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


3-6-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4545




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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 05-4545
                                 ___________


                                     ETI,

                                            Petitioner

                                       v.

              ATTORNEY GENERAL OF THE UNITED STATES

                                            Respondent
.
                          _______________________

                       On Petition for Review of an Order
                      of the Board of Immigration Appeals
                             (BIA No. A 96 257 816)

                      Immigration Judge: Miriam K. Mills
                                ___________

                  Submitted Under Third Circuit L.A.R. 34.1(a)
                              January 23, 2007

    BEFORE: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.

                             (Filed: March 6, 2007)
                                       ___________

                               OPINION OF THE COURT
                                    ____________

FUENTES, Circuit Judge.

       Eti challenges the Board of Immigration Appeals’ denial of her application for

asylum, withholding of removal, and relief under the United Nations Convention Against

Torture.1 For the reasons that follow, we will deny the petition.

                                             I.

       Eti is a Chinese Christian citizen of Indonesia. She was born in 1970 on the island

of Sumatra. Eti came to the United States on February 9, 2002, overstayed her visa, and

applied for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”) on February 7, 2003.

       At her hearing before an immigration judge (“IJ”), Eti testified that during her

childhood, she and her family were harassed by native Indonesians because they were

ethnically Chinese. On one occasion, a native Indonesian attempted to rape her sister and

then stabbed her brother leaving him blind in one eye. When she was seven years old, her

father was fatally poisoned by a neighboring business owner and, according to Eti, the

authorities did not investigate the matter. As a teenager, she often was harassed on public

transportation by men who sometimes fondled her breasts. During her last year of high



       1
       On her I-589 application, petitioner listed “Eti” as her first name and stated
“N/A” for her last name. A.R. 366.

                                             2
school, a native Indonesian pulled her skirt up at a local market, and the police refused to

help her. The following year, a native Indonesian man grabbed her breast and laughed at

her. During riots in May 1998, a group of men carrying weapons approached her saying

they were going to beat up a Chinese girl. A policeman helped her escape back to a home

protected by her landlord where she hid in the attic for three days. In addition, two of her

family’s businesses were burned down during the riots.

       Eti also claims that she was persecuted on the basis of her religion. She became a

Christian in 1990 and subsequently had trouble finding a place to live because people

would not rent to Christians. When she did find a place, Muslims threw stones at her

house and broke the windows. Eti also described an incident where native Indonesians

vandalized a funeral home and defaced the body of her friend’s mother. In December

2001, while traveling with a Christian music group, she was approached by men who

threatened to assault her because of her religion. She fell as she was running away and

injured herself. Soon before she left the county, Muslim neighbors destroyed a wall her

family had built. Eti also testified that although some of her family is Christian, two of

her brothers have converted to Islam to avoid persecution.

       In addition, a minister named Bruce McDowell testified at the hearing about Eti’s

involvement with his church in Philadelphia. Finally, Leonard Swidler, professor of

religion at Temple University, testified that religious tensions in Indonesia were greater

than the U.S. State Department reports indicated and that he believed Eti was at high risk

of suffering harm if she returned.

                                              3
       The IJ denied Eti’s application for relief, and the Board of Immigration Appeals

(“BIA”) affirmed without an opinion. The IJ determined that Eti’s testimony was not

entirely consistent or credible. First, the IJ noted that Eti described the incident during

the May 1998 riots as the worst example of her persecution, but then later testified that

the incident while touring with her music group was the worst harm she suffered.

Second, the IJ observed that Eti had not included the Christian music group incident in

her I-589 application. The IJ did not believe that Eti offered any reasonable explanation

for these inconsistencies.

       In addition, the IJ concluded that the incidents Eti described did not constitute past

persecution or provide a reasonable basis upon which to fear future persecution. The IJ

stated that conditions in Indonesia had improved for ethnic Chinese citizens, and noted

that Eti lived in Indonesia for almost four years after the 1998 riots. In terms of her

claims based on religion, the IJ explained that Eti’s mother and sister both attend church

regularly and that conditions had improved in Indonesia for Christians.

                                             II.

       We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252. When the

BIA summarily affirms an IJ’s decision, we consider the IJ’s decision. Partyka v.

Attorney Gen. of the United States, 417 F.3d 408, 411 (3d Cir. 2005). We review the

IJ’s factual and discretionary determinations, including credibility findings, under a

substantial evidence standard. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir.

2006). “If a reasonable fact finder could make a particular finding on the administrative

                                              4
record, then the finding is supported by substantial evidence.” Dia v. Ashcroft, 353 F.3d

228, 249 (3d Cir. 2003). The IJ’s findings finding “must be upheld unless the evidence

not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d

477, 483-84 (3d Cir. 2001).

                                             III.

       Eti’s only argument on appeal is that the IJ failed to properly consider whether

there is a “pattern and practice” of persecution against ethnic Chinese and Christians in

Indonesia. As Eti notes, applicants for asylum can establish a well-founded fear of future

persecution by showing “that there is a 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)(2)(iii)(A). We have explained that “to constitute a

‘pattern or practice,’ the persecution of the group must be systemic, pervasive, or

organized.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (internal quotation marks

omitted). Acts of “violence or other harm perpetrated by civilians against the petitioner’s

group [do] not constitute persecution unless such acts are committed by the government

or forces the government is either unable or unwilling to control.” Id. (internal quotation

marks omitted).

       We agree with Eti that the IJ could have more fully discussed the possibility of a

pattern and practice, especially with regard to religious persecution. For example, while

the 2003 International Freedom Report for Indonesia does note that there have been

                                              5
advances in interreligious cooperation, it also describes a government which has “on

many occasions failed to punish perpetrators and further attacks” and that has “at times

tolerated the abuse of religious freedom by private groups.” App. 48. Nevertheless, the IJ

did consider the reports and other materials submitted by Eti and concluded that she did

not have a well-founded fear based on general conditions in Indonesia. Although the

evidence presented establishes that religious violence in Indonesia remains a significant

problem, we do not believe the record compels the conclusion that there is a pattern and

practice of persecution. The IJ’s determination that Eti had not established a well-

founded fear of persecution is therefore supported by substantial evidence.2

       We also agree with the IJ that Eti does not qualify for withholding of removal or

protection under CAT. Eti did not demonstrate a “clear probability” of persecution if

removed, see INS v. Stevic, 467 U.S. 407, 413 (1984), and she has not argued on appeal

that she qualifies for protection under CAT, i.e., that it is more likely than not that she

will be tortured if removed, see Ayuk Ako Obale v. Attorney Gen. of the United States,

453 F.3d 151, 161 (3d Cir. 2006).

                                             IV.



       2
        We note that substantial evidence also supports the IJ’s determination that Eti did
not establish a well-founded fear of being individually targeted for persecution in
Indonesia. Eti does not appear to challenge this determination on appeal, though she does
argue that the IJ’s adverse credibility finding was error. However, Eti’s failure to
mention the Christian music group incident in her I-589 application was noteworthy both
because she testified that it was the “worst” incident she experienced and because it
occurred within a couple of months of when she left Indonesia.

                                               6
       Eti has failed to demonstrate that the BIA or IJ erred in rejecting her application

for asylum, withholding of removal, and relief under CAT. For the reasons discussed

above, we will deny the petition.




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