Marjorie Konda Lolong v. Alberto R. Gonzales, Attorney General

484 F.3d 1173, 2007 U.S. App. LEXIS 10791, 2007 WL 1309564

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2007
• Docket: 03-72384
• Status: Published

Opinions

BYBEE, Circuit Judge.

Marjorie Konda Lolong petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying her application for asylum and granting her voluntary departure. In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.2004), we held that we lack jurisdiction to review the BIA’s decisions in such cases because the BIA lacks the authority to issue final orders of departure, and the Immigration and Naturalization Act (“INA”) conditions our jurisdiction on the existence of such an order. Until recently, a petitioner in Lolong’s position could still seek habeas relief in district court, but in the REAL ID Act of 2005, Congress eliminated this form of relief in immigration cases. See 8 U.S.C. § 1252(a)(5). Together with our prior decisions, this statutory change leaves petitioners in Lolong’s position with no opportunity to obtain judicial review of the BIA’s disposition of their cases. We reheard this case en banc to revisit our prior jurisprudence because this lack of judicial review raises serious constitutional concerns. Having decided that our prior interpretation of the BIA’s power under the INA was overly narrow, we overrule Molina-Camacho and determine that we do have jurisdiction to review the BIA’s decision in such cases. We further conclude that substantial evidence supports the BIA’s denial of Lolong’s asylum claim. Accordingly, we deny the petition for review.

I

Marjorie Lolong is an Indonesian woman of ethnic Chinese descent. She is also a Christian. Lolong first entered the United States as a student in 1990. In May 1998, when she was still a student in this country, Indonesia experienced the worst anti-Chinese rioting in its history. She applied for asylum in December 1998, after learning that one of her friends had been raped and her uncle had been severely beaten during the violence. During her removal proceedings, Lolong conceded re-movability, and the Immigration Judge (“U”) determined that “removability has been established by clear and convincing evidence.” However, in November 2000, the IJ held that Lolong was eligible for asylum, finding her testimony fully credible and her fear of future persecution to be both subjectively genuine and objectively reasonable. The Immigration and Naturalization Service (“INS”) appealed and, in a divided opinion, the BIA concluded that Lolong could not establish that her fear of future persecution in Indonesia was objectively reasonable because there was evidence that the Indonesian government had taken steps to bring militant Islamic groups — which were largely responsible for the outbreaks of religious and ethnic violence — under control. Consequently, the BIA sustained the appeal, vacated the IJ’s decision, and granted Lolong voluntary departure. Lolong then petitioned this court for review. A panel of our court granted Lolong’s petition. 400 F.3d 1215 (9th Cir.2005). We vacated that decision, 452 F.3d 1027 (9th Cir.2006), and heard oral argument.¹

II

As an initial matter, we must address the question of our jurisdiction to review Lolong’s petition. In two prior decisions, we have narrowly construed the BIA’s authority under the INA both to enter an order of removal in the first instance, and, as is the case here, to reinstate a prior order of removal issued by the IJ. In the first of these decisions, Noriega-Lopez v. Ashcroft, we noted that the BIA lacks statutory authority to enter orders of removal and held that any attempt by the BIA to do so was a “legal nullity.” 335 F.3d 874, 883-84 (9th Cir.2003) (internal quotation marks omitted). Because our jurisdiction is limited to the review of final orders of removal, 8 U.S.C. § 1252(a), we held that, where the BIA issues an order of removal in the first instance, there is no valid final order of removal and consequently no jurisdiction in this court to review that legal nullity, Noriega-Lopez, 335 F.3d at 884-85. We concluded in that case that the petitioner had properly sought collateral review of the BIA’s order of removal via a habeas petition filed in the district court and that we had jurisdiction to review the district court’s disposition of that petition. Id. at 880-81.

In Noriega-Lopez, we expressly reserved the question of this court’s jurisdiction over petitions for review in cases where the IJ has determined “that an alien is removable ... but grants relief from removal, and the BIA then rejects the grant of relief.” Id. at 884 n. 10. In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.2004), however, we answered that question in the negative. In that ease, as here, the alien conceded remova-bility, but the IJ granted his request for cancellation of removal under 8 U.S.C. § 1229b(b)(l)(D). Id. at 938-39. The INS appealed, and the BIA reversed, holding that Molina-Camacho had not demonstrated that removal would cause the “exceptional and extremely unusual hardship” to his family that the INA requires for cancellation of removal. Id. at 939. The BIA then ordered him removed to Mexico. Id.

