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


4-25-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1055




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                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 07-1055
                                   _____________

                             ROBBY DANIEL SINAGA,

                                             Petitioner

                                           v.

            ALBERTO GONZALES, as ATTORNEY GENERAL USA;
     MICHAEL CHERTOFF, as SECRETARY OF THE U.S. DEPARTMENT OF
       HOMELAND SECURITY; JULIE MYERS, ASSISTANT SECRETARY
           OF THE U.S. DEPARTMENT OF HOMELAND SECURITY;
    JOHN P. TORRES, DIRECTOR OF DETENTION AND REMOVAL OFFICE,
       IMMIGRATION AND CUSTOMS ENFORCEMENT; SCOTT WEBER,
   as DIRECTOR FOR DETENTION AND REMOVAL, NEW JERSEY DISTRICT;
        UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES
                 DEPARTMENT OF HOMELAND SECURITY
                            _______________

                 Petition for Review of an Order of the United States
                 Department of Justice Board of Immigration Appeals
                                (BIA No. A97-152-983)
                           Immigration Judge Mirlande Tadal
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  April 18, 2008

          Before: SLOVITER, JORDAN, and ALARCON*, Circuit Judges.

_______________
  *Honorable Arthur L. Alarcon, Senior Circuit Judge of the Ninth Circuit Court of
Appeals sitting by designation.
                                    _______________

                                  (Filed: April 25, 2008)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Robby Daniel Sinaga petitions for review from the final order of the Board of

Immigration Appeals denying his application for asylum, withholding of removal, and

relief under the United Nations Convention Against Torture (“CAT”). For the following

reasons, we will deny Sinaga’s petition.

                                             I.

       Sinaga is a native and citizen of Indonesia and a practicing Christian. He was

admitted to the United States in October of 2000. In April of 2004, Sinaga received a

notice to appear for removal proceedings for his failure to submit valid entry documents,

in violation of 8 U.S.C. §§ 1227(a)(1)(A) and 1182(a)(7)(A)(i). He conceded his

removability but requested relief in the form of asylum, withholding of removal, relief

under the CAT, or, in the alternative, voluntary departure.

       During removal proceedings, Sinaga made two arguments in support of his

requests for relief. First, he claimed that he had suffered past persecution in Indonesia

because of his religious beliefs. He testified that, while walking home from high school

in Indonesia, he was accosted by five individuals who stole his money because he was a



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Christian. Second, Sinaga claimed that he had a well-founded fear he would be

persecuted if returned to Indonesia. To support his claim, he submitted various news

articles reporting attacks on Christians and Christian churches in Indonesia.

       The Immigration Judge (“IJ”) denied Sinaga’s requests for asylum and

withholding of removal. In response to the claim of past persecution, the IJ accepted

Sinaga’s testimony as credible but found that his description of the robbery failed to meet

the definition of past persecution. In reaching that conclusion, the IJ considered that the

incident was isolated, that it did not result in significant injury to Sinaga, and that it was

not reported to the authorities. The IJ further noted that Sinaga had remained without

harm in Indonesia for at least five years following the alleged incident.

       The IJ also found that Sinaga had not established a well-founded fear of future

persecution if he were returned to Indonesia. Although Sinaga’s fear was found to be

subjectively genuine, the IJ concluded that the articles submitted by Sinaga did not

establish a pattern or practice of persecution of Christians in Indonesia. Rather, the IJ

determined that the evidence indicated that the government was taking steps to reduce the

interreligious violence.

       Finally, the IJ denied Sinaga’s request for relief under the CAT and for voluntary

departure, the former because Sinaga failed to present any evidence of torture, and the

latter because Sinaga testified that he would not leave the United States if such relief were

granted.



                                               3
       On appeal, the Board of Immigration Appeals (BIA) affirmed, without opinion, the

decision of the IJ. Sinaga then filed his petition for review.

                                             II.

