                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-2635
                                     ____________

                                ALEX CHANDRA TAN,
                                           Petitioner

                                            v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                        Respondent
                    __________________________________

                          On a Petition For Review of an Order
                          of the Board of Immigration Appeals
                              (Agency No. A088-646-878)
                           Immigration Judge: Philip Verrillo
                        __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 26, 2014

             Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges

                             (Opinion filed: June 13, 2014)
                                    ____________

                                       OPINION
                                     ____________


PER CURIAM

       Alex Chandra Tan (“Tan”) petitions for review of the Board of Immigration

Appeals’ final order of removal. For the reasons that follow, we will deny the petition for

review.
       Tan, an ethnic Chinese Christian native of Indonesia, entered the United States on

April 24, 2003 as a nonimmigrant visitor and overstayed his visa. In February, 2008, the

Department of Homeland Security commenced removal proceedings against him through

the filing of a Notice to Appear in Immigration Court, which alleged that he was

removable pursuant to Immigration & Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B), as an alien who remained in the United States for a time longer than

permitted. It is undisputed that Tan is removable as charged. Tan applied for statutory

withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), claiming that he was

persecuted on the basis of his ethnicity in Indonesia and would be again if forced to

return there.

       Tan testified at his hearing about several incidents of brutality perpetrated on him

and his family by native Muslims when he was a child and teenager. Those incidents

occurred in 1985, 1990, and 1995. In 2003, Tan’s wife’s uncle was robbed. As a result

of these incidents Tan claimed that he has suffered both physically and emotionally. In

support of his claim of persecution, Tan submitted numerous supporting documents,

including a letter from Matthew Clark, M.D. indicating that the scars on Tan’s legs and

head are consistent with injuries sustained in the manner he described; a letter from

Lawrence B. Egbert, M.D. indicating that Tan exhibits symptoms consistent with post-

traumatic stress disorder; a letter confirming his membership in a Christian church in

Philadelphia; several newspaper articles regarding conditions in Indonesia; an affidavit

from Dr. Jeffrey A. Winters, a professor with expertise in the area of Southeast Asia and

Indonesia, stating his opinion on conditions in Indonesia for the ethnic Chinese

                                             2
community and religious minorities; and the State Department’s 2009 Country Report for

Indonesia and 2009 International Religious Freedom Report for Indonesia.

       On October 21, 2010, the Immigration Judge denied Tan’s application for

withholding of removal. The IJ found Tan’s testimony to be credible and noted that his

experiences in Indonesia could rise to the level of past persecution on account of a

protected ground. Nevertheless, the Government had successfully rebutted any

presumption of a future threat to his life or freedom. The IJ noted the State Department

reports for Indonesia in the record, and concluded that they did not demonstrate a

systematic, pervasive or organized persecution of the ethnic Chinese community in

Indonesia. Rather, these reports noted efforts by the Indonesian Government to stop

interreligious violence, a constitutional provision providing the right for all persons to

worship according to their beliefs, and Indonesia’s official recognition of six faiths

including Protestantism and Catholicism. Also, the record evidence did not show that

Tan would be singled out for harm upon his return.

       The IJ pointed out that he had considered the other background materials

submitted by Tan, particularly the affidavit of Dr. Winters. The IJ did not agree with Dr.

Winters’ assessment that current conditions in Indonesia supported Tan’s claim of a

future threat to his life or freedom. In addition, the IJ observed that the last physical

attack on Tan occurred long ago, that Tan lived in Indonesia from August, 1990 through

April, 2003 without suffering any additional physical attacks, and that his three siblings

and mother reside in Indonesia and have not been harmed.



                                              3
       Tan appealed to the Board of Immigration Appeals. On May 28, 2013, the Board

dismissed the appeal. The Board agreed with the IJ that, even assuming that Tan had

established past persecution, the presumption of future harm had been rebutted by the

Government and the record evidence of current conditions in Indonesia. The Board

additionally held that Tan had not demonstrated that he would be singled out individually

for persecution upon his return to Indonesia, pointing out that he “remained in Indonesia

for approximately 13 years after the church bus incident in 1995 and he and his future

wife were not harmed at the hardware store in 2003.” A.R. 4. To the extent that the IJ

appeared to have cited the wrong date in association with Tan’s description of a particular

incident of harm, the Board found this error to be harmless. The Board also observed that

Tan’s three siblings and mother all continue to live in Indonesia and have not been

harmed since his departure in 2003. Last, the Board agreed with the IJ that Tan had not

established a systematic, pervasive or organized pattern or practice of persecution of

ethnic Chinese Christians in Indonesia.

       Tan has timely petitioned for review of the Board’s decision. We have jurisdiction

under 8 U.S.C. § 1252(a)(1), (b)(1). In his brief, Tan contends that the Board’s

determination that it is not more likely than not that he would be persecuted in the future

is unsupported by substantial evidence. Specifically, Tan argues that he did not receive a

sufficiently individualized assessment of his evidence of current country conditions.

Petitioner’s Brief, at 13. In particular, the Board failed to even mention Dr. Winters’

expert opinion that there is a real and ongoing danger of violent attacks against the ethnic



                                             4
Chinese community in Indonesia. See id. at 25-26. 1 Tan seeks a remand for further

analysis. See id. at 14.

