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


7-2-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3494




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-3494
                                     ___________

                                CHARLES WONGSO;
                                  SWANDAJANI,
                                            Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                     ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                     (Agency Nos. A96-262-256, A96-262-257)
                Immigration Judge: Honorable Donald Vincent Ferlise
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 25, 2008
               Before: MCKEE, NYGAARD and ROTH, Circuit Judges

                             (Opinion filed July 2, 2008 )
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

             Charles Wongso and FNU Swandajani,1 natives and citizens of Indonesia,


   1
   Petitioners refer to Swandajani throughout their brief as “Ms. Fnu.” “FNU” is the
commonly used abbreviation for “first name unknown.” We will refer to petitioner by the
petition for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing

their appeal of an immigration judge’s denial of their application for withholding of

removal and relief under the Convention Against Torture (“CAT”). For the following

reasons, we will deny the petition for review.

       Petitioners Wongso and Swandajani are ethnically Chinese and Christians. They

are married to each other and have two children who were born here in the United States.

Petitioners were admitted to the United States in 1998 as non-immigrant visitors with

authorization to remain until May 1999, but never left. In April 2003, the Department of

Homeland Security issued Notices to Appear charging petitioners with being subject to

removal under the Immigration and Nationality Act § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B), for remaining in the United States beyond the authorized period.

Petitioners admitted the factual allegations in the notices, conceded removability, and

applied for asylum, withholding of removal, and protection under CAT. Petitioners

subsequently withdrew their asylum applications, which were untimely.

       In support of his application for withholding of removal and protection under

CAT, Wongso testified that he was frequently insulted, pushed, and hit by Muslims when

he was growing up. Wongso also alleged that he was unable to attend college because the

colleges in Indonesia charged higher fees for Chinese students. In 1996, Wongso was

hospitalized after he was assaulted by a group of Muslims who stole his motorcycle. In



name used at the immigration hearing, Swandajani.

                                             2
1997, his parents’ store was burned and looted and the family home was also burned

during a riot. Wongso’s father was hit until he was unconscious. Wongso testified that

he never had any problems in Indonesia due to his Christian religion. Wongso said that

he left Indonesia because he feared a recurrence of the May 1998 riots.

       Swandajani testified that she was also insulted as a child by Muslims. In 1989, she

was orally insulted about her Chinese ethnicity by a group of Muslims while returning

home from church. That same year, a group of Muslims demanded money from her and

spit on her when she refused. Another time, some Muslims again demanded money from

her and pulled her hair after she refused. Swandajani’s parents’ grocery store was burned

down in May 1998 during riots in the town of Ngawi. Like her husband, Swandajani

testified that she never had any problems in Indonesia due to her Christian religion.

Swandajani claimed that she feared she may be killed by Muslims if she returns to

Indonesia.

       On May 2, 2005, following a hearing, the IJ denied petitioners’ applications for

relief. The IJ found that petitioners had testified credibly, but had not proven any past

persecution or the clear probability of future persecution. The IJ found that the insults

petitioners’ recounted did not rise to the level of persecution. In addition, the IJ found

that the incidents where Muslims accosted petitioners on the street and demanded money

did not occur on account of their ethnicity or their religion. Rather, the IJ found that the

assailants were motivated by the desire to rob petitioners of money. The IJ also found



                                              3
that, even if the monetary demands were motivated by an enumerated ground, these

actions did not rise to the level of persecution. With respect to the damage to their

parents’ homes and stores, the IJ concluded that these were “isolated criminal acts,

perpetrated by unknown assailants” that did not constitute persecution. The IJ further

found that petitioners failed to prove that there was a clear probability that they would be

singled out for persecution or that there exists a pattern or practice of persecution of

ethnic Chinese Christians. The IJ rejected petitioners’ CAT claim, but granted their

applications for voluntary departure.

       Petitioners appealed and the BIA remanded the record because of an incomplete

transcription of the hearing. When the transcript was completed, the record was returned

to the BIA. The BIA then dismissed the appeal. The BIA concluded that petitioners

failed to show that the IJ erred in finding that they did not establish past persecution. The

BIA held that the incidents petitioners described did not rise to the level of persecution

because they lacked severity or they were isolated acts of criminal conduct. The BIA

further concluded that the evidence of record, specifically the 2004 Country Report for

Indonesia, indicated that instances of discrimination and harassment of ethnic Chinese

Indonesians had declined compared with previous years. In addition, the BIA observed

that petitioners’ siblings and parents continued to live and work in Indonesia without

incident. Accordingly, the BIA held that petitioners had not shown “a reasonable

possibility much less a likelihood of persecution on this record.” The BIA affirmed the



                                              4
IJ’s grant of voluntary departure. Petitioners timely appealed from the BIA’s order

dismissing their appeal.

