Iwan Soetiono v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: June 14, 2011
• Docket: 10-1847
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 10-1847 ___________

IWAN SOETIONO; FENNY RATNAWATI LIGITO, Petitioners v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A095-838-336 and A095-838-337) Immigration Judge: Honorable Rosalind K. Malloy ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) June 8, 2011 Before: SLOVITER, CHAGARES and WEIS, Circuit Judges (Opinion filed: June 14, 2011) ___________

OPINION ___________

PER CURIAM.

Petitioners Iwan Soetiono and Fenny Ratnawati Ligito seek review of the

Board of Immigration Appeals‟ (“BIA”) final order of removal. For the following

1 reasons, we will deny the petition for review.1

I.

Petitioners are husband and wife, and natives and citizens of Indonesia who

entered the United States in August 2001, and stayed beyond the permissible period.

Petitioners were thereafter issued a Notice to Appear and conceded removability.

Soetiono (as the lead respondent) filed an application for asylum, withholding of

removal, protection under the Convention Against Torture (ACAT@) and, alternatively,

voluntary departure, claiming that they had suffered persecution in the past on the basis

of their ethnicity (Soetiono is one-half Chinese and one-half Javanese, and Ligito is

Chinese), their religion (Catholic), and their membership in a “wealthy social class.”

Soetiono testified regarding the alleged acts of persecution that he had

suffered when he lived in Surabaya.2 Ligito, as a derivative applicant, did not testify. At

1 Having determined that oral argument is not necessary, we will deny petitioners‟ request. 2 As accurately summarized by the Immigration Judge (“IJ”), Soetiono testified that he suffered harm in the following ways: 1) he was forced to join a “konvoi” (a large political demonstration) and was later beaten up by a group of Javanese when he left; 2) he was insulted and threatened by a taxi driver; 3) he was threatened with robbery at a “red-light incident” during which three young Indonesians struck his car with bats while shouting demands for money; 4) he witnessed his mother being “molested” at a shopping mall (e.g., a group of four Indonesians surrounded them on an escalator and began touching his mother in an inappropriate manner); 5) he was knocked off of his motorcycle and beaten by a group of political demonstrators; 6) he was cheated by customers in his business; and 7) while attending mass, a gang of native Indonesians stopped in front of the church, made loud noises with their motorcycles and then threw rocks at the church windows. Soetiono wrapped up his testimony by recounting another incident involving a bomb found in a church, although the church was not one that 2 the conclusion of the hearing, the IJ denied petitioners the relief requested. While noting

her belief that Soetiono=s testimony was generally truthful, the IJ found an absence of

evidence amounting to persecution. The IJ also concluded that Soetiono=s fear of

returning to Indonesia simply because he was Chinese was not sufficient to sustain an

asylum claim. His claim based on membership in a wealthy social group fared no better

because, as noted by the IJ, wealth is not a recognized ground for asylum. The IJ thus

concluded that Soetiono failed to establish that he suffered past persecution on account of

a protected ground, and likewise failed to establish that he will suffer future persecution.

There was no evidence of torture presented.

The BIA thereafter denied petitioners‟ appeal, as well as a motion to

reopen/reconsider. Review of both orders was sought in this Court. The details of the

ensuing consolidated proceedings need not be set forth at length here. Suffice it to say

that the government eventually filed an unopposed motion seeking to have the petition

for review dismissed and the matter remanded to the BIA for further consideration of

petitioners= claims. We granted that request. On remand, the BIA vacated its orders

summarily affirming the IJ=s decision denying relief and denying petitioners= motion to

reopen and for reconsideration. Accordingly, the BIA remanded the matter to the IJ for

further proceedings. The IJ was instructed to afford all parties the opportunity to update

Soetiono belonged to or attended, and of an incident that occurred in March 2001, during which he witnessed the destruction of a car driven by a Javanese who attempted to pass through a large demonstration.

3 the record and to provide additional testimony, if appropriate.

Petitioners took advantage of the opportunity to supplement the record and

filed, inter alia, an affidavit from Dr. Jeffrey Winters, who has been recognized by the

Immigration Court as an expert witness on the background conditions in Indonesia, and

the Department of State Report on Human Rights Practices for Indonesia for 2007.