       We have jurisdiction over a petition for review from a final order of removal under

8 U.S.C. § 1252(a)(1). Because the BIA affirmed the decision of the IJ without opinion,

we review the decision of the IJ. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).

The IJ’s factual determinations must be upheld if supported by substantial evidence, INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and can only be reversed if “any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

                                             III.

       On appeal, Sinaga argues that the IJ erred by denying his requests for asylum and

withholding of removal. “In order to establish eligibility for asylum on the basis of past

persecution, an applicant must show: ‘(1) an incident, or incidents, that rise to the level

of persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and

(3) is committed by the government or forces the government is either ‘unable or

unwilling’ to control.’” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting

Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000)). Sinaga argues that the robbery

committed against him when he was in high school is sufficient to constitute past

persecution. However, we have held that “persecution connotes extreme behavior,

including ‘threats to life, confinement, torture, and economic restrictions so severe that


                                              4
they constitute a threat to life or freedom.’” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d

Cir. 2003) (quoting Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993)). Here, the IJ’s

conclusion that this isolated event did not rise to the level of persecution was not

erroneous. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding that “isolated

criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some

personal property and a minor injury, [are] not sufficiently severe to be considered

persecution”).

       To qualify for asylum based on a well-founded fear of future persecution, an

applicant must show “that she has a genuine fear, and that a reasonable person in her

circumstances would fear persecution if returned to her native country.” Gao, 299 F.3d

at 272 (quoting Elnager v. INS, 930 F.2d 784, 786 (9th Cir. 1991)). We do not agree

with Sinaga that the record compels us to conclude that he has established a well-founded

fear of future persecution because there is a pattern or practice of persecution of

Christians in Indonesia. “[T]o constitute a pattern or practice, the persecution of the

group must be systemic, pervasive, or organized” and must be “committed by the

government or forces the government is either unable or unwilling to control.” Lie v.

Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (internal quotation marks and citations

omitted). Here, substantial evidence supports the IJ’s conclusion that Sinaga failed to

establish a pattern or practice of persecution of Christians in Indonesia.




                                              5
       Sinaga nevertheless points to numerous articles and reports from international

news agencies to support his assertion that there is a practice of persecution of Christians

in Indonesia. However, the IJ found that, “[t]he background materials ... indicate that the

government is making enormous attempts to combat the violence that is taking place in

Indonesia and that the government is taking steps to go after the Muslim insurgency that

is causing these incidents.” (Appendix [“App.”] at 20.) The violence described in the

reports, although disturbing, does not compel us to conclude to the contrary.

       Furthermore, we agree with the IJ that “[t]he fact that one remains in his home

country ... for a significant period of time after the incident of alleged past persecution

without further mistreatment [undermines] the objective basis of the ... fear of

persecution.” (App. at 19.) The fact that Sinaga’s family continues to reside in Indonesia

and attends the same church, without incident, similarly weakens Sinaga’s claim. See Lie,

396 F.3d at 537 (“[W]hen family members remain in petitioner’s native country without

meeting harm, and there is no individualized showing that petitioner would be singled out

for persecution, the reasonableness of petitioner’s well-founded fear of future persecution

is diminished.”).

       To be entitled to withholding of removal, an applicant must show that he faces a

“clear probability of persecution” on account of one of the statutorily protected grounds.

INS v. Stevic, 467 U.S. 407, 430 (1984); Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991).

The “clear probability” standard is more stringent than the “well-founded fear” standard


                                              6
and, thus, an applicant who fails to demonstrate a well-founded fear of persecution with

respect to an asylum application will be unable to demonstrate a clear probability of

persecution with respect to a withholding of removal application. Janusiak, 947 F.2d at

47. Because Sinaga has failed to establish his eligibility for asylum, it follows that he will

also not be able to meet the more stringent standard to qualify for withholding of removal.

                                             IV.

       For the foregoing reasons we will deny Sinaga’s petition for review.




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