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


5-5-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2154




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-2154
                                     ___________

                                 CHEN THIEN LIM
                                and RUBIN WIJAYA,
                                         Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                 Respondent
                          _____________________

                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                     (BIA Nos. A95-149-659 and A95-149-660)
                 Immigration Judge: Honorable Charles M. Honeyman
                              ______________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 1, 2008

    Before:   RENDELL, GREENBERG, and VAN ANTWERPEN, Circuit Judges

                                 (Filed: May 5, 2008)
                                     ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

      Petitioners Chen Thien Lim and Ruben Wijaya seek review of a final order by the

Board of Immigration Appeals (“BIA”). For the reasons that follow, we will dismiss their
petition in part and deny it in part.

                                        I. Background

       Petitioners, a married couple, are ethnic Chinese Christian natives and citizens of

Indonesia. Petitioners entered the United States in 2000 and remained unlawfully after

the expiration of their non-immigrant visas. They were charged with removal in 2001 and

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

Torture (“CAT”). After several hearings, the IJ issued an oral decision on December 15,

2005. Although he found Petitioners credible, he held that they failed to meet their

burdens of proof and persuasion. He denied the applications for asylum, withholding of

removal, and protection under the CAT and granted the applications for voluntary

departure. Petitioners appealed to the BIA, which affirmed the IJ’s decision and

dismissed their appeal. This petition for review followed.

                                        II. Due Process

       As an initial matter, Petitioners claim the IJ failed to meaningfully review their

objective evidence, including two 2004 State Department reports, in violation of their due

process rights. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). In response, the

Government argues that Petitioners failed to exhaust administrative remedies by first

seeking relief from the BIA for the alleged due process violation. See Bonhometre v.

Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).

       Whether Petitioners were required to exhaust administrative remedies depends



                                              2
upon the nature of their claim. Generally, constitutional claims are beyond the BIA’s

jurisdiction and not subject to the exhaustion requirement. Bonhometre, 414 F.3d at 448

n.7. However, there is an exception for due process claims asserting a procedural error

that could have been corrected by the BIA. Khan v. Atty. Gen’l of the United States, 448

F.3d 226, 236 (3d Cir. 2006).

       Here, Petitioners claim the IJ failed to make an individualized determination of

their claims. See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Petitioners

should have presented this argument to the BIA so the BIA could have considered

whether to remand to the IJ to remedy the alleged procedural flaw. See Bonhometre, 414

F.3d at 447-48. Because they did not, we lack jurisdiction to review this aspect of the

petition. Id. at 448.

                                       III. Asylum

       An asylum applicant must demonstrate past persecution or a well-founded fear of

future persecution. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). This is a

factual determination, which we review under the substantial evidence standard. Gao,

299 F.3d at 272. To grant relief, “we must find that the evidence not only supports that

conclusion [that Petitioners’ applications should have been granted], but compels it.” INS

v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (emphasis in original). Where, as here,

the BIA adopted the IJ’s findings and discussed some of the bases for the IJ’s decision,

we review both decisions. See Chukwu v. Atty. Gen’l of the United States, 484 F.3d 185,



                                             3
189 (3d Cir. 2007); Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).

                                     A. Past Persecution

       First, Petitioners argue that the IJ erred in finding that they did not suffer past

persecution. We have adopted a narrow definition of persecution, which “connotes

extreme behavior, including ‘threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.’” Ahmad v. Ashcroft,

341 F.3d 214, 217 (3d Cir. 2003) (quoting Fatin, 12 F.3d at 1240). We do not recognize

as persecution “isolated incidents that do not result in serious injury.” Voci v. Gonzales,

409 F.3d 607, 615 (3d Cir. 2005).

       Petitioners testified that they experienced general incidents of discrimination and

harassment throughout their childhoods. They also described a few specific individual

incidents of violence, crime, and harassment, including:

       C      In 1991, Lim and her father were threatened and robbed by native
              Indonesians shouting racial insults.

       C      In 1998, Lim was harassed, insulted based on her race, chased, and
              assaulted. When attempting to run away, she fell and suffered a head
              injury.

       C      In 1998, while her family was attempting to move to a new neighborhood,
              native Indonesians threatened and shouted racial slurs at them and coerced
              Lim’s family into giving them money.

