ashcroft, 242 F.3d 477, 483 n.4 (3d Cir. 2001) (discussing
history of firm resettlement and noting that prior to 1990,
firm resettlement was only one factor for immigration judge
to consider in deciding whether to grant asylum); see also
Diallo v. Ashcroft, 381 F.3d 687, 692 n.4, 693 (7th Cir.
2004). Here, the immigration judge found that Firmansjah
had firmly resettled in Singapore prior to entering the
United States and denied her asylum request on that basis.
Firmansjah maintains that this finding was erroneous.
“A finding of firm resettlement is a factual determina-
tion.” Diallo, 381 F.3d at 695. Therefore, we will review the
immigration judge’s decision only to determine whether
substantial evidence supports it. Id. The finding that
Firmansjah was firmly resettled “must be upheld if it is
supported ‘by reasonable, substantial, and probative
evidence on the record considered as a whole,’ ” and we
will reverse only if a reasonable fact-finder would be
compelled to reach a different conclusion. Id. (citations
omitted).
We considered the firm resettlement provision in the
current statute for the first time in Diallo v. Ashcroft, 381
F.3d 687 (7th Cir. 2004). There, we observed that the
statute does not define the term “firm resettlement” or
provide guidance for how to determine whether a refugee
was firmly resettled. 381 F.3d at 692. The regulations,
however, provide that:
[a]n alien is considered to be firmly resettled if,
prior to arrival in the United States, he or she
2
(...continued)
of asylum. See 8 C.F.R. § 208.14(c)(2) (1991); see also 8 C.F.R. §
202.13(c)(2)(i)(B) (2000) (stating that for asylum applications filed
before April 1, 1997, an immigration or asylum officer shall not
grant asylum to any alien who “[h]as been firmly resettled.”). In
1996, Congress codified this mandatory bar at 8 U.S.C. §
1158(b)(2)(A)(vi).
6 Nos. 03-3111 & 03-3965
entered into another country with, or while in that
country received, an offer of permanent resident
status, citizenship, or some other type of permanent
resettlement . . . .
8 C.F.R. § 208.15.3We decided in Diallo, after examining the text of the
statute, that “the primary and most important inquiry
in any analysis of firm resettlement is whether or not
the stopover country has made some type of offer of perma-
nent resettlement.” Id. at 693-94. Not all circuits take this
approach, as some employ a “totality of the circumstances”
test that also examines non-offer based elements such as an
applicant’s length of stay and social and economic ties in
the third country. See, e.g., Mussie v. U.S. I.N.S., 172 F.3d
329, 332 (4th Cir. 1999); Cheo v. I.N.S., 162 F.3d 1227, 1229
(9th Cir. 1998). Although we recognized in Diallo that
“ ‘circumstances may arise in which the INS may not be
able to secure direct evidence of a formal government offer
of some type of permanent resettlement,’ ” we made clear
that our initial inquiry asks whether the third country
extended an offer of permanent resettlement. 381 F.3d at694 (citing Abdille, 242 F.3d at 486-87).
3
The regulation further provides that an applicant will not be
considered firmly resettled if he or she establishes:
(a) That his or her entry into that country was a neces-
sary consequence of his or her flight from persecution,
that he or she remained in that nation only as long as
was necessary to arrange onward travel, and that he or
she did not establish significant ties in that country; or
(b) That the conditions of his or her residence were
so substantially and consciously restricted by the author-
ity of the country of refuge that he or she was not in fact
resettled.
8 C.F.R. § 208.15. Firmansjah does not contend that either
exception applies.
Nos. 03-3111 & 03-3965 7
The government has the initial burden of demonstrat-
ing that an applicant was firmly resettled in a third country
prior to entering the United States. Diallo, 381 F.3d at 693.
If the government satisfies its burden, the applicant may
rebut the presumption by presenting evidence to the
contrary. Id.Firmansjah argues that the only evidence the government
produced in its attempt to demonstrate her permanent
residence in Singapore was a stamp on her Indonesian
passport. The stamp, dated March 14, 1995, states it is a
“multiple-journey visa for Singapore” valid until March 14,
2000. Firmansjah contends that there is no evidence that
this time-limited stamp granted her “permanent” residency
in Singapore.
