Chong v. Ashcroft

121 F. App'x 488
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 15, 2005
DocketNo. 04-2017
StatusPublished

This text of 121 F. App'x 488 (Chong v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chong v. Ashcroft, 121 F. App'x 488 (3d Cir. 2005).

Opinion

OPINION

SLOVITER, Circuit Judge.

Petitioner Bun Chin Chong seeks review of a final order of removal issued by the [489]*489Board of Immigration Appeals (“BIA”) on March 17, 2004, which ordered Chong’s removal and summarily affirmed an immigration judge’s (“IJ”) decision denying asylum, withholding of removal, and protection from removal under Article 8 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). This court has jurisdiction to review the final order of removal under 8 U.S.C. § 1252. For the reasons stated below, this court will deny Chong’s petition for review.

I.

Because the parties are familiar with the factual and procedural background of this case, we refer only to those facts that are pertinent to our disposition. Chong is a forty-five year-old citizen of Indonesia; she was born in Indonesia but is of Chinese ancestry. Although the majority of Indonesia’s population is Muslim, Chong is a member of the Buddhist faith. She is a widow and is mother to two adult-aged children, both of whom reside in Indonesia.

Chong was admitted to the United States on or around October 18, 2000 as a nonimmigrant visitor for pleasure with authorization to remain for a temporary period not to exceed six months. Chong, however, exceeded the terms of this visitor’s visa. Thus, in September 2001, the Immigration and Naturalization Service (“INS”)1 commenced proceedings against Chong by filing a notice to appear with the United States Immigration Court in Philadelphia, Pennsylvania. In the resultant immigration court proceedings, Chong admitted that she was removable as charged; however, claiming persecution and threats of torture, she applied for asylum and withholding of removal, as well as for protection under the CAT.

In support of her position, Chong testified before the IJ to several violent incidents that had befallen her and her family in Indonesia. First, Chong testified that in 1984 she was robbed at knife-point by a native Indonesian while she was riding on a motorbike with her then two-year old child. Although Chong acceded to the robber’s demands, the assailant nonetheless cut her arm, causing her pain but no long-term injuries. Chong testified that, after the robbery, she asked the driver of the motorbike — who was not of Chinese descent — for help, but “[h]e didn’t do anything.” App. at 75. She further testified that she did not report this incident to the police because the Indonesian police “do not care for the Chinese people.” App. at 76.

Chong further testified that during the well-documented Indonesian riots of May 1998, native Indonesians robbed and ransacked her store. During this event, several rioters smacked her in the face, pulled her hair, and called her a “Chinese pig.” App. at 77. Chong conceded that non-Chinese owned stores were attacked and robbed during the riots but she maintained that such establishments “weren’t ransacked.” App. at 79. In other words, Chong’s testimony suggested that the rioters focused their worst violence on Indonesians of Chinese descent. Chong testified that although the physical injuries she suffered during the May 1998 riots were mi[490]*490nor, the event left her feeling frightened and vulnerable.

Finally, Chong testified that in 2000 her then-teenage son was robbed of his bicycle by non-Chinese Indonesians. During this incident, her son’s assailants beat him and called him Chinese.

Chong admitted that both of her children were still living in Indonesia and were residing with her sister and mother in Jakarta. Notably, Chong did not testify that her children, sister, or mother had suffered any additional mistreatment. Nonetheless, she testified that she was afraid to return to Indonesia because it is “not safe” there for people of “Chinese descent.” App. at 96.2

The IJ found that Chong had “provided believable testimony,” App. at 120, and credited her version of events respecting the three violent incidents outlined above. The IJ, however, held that this evidence was insufficient to establish past persecution; instead, the IJ found that the events, although unfortunate, merely constituted “discrimination and harassment.” App. at 47.

Moreover, the IJ, taking administrative notice of, inter alia, the United States Department of State’s 2001 Country Report for Indonesia, see generally Sevoian v. Ashcroft, 290 F.3d 166, 176 (3d Cir. 2002), noted that although there was evidence that Christian Chinese living in Indonesia have suffered and continue to suffer mistreatment, there was little evidence tending to suggest a pattern of Indonesian persecution against people of Chinese descent generally. Thus, the IJ found that Chong, as a Buddhist, had not established a well-founded fear of future persecution. Relatedly, the IJ found that Chong had not shown that it was more likely than not that she would be tortured if returned to Indonesia.

For these reasons, the IJ denied Chong’s petition for asylum, withholding of removal, and relief under the CAT. Following the BIA’s affirmance without opinion, Chong lodged a timely petition for review with this court.

II.

Whether an applicant qualifies for asylum, withholding of removal, or relief under the CAT is generally a factual determination, which this court will review under the substantial evidence standard.3 Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004); Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001). Under the substantial evidence standard, the IJ’s finding must be upheld unless “the evidence not only supports” a contrary conclusion, “but compels it.” Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Chang v. Immigration & Naturalization Serv., 119 F.3d 1055, 1060 (3d Cir.1997) (“On questions of fact, we will reverse [an IJ’s] determination that [an applicant] is not eligible for asylum ... only if a reasonable fact-finder would have to conclude that the requisite fear of persecution existed.”). Stated otherwise, this court’s review is extremely narrow; indeed, because of the profound foreign policy implications, “judicial deference to the Executive Branch is especially appropriate in the immigration context.” Im[491]*491migration & Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

To qualify as a “refugee” who may receive asylum under 8 U.S.C. § 1158

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fergiste v. Immigration & Naturalization Service
138 F.3d 14 (First Circuit, 1998)
ACOSTA
19 I. & N. Dec. 211 (Board of Immigration Appeals, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
121 F. App'x 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chong-v-ashcroft-ca3-2005.