                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-2005

Lie v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4415




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                                                            NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                  Case No: 03-4415

                        STELLA URSSULA KIEM NIO LIE,


                                           Petitioner

                                           v.

          SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
           BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES

                                          Respondent


                         On petition for review of a final order
                         of the Board of Immigration Appeals
                                 File No: A79-300-764
                       __________________________________

                              Argued November 19, 2004

                     Before: ROTH and SMITH, Circuit Judges,
                         and DEBEVOISE,* District Judge

                               (Filed: February 2, 2005)


COUNSEL: Martin A. Kascavage, Esq. (Argued)
         Schoener & Kascavage, P.C.
         400 Market Street, Suite 420
         Philadelphia, PA 19106


  *
   The Honorable Dickinson R. Debevoise, Senior United States District Judge for the
District of New Jersey, sitting by designation.
                Attorney for Petitioner

                Peter D. Keisler, Assistant Attorney General, Civil Decision
                Robert M. Loeb, Appellate Staff Attorney
                Charles W. Scarborough, Appellate Staff Attorney (Argued)
                Alison M. Igoe, Esq.
                U.S. Department of Justice
                Civil Division, Room 9130
                601 D Street N.W.
                Washington, D.C. 20530-0001
                Attorneys for Respondent

                                  _____________________

                                 OPINION OF THE COURT
                                  _____________________

SMITH, Circuit Judge.

          Appellant Stella Urssula Kiem Nio Lie (“Lie”) appeals a decision of the Board of

Immigration Appeals (“BIA”) in which the BIA summarily affirmed the Immigration

Judge’s (“IJ’s”) denial of Lie’s application for asylum, withholding of removal, and

protection under the United Nations Convention Against Torture (“CAT”). We will

affirm.

I.        FACTUAL BACKGROUND

          A.    Lie’s Testimony

          The parties are in basic agreement concerning the factual underpinnings of Lie’s

petition for relief. Lie is a citizen of Indonesia. Lie’s asylum hearing was held on March

25, 2002. She conceded removability but sought relief in the form of asylum,

withholding of removal, and protection under the CAT. Lie testified that she had been

                                               2
subjected to generalized harassment by native Indonesians on account of her ethnicity

(Chinese) and religion (Catholic) since early childhood. She also testified concerning a

number of specific incidents in which she or her family members were threatened,

robbed, and had their car vandalized. In connection with one of these incidents, she

testified that the “native people” who stopped her car said “Chinese. Chinese. Let’s just

ask her for some money.” In connection with another incident, she indicated that a group

of spectators who had been viewing a soccer match shouted “Chinese, Chinese,”

approached her car, hit it with sticks, and broke off the rearview mirror.

       The most significant individual incident about which Lie testified occurred during

widespread rioting by Indonesians during 1998. According to Lie, her house was broken

into by a mob, and she took shelter in a nearby Chinese funeral home. She indicates that

she heard the individuals who had broken into the house chanting “Chinese. Chinese.

Let’s burn - burn - burn.” Lie testified that when she went home the next day, the

windows and doors in her home were broken, and her possessions, including her

television, had been stolen. Lie stated that she reported this incident to the police, and the

police took her statement, but “the police didn’t do any follow up.”

       Lie stated that she has kept in contact with her husband and children (who remain

in Indonesia to this day), and that her children were increasingly afraid because they

feared “mistreatment” by native Indonesians. Lie indicated that after the September 11

terrorist attacks on the United States, the Muslims in Indonesia became “even more



                                              3
brutal.” She testified that native Indonesians can recognize the Chinese because the skin

color of the Chinese differs from that of the natives. She also testified that Indonesians of

Chinese descent are presumed by the rest of the population to be Christians.

       B.     The IJ’s Decision

       The IJ rejected Lie’s claims for asylum, withholding of removal, and relief under

the CAT. She did, however, grant Lie’s request for voluntary departure. With respect to

asylum, the IJ determined that Lie’s application had not been timely filed within one year

of her arrival in the United States, as required by 8 U.S.C. § 1158(a)(2)(B). The IJ also

found that Lie’s involvement in a car accident approximately one week before the one-

year period expired did not constitute an “extraordinary circumstance” that would justify

excusing Lie’s late filing pursuant to 8 U.S.C. § 1158(a)(2)(D).

       Although she had determined that Lie’s asylum application was untimely, the IJ

went on to address the issue on the merits, and she concluded that Lie had not carried her

burden of establishing past persecution or a credible fear of future persecution. The IJ

also found that because Lie had failed to establish that it was “more likely than not” that

she would be persecuted due to her ethnicity or religion if returned to Indonesia, Lie was

not eligible for withholding of removal. The IJ also held that Lie had failed to establish

that she faced torture if returned to Indonesia, and thus was not eligible for relief under

the CAT.




                                              4
II.    ANALYSIS

       Where the BIA affirms without opinion under its streamlining regulations, we

review the decision of the IJ. See Berishaj v. Ashcroft, 378 F.3d 314, 316 (3d Cir. 2004).

Whether an alien has demonstrated past persecution or a well-founded fear of future

persecution is a factual determination reviewed under the substantial evidence standard.

Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc). Under this standard,

“administrative findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

“Thus, the question whether an agency determination is supported by substantial evidence

is the same as the question whether a reasonable fact finder could make such a

determination based upon the administrative record.” Id. at 249.

       A.     We Lack Jurisdiction To Review The IJ’s Dismissal Of Lie’s Asylum
              Claim

       An alien must prove by clear and convincing evidence that she filed her asylum

application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).

However, if the alien can establish that there are “extraordinary circumstances relating to

the delay in filing the application,” failure to file the application within the one year

period may be excused. 8 U.S.C. § 1158 (a)(2)(D). Most important for current purposes,

“INA Section 208(a)(3), 8 U.S.C. § 1158(a)(3), provides that ‘no court shall have

jurisdiction to review any determination by the Attorney General under paragraph [a]2,’

which includes the provision relating to whether extraordinary circumstances warrant

                                               5
waiving the one year time limitation for asylum applications.” Tarrawally v. Ashcroft,

338 F.3d 180, 185 (3d Cir. 2003).

       Here, the IJ found that Lie’s asylum application was not timely filed within one

year of her arrival in the United States. She further found that Lie’s failure was not

excused by any of the alleged “extraordinary circumstances” cited by Lie. On appeal, the

government, citing Tarrawally, argues that we lack jurisdiction to review the IJ’s

determination that Lie’s asylum application was untimely. Lie’s reply brief concedes that

the government’s position is correct. Because this case falls squarely within 8 U.S.C. §

1158(a)(3)’s jurisdictional exclusion, we lack jurisdiction to review the IJ’s determination

that Lie’s asylum application was not timely filed within one year of Lie’s arrival in the

United States.

       B.     The IJ’s Determination That Lie Is Not Eligible For Withholding Of
              Removal Is Supported By Substantial Evidence

       In order to obtain withholding of removal, an alien must establish by a “clear

probability” that her life or freedom would be threatened in the proposed country of

deportation or removal. See Tarrawally, 338 F.3d at 186 (citing INS v. Stevic, 467 U.S.

407 (1984) and Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991)). A “clear probability” in

this context means “more likely than not.” Stevic, 467 U.S. at 429-30. As in the case of

asylum, the applicant for withholding of removal must also show that, if deported, the

persecution she faces will be “on account of” race, religion, nationality, membership in a

particular social group, or political opinion. See Lukwago v. Ashcroft, 329 F.3d 157, 182

                                             6
(3d Cir. 2003) (citing 8 C.F.R. § 208.16(b)). The applicant can seek to establish

eligibility either by demonstrating past persecution or by showing a likelihood of future

persecution. See 8 C.F.R. § 208.16(b). However, the “clear probability” or “more likely

than not” standard applicable to a withholding claim is higher than the “well-founded fear

of persecution” standard applicable to an asylum claim. See Lukwago, 329 F.3d at 182.

       Lie attempted to establish a future threat to life or freedom by proving that she

suffered past persecution. The IJ held that Lie had not carried her burden of proof for

obtaining asylum based upon past persecution, and by extension had not met the higher

burden for obtaining withholding of removal. The IJ found that Lie had failed to

establish that the events described in her testimony rose to the level of “persecution.” In

support of this conclusion, the IJ noted that Lie’s family evidently continued to live in

Indonesia, and that Lie’s testimony revealed that the family members were “living a

somewhat normal life” and were “living in relative peace in Indonesia.” The IJ also noted

that the majority of the incidents Lie testified about, including being taunted as a child,

being robbed on one occasion, and having damage done to her car, were properly

characterized as incidents of “harassment and discrimination” rather than persecution.

With respect to the 1998 burglary of Lie’s home, the IJ noted that the 2001 Country

Conditions Report indicated that racially-motivated attacks against Chino-Indonesians

peaked in 1998, and had dropped sharply since then. The IJ also emphasized that Lie’s

family had left the Surabaya area where their house was located after this incident



                                              7
occurred, but they chose voluntarily to return and had lived in relative peace since then.

       We believe the IJ’s determination that Lie failed to demonstrate past persecution is

supported by substantial evidence. A claim based upon past persecution requires the

applicant to demonstrate (1) an incident, or incidents, that rise to the level of persecution;

(2) “on account of” one of the statutorily-protected grounds; and (3) committed by the

government or forces the government is either “unable or unwilling” to control. Gao, 299

F.3d at 272. With respect to the vast majority of incidents referenced in Lie’s testimony,

it seems clear that they simply do not rise to the level of persecution. Lie gives no

evidence that she or her family suffered physical harm in connection with any of these

incidents, nor does she provide evidence that these incidents constituted a threat to her

life or freedom. As we have emphasized on previous occasions, “persecution” includes

“threats to life, confinement, torture, and economic restrictions so severe that they

constitute a real threat to life or freedom.” Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001);

Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Persecution “does not encompass all

treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”

Fatin, 12 F.3d at 1240.

