                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3030




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-3030
                                   ________________

                          FNU SHIERLY; LOTFI HAMLAOUI,
                                         Petitioners

                                             v.

                               ATTORNEY GENERAL
                             OF THE UNITED STATES,
                                         Respondent
                       ____________________________________

       On Petition for Review from an Order of the Board of Immigration Appeals
                      (Agency Nos. A95-153-146 and A95-153-147)
                     _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 22, 2005

             Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES

                                 (Filed August 18, 2005)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM.

       Fnu Shierly and her husband, Lotfi Hamlaoui, seek review of a order of the Board

of Immigration Appeals affirming the denial of Shierly’s application for asylum. For the

reasons that follow, we will deny the petition for review.
       Shierly is a thirty-year-old native and citizen of Indonesia. She entered the United

States on September 11, 2000, with a student visa to attend a university. On November 1,

2001, the former Immigration and Naturalization Service (INS) issued a Notice to Appear

in which it charged Shierly as removable for having failed to attend the university, a

condition for maintaining her visa status. The INS issued a separate Notice to Appear to

Hamlaoui, a citizen of Tunisia, charging that he overstayed his visitor visa. Shierly and

Hamlaoui conceded removability, and Shierly applied for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). Hamlaoui did not

apply for relief on his own but sought derivative relief based on his wife’s asylum claim.

       Shierly claimed that she is a Christian of Chinese ethnicity and was subjected to

persecution in Indonesia on that basis. In her testimony before the Immigration Judge

(IJ), Shierly stated that when she was eleven years old, a group of ethnic Indonesians

approached her and “groped” her arm. Shierly believed this amounted to persecution

because at times people called her names like “stinking Chinese,” and because she felt

that, as an ethnic Chinese, she “had no freedom to go places” given the harassment by

ethnic Indonesians. At age twenty, while riding in a pedicab, two boys approached

Shierly and touched her on the leg. They remarked upon Shierly’s Chinese ethnicity. In a

third incident that occurred sometime thereafter, and again while riding in a pedicab,

Shierly was allegedly touched in an inappropriate manner by ethnic Indonesians. Then,

on December 9, 1999, an individual passed Shierly on a street in the city of Cilegon and



                                             2
exposed himself to her. As Shierly tried to walk away, he pull her hair, but Shierly

managed to elude the individual and he ran off. Shierly’s mother called the police, but

the police took no action. After this incident, Shierly stopped attending a beauty school

out of fear that a similar incident would happen again. She returned home to her family

in Serang. Her father advised her to leave Indonesia, and Shierly decided on the United

States. A month before her departure, a burglary took place at her father’s jewelry store.

Shierly claimed that the burglary was ethnically motivated.

       Shierly testified that she fears a return to Indonesia based on her past experiences,

possible future persecution due to her ethnicity and religion, and because of “terrorism.”

The IJ found Shierly’s testimony “basically credible,” but concluded that the incidents

recounted did not amount to persecution. In particular, the IJ found that the three

incidents in which Shierly was touched inappropriately in public places amounted to

lawlessness or street crime, but not persecution. In addition, the IJ found that the incident

of indecent exposure, albeit a traumatic event for Shierly, did not rise to the level of

persecution, and there was no evidence that the act was ethnically motivated. Because

not all offensive or unlawful conduct rises to the level of persecution, the IJ found that

Shierly did not establish a claim for asylum based on past events, and further found that

she failed to demonstrate a well-founded fear of future persecution. Accordingly, the IJ

denied Shierly’s asylum application and Hamlaoui’s derivative application. The IJ also

denied withholding of removal and CAT relief, and permitted voluntary departure.



                                              3
       After the BIA affirmed without opinion, Shierly and Hamlaoui timely filed a

petition for review in this Court. Because the BIA affirmed without opinion, we review

the IJ’s decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).

       Shierly challenges the IJ’s denial of her asylum application, claiming, among other

things, that her credible testimony was enough to establish that she suffered past

persecution. Appellant’s Br. at 9-10.1 To establish “past persecution” and entitlement to

asylum, Shierly must show: (1) an incident, or incidents, that constituted persecution; (2)

that occurred on account of one of the statutorily-protected grounds (i.e., race, religion,

nationality, membership in a particular social group, or political opinion); and (3) were

committed by the government or forces the government is either unable or unwilling to

control. Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). Our controlling

definition of persecution is a narrow one– it includes “threats to life, confinement, torture,

and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin

v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Thus, “persecution does not encompass all

treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”

Fatin, 12 F.3d at 1240. Whether Shierly qualified for asylum is a factual determination,

which this Court must review under the substantial evidence standard. Shardar v.

Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). As such, the IJ’s determination must be



   1
    Shierly did not challenge before the BIA the denial of her claims for withholding of
removal and CAT relief, and she does not expressly pursue those claims in her brief
before this Court. Accordingly, we address her asylum claim only.

                                              4
upheld unless the evidence of record compels a contrary conclusion. INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

       We find ample support for the IJ’s decision. As the IJ determined, the three

incidents of inappropriate touching and the one incident of indecent exposure– whether

viewed individually or collectively– do not amount to persecution under the controlling

law. Cf. Lie v. Ashcroft, — F.3d —, 2005 WL 278694 (3d Cir. Feb. 7, 2005) (holding

that ethnic Chinese Indonesian’s “account of two isolated criminal acts, perpetrated by

unknown assailants, which resulted only in the theft of some personal property and a

minor injury, is not sufficiently severe to be considered persecution”). In addition, the

other events Shierly has recounted, such as ethnic slurs and the robbery of her father’s

jewelry store, simply do not meet the definition of persecution as set forth in Fatin. Thus,

the IJ properly denied Shierly’s claim for asylum based on past persecution.

       Furthermore, after a review of the record, we are also satisfied that substantial

evidence supports the IJ’s determination that Shierly did not establish a well-founded fear

of future persecution. Cf. Lie, 2005 WL 278694 (finding that petitioner “failed to

establish either that she faces an individualized risk of persecution or that there is a

‘pattern or practice’ of persecution of Chinese Christians in Indonesia”).

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