Molina-Camacho petitioned for review by this court, but, extending the principles articulated in Noriega-Lopez, we held that the BIA’s removal order was ultra vires and that we therefore lacked jurisdiction. Id. at 939-42. We noted that the INA extends authority to enter removal orders only to special inquiry officers and not to the BIA. Id. at 940. Moreover, we noted that the BIA’s role under the governing regulations is limited to “appellate review of immigration judges’ decisions and other administrative adjudications.” Id. (internal quotations omitted). Finally, we rejected the government’s argument that the finding of removability before the IJ was equivalent to an order of removability because this argument “conflates the BIA’s uncontested substantive power to reverse a finding of removability or eligibility for cancellation of removal on appeal with the procedural power to issue the order of removal that results from such a reversal.” Id. at 941. Instead of simply dismissing the petition, however, we chose to construe it as a petition for habeas relief under 28 U.S.C. § 2241 and transferred it to the district court. Id. at 942.

The procedural posture of Lolong’s petition is essentially identical to that in Molina-Camacho and presents the same jurisdictional conundrum. Lolong conceded removability before the IJ, and, based on this concession, the IJ held that Lolong was removable but granted her application for asylum. The BIA reversed, but rather than remanding Lolong’s case to the IJ for entry of an order of removal, the BIA itself granted her voluntary departure.

Despite this similarity to Molina-Camacho, however, we no longer have the option of construing the petition for review as a request for habeas relief and transferring the matter to the district court. In the REAL ID Act of 2005, Congress eliminated collateral review of orders of removal, leaving direct petition to this court the sole avenue for review of the BIA’s rulings. 8 U.S.C. § 1252(a)(5) (stating that “a petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act”). Thus, the REAL ID Act and our decision in Molinu-Camacho together operate to deprive Lo-long of any avenue to seek review of the BIA’s decision, leaving her in legal limbo.

This limbo — in which the petitioner is subject to a void order of removal but has no judicial remedy — may raise serious constitutional concerns because the Suspension Clause “unquestionably” requires “some judicial intervention in deportation cases.” INS v. St. Cyr, 583 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (internal quotations omitted); see U.S. Const. art. I, § 9, cl. 2. Before we conclude that Congress intended to eliminate all possible relief in the REAL ID Act and thereby “give rise to [these] substantial constitutional questions,” St. Cyr, 533 U.S. at 300, 121 S.Ct. 2271, it is prudent for us first to review our own precedent to confirm that we have correctly interpreted the INA and the authority that statute grants to the BIA. Such a review, coupled with a close examination of the INA, now convinces us that nothing in that statute mandates the result we reached in Molina-Camacho.

The IJ’s grant of relief, whether in the form of asylum or withholding of removal on other grounds, necessarily requires the IJ to have already determined that the alien is deportable. Under the INA, this determination by the IJ constitutes an “order of deportation.” 8 U.S.C. § 1101(a)(47) (defining an “order of deportation” to include both an “order ... concluding that the alien is deportable” and one “ordering deportation”).² Thus, where the BIA reverses an IJ’s grant of relief that, by definition, follows an initial determination by the IJ that the alien is in fact removable, an order of deportation has already been properly entered by the IJ. In such cases, therefore, the BIA does not enter an order of deportation in the first instance when it orders the alien removed. Rather, the BIA simply reinstates the order of removal that has already been entered by the IJ and that would have taken effect but for the IJ’s subsequent cancellation of removal. Reinstating a prior order of removal by eliminating the impediment to that order’s enforcement is entirely consistent with the BIA’s appellate role.