       We have jurisdiction to review final orders of the BIA under section 2424(a)(1) of

the INA, 8 U.S.C. § 1252(a)(1). Where, as here, the BIA issued a decision on the merits

and not simply a summary affirmance, we review the BIA’s, not the IJ’s, decision. See

Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We must uphold the BIA’s factual

findings if they are “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We

should find substantial evidence lacking only where the evidence “was so compelling that

no reasonable factfinder could fail to find the alien eligible for asylum or withholding of

removal.” Id. at 483-84; see also 8 U.S.C. § 1252(b)(4)(B).

       The Attorney General must grant withholding of removal if he “decides that the

alien’s life or freedom would be threatened” in the country of removal “because of the

alien’s race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of proving that he will

more likely than not face persecution on account of a protected ground. See INS v.

Stevic, 467 U.S. 407, 429-30 (1984). “To meet this test, the alien must demonstrate that

there is a greater-than-fifty-percent chance of persecution upon his or her return.”

Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). If the alien can demonstrate past

persecution, then that finding will raise a rebuttable presumption that the alien’s “life or



                                              5
freedom would be threatened in the future . . . .” 8 C.F.R. § 1208.16(b)(1)(i). Past

persecution requires proof of “(1) one or more incidents rising to the level of persecution;

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

either by the government or by forces that the government is either unable or unwilling to

control.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Under our cases,

“‘persecution’ is an extreme concept that does not include every sort of treatment our

society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir.1993). It

encompasses only grave harms such as “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to life or freedom.” Id. at 1240.

Persecution “does not include all treatment that our society regards as unfair, unjust, or

even unlawful or unconstitutional.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003)

(internal quotation omitted).

       An applicant who has not suffered past persecution may demonstrate that his or her

life or freedom would be threatened in the future if the applicant establishes that there is a

pattern or practice 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. § 208.16(b)(2)(i). To qualify as a “pattern or practice,” the

persecution must be “systemic, pervasive, or organized.” Lie v. Aschcroft, 396 F.3d 530,

537 (3d Cir. 2005).

       To prevail on a CAT claim, an applicant must “establish that it is more likely than



                                              6
not that he or she would be tortured if removed to the proposed country of removal.” 8

C.F.R. § 208.16(c)(2). See also Toure v. Attorney General of the United States, 443 F.3d

310, 317 (3d Cir. 2006).

       The BIA’s conclusion that petitioners failed to establish past persecution is

supported by substantial evidence in the record. On appeal, petitioners claim that they

suffered past persecution because they were regularly harassed, they were robbed, and

their parents’ homes and businesses were destroyed during separate riots in 1997 and

1998.2 Although the harm described by petitioners is unfortunate, it does not constitute

past persecution. See Lie, 396 F.3d at 536 (holding that an ethnic Chinese Indonesian’s

account of two isolated criminal acts by unknown assailants, which resulted only in the

theft of some personal property and a minor injury, was not sufficiently severe to

constitute persecution); Konan v. Attorney General, 432 F.3d 497, 506 (3d Cir. 2005)

(generalized lawlessness and violence between diverse populations is generally

insufficient to show past persecution); Fatin,12 F.3d at 1243 (“persecution is an extreme

concept that does not include every sort of treatment our society regards as offensive.”).

Moreover, as found by the BIA, petitioners testified that they did not encounter any



   2
      Petitioners also contend that they suffered past persecution because Wongso was
forced to take Muslim education classes and faced extortion when attempting to pay
college tuition or obtain government controlled documents. Petitioners did not make any
arguments based on these incidents before the BIA and therefore they are not properly
before us. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (holding
that this Court does not have jurisdiction to review arguments not raised before the BIA
because they are unexhausted).

                                             7
problems in Indonesia based on their Christian religion.

       Petitioners also failed to demonstrate that they would more likely than not face

persecution on account of a protected ground. On appeal, petitioners argue that they are

members of a group of similarly situated persons who are subject to persecution because

they are ethnic Chinese Christians. The record does not show that the treatment of ethnic

Chinese Christians in Indonesia is the result of government action or acquiescence, or that

it constitutes a pattern or practice of persecution. We have held that violence directed

against Chinese Christians in Indonesia “does not appear to be sufficiently widespread as

to constitute a pattern or practice,” Lie, 396 F.3d at 537, and petitioners failed to adduce

evidence that would have warranted a contrary conclusion in this case. Indeed, the 2004

Country Report relied on by the BIA indicated that instances of discrimination and

harassment of ethnic Chinese had declined compared with previous years.

       Petitioners’ argument that their due process rights were violated because the BIA

failed to review the entire record and made little more than a cursory evaluation of their

claims is without merit. The BIA’s opinion evidences its consideration of the individual

circumstances of the petitioners’ applications. See Abdulai v. Ashcroft, 239 F.3d 542,

550 (3d Cir. 2001).

       Finally, with respect to their CAT claim, petitioners have failed to demonstrate that

they are likely to be tortured by, or with the acquiescence of, government officials if

removed to Indonesia. See 8 C.F.R. §§ 1208.16(c),1208.18(a).



                                              8
For the foregoing reasons, we will deny the petition for review.
