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


4-25-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4802




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4802


                                 GORDON MURPHY,

                                                  Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES



                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A95-856-158)


                       Submitted under Third Circuit LAR 34.1(a)
                                  on February 1, 2007


                      Before: BARRY and ROTH, Circuit Judges.
                               *IRENAS, District Judge

                             (Opinion Filed April 25, 2007)




      *The Honorable Joseph E. Irenas, United States District Judge for the District of
New Jersey, sitting by designation.
                                          OPINION

ROTH, Circuit Judge:

       Gordon Murphy petitions for review of the order of the Board of Immigration Appeals

(BIA), affirming, without opinion, the Immigration Judge’s (IJ) denial of his application for

asylum and withholding of removal. We will deny the petition.

       Murphy, a native and citizen of Indonesia of Chinese ethnicity and Buddhist faith,

entered the United States on or about October 14, 2001 as a non-immigrant visitor. On

February 19, 2003, the Immigration and Naturalization Service issued Murphy a Notice to

Appear, charging that he was subject to removal under Section 237(a)(1)(B) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), as a nonimmigrant visitor who

remained for a time longer than permitted. Murphy appeared before the IJ, conceding

removability and seeking relief from removal by filing applications for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT), or, in the alternative,

voluntary departure.

       In support of his application for asylum, Murphy offered testimony and other

documentary evidence describing incidents of persecution, violence, and demands for money,

which serve as the basis for his claim of persecution. Specifically, Murphy described

incidents in which he was the victim of violent attacks and robberies, which occurred in his

apartment, at school, and at his place of employment. He also maintains that on the occasions

when he reported these incidents to the authorities, they demanded money in exchange for

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their assistance. Additionally, Murphy described a series of events occurring in April 1998

in which the houses belonging to the native Chinese were burned down at the hands of native

Indonesians. Murphy, however, also testified that he was able to attend school regularly and

later received a degree in industrial engineering from a collegiate institute in Indonesia.

       On August 6, 2004, the IJ denied Murphy’s application for asylum, withholding of

removal, and protection under CAT, and ordered that he voluntarily depart the United States.

On September 30, 2005, the BIA affirmed, without opinion, the IJ’s decision. A timely

petition for review followed, in which Murphy seeks relief from the denial of his application

for asylum and withholding of removal.1

       We have jurisdiction to review final orders of the BIA under § 242 of the Immigration

and Nationality Act, 8 U.S.C. § 1252. Where, as here, the BIA affirms the IJ’s decision

without opinion, we review the IJ’s decision as the final agency determination. Konan v.

Attorney General, 432 F.3d 497, 500 (3d Cir. 2005).

       Pursuant to 8 U.S.C. § 1158(b), the Attorney General may grant asylum to an alien

who demonstrates that he is a refugee. To qualify as a refugee, an alien must establish that

he is unable or unwilling to return to his country of nationality because of past persecution or

a well-founded fear of future persecution on account of his race, religion, nationality,

membership in a particular social group, or political opinion. See 8 U.S.C. § 1158(b)(1). To


   1In his petition for review, Murphy does not raise a claim as to the IJ’s determination
regarding his eligibility for protection under CAT. We therefore deem this claim waived
and address only his claims of asylum and withholding of removal. Vente v. Gonzales,
415 F.3d 296, 299 n.3 (3d Cir. 2005).

                                               3
be eligible for asylum on the basis of past persecution, an alien must establish the following:

“(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.” Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002) (quoting Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000)). Likewise, to be

eligible for asylum based on a well-founded fear of future persecution, an alien must establish

that his fear is genuine and that “a reasonable person in his circumstances would fear

persecution if returned to his native country.” Gao, 299 F.3d at 272.

         We have adopted a narrow definition of persecution, which includes “threats to life,

confinement, torture, and economic restrictions so severe that they constitute a threat to life

or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Indeed, “persecution does not

encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional.” Id. Thus, whether the alien has demonstrated past persecution or a well-

founded fear of future persecution is reviewed under the substantial evidence standard, which

grants significant deference to the IJ’s determinations. Gao, 299 F.3d at 272. As such, the

IJ’s factual findings will be upheld if supported by “reasonable, substantial, and probative

evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.

2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1002)). Likewise, reversal of such

findings is permitted only when the record evidence “would ‘compel’ a reasonable factfinder

to make a contrary determination.” Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.

2003).

                                                4
       In this instance, substantial evidence supports the IJ’s determination that Murphy failed

to meet his burden of showing that he suffered past persecution or that he has a well-founded

fear of future persecution if returned to Indonesia. On appeal, Murphy points to a number of

incidents that he maintains constituted past persecution and generated a fear of future

persecution, all of which were referred to by the IJ in his decision. In denying Murphy’s

petition for asylum, the IJ considered these incidents and determined that, while credible, they

did not fit within the meaning of persecution, as defined by this Court. In this regard, the IJ

concluded that the evidence offered by Murphy did not establish that the incidents he endured

were based on his race, religion, nationality, membership in a particular social group, or

political opinion, as required under 8 U.S.C. § 1158(b)(1). Instead, the IJ found that the

several incidents of mistreatment suffered by Murphy were economically motivated. Thus,

the IJ concluded that Murphy did not qualify as a refugee, making him ineligible for asylum.

       Ultimately, this is not a case in which the IJ failed to consider the evidence in the

record. Rather, the IJ concluded that the evidence presented to him did not amount to past

persecution or a well-founded fear of future persecution if Murphy returned to Indonesia.

Because the IJ’s conclusions were based on reasonable and probative evidence in the record,




                                               5
they must be upheld under the substantial evidence standard of review.2 We are not

compelled to make a finding contrary to that of the IJ. Therefore, we will deny the petition

for review.




   2Because Murphy has not established a well-founded fear of persecution for asylum
purposes, he also has not met the more rigorous standard of eligibility for withholding of
removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003).




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