Sylvia T. Lengkong v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1684
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Sylvia Tieneke Lengkong; *
Ferdinand Jacobus Rondonuwu, *
*
Petitioners, * Petition for Review of an
* Order of the Board of
v. * Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: December 13, 2006
Filed: March 1, 2007
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Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Sylvia Tieneke Lengkong and Ferdinand Jacobus Rondonuwu (hereinafter
referred to by their last names or collectively as “the petitioners”) petition for review
of an order of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) denial of their application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We deny the petition.1
1
Petitioners’ motion to supplement the administrative record is also denied. See
8 U.S.C. § 1252(b)(4)(A) (2006); Ming Ming Wijono v. Gonzales, 439 F.3d 868, 875
n.4 (8th Cir. 2006)
I.
Lengkong and her husband, Rondonuwu, both natives and citizens of Indonesia,
entered the United States on visitor visas in 2001. They subsequently remained
beyond their authorized stay, and the Department of Homeland Security commenced
removal proceedings against them in July 2003. Lengkong and Rondonuwu conceded
that they were removable, but applied for asylum, withholding of removal, protection
under CAT, and voluntary departure.
Lengkong and Rondonuwu’s application was based primarily on their assertion
that they had previously faced persecution in Indonesia because of their Christian faith
and Lengkong’s leadership positions with a Protestant church in Indonesia, where she
had served as a deacon and elder. Lengkong described four such incidents of
persecution in her application and testimony before the IJ. In the first incident, which
occurred on May 12, 1998, Lengkong and her husband were traveling in their car
when it was stopped by a group of men wielding sticks. During the altercation, one
of the men apparently demanded that they remove the vehicle’s bumper sticker, which
read “Jesus is my Savior.” The men broke windows in the car before Lengkong and
Rondonuwu could drive away. In the second incident, occurring on May 13 and 14,
1998, a group of people threw stones at the petitioners’ house and vandalized their
fence. In the third incident, which occurred on November 2, 1999, Lengkong was
participating in the choir at a Protestant church service when a group of people entered
the church, began vandalizing it, and eventually burned it down. Lengkong was able
escape from the church unharmed. In the fourth incident, which occurred in
September of 2001, a man approached Lengkong while she was riding on a bus,
pressed a pocket knife against her, and asked her if she was a Christian. She
subsequently gave him a gold ring and he left without harming her. Lengkong stated
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that she believed all of the attacks were carried out by Muslims because of statements
made by the attackers and reports she read in the newspapers.2
In her application and testimony, Lengkong also described incidents involving
other Christian friends and colleagues who had been attacked.3 She additionally
submitted various reports and articles that contained country information and detailed
the religious conditions and violence in Indonesia.
The IJ denied all claims for relief, except voluntary departure, concluding that
even though Lengkong and Rondonuwu appeared to be generally credible, they had
failed to meet their burden of establishing that they had suffered past persecution or
that they had a well-founded fear of future persecution in Indonesia on account of
their religion. The IJ additionally concluded that the petitioners had failed to show
that it was more likely than not that they would be tortured if they return to Indonesia.
The BIA affirmed the IJ’s decision.
II.
Lengkong and Rondonuwu contend that the IJ and BIA erred in denying their
application for asylum, withholding of removal, and protection under CAT. We
review a BIA’s determination under the substantial evidence standard and will reverse
only if “it would not be possible for any reasonable fact-finder to come to the
conclusion reached by the administrator.” Menendez-Donis v. Ashcroft, 360 F.3d
2
Lengkong testified that during the first three incidents the attackers were
yelling an Islamic phrase that is said to mean “God is the Greatest.” During the attack
on their home, Lengkong also testified that the attackers yelled, “Finish the
Christians.”
3
These attacks, as recounted by Lengkong, involved a Protestant pastor who
was stabbed by a group of Muslims, a Protestant pastor who was burned with his
family inside a church, and a Protestant deacon whose house was destroyed by a group
of Muslims.
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915, 918 (8th Cir. 2004). Because the BIA adopted the IJ’s decision and added
reasoning of its own, we review both decisions together. Setiadi v. Gonzales, 437
F.3d 710, 713 (8th Cir. 2006).
A.
To be eligible for asylum, an applicant must demonstrate that he or she is a
refugee – a person who is unwilling or unable to return to his or her home country
“‘because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.’”
Berte v. Ashcroft, 396 F.3d 993, 996 (8th Cir. 2005) (quoting 8 U.S.C. §
1101(a)(42)(A)). Persecution has been generally defined as “‘the infliction or threat
of death, torture, or injury to one’s person or freedom, on account of’ one of the
grounds enumerated in the refugee definition,” id. (quoting Regalado-Garcia v. INS,
305 F.3d 784, 787 (8th Cir. 2002)), and must be “inflicted either by the government
. . . or by persons or an organization that the government was unwilling or unable to
control.” Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001). If past persecution
is established, the applicant is entitled to a presumption of a well-founded fear of
future persecution, which can be rebutted by evidence that country conditions have
changed. Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir. 2004) (citing 8 C.F.R. §
1208.13(b)(1)(i) (2003)). Absent evidence of past persecution, an applicant must
establish a well-founded fear of persecution that is “both subjectively genuine and
objectively reasonable.” Eta-Ndu v. Gonzales, 411 F.3d 977, 983 (8th Cir. 2005).