This reasoning is also consistent with the approach adopted by all of our sister circuits to have considered this issue. See, e.g., Lazo v. Gonzales, 462 F.3d 53, 54-55 (2d Cir.2006) (per curiam) (stating that the BIA decision “removed an impediment to the removal that was ordered by the IJ” and disagreeing with Molinar-Camacho); Delgado-Reynua v.Gonzales, 450 F.3d 596, 601 (5th Cir.2006) (holding same); Solano-Chicas v. Gonzales, 440 F.3d 1050, 1054 (8th Cir.2006) (holding that “where the BIA reverses the IJ’s order granting cancellation of removal, the BIA, in essence, gives effect to the IJ’s order of re-movability, for the BIA decision eliminates the impediments to removal” and disagreeing with Molina-Camacho). For example, in Delgado-Reynua, the Fifth Circuit noted that the IJ’s grant of cancellation of removal “rested upon the predicate determination that [the petitioner] was deporta-ble.” 450 F.3d at 600. This initial determination constituted an “order of removal” as defined in the INA, id. (citing 8 U.S.C. § 1101(a)(47)), and the BIA’s subsequent reversal of the “IJ’s grant of discretionary relief ... merely eliminated ‘impediments to removal’ and effected the original removal order,” id. at 601. Thus, the BIA’s actions were entirely within the scope of its powers under the INA, and the surviving order of removal was both final and valid and therefore reviewable under 8 U.S.C. § 1252(a). See id.

Because our decision in Molina-Camacho adopted an overly narrow interpretation of the BIA’s authority and did not properly construe the effect of the BIA’s reversal of the IJ’s decision to cancel removal after having found the alien removable, we overrule it. Instead, we hold that where the IJ has previously determined that the alien is removable but grants cancellation of removal, the BIA’s decision to reverse the cancellation of removal reinstates the initial finding of re-movability, which, under the statute, is effectively an order of removal. 8 U.S.C. § 1101(a)(47). Because Lolong conceded removability and the IJ found that clear and convincing evidence supported a finding of removability, a final order of removal was entered. We therefore have jurisdiction to consider her petition for review of the BIA’s reinstatement of that order.

Ill

A

Having determined that we have jurisdiction over Lolong’s petition for review, we now address the merits of her claim. We review the BIA’s determination that the petitioner does not have an objectively reasonable fear of persecution for substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We must uphold the BIA’s determination unless “the evidence not only supports, but compels the conclusion that the asylum decision was incorrect.” Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000) (emphasis added). Even if we might have reached a conclusion different from that reached by the BIA, we may not reverse unless we determine that any reasonable factfinder would have been compelled to reach that conclusion. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000); Prasad v. INS, 47 F.3d 336, 340 (9th Cir.1995).

B

An alien is eligible for asylum relief if she can prove that she is a refugee, which she can establish by proving either actual past persecution or a well-founded fear of future persecution. Cordon-Garcia, 204 F.3d at 990. To demonstrate a well-founded fear of future persecution, the alien must establish that her fear is both subjectively genuine and objectively reasonable. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir.1998). The petitioner’s own testimony, if credible, is sufficient to establish that she has a subjectively genuine fear of future persecution. Id. at 1310. The objective component is more demanding and “requires credible, direct, and specific evidence,” Cordon-Garcia, 204 F.3d at 990, that the petitioner faces an individualized risk of persecution or that there is a pattern or practice of persecution against similarly situated individuals. 8 C.F.R. § 208.13; Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir.2004). Persecution is not limited to government-sponsored violence; it can also include “[discrimination, harassment, and violence by groups that the government is unwilling or unable to control.” Singh v. INS, 94 F.3d 1353, 1359 (9th Cir.1996).

Lolong has satisfied her burden of showing a genuine subjective fear of future persecution. In her testimony before the IJ, she described her fears and gave specific examples of violent incidents, some involving her friends and family, that have given rise to her fears. Moreover, the IJ expressly noted that Lolong testified credibly and was entirely forthright throughout her removal proceedings. In short, there is no reason to doubt that Lolong’s fears of persecution should she return to Indonesia are subjectively genuine.

The dispute instead centers on whether her fears are objectively reasonable. The IJ, citing the experiences of Lolong’s family and friends during the riots as well as the Indonesian government’s apparent unwillingness or inability to control the militant Islamist groups responsible for much of the anti-Chinese and anti-Christian violence, determined that Lolong’s fears were in fact objectively reasonable. According to the IJ, even though most Chinese Christians in Indonesia were not subject to physical attacks, occasional continuing violence was sufficient to show that the government could not or would not protect the Chinese Christian population generally and that Lolong’s fears were therefore objectively reasonable. Reviewing the IJ’s factual findings de novo, however, the BIA found otherwise. The BIA concluded that, absent evidence that the Indonesian government was either unable or unwilling to control these militant groups, “the mere fact that some attacks on Chinese or on Christians continue to occur” was insufficient to support a finding that Lo-long’s fear of future persecution was objectively reasonable.³ Citing State Department reports on Indonesia from 1999 and 2000, the BIA determined that “despite evidence that some anti-Chinese discrimination exists in Indonesia, and that there is continuing conflict between Muslims and Christians in certain regions, the government of Indonesia has nevertheless shown its general commitment to freedom of religion and its lack of institutional discrimination against the ethnic Chinese minority.” The BIA then concluded that Lolong had not established that the Indonesian government was unable or unwilling to control the perpetrators of ethnic and religious violence.