Firmansjah’s focus on the five-year nature of her
visa stamp ignores significant other evidence in the rec-
ord. In support of its position that it met its initial burden
of demonstrating that Firmansjah was firmly resettled prior
to entering the United States, the government points to
Firmansjah’s statements on her asylum application and her
testimony at the hearing. First, in answer to a question on
the asylum application that asked, “Do you . . . now hold, or
have you ever held, permanent residence, other permanent
status, or citizenship, in any country other than the one
from which you are now claiming asylum?”, Firmansjah
checked “Yes” and typed, “I do have a Singapore permanent
resident permit.” In addition, she stated elsewhere on her
application that she was “entitled to return to Singapore for
residence purposes.” At the hearing, she confirmed the
answers she had provided on her asylum application. She
testified that she received a Singapore permanent resident
card in 1988.4 In addition, she testified that at the time of
4
The transcript states:
(continued...)
8 Nos. 03-3111 & 03-3965
her application in 1998, she still maintained her residency
in Singapore.
We agree with the government that Firmansjah’s admis-
sion in both her written application and oral testimony that
she had received permanent resident status in Singapore
satisfied the government’s initial burden of producing
evidence indicating that Firmansjah had resettled in a third
country. The burden then shifted to Firmansjah to show
that she was not firmly resettled.
Firmansjah points to the five year entry stamp on her
passport that expired in March 2000, contending that its
limited nature demonstrates it did not confer “permanent”
status on her. In addition, she contends, the expiration date
of her visa coincides with the time that she testified her
permanent residency expired. It is possible that Firmansjah
was mistaken as to her real status in Singapore, and it
would have helped us if the government had introduced
evidence of what “permanent resident” status or its equiva-
lent entails under Singapore law. Cf. Abdille, 242 F.3d at
490-92 (concluding that party seeking to rely on foreign law
bears burden of establishing its content). However, al-
though represented by counsel at her hearing, she intro-
duced no evidence and offered no explanation of why she
4
(...continued)
Q. What type of status was your family given in Singa-
pore? Permanent resident statue [sic], or?
A. Because we, we, we do, we have an investment,
yeah, they did give us (indiscernible).
Q. So, did you get permanent resident cards?
A. Uh-huh.
Q. And that was in 1988?
A. Yes.
(A.R. 135.)
Nos. 03-3111 & 03-3965 9
consistently maintained on both her asylum application and
in her testimony that she had permanent resident status in
Singapore at the time of her application and had obtained
that status in 1988, if she did not in fact have this status.
Firmansjah also contends that her Singapore residency
should be disregarded because her parents may have
fraudulently obtained their permanent resident status, thus
rendering their status “null and void.” She admitted,
however, that her parents still maintain their residency
in Singapore, and she did not indicate that Singapore
officials had ever attempted to revoke their status.
Firmansjah offered no evidence other than her own specula-
tion to support her assertion that her parents may have
obtained their status illegally. The bottom line is
that according to her own testimony, Singapore still
considers her parents permanent residents. Therefore,
Firmansjah’s conjecture that her family may have ob-
tained their permanent residency status improperly does
not help her. See Rife v. Ashcroft, 374 F.3d 606, 611 (8th
Cir. 2004) (rejecting argument that Israeli citizenship
invalid because applicants were practicing Christians,
where Israel had offered applicants permanent resettlement
under its Law of Return and issued certificates evidencing
citizenship, and there was no evidence that Israel had ever
revoked such a citizenship offer upon learning of conversion
to Christianity); Salazar v. Ashcroft, 359 F.3d 45, 51 (1st
Cir. 2004) (holding that alien’s testimony that he paid
another person to obtain residence stamp did not require
immigration judge to discount its facial validity).
In addition, the expiration of her permanent residency
status prior to the hearing in this case does not preclude a
finding that Firmansjah had firmly resettled in Singapore.
Firmansjah testified that by the time of the December 2000
hearing, she no longer had her residency in Singapore and
believed it had expired in March of that year. She testified
that at the time she filed for asylum, however, she still
10 Nos. 03-3111 & 03-3965
maintained permanent residency status in Singapore. She
explained that maintaining her residency status in Singa-
pore required her to return to Singapore to obtain an
extension. However, she had not done so.
The text of the statute provides that firm resettlement is
determined by asking whether the applicant was firmly
resettled “prior to” arrival in the United States. 8 U.S.C. §
1158(b)(2). In Abdalla v. I.N.S., 43 F.3d 1397 (10th Cir.
