Phik Ha Lie v. Attorney General of the United States

250 F. App'x 496
CourtCourt of Appeals for the Third Circuit
DecidedOctober 9, 2007
DocketNo. 06-3496
StatusPublished
Cited by2 cases

This text of 250 F. App'x 496 (Phik Ha Lie v. Attorney General of the United States) 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
Phik Ha Lie v. Attorney General of the United States, 250 F. App'x 496 (3d Cir. 2007).

Opinion

OPINION

BARRY, Circuit Judge.

Petitioners seek review of a decision of the Board of Immigration Appeals (“BIA”) dismissing their appeal from an Immigration Judge’s (“IJ”) decision to deny their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the reasons that follow, we will the deny the petition.

I.

Petitioners Phik Ha Lie and Pek Siong Lo are vrife and husband, respectively, who legally entered the United States from Indonesia on May 27, 2000. They overstayed their visas and, on July 30, 2001, filed an application for asylum and withholding of removal on the basis of alleged persecution due to their Chinese ethnicity and Christian religion. Removability is conceded.

As part of the application for asylum, Lie submitted an affidavit, dated May 1, 2001, describing several “mistreatments” that she experienced from native Indonesians. She cited anti-Chinese riots in 1966 that forced her parents to sell their shop and move to a new location, as well as rioting in 1998 that was directed toward Chinese shop owners and citizens. Lie also described two occasions on which her husband was robbed. On the first occasion, a native Indonesian armed with a knife approached Lo in a train station and stated, “Chink, your life is worthless, give me all you have or I will stab you.” (A.R. 631.) The second robbery occurred when Lo was delivering goods to a location outside of town and three native Indonesians armed with “sharp weapons” robbed him of his car radio. (A.R. at 632.) Finally, Lie claimed that around April 2000, her [498]*498nephew was beaten by native Indonesians and robbed of his car.

In advance of the asylum hearing, Lie filed a second affidavit, dated February 17, 2004, “to correct errors and omissions” in her previous affidavit. (A.R.619.) She now claimed that her father’s store was “burned to the ground” in the 1966 riots, and that her husband’s store was vandalized and her husband and son beaten during the 1998 riots. (Id.) For the first time, she stated that in November 1998 she successfully converted a Muslim woman named Endang Sri Rejeki to Christianity, and that Rejeki’s immediate family converted soon thereafter. Lie stated that Rejeki, who “faced much criticism” for her conversion, warned Lie not to let others know that she was converting Muslims because her life would be in danger. (Id.) She also claimed that on July 12, 1998, a group of Muslims confronted her and her daughter on their way to church. The Muslims allegedly slapped Lie, threw her Bible to the ground, and threatened to kill her if she continued to go to church. Finally, she stated that in 1999 her son and nephew each were beaten by Muslims, and that in 2001 her church received a bomb threat.

The IJ held an asylum hearing on March 4, 2005.1 Lie testified that she is a citizen of Indonesia who is of Chinese ethnicity and a Pentecostal Christian. As in her second affidavit, Lie testified that in 1966, her father’s store was “burned to the ground” by rioting Muslims. (A.R. at 244.) She also testified that she was active in evangelizing and converted Rejeki, her Muslim neighbor, and Rejeki’s family to Christianity. She testified that Rejeki had “received some criticism” and “heard some threats” toward Lie for Rejeki’s conversion. (A.R. at 248.) Lie described walking to church with her daughter on July 12,1998, and encountering a group of Muslims, who slapped her, threw her Bible to the ground, and threatened to kill her if she continued to attend church. She also testified that her son and nephew suffered beatings at the hands of Muslims, and that her church received a bomb threat in 2001.

Lo testified that he, like his wife, was of Chinese ethnicity and a Pentecostal Christian. He stated that on May 15, 1998, ten Muslims entered his store, shouted an ethnic slur, and beat him and his son with iron bars. When asked why his son, in a supporting affidavit submitted from Indonesia, did not mention being beaten in the store, Lo stated that his son simply “forgot.” (A.R. at 271.) Apart from being mocked by natives, the only other incident that Lo could recall was an occasion when three men robbed him of his wristwatch and wallet as he was riding his motorcycle.

At the close of the hearing, the IJ issued an oral decision. She found that Petitioners’ application for asylum was untimely, and that Petitioners failed to establish the extraordinary circumstances or changed country conditions necessary for there to be an exception to the one-year filing deadline. With respect to withholding of removal and CAT relief, the IJ found that Lie’s testimony was not credible in material respects. Specifically, the IJ noted inconsistencies as to whether Lie’s father’s store was burned down in 1966, her failure [499]*499to mention the conversion of Rejeki in the first affidavit, and her lack of a persuasive explanation for this and other significant omissions in that affidavit. The IJ found Petitioners credible in testifying that Lo’s store was attacked during the May 1998 riots, but found that neither this event nor individual acts of robbery rose to the level of persecution. She also found that, although Indonesia had internal conflict, its government had taken steps to ensure that churches operated openly and freely and that persons of Chinese ethnicity did not suffer discrimination. Accordingly, the IJ denied withholding of removal and CAT relief.

Petitioners appealed to the BIA. In an opinion dated June 28, 2006, the BIA reversed the IJ’s denial of asylum on the statutory ground, finding that Petitioners had established extraordinary circumstances for failing to meet the one-year filing deadline. The BIA affirmed, however, the IJ’s denial of relief. “[Assuming the facts as presented” by Petitioners without addressing the IJ’s adverse credibility finding (A.R. at 3), the BIA concluded that the incidents described were not so severe as to rise to the level of persecution. It further found that Petitioners had not established a well-founded fear of future persecution because U.S. State Department reports from 2002 and 2003 indicated that attacks on Christians, while still known to occur in parts of Indonesia such as Bali and the Malukus, were rare or nonexistent elsewhere. The BIA also found that there was no ongoing violence against ethnic Chinese in Indonesia, and that Third Circuit caselaw had not recognized a pattern or practice of persecution of Chinese Christians in Indonesia. This petition followed.

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252. Because the BIA did not expressly adopt the IJ’s adverse credibility findings, those findings are not before us for review. Jarbough v. Attorney Gen., 483 F.3d 184, 191 (3d Cir.2007); Kayembe v. Ashcroft, 334 F.3d 231, 234-35 (3d Cir. 2003). We assume, therefore, Petitioners’ credibility.2 Jarbough, 483 F.3d at 191; Kayembe, 334 F.3d at 235. Where, as here, the BIA made independent findings without adopting or expressly deferring to the IJ’s opinion, we review only the BIA’s decision. Abdulai v. Ashcroft,

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Related

Phik Ha Lie v. Attorney General of the United States
349 F. App'x 706 (Third Circuit, 2009)

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250 F. App'x 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phik-ha-lie-v-attorney-general-of-the-united-states-ca3-2007.