Testimony was provided by petitioner Ligito and Dr. Winters. Ligito testified that she

fears returning to Indonesia because, as a Chinese woman, she could possibly be the

victim of sexual assault, murder and intimidation by native Indonesians. Besides hearing

insulting statements, Ligito did not relate any incidents which were directed towards her

personally other than what she believed were sexually harassing acts by local men while

riding on public transportation. She also recounted an incident during which her mother-

in-law was called a derogatory name by a group of men while being pushed and having a

Bible she was carrying kicked after it had been dropped.

The bulk of the testimony offered on remand came from Dr. Winters. Dr.

Winters basically testified that, in his opinion, ethnic Chinese in Indonesia have a valid

claim for asylum. While noting that Indonesia is a multiracial country, Winters stated

that ethnic Chinese make up a small percentage of the population and are, therefore,

subject to attacks undergirded by racial hatred. Winters further testified that while the

government is supposed to serve as a security force, it does not offer protection to the

ethnic Chinese. As for the changes noted in the Department of State Report, Dr. Winters

testified that those changes are merely superficial and do not change societal attitudes 4 actually in existence. According to Dr. Winters, all ethnic Chinese are viewed as

Christians, and are regarded by some of the extremists as their primary opponents.

Finally, the IJ considered the report submitted by Jana Mason, whose position is that

Christians are targeted for persecution in Indonesia.

The IJ once again denied petitioners relief. The IJ noted that Ligito‟s

testimony was that she did not experience any harm in Indonesia on account of her

ethnicity or religion. The IJ further determined that the incidents recounted by Soetiono

did not rise to the level of persecution. Moreover, the IJ concluded that the information

contained in the Department of State reports does not support petitioners= position that

they would be persecuted upon their return to Indonesia on account of any of the five

enumerated grounds, and that the conflicting report of Dr. Winters was not sufficient to

establish a pattern or practice of persecution of ethnic Chinese in Indonesia. Having

failed to establish past persecution or the possibility of future persecution, the IJ

concluded that petitioners failed to establish their eligibility for asylum. The IJ continued

by determining that petitioners likewise failed to establish their eligibility for withholding

of removal under INA „ 241(b)(3), or relief under CAT. The IJ did, however, grant

petitioners= application for voluntary departure.

The BIA dismissed petitioners= appeal from that decision in an order issued

on February 26, 2010. Having conducted a de novo review, the BIA concluded that

petitioners had failed to establish past persecution or a well-founded fear of future

persecution on account of a protected ground. The BIA further concluded that petitioners 5 failed to establish that their fears are distinct from those felt by all other ethnic Chinese

Christians in Indonesia, that all ethnic Chinese Christians in Indonesia have a well-

founded fear of persecution, or that there is a pattern or practice of persecution against

ethnic Chinese Christians throughout Indonesia. The BIA continued by holding that

petitioners thus necessarily failed to satisfy the higher burden for withholding of removal,

and presented insufficient evidence to establish a possibility of Atorture@ and an

entitlement to protection from removal under the CAT.

With respect to petitioners= evidence regarding a pattern or practice of

persecution, the BIA concluded that the U.S. Department of State country reports B as

opposed to the testimony of Dr. Winters B constitute the best evidence of current

conditions of Indonesia, and that those reports do not make for a record demonstrating

persecution that is sufficiently “systemic, pervasive, or organized” so as to constitute a

pattern or practice of persecution. The BIA further found that petitioners‟ newly

submitted evidence did not warrant a remand to the IJ.3 Accordingly, the BIA dismissed

petitioners= appeal. It further denied a motion for remand that petitioners filed during the

pendency of the appeal wherein they sought to introduce the additional reports regarding

3 Petitioners submitted: (1) “Indonesia‟s Consolidated Report of (sic) on the Implementation of CERD – Consolidated Report of the Republic of Indonesia on the Implementation of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD);” and

(2) “Indonesian NGO Alternative Report – ICERD.”