1994), the Tenth Circuit held that a firm resettlement
finding is not “affected by the possibility that by terminat-
ing his [third country] residence permit . . . petitioner
may have jeopardized his entitlement to resume resi-
dence in that country through his extended (and illegal)
stay in the United States.” 43 F.3d at 1400. This rule
prohibits an alien from “bootstrapping an asylum claim
simply by unilaterally severing his existing ties to a third
country.” Id.; see also Elzour v. Ashcroft, 378 F.3d 1143,
1152 (10th Cir. 2004); Ali v. Reno, 237 F.3d 591, 595-96 (6th
Cir. 2001); Vang v. I.N.S., 146 F.3d 1114, 1117 (9th Cir.
1998). Here, there is ample evidence that Firmansjah had
permanent resident status in Singapore prior to her arrival
in the United States, but apparently she let that status
expire. Moreover, Firmansjah testified that at the time she
filed her asylum application, she still retained her residency
status in Singapore.5 Keeping in mind our deferential
standard of review, we cannot say that the immigration
judge’s finding was unsupported by substantial evidence.
Firmansjah also argues, without case citation, that
her due process rights were violated because the immigra-
5
We note that a finding that an applicant firmly resettled in
a third country does not preclude the applicant from establish-
ing that events after resettlement constitute past persecution
or create a well-founded fear of future persecution, thereby
entitling the applicant to asylum from the country of resettlement.
See Rife v. Ashcroft, 374 F.3d 606, 612 (8th Cir. 2004).
Nos. 03-3111 & 03-3965 11
tion judge did not make clear that he would “base the thrust
of his decision” on a firm resettlement finding. We disagree.
Firmansjah’s counsel addressed the firm resettlement issue
in her closing argument, and the parties had a colloquy
with the court following the arguments on this issue.
Moreover, in order to prevail on a due process claim, an
applicant must show prejudice. Capric v. Ashcroft, 355 F.3d
1075, 1087 (7th Cir. 2004). Firmansjah has not demon-
strated prejudice, as she has not suggested what evidence
she would have produced had she received more notice that
firm resettlement, an explicit statutory bar to asylum,
would be an issue.
B. Withholding of removal
Although a finding of firm resettlement is, by statute, a
bar to eligibility for asylum, no statute or regulation
bars the grant of withholding of removal upon a finding
that an applicant firmly resettled in a third country prior to
entering the United States. We will therefore consider the
withholding of removal claim separately from the barred
asylum claim, as have other circuits. Madjakpor
v. Gonzales, 406 F.3d 1040, 1046 (8th Cir. 2005); Rife,
374 F.3d at 613; Salazar, 359 F.3d at 52; Vang, 146 F.3d at
1116-17; Abdalla, 43 F.3d at 1399. When we review the
denial of an application for withholding of removal, we
will uphold the decision if it is supported by substantial
evidence. Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir.
2005).
Unlike the decision to grant asylum, which is discretion-
ary even if the criteria for asylum are met, the Attorney
General must withhold deportation if he determines “that
the alien’s life or freedom would be threatened . . . because
of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The applicant bears the burden of establish-
12 Nos. 03-3111 & 03-3965
ing entitlement to withholding of removal. Zheng, 409 F.3d
at 809. To meet this burden, the applicant must demon-
strate a “clear probability” that he or she will face persecu-
tion in the country to which he or she will be removed. Id.The “clear probability” standard requires an applicant to
show that it is “more likely than not” that she will be
subject to persecution if returned to her native country, a
more stringent test than the standard for establishing
eligibility for asylum. Id.Although withholding of removal is based on the likeli-
hood of future persecution, if an applicant demonstrates
that she suffered past persecution in the proposed country
of removal, “it shall be presumed that the applicant’s life or
freedom would be threatened in the future in the country of
removal on the basis of the original claim.” 8 C.F.R. §
1208.16(b)(1); see also Zaidi v. Ashcroft, 377 F.3d 678, 681
(7th Cir. 2004). The government can rebut this presumption
by demonstrating either a fundamental change in circum-
stances or that the applicant could avoid persecution by
relocating to another part of the proposed country of
removal. 8 C.F.R. § 1208.16(b)(1)(i).
We first address Firmansjah’s contention that she
established past persecution, which, if true, would entitle
her to a presumption of future persecution. Although she
testified that neither she nor any member of her family was
ever threatened or harmed in Indonesia, Firmansjah
contends her testimony that her parents changed their
Chinese names to other names pursuant to Indonesian law
establishes that she was persecuted. She maintains that the
United States would not consider the requirement to change
one’s name on account of ethnicity legitimate, and, there-
fore, she has demonstrated her past persecution in Indone-
sia.
