                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2177




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2177


                EDIJANTO; GWAT LIE TJIA; SALLY MARCELINA,
                                             Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent


                PETITION FOR REVIEW OF A DECISION OF THE
                      BOARD OF IMMIGRATION APPEALS
                Agency Nos. A96-259-956; A96-259-957; A96-259-959
                        Immigration Judge: Donald V. Ferlise


                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 9, 2008


       Before: BARRY and STAPLETON, Circuit Judges, and RESTANI*, Judge

                           (Opinion Filed: October 17, 2008)


                                       OPINION


RESTANI, Judge

      Petitioners Edijanto, Gwat Lie Tjia, and Sally Marcelina seek review of an order of


      *
         Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
the Board of Immigration Appeals (“BIA”) dismissing their appeal from an Immigration

Judge’s (“IJ”) order denying their applications for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”), but granting them voluntary

departure. We will deny the petition.

                    FACTS AND PROCEDURAL BACKGROUND

       Petitioners, an ethnic Chinese Christian family, are natives and citizens of

Indonesia. Edijanto entered the United States in May 2001, and Tjia (his wife) and

Marcelina (his daughter), in June 2001, as non-immigrant visitors. In February 2003,

after their visas had expired, Edijanto applied for asylum, withholding of removal, and

relief under the CAT on the basis of persecution on account of his ethnicity and religion.

Initially, Tjia and Marcelina were derivative applicants, but they submitted separate

applications in January 2004.1 In March 2003, the Immigration and Naturalization

Service commenced removal proceedings against petitioners for staying beyond their

visas. Petitioners conceded removability before the IJ, but renewed their requests for

asylum, withholding of removal, and withholding under the CAT.

       At a hearing in September 2005, petitioners recounted prior experiences in

Indonesia to show past persecution. Edijanto described incidents in 1965, 1973, and 2001

concerning assaults on him and his family members, and a 1996 incident where his



       1
         Edijanto also included a son as a derivative applicant, but he is not included in
this joint removal proceeding. Another son submitted a separate application, as he was
too old to be included in Edijanto’s application.

                                             2
church was desecrated. The 1973 assault occurred after one of the assailants yelled out

“hey, Chinese” to Edijanto. A.R. 93. Tjia testified that she was assaulted and robbed in

1996, and that in 2001, she found a dead cat in the exhaust of the family car after the car

malfunctioned on her way home from church. She also testified that a group of juveniles

sat on the vehicle and sprinkled water on her while she was in the car. Tjia further

testified that her church received bomb threats, but admitted that nothing happened.

Marcelina stated that her teacher would hit her if she did not know the answers to

questions. Edijanto and Tjia stated that they did not want to return to Indonesia because

they did not want their children to experience incidents similar to the ones they did.

Petitioners also submitted the U.S. State Department reports from 2004 and other

materials concerning the social and religious situation in Indonesia in support of their

claims of persecution.

       The IJ denied petitioners’ applications. The IJ denied the asylum claims as time-

barred and on the merits, concluding that petitioners failed to show past persecution or a

well-founded fear of future persecution. The IJ denied the withholding of removal claim,

finding that petitioners failed to show that their negative experiences were motivated by

their ethnicity or religion or that the occurrences rose to the level of persecution. The IJ

concluded that most of the incidents were merely street crimes. The IJ also found that

petitioners failed to show a clear probability of future persecution if they return to

Indonesia because petitioners failed to prove that they would be singled out for

persecution or that there exists a pattern or practice of persecution of ethnic Chinese

                                              3
Christians in Indonesia. The IJ denied the CAT claim because no evidence showed that

petitioners were ever tortured or feared any type of torture.

       Petitioners appealed the IJ’s decision to the BIA. They also contended that the

interpreter failed to accurately translate their testimony and therefore the BIA should

remand the matter for a new hearing.