The BIA’s denial of Lolong’s asylum claim is consistent with governing law. We have consistently held that a general, undifferentiated claim of the type brought by Lolong does not render an alien eligible for asylum. See, e.g., Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.2000) (rejecting asylum claim based on general civil strife); cf. Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982) (noting that granting asylum based on claims of generalized civil strife “would permit the whole population [of the asylum-seeker’s country]” to remain in the United States “indefinitely” and holding that “[t]here must be some special circumstances present before relief can be granted”). Furthermore, we have required that petitioners alleging a pattern or practice of persecution by non-government actors also prove that the government is unable or unwilling to control those actors. See, e.g., Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir.2005) (rejecting a pattern and practice claim because the State Department’s Country Reports on Human Rights noted that “the Bangladesh government did not countenance attacks against Christians and intervened in such attacks to the extent that it was able”); Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir.2004) (rejecting a pattern and practice claim by a Coptic Christian because the State Department Profile indicated that Egyptian government was not “unable or unwilling to control” anti-Christian terrorists).

Notably, before the BIA, Lolong did not make any argument that she feared being individually targeted for persecution.⁴ Instead, she relied entirely on fears common to ethnic Chinese Christian women generally: a “pattern of rapes” perpetrated upon Chinese women, “a historical pattern of rioting” leading to “ethnically based violence” against ethnic Chinese, discrimination against ethnic Chinese women by the courts and the police, and the government’s inability or unwillingness to control the groups responsible for this violence. The Dissent argues we must remand this case because the BIA “failed to address” the pattern-or-practice claim on which Lo-long’s asylum petition was based and disregarded the evidence supporting that claim. Dissent at 1182-83. As noted above, however, the BIA did specifically address Lolong’s pattern-and-practice claim and concluded that “the mere fact that some attacks on Chinese or on Christians continue to occur” did not render her fear of persecution objectively reasonable, particularly given that Lolong had not established that the government was unable or unwilling to control the groups responsible for the violence.

Moreover, the BIA’s conclusions are supported by substantial evidence. The government does not contest — and the record confirms — that sporadic violence against ethnic Chinese Christians persisted in Indonesia at least until 2000. We too are well aware of the long history of ethnic and religious strife in Indonesia. See Sael, 386 F.3d at 925-27. However, the record supports the BIA’s conclusion that Lolong has not shown that the Indonesian government is unable or unwilling to control the perpetrators of this violence. As the BIA noted, the State Department’s Country Reports (“Country Reports”) indicated that “the government of Indonesia has [] shown its general commitment to freedom of religion and its lack of institutional discrimination against the ethnic Chinese minority.”⁵ Beyond this general commitment, moreover, the record contains evidence suggesting that the government has taken concrete steps to suppress ethnic and religious violence and to encourage reconciliation between opposing groups. We therefore cannot conclude that “the evidence ... com/pels the conclusion that the asylum decision was incorrect.” Kataria, 232 F.3d at 1112 (emphasis added). Cf. Gomes, 429 F.3d at 1267 (rejecting pattern-and-practice claim where “Bangladesh government did not countenance attacks against Christians and intervened in such attacks to the extent that it was able ” (emphasis added)).