The BIA concluded that the petitioners had failed to meet their burden of
establishing past persecution. We cannot say that these findings were erroneous given
the circumstances. First, as noted by the IJ, it is not evident that all the incidents
described were motivated by the petitioners’ religious beliefs. The IJ found that the
attack on the petitioners’ home was the result of riots that were occurring throughout
the city of Jakarta, Indonesia – a reasonable determination given the widespread
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violence and unrest occurring in Jakarta at that time.4 The same could be said for the
vandalism to the petitioners’ vehicle, which also occurred during the riots. Interpreted
as such, these incidents, arising from the general unrest in Jakarta, would not support
a claim of persecution. See Mohamed v. Ashcroft, 396 F.3d 999, 1003 (8th Cir. 2005)
(“Harm arising from general conditions such as anarchy, civil war, or mob violence
will not ordinarily support a claim of persecution.”). The IJ also found that the attack
of Lengkong in the bus was simply a criminal act of robbery, rather than an act of
persecution, a determination that was not unreasonable given the fact that Lengkong’s
persecution claim was premised only on the fact that she was wearing a cross necklace
and was asked if she was a Christian. Cf. Ming Ming Wijono v. Gonzales, 439 F.3d
868, 873 (8th Cir. 2006) (holding that racist statements made by attackers during a
robbery were alone “insufficient to establish a nexus between the attacks and a
protected ground”). The record therefore contained sufficient evidence to support the
BIA’s determination that these incidents were “apparently random in nature,” and as
such did not require a finding of past persecution. See Ngure v. Ashcroft, 367 F.3d
975, 990 (8th Cir. 2004) (“[E]vidence of isolated violence does not compel a finding
of persecution.”).
Second, the injuries suffered by the petitioners do not conclusively rise to the
level of persecution. As we have previously noted, “[p]ersecution is an extreme
concept and does not include low-level intimidation and harassment.” Zakirov v.
Ashcroft, 384 F.3d 541, 546 (8th Cir. 2004). “Even minor beatings or limited
detentions do not usually rise to the level of past persecution.” Setiadi, 437 F.3d at
713. The prior incidents described by the petitioners involved minor damage to their
4
According to the record, thousands of buildings and vehicles were destroyed
and hundreds of people were killed during the riots that occurred on May 12-15, 1998,
in Jakarta. THE EUROPA WORLD YEAR BOOK 2008 (2002).
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car and home, a robbery, and fleeing from a church unharmed.5 While we recognize
the seriousness of these events, they do not compel a finding of persecution.
Even if the petitioners had established past persecution, the record contains
substantial evidence supporting the BIA’s finding that the petitioners did not have a
well-founded fear of future persecution due to the change in circumstances in
Indonesia. The country information provided in the record notes that Protestantism
is one of the five recognized faiths in Indonesia, that the Indonesian government is
making considerable progress in reducing interreligious violence and prosecuting
those involved, and that interreligious tolerance and cooperation are increasing.
Although the record also shows that such violence still exists in Indonesia, we agree
with the IJ’s statement that “the general tenor of the reports is that the government is
making progress in promoting religious freedom and trying to bring to justice various
attackers and has done so in many case[s].” In addition, the petitioners’ adult
children, who are also Christian, continue to live in Indonesia without incident – a fact
that further undermines the petitioners’ claim of future persecution. See
Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004) (“The reasonableness
of a fear of persecution is diminished when family members remain in the native
country unharmed, and the applicant himself had not been singled out for abuse.”).
In sum, we conclude that there was substantial evidence in the record to support
the BIA’s denial of the petitioners’ asylum claim.
5
The petitioners attempt to use the attacks on Lengkong’s friends and colleagues
to further support their claim of past persecution. We are, however, precluded from
considering these incidents when determining past persecution. Mohamed v.
Ashcroft, 396 F.3d 999, 1003 (8th Cir. 2005) (“To be eligible for asylum, the harm
suffered must be particularized to the individual . . . .”).
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B.
Because the petitioners have failed to meet the standard for asylum, they also
fail to meet the more rigorous standard for withholding of removal. Turay v.
Ashcroft, 405 F.3d 663, 667 (8th Cir. 2005). Furthermore, the conclusions that
support a denial of the petitioners’ asylum and withholding of removal claims also
support the denial of their CAT claims. See Ming Ming Wijono, 439 F.3d at 874.
The petition for relief is denied.
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