Kian Ng v. Eric Holder, Jr.

447 F. App'x 655
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 22, 2011
Docket09-4566
StatusUnpublished
Cited by1 cases

This text of 447 F. App'x 655 (Kian Ng v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kian Ng v. Eric Holder, Jr., 447 F. App'x 655 (6th Cir. 2011).

Opinion

*656 OPINION

HELENE N. WHITE, Circuit Judge.

Kian Hau Ng (Ng), an ethnic Chinese citizen of Indonesia, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Ng challenges only the BIA’s denial of his application for withholding of removal. We AFFIRM the BIA’s decision and deny Ng’s petition for review.

I.

Ng was admitted to the United States on August 5, 2001, as a non-immigrant visitor with authorization to remain for a temporary period not exceeding March 4, 2002. On March 21, 2007, the Immigration and Naturalization Service (INS) served Ng with a Notice to Appear (NTA) that charged him with being subject to removal pursuant to section 237(a)(1)(B) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1227(a)(1)(B).

On August 21, 2007, following several continuances, Ng appeared before the Immigration Judge (IJ) with counsel, conceded removability, declined to designate a country of removal, and informed the IJ of his desire to apply for asylum, withholding of removal, and any related relief. The IJ sustained the charges in the NTA and designated Indonesia as the country of removal. On October 9, 2007, Ng filed applications for asylum, withholding of removal, and protection under the CAT.

At a merits hearing on March 6, 2008, Ng conceded that his asylum application was untimely and agreed that the only issue before the IJ was his eligibility for withholding of removal. Ng stated that he feared returning to Indonesia because there was often “fighting between tribes and ethnicities” and he was once “assigned to night patrol and there was fighting between the Dayaks and Maduras.” He explained that the patrol consisted of residents patrolling the neighborhood, and did not involve the military or the police. Ng asserted that he was “in the middle of this warfare between the Dayaks and Maduras ... because of [his] ethnicity,” that “the possibility that war will happen again is very great,” and that he was not sure whether the Indonesian government was willing or able to protect him. He admitted that he had “never been attacked personally,” but that he had “done some night patrols ... [and] witnessed the house[s] burning, the looting, heads rolling in the streets.” He also acknowledged that he had not experienced any problems aside from the single neighborhood patrol incident.

At the conclusion of the hearing, the IJ rendered an oral decision denying Ng’s claims for asylum and withholding of removal. In the subsequently-issued written decision, the IJ noted as an initial matter that Ng’s counsel stated that there were no changed country conditions or extraordinary circumstances that would excuse the untimeliness of Ng’s asylum application, and consequently the IJ would consider only Ng’s application for withholding of removal.

The IJ concluded that Ng was not eligible for withholding of removal because he did not show a clear probability of persecution if he were returned to Indonesia. According to the 2006 Country Report for Indonesia, the civil strife that Ng allegedly feared was over. Further, the IJ found that the civil strife did not involve Ng except to the extent that he observed the result of it, as he failed to show that he was persecuted due to his Chinese ethnicity. Additionally, the IJ found that Ng failed to show that the persecution that he allegedly feared existed nationwide. The IJ also determined that Ng was not eligi *657 ble for CAT protection because he had “demonstrated absolutely nothing to show that he was tortured in the past in Indonesia or that he would be tortured by the government of Indonesia or with the acquiescence of the government of Indonesia.”

On April 7, 2008, Ng appealed the IJ’s decision to the BIA. The notice of appeal alleged that the IJ erred in finding that Ng did not have a well-founded fear of persecution upon returning to Indonesia based on “the bombings in Indonesia,” and that the IJ did not give sufficient weight to the evidence submitted regarding “the 2002 bombings in Bali by radical Muslim extremists.” Ng did not file additional documents in support of the appeal.

The BIA affirmed the IJ’s denial of Ng’s asylum application because it was untimely and Ng failed to establish changed or extraordinary circumstances excusing the late filing. The BIA also agreed with the IJ that Ng failed to establish eligibility for withholding of removal, determining that the incident in question did not rise to the level of persecution, and that Ng had not established a clear probability of future persecution based on any incident that had a nexus to a protected ground under the Act. Specifically, the BIA found that Ng was merely a witness to ongoing civil strife between two ethnic groups, to neither of which he belonged. The BIA noted that there was no evidence that Ng was persecuted due to his Chinese ethnicity. With respect to Ng’s application for protection under the CAT, the BIA found that Ng did not demonstrate that it was more likely than not that he would face torture by or with the acquiescence of the Indonesian government upon returning to that country. Ng petitions for review of the BIA’s dismissal of his appeal.

A.

As a threshold matter, the Government argues that we lack jurisdiction to review Ng’s withholding-of-removal claim because Ng does not specifically challenge the bases of the BIA’s decision, relying on Dillery v. City of Sandusky, 898 F.3d 562, 569 (6th Cir.2005) (noting that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”) (citations and internal quotations omitted).

We disagree. Ng’s appellate brief argues that the IJ’s denial of his application for withholding of removal, which was affirmed by the BIA, was erroneous because the ruling was predicated “on an unreasonably narrow view of what constitutes persecution” — that “the wound must be caused by direct fire from the persecutor.” He also contends that he established a well-founded fear of future persecution based on being assigned to night patrol, witnessing violence during the patrol, and given that the warfare between the Da-yaks and the Maduras endangered the lives and property of Indonesian citizens of Chinese ethnicity, and the Indonesian government was unable to curb the violence and protect its ethnic Chinese citizens.

B.

“Because the BIA adopted the IJ’s decision with additional commentary, we review the decision of the IJ, as supplemented by the BIA, as the final administrative order.” Acquaah v. Holder, 589 F.3d 332, 334 (6th Cir.2009) (citation omitted). We review the BIA’s legal conclusions de novo, and its factual findings for substantial evidence; factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir.2011); 8 U.S.C. § 1252(b)(4).

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