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


3-25-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3819




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 06-3819

                                JULIETTA SIAHAAN;
                               JOHNSON MARLULAN;
                                   ALICIA LUBIS;
                                  AGATHA LUBIS,

                                          Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                            Petition for Review of an Order
                         of the Board of Immigration Appeals
                      (Agency File Nos. A96-264-077, 78, 79, 80)

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                   February 4, 2008

                     Before: McKEE and AMBRO, Circuit Judges,
                             and IRENAS, District Judge*

                            (Opinion filed: March 25, 2008)

                                       OPINION

McKEE, Circuit Judge.

      Julietta Siahaan, Johnson Marlulan, Alicia Lubis and Agatha Lubis petition for



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

                                           1
review of an order of the Board of Immigration Appeals affirming the decision of the

Immigration Judge denying their application for Siahaan for asylum, withholding of

removal and relief under the Convention Against Torture (“CAT”), as well as Julietta

Siahaan’s derivative asylum applications on behalf of Johnson Marlulan and Alicia and

Agatha Lubis. For the reasons that follow, we will deny the petition for review.1

                                             I.

       Because we write primarily for the parties, we need not recite the factual or

procedural background of this case except insofar as is necessary to our discussion.

       Siahaan claimed she is eligible for relief because she is a member of the Batak

ethnic group and because she is a Christian. At her hearing before the IJ she introduced

approximately seventy-nine articles and reports2 in support of her claim. The IJ found

Siahaan was not credible. He also found that the evidence did not establish country-wide

persecution of Batak Christians. While Siahaan’s background materials and various

country reports show significant violence between Christians and Muslims in Sulawesia

and the Moluccas, they do not show violence in Jakarta (where she is from). The IJ


       1
         Although there are multiple requests for relief, inasmuch as they are all
derivative of Julietta Siahann’s claim, we will refer only to Julietta’s claim. See 8 U.S.C.
§ 1158(B)(3) (spouse and children may be “granted the same status as the alien. . . “).
       2
        The parties stipulated to the IJ taking administrative notice of the U.S.
Department of State’s 2003 Country Reports on Human Rights Practices for Indonesia,
the State Department’s 2004 International Religious Freedom Report for Indonesia, and
the Annual Report of the United States Commission on International Religious Freedom
dated May 2004.

                                             2
concluded that the only religious conflict in Jakarta concerned the establishment of

churches without municipal permits and that there is no evidence that such requirements

are not applicable to places of worship. He also found that Siahaan did not produce any

evidence that Bataks were targeted for violence along with ethnic Chinese during the

May 1998 civil riots, or that ethnic Bataks are targeted for violence based on their

ethnicity. Finally, the IJ found that Siahaan did not present sufficient evidence to

establish that she will more likely than not be tortured upon her return to Indonesia or

that the government would be complicit even if such torture were to occur. In lieu of

removal, the IJ granted the petitioners’ requests for voluntary departure.

       On appeal to the BIA, Siahaan argued, for the first time, that there was a pattern or

practice of persecution against Batak Christians in Indonesia. In an opinion dated July

21, 2006, the BIA reversed the IJ’s finding that Siahaan was not credible, but it agreed

with the IJ’s finding that Siahaan failed to meet her burden of proving that she was

eligible for asylum, withholding and relief under the CAT.

       The BIA held that there was not a pattern or practice of persecution of Batak

Christians by the government of Indonesia or forces the government was unable or

unwilling to control. It explained, “It is clear that ethnic and religious tensions and

violence do exist, and in particular, [Siahaan’s] documentary evidence confirms this, as

do the Country Reports from government agencies,” but the Country Reports also

indicate that in general inter-religious tolerance and cooperation improved in 2004. . . .”


                                              3
App. 10. The BIA also concluded that while “[t]he reports on religious freedom express

concern over continuing religious tension and violence,” they do not establish that the

government of Indonesia or forces the government was unable or unwilling to control

engaged in a pattern or practice of persecution of Christians or Bataks. Id. The BIA

affirmed the IJ’s grant of voluntary departure. This petition for review followed.

                                             II.

       Where, as here, the BIA issued a decision on the merits rather than merely

summarily affirm the IJ, we review the BIA's decision, not the IJ’s. Gao v. Ashcroft, 299

F.3d 266, 271 (3d Cir.2002); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001).

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, 480 (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); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).

                                             III.

       The Attorney General has discretion to grant asylum to a removable alien. See 8

U.S.C. § 1158(a). However, that discretion can only be exercised if the alien first

establishes that he/she is a “refugee.” Id. A “refugee” is:

              any person who is outside any country of such person's
              nationality or, in the case of a person having no nationality, is

                                              4
              outside of any country in which such person last habitually
              resided, and who is unable or unwilling to avail himself or
              herself of the protection of that country because of
              persecution or a well-founded fear of persecution on account
              of race, religion, nationality, membership in a particular social
              group, or political opinion.


8 U.S.C. § 1101(a)(42)(A). The asylum applicant must present some evidence that

removal will result in persecution “on account of” one of the five statutory grounds in

order to establish eligibility for asylum.

       An applicant who offers credible testimony regarding past persecution is presumed

to have a well-founded fear of future persecution. Berishaj v. Ashcroft, 378 F.3d 314,

323 (3d Cir.2004) (citation omitted). The “well-found fear of persecution” standard

involves both a subjectively genuine fear of persecution and an objectively reasonable

possibility of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). The

subjective prong requires a showing that the fear is genuine. Mitev v. INS, 67 F.3d 1325,

1331 (7th Cir.1995). The objectively reasonable prong requires ascertaining whether a

reasonable person in the alien's circumstances would fear persecution if returned to a

given country. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003) (citation omitted).