       The BIA affirmed the IJ’s order and dismissed the appeal. The BIA first noted that

petitioners did not challenge the IJ’s findings as to the untimeliness of the asylum

application and therefore “consider[ed] their persecution claim only under the higher

burden of withholding of removal under section 241(b)(3) of the [Immigration and

Nationality] Act.” A.R. 2. The BIA concluded that petitioners failed to show past

persecution because the incidents that petitioners described did not result in the level of

harm that constitutes persecution, and that petitioners did not show that they were

targeted on account of their ethnicity or religion or that a pattern or practice of

persecution against ethnic Chinese Christians existed in Indonesia. The BIA also

determined that petitioners failed to meet their burden of showing a clear probability of

future persecution. The BIA found that, according to the 2004 State Department reports,

interreligious violence occurred only on islands on which petitioners did not reside and

therefore was not widespread. The BIA rejected petitioners’ due process claim on the

basis that petitioners failed to show how their testimony would have been different, that

their counsel corrected the specific error they pointed out, and that petitioners failed to

demonstrate prejudice.

                                               4
                    JURISDICTION & STANDARD OR REVIEW

       We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.

§ 1252(a)(1). Where the BIA issued a decision on the merits and not merely a summary

affirmance of the IJ’s decision, we limit our review to the BIA’s decision. Ezeagwuna v.

Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). We review the BIA’s factual findings under

the deferential substantial evidence standard. See Abdille v. Ashcroft, 242 F.3d 477, 483-

84 (3d Cir. 2001). The issue of whether the BIA denied due process is reviewed de novo.

Ezeagwuna, 325 F.3d at 404.

                                       DISCUSSION

A. Withholding of removal

       In challenging the BIA’s denial of withholding of removal, petitioners claim that

their past experiences rose to the level of persecution and that they showed that there was

a clear probability that they would suffer persecution if they return to Indonesia. This

argument is unavailing.

       Persecution is defined as “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Fatin v. I.N.S., 12

F.3d 1233, 1240 (3d Cir. 1993). Withholding of removal is warranted where an alien

shows that he or she would be persecuted on account of “race, religion, nationality,

membership in a particular social group, or political opinion.” INA § 241(b)(3)(A),

8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). To obtain such relief, the alien may

create a rebuttable presumption of future persecution by demonstrating past persecution

                                               5
on account of one of the five protected traits, or by otherwise showing a “clear

probability” (i.e., more likely than not) of future similarly motivated persecution.

8 C.F.R. § 1208.16(b)(1),(2); Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.

2006). Here, petitioners failed to show how most of their experiences occurred on

account of their ethnicity or religion. Insofar as some incidents may have been ethnically

or religiously motivated, those isolated incidents were not so severe as to rise to the

required level of persecution.

       Nor have petitioners otherwise demonstrated a clear probability that they would be

persecuted on account of their ethnicity and religion if they return to Indonesia. To

establish a future threat of persecution, petitioners may show that there is a “pattern or

practice of persecution” of Chinese Christians in Indonesia. See 8 C.F.R.

§ 1208.16(b)(2). A “pattern or practice” of persecution is “systematic, pervasive, or

organized.” Lie v Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (citation and quotations

omitted); In re A-M-, 23 I. & N. Dec. 737, 740–41 (B.I.A. 2005).

       Petitioners rely on the 2004 Country Reports for Human Rights Practices and 2004

International Religious Freedom Report to support their claim of threat of future

prosecution. As the BIA concluded, although the reports show the existence of religious

tension between Muslims and Christians, most of the problems occur on the islands of

Sulawesi and Maluku, while petitioners and their family members reside on the island of

Java. Further, we recently held in Wong v. Attorney General, 539 F.3d 225, 233–34 (3d

Cir. 2008), that the 2004 State Department reports do not show a pattern or practice of

                                              6
persecution of Chinese Christians in Indonesia.

B. Due Process

         Petitioners also challenge the BIA’s rejection of their due process claim based on

translation failures at the hearing. This argument is also unavailing.

         Aliens in deportation proceedings are entitled to due process of law. Reno v.

Flores, 507 U.S. 292, 306 (1993). To prevail on a procedural due process claim, an alien

must show substantial prejudice. Bonhometre v. Gonzalez, 414 F.3d 442, 448 (3d Cir.

2005).

         Despite their claims of incorrect translation, petitioners do not explain how their

testimony was incorrectly translated. As to their claim that the confusing and incoherent

nature of the testimony indicates inaccurate translation, the record shows that the IJ asked

questions to clarify any confusion that arose. Further, petitioners failed to show how a

better translation of the testimony would have resulted in a different outcome.

                                       CONCLUSION

         Based on the foregoing, we will deny the petition for review.
