                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3513




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NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                   Case No: 05-3513

                                 SUNARYO WIJAYA,

                                            Petitioner

                                            v.


                             ATTORNEY GENERAL OF
                              THE UNITED STATES,

                                            Respondent



                    On Petition for Review of Final Decision of the
                             Board of Immigration Appeals
                                BIA No.: A95-381-265
                       Immigration Judge: Rosalind K. Malloy


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 13, 2006

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

                              (Filed: December 15, 2006 )




      *
        The Honorable William H. Yohn, Jr., Senior District Judge for the Eastern
District of Pennsylvania, sitting by designation.

                                           1
                                        OPINION


SMITH, Circuit Judge.

      Sunaryo Wijaya petitions for review of a final order of the Board of Immigration

Appeals (BIA), affirming the denial by the immigration judge (IJ) of Wijaya’s application

for asylum, withholding of removal, and relief under the Convention Against Torture

(CAT).1 We will deny Wijaya’s petition for review.

      Wijaya is a citizen of Indonesia. He is ethnically Chinese and a Roman Catholic.

He first entered the United States on a six-month visitor’s visa on July 27, 2000. He

briefly returned to Indonesia on January 24, 2001, and returned to the United States on

March 13, 2001. He applied for asylum, withholding of removal, and relief under the

CAT on March 6, 2002. The Government informed Wijaya on July 29, 2002 that he had

overstayed his visa and that removal proceedings would be instituted against him. Wijaya

conceded his removability at a hearing on August 29, 2002. The IJ denied Wijaya’s

application at a hearing on March 5, 2004. The BIA adopted and affirmed the IJ’s

decision on June 30, 2005. Wijaya timely appealed.

      Wijaya gave credible descriptions of several instances of violence and harassment

that he believed were motivated by his ethnicity and religion. Wijaya testified that a mob


      1
        The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2(b). The BIA exercised
jurisdiction under 8 C.F.R. § 1003.1(b). We have jurisdiction to review the final order of
the BIA under 8 U.S.C. § 1252. When the BIA affirms an IJ’s decision without opinion,
we review the IJ’s decision as the final agency determination. Berishaj v. Ashcroft, 378
F.3d 314, 322 (3d Cir. 2004).

                                            2
looted and burned his store on May 14, 1998. Wijaya described receiving anonymous

threatening phone calls on April 10, 2000, in which the caller insulted him and demanded

that he convert to Islam. Two days later, a group of men threw stones through his home’s

windows. Wijaya believed the incidents were related. Wijaya testified that, on April 20,

2000, two men attempted to forcibly enter Wijaya’s home, but fled when his wife called

the police. Wijaya stated that on May 12, 2000, three men attempted to force him into

their car and abduct him, but were scared away when his wife began to scream and

onlookers arrived. After Wijaya came to the United States, his church in Indonesia was

bombed, killing 16 people.

       Wijaya could not identify any of his assailants. He testified that both he and the

police believed them to be “extremist Muslims.” When asked why he believed he was

targeted by extremists, Wijaya testified that he held frequent prayer meetings in his home

which featured singing which was audible outside his house. His home was located near

a mosque.

       Wijaya testified that he came to the United States to visit his sister, who was

granted asylum on the basis of her religion and ethnicity. Wijaya began work within a

week, but returned to Indonesia after five months. He testified that he returned due to his

father’s heart attack, but returned with his sister’s four year old son in tow. The IJ was

skeptical of Wijaya’s description of his reason for returning, but the BIA held that this did

not rise to the level of an adverse credibility determination. Wijaya’s wife is legally in

the United States on a visitor’s visa. Her petition has been consolidated with Wijaya’s.

                                              3
       We must determine if substantial evidence supports the IJ’s decision to deny relief

to Wijaya. INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). To hold that Wijaya is

entitled to relief, we must find that the evidence of record “not only supports that

conclusion, but compels it . . . .” Id. at 481 n.1; 8 U.S.C. § 1254(b)(4).