       We will deny the petition for review. When the Board issues a separate opinion,

we review the Board’s decision and look to the IJ’s ruling only insofar as the Board

deferred to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Here, the Board

summarized the IJ’s decision by specifically citing to it, and gave every indication that it

was deferring to it. To overturn the Board’s decision, Tan must show us that his evidence

was “so compelling that no reasonable factfinder could fail to find” in his favor.

Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).

       Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), withholding of removal is

not discretionary: “The Attorney General may not remove an alien to a country if the

Attorney General decides that the alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nationality, membership in a particular

social group or political opinion.” Id. The applicant must establish by a “clear

probability” that his life or freedom would be threatened in the proposed country.

Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 429 (1984). Clear

probability is defined to mean that it is more likely than not that an alien would be subject

to persecution. See id. at 429-30. It is the applicant’s burden to prove his case. 8 U.S.C.

§ 1231(b)(3)(C).




1
  Tan also contended that the agency applied the wrong standard, but we are confident
that the agency applied the correct withholding of removal legal standard in Tan’s case.
                                              5
       In claiming a well-founded fear of persecution, the applicant must show that (1) he

would be individually singled out for persecution or that (2) there is a pattern or practice

of persecution of similarly situated individuals. Lie v. Ashcroft, 396 F.3d 530, 536 (3d

Cir. 2005). If the applicant proves that he has suffered past persecution, “it shall be

presumed that the applicant’s life or freedom would be threatened in the future . . .” 8

C.F.R. § 1208.16(b)(1)(i). The Government may rebut this presumption by showing

through a preponderance of the evidence a “fundamental change in circumstances” such

that the applicant’s life or freedom would not be threatened, see id. at §

1208.16(b)(1)(i)(A). As with any claim of persecution, the acts constituting persecution

must be committed by the government or forces the government is either unable or

unwilling to control. See Garcia v. Att’y Gen. of U.S., 665 F.3d 496, 505 (3d Cir. 2013).

       Substantial evidence supports the agency’s conclusion that the Government

rebutted the presumption of any future threat to Tan’s life or freedom. As noted by the

IJ, and affirmed by the Board, the State Department reports from 2009 do not support a

claim that Tan’s life or freedom would be threatened in Indonesia. Overall, these reports

demonstrate much better conditions in Indonesia since Tan was last harmed. The 2009

State Department reports reflect governmental efforts to stop interreligious violence, and

thus show that the Indonesian government does not condone or acquiesce in attacks by

private actors. Moreover, we have held that the agency may rely on State Department

reports. See Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d Cir. 2003) (State Department

country reports are most appropriate and perhaps best resource for information on

political situations in foreign nations).

                                              6
       Tan’s contention that the agency’s analysis of his evidence was not sufficiently

particularized is based in part on Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004),

where we held that generalized improvements in country conditions would not suffice to

rebut credible testimony and other evidence supporting the specific basis for the alien’s

fear of persecution. Berishaj is inapposite here because Tan’s claim, unlike the alien’s in

Berishaj, is based generally on his Chinese appearance and his practice of Christianity;

nothing in the record here indicates that Tan has been or will be subjected to harm based

on a characteristic or action specific to him.

       Moreover, we are satisfied that the agency, and specifically the Board, properly

considered Tan’s evidence, including Dr. Winters’ affidavit, in concluding that the

Government rebutted the presumption that Tan’s life or freedom would be threatened in

the future, 8 C.F.R. § 1208.16(b)(1)(i). There is no merit to Tan’s claim that the Board

failed fully to consider the evidence that he proffered. Unlike in the case he cites in his

Rule 28 (j) letter, Fed. R. App. Pro. 28(j), Indradjaja v. Holder, 737 F.3d 212 (2d Cir.

2013), there is no indication here that the Board completely discounted or disparaged the

Winters affidavit. Although the Board did not itself mention Dr. Winters’ affidavit, it

cited page 13 of the IJ’s Oral Decision three times; on page 13 of the Oral Decision the IJ

discussed Dr. Winters’ affidavit and explained why less weight had been given to it.

That sufficiently indicates to us that the Board was aware of the Winters affidavit,

particularly in view of the fact that Tan devoted over twenty pages of his brief to

discussing it, A.R. 19-42.



                                                 7
       Relying heavily on Dr. Winters’ opinion, Tan contends that he is nevertheless

able to demonstrate a clear probability of future persecution upon returning to Indonesia,

even without the benefit of the presumption. We disagree. Dr. Winters observed that

there has been no “massive upsurge of violence against the ethnic Chinese since 1998.”

A.R. 234. In addition, there is no evidence that Tan experienced any problems rising to

the level of persecution between 1995 when he last was harmed and 2003 when he

departed Indonesia, and he testified that his three siblings and mother continue to reside

in Indonesia, and that none of them have been harmed or threatened.

       In sum, on this record, the agency properly concluded that Tan neither

demonstrated a clear probability that he would be singled out individually for persecution

upon his return to Indonesia, nor established the existence of a systemic, pervasive or

organized pattern or practice of persecution of ethnic Chinese Christians in Indonesia.

       For the foregoing reasons, we will deny the petition for review.




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