6 country conditions in Indonesia and the Ninth Circuit=s decision in Wakkary v. Holder,

558 F.3d 1049 (9th Cir. 2009). The BIA found the reports to be essentially cumulative of

the record evidence and insufficient to establish a pattern or practice of persecution, and

the Ninth Circuit case immaterial to its decision. A timely petition for review followed.

II.

On review, petitioners challenge the BIA‟s determination that Soetiono did

not suffer past persecution in Indonesia, as well as its conclusion that petitioners failed to

show a pattern or practice of persecution of ethnic Chinese Christians.4 We have

jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA “issue[d] its own decision on

the merits, rather than a summary affirmance, we review its decision, not that of the IJ.”

Catwell v. Att‟y Gen., 623 F.3d 199, 205 (3d Cir. 2010) (citing Sheriff v. Att‟y Gen., 587

F.3d 584, 588 (3d Cir. 2009)). “The BIA‟s ruling on an asylum petition is „conclusive

unless manifestly contrary to the law and an abuse of discretion.‟ 8 U.S.C. §

1252(b)(4)(D). We review the facts upon which the BIA‟s decision rests to ensure that

they are supported by substantial evidence from the record considered as a whole,

Espinosa-Cortez v. Att‟y Gen., 607 F.3d 101, 106 (3d Cir. 2010), and we will reverse

based on a factual error only if any reasonable fact-finder would be „compelled to

conclude otherwise,‟ 8 U.S.C. § 1252(b)(4)(B).” Huang v. Att‟y Gen., 620 F.3d 372,

379 (3d Cir. 2010). The BIA‟s legal conclusions are reviewed de novo. Id.

4 Petitioners do not argue their CAT claim, thus we deem it waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). 7 III.

We must reject petitioners‟ contention that the record evidence compels a

conclusion contrary to the BIA‟s determination that the harm Soetiono suffered was not

sufficiently severe – even when considered in the aggregate and in the context of the

apparent “ethnic motivation” behind it – to constitute persecution. As petitioners

themselves recognize, we have consistently held that ethnic taunts and isolated criminal

acts similar to those recounted by Soetiono, though reprehensible and unfortunate, are not

sufficiently severe to constitute persecution. See, e.g., Lie, 396 F.3d at 536. While

Soetiono experienced two acts of physical violence and received a threat, we cannot

conclude that his case is sufficiently distinguishable from Lie so as to compel a finding of

past persecution where neither attack resulted in the need for him to seek medical

attention, the threat by the taxi driver was never acted upon in any respect, and he

suffered no physical harm from any of the other noted incidents. See id. at 533, 536

(explaining that the BIA correctly applied this Court‟s standard for determining past

persecution in concluding that an ethnic Chinese woman in Indonesia had not suffered

past persecution where, inter alia, her husband‟s store was robbed, her house was broken

into, she was subjected to racial epithets, money and jewelry were stolen from her, and

she was stabbed); see also Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) ( “[O]ur

cases suggest that isolated incidents that do not result in serious injury do not rise to the

level of persecution.”).

Moreover, although we have “defined persecution as „threats to life, 8 confinement, torture, and economic restrictions so severe that they constitute a threat to

life or freedom,‟” Camara v. Att‟y Gen., 580 F.3d 196, 202 (3d Cir. 2009) (quoting Fatin

v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993), the record is bereft of any evidence

regarding the specific economic impact of any acts of discrimination or harassment

Soetiono suffered or of any particular mental suffering that resulted from his

experiences.5 Accordingly, because the mistreatment documented in the record presented

is along the same lines as that in Lie, we can find no fault with the BIA‟s conclusion that

it did not rise to the level of persecution.

Petitioners‟ argument that they face a clear probability of persecution

because the evidence established a “pattern or practice” of persecution of ethnic Chinese

Christians in Indonesia fares no better. In rejecting petitioners= pattern or practice claim,

the BIA found that the country conditions report in evidence did not establish “systemic,

pervasive, or organized persecution” of ethnic Chinese in Indonesia. On the record

presented, we cannot conclude that the BIA=s findings are not supported by substantial

evidence. Despite their contention to the contrary, petitioners have not distinguished

their argument, or the record it is built on, from similar claims that this Court has rejected

in the past. See, e.g., Wong v. Att‟y Gen., 539 F.3d 225, 233-34 (3d Cir. 2008) (rejecting

as “without merit” the contention that “the [2003 and 2004] State Department reports and

