                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 25 2004
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ERNI IRAWATI SETYAWAN,

                Petitioner,

    v.                                                    No. 04-9500
                                                   (B.I.A. No. A79-478-849)
    JOHN ASHCROFT, Attorney General,                 (Petition for Review)

                Respondent.


                              ORDER AND JUDGMENT          *




Before LUCERO , McKAY , and PORFILIO , Circuit Judges.



         Erni Setyawan appeals a Board of Immigration Appeals (“BIA”) decision

denying her request for asylum and for withholding of removal. We AFFIRM.

                                           I

         Setyawan, a native and citizen of Indonesia, came to the United States on a

visitor’s visa in July 2000. She admits that her visa has since expired. Alleging



*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
that she would face persecution in Indonesia because she is Christian and

ethnically Chinese, she has requested asylum and withholding of removal. 1

      Setyawan appeared before an immigration judge (“IJ”) and testified that she

resided most recently in the city of Surabaya. She claimed that she was afraid to

return to Surabaya because her church there was stoned on two separate

occasions. She further testified that she was subjected to job discrimination,

sexual harassment on the streets, and frequent robbery attempts. In one incident

described at the hearing, Setyawan was surrounded by four teenagers, who

harassed her while saying, “you are Chinese.” Setyawan said that her mother and

sister suffered similar treatment in Surabaya; another sister, living in Bantung,

experienced less harassment, partly because Bantung is smaller than Surabaya and

partly because this sister always travels with her husband.

      In denying Setyawan’s request for asylum and withholding of removal, the

IJ characterized Setyawan’s commitment to Christianity as “equivocal,” based on

a discrepancy between her asylum application and her testimony at the hearing.

The application stated that Setyawan was a Seventh Day Adventist, but at the

hearing she testified that she was a Baptist. With respect to Setyawan’s

allegations of ethnic persecution, the IJ expressed doubt that Setyawan genuinely

feared returning to Indonesia, as she returned voluntarily after a trip to Singapore


1
      “Setyawan” is an Indonesian name. Appellant also has a Chinese name.

                                         -2-
shortly before her move to the United States. In addition, the IJ found that the

attacks against Setyawan were inspired by “criminal motives” rather than ethnic

prejudice.

      After noting that the IJ never made an adverse credibility finding regarding

Setyawan’s religious devotion, the BIA accepted Setyawan’s factual assertions as

true and nevertheless determined that she had no well founded fear of religious

persecution. The BIA based its conclusion on information about Muslim-

Christian conflict in Indonesia – including Setyawan’s own testimony – that

established that the problem was not severe in Surabaya, and was even less so in

Bantung. As for ethnic persecution, the BIA concluded that the attacks against

her and her family were “random criminal behavior,” not hate crimes targeting

Sino-Indonesians.

                                         II

      In order to establish that she is eligible for asylum, Setyawan must prove

that she “either (1) has a well-founded fear of future persecution, (2) has suffered

past persecution, which gives rise to a rebuttable presumption of a well-founded

fear of future persecution, or (3) has suffered past persecution so severe as to

demonstrate compelling reasons for being unwilling or unable to return to [her]

country of nationality.” Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir.

2004) (alterations, citations, and quotations omitted). We will not reverse the


                                         -3-
BIA’s denial of an asylum application “unless the evidence compels the

conclusion that petitioner[] [has] a well-founded fear of persecution on one of the

. . . grounds” set forth in the applicable statute. Estrada-Escobar v. Ashcroft, 376

F.3d 1042, 1046 (10th Cir. 2004); see also 8 U.S.C. § 1101(a)(42)(A) (defining

“refugee,” as used in the asylum statute (8 U.S.C. § 1158(b)), as a person unable

to return to her home country due to persecution based on “race, religion,

nationality, membership in a particular social group, or political opinion”).

      Setyawan contends that the IJ’s findings were premised on a defective

credibility determination arising from a clerical error on her asylum application.

As discussed above, however, the IJ never made an adverse credibility finding

and the BIA accepted Setyawan’s assertions as true, but nonetheless concluded

that Setyawan had no well founded fear of religious persecution. Thus, Setyawan

is not entitled to relief based on the IJ’s alleged error. Furthermore, despite

Setyawan’s implicit argument to the contrary, the IJ’s assessment of her

credibility did not infect the BIA’s evaluation of her testimony.

      Although Setyawan maintains that her testimony establishes that she was

harassed because she is Chinese, she in fact described only one incident in which

her assailants made an anti-Chinese statement. Moreover, she acknowledged that

the robbers who attacked her and her neighbors did so to acquire money.      See

Gormley v. Ashcroft , 364 F.3d 1172, 1177 (9th Cir. 2004) (upholding denial of


                                          -4-
asylum where applicant failed to prove that robberies in his home country were

motivated by race, rather than by his possession of valuables). On this record, the

BIA did not err in concluding that Setyawan’s characterization of her assailants’

motives amounted to “mere conjecture.” Because Setyawan did not establish that

she was mistreated based on her nationality, or another protected ground under

§ 1101(a)(42), the BIA properly denied her request for asylum.

                                          III

       For the foregoing reasons, the decision of the BIA denying Setyawan’s

application for asylum is   AFFIRMED . We also AFFIRM the refusal to withhold

removal, as the threshold for withholding is higher than the threshold for asylum.

See Estrada-Escobar , 376 F.3d at 1048.



                                                    Entered for the Court


                                                    Carlos F. Lucero
                                                    Circuit Judge




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