       The only incident that arguably could reach the persecution threshold is the 1998

burglary and vandalism of Lie’s house, when belongings were stolen by a group that,

according to Lie, shouted threats against the Chinese. The primary damage inflicted as a

result of this incident was the economic loss associated with the vandalism and theft of



                                              8
certain possessions. However, the IJ found that any inference concerning the severity of

this incident was somewhat undermined by the fact that Lie’s family returned to their

home shortly after the incident occurred, and that Lie’s husband and children have by

Lie’s own admission continued living in the same area even after Lie left Indonesia and

came to the United States. See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (“An

applicant’s claim of persecution upon return is weakened, even undercut, when similarly-

situated family members continue to live in the country without incident.”). In addition,

the IJ noted that Lie did not immediately seek to leave the country following this incident.

Instead, she remained until her job as a bank teller was terminated, at which point she

took time to close out customer accounts and successfully to file for a severance package

prior to departing for the United States.

       The various factors discussed above constitute substantial evidence for the IJ’s

finding that the incidents described by Lie did not prove that she was a victim of past

persecution. In addition, where private actors are involved, an alien seeking to

demonstrate the existence of past persecution must show that the alleged incidents

involved “forces the government is either ‘unable or unwilling’ to control.” See Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The facts that Lie and her family were able

to return to their home after the 1998 incident, that Lie’s family continues to live there in

relative peace, and that Lie chose to remain in Indonesia to conclude various business

affairs relating to her employment, undermine Lie’s assertion that the government of



                                              9
Indonesia was unable or unwilling to take steps to control the lawlessness reflected in the

1998 attack on Lie’s home. Viewing the record as a whole, the 1998 incident stands out

as an isolated occurrence of private violence that differs from the more pervasive

harassment and discrimination described throughout the rest of Lie’s testimony. The IJ

reasonably concluded that this one incident, without more, did not give rise to an

inference that the Indonesian government was unable or unwilling, as a general matter, to

control such violence. Indeed, the IJ noted that the 2001 Country Conditions Report for

Indonesia states that “government officials promote racial and ethnic tolerance” and that

attacks against Chino-Indonesians have dropped sharply since mid-1998.

       While Lie’s primary theory in support of her claim has focused on establishing

past persecution, Lie also argues that she has demonstrated a clear probability of future

persecution in Indonesia. The IJ disagreed, and the IJ’s conclusion is supported by

substantial evidence. As noted above, the 2001 Country Conditions Report indicates that

attacks against Chino-Indonesians have dropped sharply since mid-1998. In addition, the

same Country Conditions Report explains that since 2000 the Indonesian government has

taken various other steps to ameliorate official discrimination against Indonesia’s ethnic

Chinese population. As to religious persecution, the Country Conditions Report

acknowledges that there have been a large number of attacks against Christians in

Indonesia, particularly in the summer of 2000. However, the Country Conditions Report

also indicates that the Indonesian government opposes the activities of the Muslim



                                             10
militants. Indeed, the Indonesian government has dispatched troops to quell violence

instigated by Muslims, and has arrested various persons suspected of participating in

attacks against Christians. Thus, regardless of the grounds upon which Lie claims to fear

future persecution, substantial evidence in the record supports the IJ’s conclusion that Lie

has not demonstrated a clear probability that she faces persecution by forces the

government is unable or unwilling to control.

       We note that at oral argument, counsel for Lie urged us to consider a recent Ninth

Circuit decision that held that a Chino-Indonesian asylum applicant had established a

well-founded fear of future persecution in Indonesia. The petitioner in Sael v. Ashcroft,

386 F.3d 922 (9th Cir. 2004), presented testimony concerning her experiences in

Indonesia that was similar in many respects to the testimony presented by Lie. Sael does

not bind us, and is readily distinguishable. The petitioner in Sael sought asylum, and the

Ninth Circuit emphasized the relatively low threshold of the “well-founded fear”

standard, stating that “[e]ven a ten percent chance that the applicant will be persecuted in

the future is enough to establish a well-founded fear.” Sael, 386 F.3d at 925. This

relaxed standard is obviously a far cry from the “more likely than not” standard that Lie

must meet in order to obtain withholding of removal. In addition, the petitioner in Sael

fled Indonesia and came to the United States along with her husband. See id. at 924. In

contrast, the IJ here noted that Lie’s family remained behind in Indonesia, living in the

same location “in relative peace,” and found that this fact undermined Lie’s claim that she



                                             11
faced a clear probability of future persecution in Indonesia.1

III.   CONCLUSION

       For the foregoing reasons, the order of the BIA is affirmed, and the petition for

review is denied.




  1
    Lie also sought relief under the CAT, but this claim essentially has been waived on
appeal. See Kopec v. Tate, 361 F.3d 772, 775 n.5 (3d Cir. 2004) (“An issue is waived
unless a party raises it in its opening brief, and for those purposes a passing reference to
an issue . . . will not suffice to bring that issue before this court”) (quoting Laborer’s Int’l
Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)). In any event, the IJ
properly determined that Lie had not carried her burden of establishing that “it is more
likely than not” that she would be tortured if removed to Indonesia. See Tarawally, 388
F.3d at 187-88 (quoting 8 C.F.R. § 208.16(c)(2)).

                                               12