       We have held that “[i]n order to establish eligibility for asylum on the basis of past

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

persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is

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) (internal quotes

omitted). Wijaya did not proffer evidence sufficient to compel the conclusion that these

requirements were met. Apart from the threatening phone call, the IJ correctly observed

that there is no direct evidence establishing that the other attacks were motivated by

religion or ethnicity. Although it would have been eminently reasonable to conclude that

the attacks, particularly the three following the anonymous phone call, were motivated by

religion or ethnicity, the evidence does not compel us to overturn the IJ’s ruling to the

contrary. Similarly, the evidence does not compel us to overturn the IJ’s conclusion that

the Indonesian government is neither unable nor unwilling to control the Muslim

extremists. State Department reports in the record establish that the Indonesian

government has had some success in curbing violence by Muslim extremists. The IJ

appears to have concluded that the assaults on Wijaya amount to generalized mob

violence, which cannot support his petition for relief. See Abdille v. Ashcroft, 242 F.3d

                                              4
477, 494-95 (3d Cir. 2001) (“Mere generalized lawlessness and violence between diverse

populations, of the sort which abounds in numerous countries and inflicts misery upon

millions of innocent people daily around the world, generally is not sufficient to permit

the Attorney General to grant asylum.”).

       To establish a well-founded fear of future persecution, a petitioner must

demonstrate: (1) a credible subjective fear of persecution and (2) “pattern or practice in

his or her country of nationality . . . of persecution of a group of persons similarly situated

to the applicant on account of race, religion, nationality, membership in a particular social

group, or political opinion.” 8 C.F.R. § 208.13(b)(1)(iii)(A). In Lie v. Ashcroft, 396 F.3d

530, 537-538 (3d Cir. 2005), we observed that:

       Petitioners argue, with some force, that anti-Chinese violence persists,
       citing evidence in the record of widespread attacks on Chinese Christians in
       Indonesia, including press accounts of riots, vandalism, and robbery
       targeting Chinese Christians. Nevertheless, such violence does not appear
       to be sufficiently widespread as to constitute a pattern or practice. The
       1999 [State Department] Country Report on Indonesia indicated that there
       was a sharp decline in violence against Chinese Christians following the
       period of intense violence in 1998, and noted that the Indonesian
       government officially promotes religious and ethnic tolerance. Moreover,
       this violence seems to have been primarily wrought by fellow citizens and
       not the result of governmental action or acquiescence. Given these
       considerations, we are not compelled to find that such attacks constitute a
       pattern or practice of persecution against Chinese Christians.


Id. at 537-38. The evidence in the record before us, particularly the State Department’s

International Religious Freedom Report for 2003, supports the IJ’s conclusion that

conditions for Chinese Christians in Indonesia have not worsened and may have actually


                                              5
improved. Wijaya credibly testified to conduct more severe than that complained of in

Lie. Id. at 536. However, the record does not compel us to disturb our finding in Lie that

there is no “pattern or practice of persecution against Chinese Christians” in Indonesia.

Id. at 538.

       The IJ found that because Wijaya had not shown an objectively reasonable basis

for his fear of persecution so as to establish grounds for asylum, he had also not

established the clear probability of persecution required for withholding of removal. See,

e.g., Gabuniya v. Attorney General, 463 F.3d 316, 320-21 (3d Cir. 2006).

       To demonstrate entitlement to relief under CAT, Wijaya must show that he is

“more likely than not” to be tortured if he returns to Indonesia. 8 C.F.R. § 1208.16(c)(2).

The torture must be “inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R.

§ 208.18(a)(1). No evidence in the record compels the conclusion that Wijaya suffered

any mistreatment by or with the acquiescence of the Indonesian government.

       The evidence in the record does not compel a conclusion contrary to that of the IJ.

We will deny the petition for review.