In sum, Lolong has provided no evidence that she has been, or is likely to be, specifically targeted for persecution by any individual or group in Indonesia. The fear she has of harassment, discrimination, and sporadic violence may be a fear shared by millions of ethnic Chinese Christians in Indonesia, and given the sporadic violence that has recurred in that country over the past decades, Lolong is understandably nervous about returning to Indonesia. As we noted above, this may make her fear subjectively genuine; this subjective fear alone, however, is insufficient to render her eligible for asylum absent an individualized risk of persecution or a pattern and practice of persecution. Lolong has provided nothing that suggests that her fears are distinct from those felt by all other ethnic Chinese Christians in Indonesia. Nor has she shown that all ethnic Chinese Christians in Indonesia have, based on the circumstances there, a well-founded fear of persecution. Although we are sympathetic to the plight of such peoples, we understand the BIA’s decision to preclude a general grant of asylum to Indonesian Chinese Christians, and the record supports such a decision.⁶

IV

The petition for review is DENIED.

1 . Although we do not often comment on the quality of arguments, we would like to thank both counsel for aiding the court through their excellent advocacy in briefing and during oral argument.

2 . In this context, the terms "deportable” and "deportation” can be used interchangeably with the terms "removable” and "removal,” respectively. See Noriega-Lopez, 335 F.3d at 882 n. 5. Compare 8 U.S.C. § 1101(a)(47) (defining an "order of deportation”), with 8 U.S.C. § 1252(a)(1) (providing for "tj]udicial review of a final order of removal”), and 8 U.S.C. § 1227(a) (defining classes of aliens as “deportable” pursuant to an order of removal).

3 . The Dissent contends that the BIA applied the incorrect standard of proof in reaching this conclusion, adopting the "more likely than not” standard that is used in withholding of removal cases and specifically rejected by the Supreme Court in the asylum context. Dissent at 1184-86 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). This objection is misplaced. Although the BIA’s language could have been better crafted, it clearly recognized the difference between the "well-founded fear” and "more likely than not” standards. After referring to the two standards in the alternative, the BIA expressly applied the former to Lolong’s asylum claim and the latter to her withholding claim. In fact, in determining that Lolong's fear of persecution was not objectively reasonable because she had not demonstrated a “reasonable possibility that [she] would be persecuted if she must return to Indonesia,” the BIA employed language drawn directly from the Court’s decision in Cardoza-Fonseca. See Cardoza-Fonseca, 480 U.S. at 440, 107 S.Ct. 1207 (noting that " ‘it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility' ” (emphasis added) (quoting INS v. Stevic, 467 U.S. 407, 424-25, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984))).

4 . Although Lolong provided evidence of violence directed at a friend and at members of her family, this evidence does not show — and she has not argued, either before us or before the BIA, that it shows — that she is more likely to be targeted for persecution or harassment than any other member of Indonesia's Chinese Christian community. Rather, it shows only the type of undifferentiated claim that we have held is insufficient for purposes of asylum.

5 . As the Dissent points out, we have held that Country Reports are insufficient to rebut evidence that the petitioner faces an individualized threat of persecution in her home country. See Dissent at 1183-85. Lolong’s failure to allege that she faces an individualized threat distinguishes this case from our prior decisions. In each of the cases cited by the Dissent, the petitioner had presented some evidence that he or she faced a unique risk of persecution upon return that was distinct from the petitioner's mere membership in a disfavored group. See Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th Cir.2005) (holding that Country Reports could not be used to rebut petitioner’s testimony that he received numerous death threats); Lai v. INS, 255 F.3d 998, 1010 (9th Cir.2004) (holding that the Country Report did not address "the specific facts on the record that differentiate Mr. Lai’s case from” other members of his ethnic group). Even in Sael v. Ashcroft, which dealt with Indonesia, the petitioner had presented some evidence of an individualized threat. 386 F.3d at 927-30. In light of that evidence, we simply held that the Country Reports were insufficient to support "the denial of asylum in Sael’s case.” Id. at 929. Where, as here, the petitioner does not allege an individualized risk of persecution but raises only a pattern-or-practice claim, it is entirely appropriate to rely on Country Reports in determining whether such a pattern or practice of persecution exists.

6 . We do not read the BIA’s decision as a determination that no ethnic Chinese or Christian in early 2000 could have an objectively reasonable fear of persecution. Rather, we understand the BIA’s decision to require that asylum petitioners prove something more than their status as female members of Indonesia's Chinese Christian community. The BIA’s position is well established in our precedents. See Melkonian v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir.2003) (noting that petitioner had shown both membership in disfavored group and an individualized threat of persecution); Rostomian, 210 F.3d at 1089; Kotasz v. INS, 31 F.3d 847, 853-54 (9th Cir.1994).