       C      In 1997, Indonesians burned down Wijaya’s aunt’s antique shop.

       C      Because his father was a Christian pastor, Muslim neighbors threw stones
              and feces at Wijaya’s house and defaced his father’s church.



                                               4
In addition, Petitioners testified to generalized episodes of violence against ethnic

Chinese Christians in Indonesia, including rioting in 1998 and church bombings from

1994 to 2000.

       A reasonable adjudicator would not be compelled to conclude that these incidents

were sufficiently severe to constitute persecution. See Lie, 396 F.3d at 536. In Lie, we

held that isolated criminal acts resulting in property theft and a minor injury did not

qualify. Id. Similarly, Petitioners described a small number of isolated events which did

not result in serious injury. Although Petitioners argue that their claims are

distinguishable from Lie, we cannot say that their cumulative experiences varied

sufficiently from those in Lie so as to compel an adjudicator to conclude that Petitioners

suffered persecution. See Fatin, 12 F.3d at 1240.

                                   B. Future Persecution

       Petitioners also attempted to establish a well-founded fear of future persecution.

Both the IJ and BIA held that Petitioners did not succeed. Petitioners now contend that

the IJ inappropriately failed to review current country conditions in Indonesia to

determine whether a pattern or practice of persecution of Chinese Christians exists.

       Petitioners were required to demonstrate a “pattern or practice of persecution of a

group of persons similarly situated to the applicant. . . .” 8 C.F.R. § 208.16(b)(2).

Petitioners proffered two 2004 State Department reports concerning the treatment of

ethnic Chinese Christians in Indonesia. See A.R. 0098-139. The IJ considered the



                                              5
reports. See A.R. 0058. Although he expressed concerns over the treatment of Chinese

Christians in Indonesia, he held that, in light of the relevant case law – including our

decision in Lie, 396 F.3d 530, and the BIA’s decision in In re A-—, 23 I&N Dec. 737

(BIA 2005) – the evidence did not support a pattern or practice finding. A.R. 0058.

       We have not conclusively addressed whether a pattern or practice of persecution of

ethnic Chinese Christians in Indonesia exists at the present time. See Sukwanputra v.

Gonazles, 434 F.3d 627, 637 n.10 (3d Cir. 2006). We note that in contrast to Lie, where

the applicant presented a 1999 State Department report, Petitioners presented two 2004

State Department reports. However, the IJ could reasonably conclude that the 2004 State

Department reports do not reflect a pattern or practice of persecution of ethnic Chinese

Christians in Indonesia.1 Because the evidentiary record does not compel a contrary

conclusion, see Elias-Zacarias, 502 U.S. at 481 n.1, the decision rests upon substantial

evidence.2


  1
    For example, the 2004 State Department Country Report on Human Rights Practices
states, “[t]he Government [of Indonesia] officially promotes racial and ethnic tolerance. . .
. Instances of discrimination and harassment of ethnic Chinese Indonesians declined
compared with previous years.” A.R. 0122. Similarly, while the 2004 State Department
Report on International Religious Freedom discusses instances of inter-religious violence
between Christians and Muslims in Indonesia, A.R. 0134-36, it also notes that “[s]ome
notable advances in interreligious tolerance and cooperation occurred . . . [and]
Government officials together with Muslim and Christian community leaders continued
to work together to diffuse tensions in conflict areas. . . .” A.R. 0128.
  2
    Petitioners also sought withholding of removal pursuant to INA § 241(b)(3)(A) [8
U.S.C. § 1231(b)(3)(A)]. The bar is higher for demonstrating eligibility for withholding
of removal than for asylum. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.
2003). Because Petitioners failed to demonstrate past persecution or a well founded fear

                                              6
                             IV. Convention Against Torture

       To qualify for protection under the CAT, Petitioners were required to show by a

preponderance of objective evidence that they would be tortured if removed to Indonesia.

See Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002). Petitioners point to no

evidence that compels us to reverse the IJ’s and BIA’s finding that they failed to

demonstrate eligibility for protection under the CAT.

                                      V. Conclusion

       For the foregoing reasons, we will deny the petition in part and dismiss it in part.




of future persecution for asylum purposes, it follows that they also failed meet the more
rigorous standard for withholding of removal. Id.

                                              7
