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


2-28-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4738




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 04-4738
                                     ____________

                                  FANNY WIJAYA,

                                            Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                           Respondent
                                     ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                              (Board No. A 95 377 020)
                      Immigration Judge Donald Vincent Ferlise
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 13, 2006

        Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.

                               (Filed February 28, 2006 )
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Fanny Wijaya, a native and citizen of Indonesia, petitions for review of an order of

the Board of Immigration Appeals, which affirmed the decision of an immigration judge
denying her application for asylum, withholding of removal, and protection under the

Convention Against Torture.1 We have jurisdiction under 8 U.S.C. § 1252 and will deny

the petition.

                                             I.

       Removal proceedings were commenced against Wijaya in 2002, after she failed to

depart the United States within the time required by her visa. She conceded removability

but sought asylum and withholding of removal on the ground that, as an ethnic Chinese

and a Christian, she would be persecuted and tortured if she returned to Indonesia. A

hearing on the application for relief was held in August 2003.

       Testimony and documents introduced at the hearing showed that Chinese

Christians in Indonesia suffer intimidation and assaults by Indonesian nationals. News

articles from 1998 and 1999 recount incidents in which ethnic Chinese were attacked, and

a 2002 country report confirms “instances of discrimination and harassment.” Wijaya

testified to three such incidents: in 1996, a neighbor had thrown stones and excrement at

her family’s home to protest their presence in the area; in 1999, while on a bus, she had

been assaulted by a group of Indonesian males who touched her legs, ripped her shirt,

and threatened her with rape; and, in 2000, while accompanying her mother to a

Buddhist temple, she had again been assaulted by a group of Indonesian males who


       1
       Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), art. 3, opened for signature Dec. 10, 1984, S. Treaty Doc. No.
100-20, 1465 U.N.T.S. 85 (entered into force June 26, 1987).

                                             2
threw stones at her, pulled her hair, ripped her shirt, and threatened her with rape. None

of these attacks resulted in serious physical injury. She did not report any of the incidents

to police because she believed that it would be futile to do so, based on the advice of

friends who had experienced similar assaults.

       The immigration judge denied relief. Although he found Wijaya to be credible, he

concluded that the attacks against her were not condoned by the government but were

attributable to “street crime and . . . prejudices exhibited . . . by ignorant people.”

Without evidence of official involvement, Wijaya could establish neither “persecution”

nor “torture,” as required to support her claims for asylum and withholding of removal.

The Board of Immigration Appeals subsequently affirmed without opinion.2

                                               II.

       Asylum, withholding of removal, and protection under the Convention Against

Torture are available only to aliens who demonstrate a reasonable fear of “persecution” or

“torture” in their native country. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1); 8 C.F.R.

§§ 208.16(c)(2), 208.18(a). These concepts encompass not all acts of violence against

individuals, but only those that are somehow sanctioned by public officials. Amanfi v.


       2
        Where the Board affirms without opinion, we review the immigration judge’s
decision. Partyka v. Attorney General, 417 F.3d 408, 411 (3d Cir. 2005). Factual
findings of the immigration judge, including whether or not an alien has suffered
“persecution,” will be overturned only if not supported by “substantial evidence.” Abdille
v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (“Under the substantial evidence
standard, . . . [a] finding must be upheld unless the evidence not only supports a contrary
conclusion, but compels it.”).

                                               3
Ashcroft, 328 F.3d 719, 726 (3d Cir. 2003); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002). The offending conduct must be “committed by the government or [by] forces the

government is either ‘unable or unwilling’ to control.” Gao, 299 F.3d at 272 (quoting

Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000)); see also Amanfi, 328 F.3d at 726.

       The requisite involvement or acquiescence of public officials is absent in this case.

The incidents described by Wijaya were perpetrated by private Indonesian citizens, with

no apparent government association. Neither the police nor any other agency was

informed of the assaults or had an opportunity to remedy the situation. And nothing in

the record, including the 1998 and 1999 newspaper accounts and the 2002 country report,

demonstrates conclusively that such abuses are so pervasive in Indonesia that officials

may be presumed to approve of them. (See, e.g., A.R. 120 (2002 country report) (noting

that the Indonesian government “officially promotes racial and ethnic tolerance” and that

officials have intervened in several cases to protect the rights of ethnic Chinese); A.R.

141 (2002 country report) (stating that Catholicism is one of five recognized religions in

Indonesia and that, although “[c]hurches continued to come under attack[,] . . . such

incidents were much less frequent than in previous years”).) 3




       3
        Cf. Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (holding, based on 1999
country report, that “attacks on Chinese Christians in Indonesia . . . do[] not appear to be
sufficiently widespread as to constitute a pattern or practice”), cited in Sukwanputra v.
Gonzales, 434 F.3d 627, 637 n.10 (3d Cir. 2006).

                                              4
       Substantial evidence supports the immigration judge’s determination that Wijaya

did not show “that the Indonesian government is unable or unwilling to protect ethnic

Chinese [Christians] from harm.” She is therefore unable to prove that she has suffered,

or may suffer, “persecution” or “torture” in Indonesia. See Amanfi, 328 F.3d at 726; Gao,

299 F.3d at 272.

                                            III.

       The application for asylum, withholding of removal, and protection under the

Convention Against Torture was properly denied based on Wijaya’s failure to establish a

reasonable threat of persecution or torture. Accordingly, the petition for review will be

denied.




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