Although requiring a name change solely based on one’s
ethnicity is reprehensible, we do not agree that her parents’
Nos. 03-3111 & 03-3965 13
name change establishes that Firmansjah was persecuted.
First, as the government points out, Firmansjah was not
required to change her name, and we have rejected claims
of “derivative persecution.” See, e.g., Ciorba v. Ashcroft, 323
F.3d 539, 545 (7th Cir. 2003); Tamas-Mercea v. Reno, 222
F.3d 417, 424 (7th Cir. 2000). We do recognize, however,
that Firmansjah testified that while in Indonesia, she
cannot use the Chinese name her family also gave her. In
any event, the name change does not rise to the level of
persecution. “ ‘[P]ersecution does not encompass all treat-
ment that our society regards as unfair, unjust, or even
unlawful or unconstitutional.’ ” Sharif v. I.N.S., 87 F.3d 932,
935 (7th Cir. 1996) (citation omitted). Instead, we have
stated that persecution means “punishment or the infliction
of harm for political, religious, or other reasons that this
country does not recognize as legitimate.” Bace v. Ashcroft,
352 F.3d 1133, 1137-38 (7th Cir. 2003). We have empha-
sized that “persecution” means “more than harassment” and
have held it to include such actions as “ ‘detention, arrest,
interrogation, prosecution, imprisonment, illegal searches,
confiscation of property, surveillance, beatings, or torture.’”
Toptchev v. I.N.S., 295 F.3d 714, 720 (7th Cir. 2002)
(citations omitted). Although actions need not be life-
threatening to constitute “persecution,” we have stated the
term could include such non-life-threatening actions as
economic deprivation only “if the resulting conditions are
sufficiently severe.” Capric, 355 F.3d at 1084.
A requirement to change one’s name, without more, does
not rise to the level of punishment or harm necessary to
constitute persecution under the Immigration and National-
ity Act. Firmansjah did not testify that she or her parents
were ever threatened with any consequence had they not
changed their names. Cf. Popova v. I.N.S., 273 F.3d 1251,
1258 (9th Cir. 2001) (noting evidence that petitioner was
fired when she refused to change her last name supported
a finding of past persecution). Instead, a law requiring a
14 Nos. 03-3111 & 03-3965
name change based on one’s ethnicity more closely resem-
bles circumstances that we have recognized our society
would regard as unfair or unjust, but that does not consti-
tute “persecution” allowing the applicant to asylum or
withholding of removal relief. See, e.g., Yadegar-Sargis v.
I.N.S., 297 F.3d 596 (7th Cir. 2002) (finding no persecution
where woman in Iran was “confronted by police because her
dress did not conform to the requirements imposed by the
dominant religion, interrogated concerning her son and
forced to the end of rationing lines. However, [the applicant]
never was detained; she was not physically assaulted; she
did not suffer extreme economic deprivation; nor was she
the direct subject of a physical threat.”). Firmansjah did not
establish that she suffered from past persecution in Indone-
sia.
Although she was unable to demonstrate past persecution
in Indonesia, Firmansjah is entitled to withholding of
removal if she can establish a clear probability of future
persecution if returned to Indonesia on account of her “race,
religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
Firmansjah contends that she demonstrated a clear proba-
bility of future prosecution on account of her status as a
Catholic, ethnic Chinese woman who has been westernized.
Although we are not unsympathetic to the applicant, we
cannot say the immigration judge’s finding—that
Firmansjah did not demonstrate it was “more likely than
not” that she would be persecuted upon a return to
Indonesia—was unsupported by substantial evidence.
Firmansjah first argues that the immigration judge
improperly rejected her claim that she was a member of a
discrete and cognizable group of Roman Catholic women of
Chinese ethnicity who have been westernized. The immi-
gration judge did not base his decision on whether she was
a member of a “social group,” however. Rather, the immi-
gration judge stated that while he did not believe that
Nos. 03-3111 & 03-3965 15
Christian ethnic Chinese women who had studied in the
United States constituted a cognizable “particular social
group,” Firmansjah failed to show this group had been
targeted by the government or by groups the government is
unable or unwilling to control.
