                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-7-2007

Widjaja v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3100




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                                                          NOT PRECEDENTIAL




                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                       ____________________

                                  No. 06-3100
                             ____________________


                           ROBY WIDJAYA, Petitioner

                                         v.

      ATTORNEY GENERAL OF THE UNITED STATES, Respondent

                              ___________________

                       Petition for Review of An Order of the
                           Board of Immigration Appeals
                              U.S. Department of Justice
                             BIA File No. A96-264-427
                             ______________________

                 Submitted Under Third Circuit LAR 34.1 (a)
                            September 28, 2007

          BEFORE: McKEE, BARRY and FISHER, Circuit Judges

                        (Opinion Filed: December 7, 2007)

                          __________________________

                                     OPINION

                          __________________________



McKee, Circuit Judge
       Roby Widjaya petitions for review of the final Order of the Board of

Immigration Appeals affirming the Immigration Judge’s denial of his claims for

withholding of removal and relief under the United Nations Convention Against

Torture (“CAT”).1 For the reasons stated below, we will deny the petition.2

                                          I.

       Inasmuch as we write primarily for the parties who are familiar with this

case, we need not set forth the factual or historical background except insofar as

may be helpful to our brief discussion.

       The IJ ruled that Widjaya’s claim for asylum was time-barred and that the

late filing is not excused by any “exceptional circumstances.” We do not have

jurisdiction to review that ruling. Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d

Cir. 2003). Accordingly, we limit our review to the denial of Widjaya’s application




1
 Although we do not specifically discuss Widjaya’s CAT claim, it is evident from
our discussion of his claim for withholding of removal that he can not establish the
kind of harsh treatment required to establish a claim based upon torture under the
CAT. See Auguste v. Ridge, 395 F.3d 123, 136 (3d Cir. 2005).
2
 We have jurisdiction under 8 U.S.C § 1252(a)(1). See Abdulai v. Ashcroft, 239
F.3d 542, 547 (3d Cir. 2001). Where, as here, the BIA defers to the IJ’s decision
and does not render its own opinion, we review the decision of the IJ as the final
agency order. Id. at 549 n.2; see also Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.
2002). We review the IJ’s decision for substantial evidence: see, e.g., Lie v.
Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005). We reverse only if, “the evidence
is such that a reasonable factfinder would be compelled to conclude otherwise.”
Chavarria v. Gonzales, 446 F.3d 508, 515 (3d Cir. 2006); see also INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992).

                                          2
for withholding of removal, and relief under the United Nations Convention

Against Torture (“CAT”).

                                          II.

       Widjaya testified that he was fearful of living in Indonesia because he is a

Christian of Chinese ancestry. However, he has not introduced evidence of past

persecution. Rather, his claim rests upon a pattern or practice of prejudice that

would support a well founded belief in the likelihood of future persecution. To

establish eligibility for withholding of removal, he must show that “it is more

likely than not that [he] would be subject to persecution.” INS v. Stevic, 467 U.S.

407, 424, (1984) (emphasis added). Widjaya testified that he had to pay

“protection” money in high school; that his family business was subjected to

extortionate threats; that he was robbed on a couple of occasions; that his home

was burglarized; and that fruit from his guava tree was taken without permission.

App. Vol. II. at 31. However, with the exception of being called a “stingy

Chinese” by the children stealing guava, there is no reference to any threat or

activity that would qualify for “refugee” status, and the name-calling he mentioned

falls woefully short of satisfying his burden. Being called derogatory ethnic names

by children stealing guava from one’s yard hardly rises to the level of persecution

or torture that Widjaya must establish to qualify for the relief he is seeking.

       Widjaya asserts that his well founded fear of persecution is a direct result of

the pattern or practice of the Indonesian government persecuting Christians

                                           3
throughout Indonesia. He relies in part upon our decision in Sukwanputra v.

Gonzales, 434 F.3d 627 (3d Cir. 2006). This argument, however, is misplaced. In

Sukwanputra, we remanded so the IJ could consider documents that he had

originally ignored because they had not been properly certified under 8 C.F.R. §

287.6. In addition, the IJ never addressed the petitioner’s claim of a pattern or

practice of persecution. However, in remanding, we were careful to explain:

             Significantly, we do not hold that a pattern or practice of
             persecution in Indonesia in fact exists, nor do we hold that the
             Lie decision establishes that a pattern or practice does not
             exist since the record in this case contains a 2001 country
             report whereas the record in Lie contained an earlier 1999
             country report.

Sukwanputra, 434 F.3d at 636, n.10 (citing Lie v. Ashcroft, 396 F.3d 530, 537) (3d

Cir. 2005)

       In Lie, we explained that in order for a pattern or practice of persecution to

support relief from removal, the petitioner must show that the persecution is

“systemic, pervasive, or organized.” Lie, 396 F.3d at 537 (citing Ngure v.

Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)). Furthermore, it must be “committed

by the government or forces the government is either ‘unable or unwilling’ to

control.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (quoting

Gao, 299 F.3d at 272). Nothing in Sukwanputra lessens that evidentiary burden.

       The Country Reports Widjaya introduced pertained to 2006. The BIA took

administrative notice of those reports and concluded that they did not establish a



                                            4
pattern or practice of persecution of Chinese Christians in Indonesia. The IJ

concluded that “[t]he only harm to ethnic Chinese is silent or systemic

discrimination.” Although Widjaya claims that the IJ did not consider his

evidence, the record is to the contrary. The IJ specifically noted that, although

Widjaya based his claim on religious persecution as well as ethnicity, he failed to

introduce any evidence to support his claim of religious persecution. Moreover,

Widjaya concedes that his family continues to reside in Indonesia, apparently

without incident.

       Thus, the record establishes that the IJ did consider Widjaya’s evidence.

The IJ simply did not agree that the evidence establishes that Widjaya is a

“refugee” under the immigration laws. However, that does not mean that the IJ

ignored Widjaya’s evidence. Rather, the evidence is simply insufficient to

establish past persecution or an objectively reasonable belief in the likelihood of

future persecution. Accordingly, we will deny Widjaya’s request for withholding

of removal, and for relief under the CAT.




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