“To satisfy the objective prong, the asylum petitioner must show he or she would be

individually singled out for persecution or that ‘there is a pattern or practice in his or her

country . . . 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



                                               5
opinion.’” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006) (quoting 8 C.F.R.

§ 208.13(b)(2)(iii)(A)). Although “pattern or practice,” is not defined, we have explained

that “the persecution of the group must be systematic, pervasive, or organized” to

constitute a pattern or practice. Id. (citation omitted). “In addition, as with any claim of

persecution, the acts must be committed by the government or forces the government is

either unable or unwilling to control.” Id. (citation omitted).

       Withholding of removal is mandatory once “the Attorney General determines that

[the] alien's life or freedom would be threatened” because of a protected trait or activity.3

8 U.S.C. § 1231(b)(3)(A). An alien must establish a “clear probability,” i.e., that it is

more likely than not, that he/she would suffer persecution. See INS v. Stevic, 467 U.S.

407, 429-30 (1984). Because this standard is higher than that governing eligibility for

asylum, an alien who fails to qualify for asylum is necessarily ineligible for withholding

of removal. Zubeda, 333 F.3d at 469-70.

                                              IV.

       Siahaan argues that the BIA’s ruling is not supported by substantial evidence. We

disagree. 4,5 We disagree.

       3
       An application for asylum is deemed at the same time to be an application for
withholding of removal. 8 C.F.R. § 1208.3(b).


       4
        Siahaan also argues that the IJ did not consider all of the record evidence in
determining whether there was a pattern or practice of persecution against Bataks and
Christians. However, as noted, because the BIA issued a decision on the merits and did
                                                                               (continued...)

                                               6
       The record contains no probative evidence of the persecution of Bataks in

Indonesia. Indeed, Siahaan’s counsel admitted that her claims were based primarily on

her religion rather than her ethnicity. The only evidence she introduced concerning

possible persecution of Bataks is a 1990 article discussing the Indonesian government’s

cancellation of the Congress of Batak Protestant Churches. The article noted that the

primary reason the government cancelled the Congress was because church leaders had

intervened on behalf of villagers affected by a pulp factory. A.R. 356.

       Her claim of a pattern or practice of persecution of Christians in Indonesia fares no

better. In Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005), in denying Chinese Christian

petitioners’ applications for asylum and withholding, we wrote:

              Petitioners argue, with some force, that anti-Chinese violence
              persists, . . . Nevertheless, such violence does not appear to be
              sufficiently widespread as to constitute a pattern or practice. .
              . . Moreover, this violence seems to have been primarily
              wrought by fellow citizens and not the result of governmental
              action or acquiescence.

Id. at 537-538. Siahaan is not a Chinese Christian, and the documentary evidence here, as



       4
       (...continued)
not simply affirm the IJ, we review the BIA’s decision, not the IJ’s.
       5
        Siahaan claims, without any legal or factual argument, that the IJ erred in denying
her claim for relief under the CAT. However, as noted above, we are reviewing the
BIA’s decision. Moreover, she makes her CAT claim in a perfunctory manner.
Accordingly, she has waived this issue. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d
Cir. 1993) (“[c]asual mention of an issue in a brief is cursory treatment insufficient to
preserve the issue on appeal.”). We add, however, that the record here does not support a
CAT claim in any event.

                                              7
in Lie, states that inter-religious tolerance and cooperation improved in 2004. The

International Religious Freedom for Indonesia in 2004 stated that “notable advances in

interreligious tolerance and cooperation occurred during the period covered by this

report.” The Annual Report of the U.S. Commission on International Religious Freedom

noted that although the government has been unable to halt all religiously-related

violence, the situation has improved since 2001.

       Siahaan claims that the government is complicit in violence against Christians.

However, the BIA’s finding to the contrary is supported by substantial evidence. The

Religious Freedom Report states that the government “cracked down on terrorists and

other extremists who carried out attacks in the name of religion. . . .” 6 The Report also

noted that the government prosecuted a number of others implicated in the Christmas Eve

church-bombings. In fact, The Human Rights Watch Report that Siahaan provided stated

the government’s crackdown on religious violence has caused some Muslims to believe

the government is siding with Christians.

       The articles Siahaan introduced also show how the government attempted to stop

violence against Christians and others. By way of examples, an article in the Christian

Post reported that in early 2004, unidentified assailants attacked two Protestant Churches




       6
        The Report also noted that the “government tried and convicted at least 79 terror
suspects and accomplices involved in religiously motivated attacks” during the period
covered by the Report. One of those arrests was of Abdul Jabar, who was convicted of
involvement in two church bombings on Christmas Eve in 2003.

                                             8
in Palu, Central Sulawesi – an island far from Jakarta. The government later dismissed

the police chief for negligence in not following a directive to boost police protection at

places of worship ahead of the Christmas and New Year period. Another provincial

police chief ordered that all churches be guarded by two uniformed and two plainclothes

policemen. The President of Indonesia ordered security tightened in major cities such as

Jakarta.

       Moreover, Muslim Indonesians are not a unified, fundamentalist force. The

Religious Freedom Report stated that “[i]n general, Islam in [Indonesia] remained

overwhelmingly tolerant, with a pluralistic outlook.” It noted that “[t]en percent or fewer

of the country’s Muslims advocate creating an Islamic state. . . .”

       Another article Siahaan introduced stated that efforts to extend sharia [Islamic law]

to the entire country [were] opposed even by the leaders of the leading Islamic

organizations.

       In sum, substantial evidence supports the BIA’s finding that there is no pattern or

practice of persecution of Christians in Indonesia.

                                             V.

       For all of the above reasons, we will deny Siahaan’s petition for review.




                                              9