5 As respondent notes, the BIA appears to have considered Ligito‟s claim as well despite her status as a derivative applicant. See Certified Administrative R. (A.R.) at 3-5. However, Ligito provided no testimony regarding economic impact and – with respect to mental suffering – expressed only general feelings of apprehension when walking past crowds. Id. at 313. 9 other background materials document a pattern or practice of persecution of Chinese

Christians in Indonesia”); Lie, 396 F.3d at 537-58 (finding that the 1999 Country Report

indicated a sharp decline in violence against Chinese Christians in Indonesia and that the

evidence of violence submitted was not sufficiently widespread as to constitute a pattern

or practice). Although petitioners relied on the State Department Country Report for

2007 (released in March 2008), our most recent decisions have noted that the reports

from 2005 to 2007 document a trend toward “similar or improved” treatment for Chinese

Christians. See, e.g., Wong, 539 F.3d at 233-34. We thus agree with respondent that the

Department of State report for 2007 does not appear to assist the petitioners in

distinguishing their case from Lie and Wong.

We have likewise reviewed the affidavit and testimony of petitioners‟

expert and cannot conclude that they establish “systemic, pervasive, or organized”

persecution against Chinese Christians in Indonesia. While Dr. Winters‟ testimony

criticizes the government‟s “piecemeal” reform efforts, A.R. 347, and predicts future

violence, A.R. 342–53, the BIA chose to base its factual findings on the State Department

reports. The BIA chose this course “[a]fter reviewing all of the evidence in this case,

including the testimony from the [petitioners‟] expert witness.” A.R. 5. Regardless of

the criticism petitioners lodge against those reports, we can find no reversible error with

respect to the BIA‟s decision in this regard as we have previously stated that “Country

reports … are the most appropriate and perhaps the best resource for information on

political situations in foreign nations.” Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d 10 Cir. 2003).

Of course, having failed to establish petitioners‟ eligibility for asylum, the

BIA correctly concluded that they could not satisfy the higher burden required for

withholding of removal. Chen v. Ashcroft¸ 376 F.3d 215, 223 (3d Cir. 2004).

Finally, insofar as petitioners may be seeking to challenge the BIA‟s

determination that a remand was not warranted, we find no abuse of discretion on the part

of the BIA in declining petitioners‟ invitation to return this matter to the IJ for a plenary

hearing. See Huang v. Att‟y Gen., 620 F.3d at 390. Petitioners‟ contention that the BIA

never addressed the new evidence is erroneous. We have repeatedly stated that the BIA

need not write an exegesis on every document submitted, see Wong, 539 F.3d at 231, and

petitioners have failed to satisfy their burden of showing that the BIA actively failed to

consider the evidence. See Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001). The

BIA noted that the Ninth Circuit decision arises outside of this Circuit, and determined

that the CERD Report and the NGO Report are “essentially cumulative of evidence

previously of record and fail to establish that there is a pattern or practice of persecution

against ethnic Chinese Christians throughout Indonesia.” A.R. 6. Petitioners challenge

the BIA‟s determination that the evidence is cumulative in nature, but the CERD Report

itself notes that the developments covered therein primarily span the period from 1999 to

2004. A.R. 90.

Moreover, under our deferential standard of review, we cannot agree with

petitioners that their submissions demonstrated changed country conditions. The NGO 11 Report, which petitioners describe as a “scathing” commentary on the Indonesian

government‟s summary of its record on human rights and discrimination, see Pet‟rs‟ Br.

at 10, is more equivocal and technical than petitioners imply. Although the report

criticizes the government‟s response to past atrocities like the May 1998 riots, notes the

inefficiencies of the country‟s court system in dealing with discriminatory acts, and takes

issue with the manner and pace in which the government has implemented reforms, we

can find no fault with the BIA‟s implicit determination that it did not show changed

country conditions implicating renewed persecution of ethnic Chinese Christians.

Accordingly, petitioners failed to demonstrate that a remand was warranted.

IV.

For the foregoing reasons, we deny the petition for review.