Next, Firmansjah challenges the finding that she did not
establish it was “more likely than not” that she would be
persecuted if returned to Indonesia. The record contains
numerous documents concerning conditions in Indonesia,
including newspaper articles, reports by human rights
organizations, and State Department reports. This docu-
mentary evidence corroborates Firmansjah’s testimony
of a history of anti-Chinese sentiment in Indonesia, as
well as civil unrest and anti-Chinese violence in Indonesia
in 1998. In May 1998, rioting broke out in Indonesia
following the shooting of students by police snipers, and
anti-Chinese sentiment led to widespread attacks on
Chinese-owned businesses. According to the 1999 State
Department report, at least 85 instances of violence against
ethnic Chinese women, including 66 rapes, were verified
during the 1998 riots. In addition, Firmansjah testified that
although she was then residing in the United States, her
parents twice left Indonesia in 1998 to escape rioting.
The immigration judge properly recognized the “religious
and ethnic strife” that continued to exist in Indonesia at the
time of his decision. As the immigration judge observed,
however, the 1998 riots resulted in the overthrow of the
existing government. The next year, a democratically
elected parliament elected a new president. The 1999 State
Department Report found that “Racially motivated attacks
against ethnic Chinese citizens dropped sharply during
[1999],” and newspaper articles in the record discussed
steps taken by the government to attempt to control the
ethnic and religious tension. E.g., A.R. 610. In reaching his
conclusion, the immigration judge also pointed to
16 Nos. 03-3111 & 03-3965
Firmansjah’s testimony that her family continued to reside
in Indonesia and has never been harmed there. We have
recognized before that the absence of any evidence of harm
to family members undermines an applicant’s claim of a
fear of future persecution. See Bhatt v. Reno, 172 F.3d 978,
982 (7th Cir. 1999). Firmansjah also admitted that she did
not personally know anyone who had been the victim of
anti-Chinese violence in Indonesia, and she testified that
neither she nor anyone she knew had ever been threatened
by the Indonesian government.
Unlike her family members, however, Firmansjah studied
in the United States, a factor she contends contributes to
the likelihood of her persecution. The immigration judge
recognized that bomb threats and demonstrations had
forced the United States Embassy in Jakarta to close down.
However, the judge noted, these threats were actions
directed against the United States government. Firmansjah
does not direct us to any evidence of the mistreatment of
Indonesians who had studied or lived in western countries
by other Indonesians. Keeping in mind our deferential
standard of review, we find that substantial evidence
supports the immigration judge’s determination that
Firmansjah failed to carry her burden of demonstrating it
would be “more likely than not” that she would be subject
to persecution if returned to Indonesia, “a much more
demanding burden” than necessary to establish a well-
founded fear of future persecution. Capric, 355 F.3d at
1095.6
6
For similar reasons, the Third Circuit held that two Indonesian
citizens failed to meet even the lower threshold of a well-founded
fear of future persecution in Indonesia because of their status
as ethnic Chinese Christians. Lie v. Ashcroft, 396 F.3d 530 (3d
Cir. 2005). In contrast, the Ninth Circuit in Sael v. Ashcroft, 386
F.3d 922 (9th Cir. 2004) ruled that an ethnically Chinese Indone-
(continued...)
Nos. 03-3111 & 03-3965 17
III. CONCLUSION
For the foregoing reasons, Firmansjah’s petitions for
review are DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
6
(...continued)
sian citizen had established a well-founded fear of persecution in
Indonesia. The Sael court concluded that “ethnic Chinese [were]
significantly disfavored in Indonesia,” and then required the
applicant to demonstrate a “ ‘comparatively low’ level” of risk in
order to establish a well-founded fear of future persecution. 386
F.3d at 927.
Sael does not aid Firmansjah. First, unlike the withholding
of removal claim at issue before us, Sael considered whether an
applicant met the less stringent standard of a well-founded fear
of persecution. Not only was Sael considering a standard that was
less stringent on its face, but Sael required an even lower level of
individualized risk after finding that the applicants
were members of a “disfavored group.” This circuit has not
recognized a lower threshold of proof based on membership in
a “disfavored group.” Cf. Lie, 396 F.3d at 538 n.4 (rejecting
establishment of a “disfavored group” category and disagreeing
with Sael’s use of a lower standard). In addition, the Ninth Circuit
found that the applicant in Sael established a well-founded fear
of persecution based on past threats and violence directed towards
her. Sael, 386 F.3d at 927. Firmansjah, however, testified that no
threats were ever directed towards her or her family.
USCA-02-C-0072—9-16-05