                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2921




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Recommended Citation
"Nizal v. Atty Gen USA" (2006). 2006 Decisions. Paper 817.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/817


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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 05-2921


                   SHINTA DEWANTI NIZAL; JOKO DWI PUTRO;
                          TRIXIEDIO ARIFIA PUTRO;
                      TRIXIEDIA DEWINTA PUTRI PUTRO,
                                 Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                               Respondent




        On Petition for Review of an Order of the Board of Immigration Appeals
                            Nos. A95 873 460/461/462/463
                    Immigration Judge: Hon. Charles M. Honeyman


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 19, 2006

                 BEFORE: McKEE and STAPLETON, Circuit Judges,
                         and McCLURE,* District Judge

                              (Opinion Filed June 29, 2006)




* Hon. James F. McClure, Jr., United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Petitioner Shinta Dewanti Nizal, her husband and their children are citizens of

Indonesia. Ms. Nizal’s husband and children are riders on her application for asylum and

withholding of removal. She seeks review of a BIA order affirming without opinion an IJ

decision to deny that relief.

       Ms. Nizal is a native Indonesian Muslim. In her application for asylum or

withholding of removal, she stated that she was seeking asylum or withholding of

removal based on race, religion, and membership in a particular social group. With

respect to race, Ms. Nizal stated that, although she is a native Indonesian, she is perceived

to be Chinese because she has light skin and, accordingly, is subject to the mistreatment

experienced by Indonesian Chinese. To support her claim based on religion, Ms. Nizal

asserts that she and her family are Muslims but do not accept many of the restrictions,

such as rules for women’s clothing and behavior, that could be imposed if Indonesia

became a fundamentalist Islamic country. Finally, Ms. Nizal identifies herself as a

member of a social group as “an educated, moderate Muslim woman,” who will be

oppressed and persecuted if radical Islamic fundamentalists come into power. App. at

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226. She did not allege, nor did she subsequently offer evidence, that she was perceived

to be a Christian.

       The IJ found Ms. Nizal to be credible but that her evidence was insufficient to

justify asylum or withholding of removal. Specifically, the IJ concluded that (1) the

actions taken against her because she was perceived to be Chinese did not rise to the level

of past persecution; and (2) her evidence did not meet her burden of showing a reasonable

possibility that she would suffer persecution in the future on one of the statutory grounds.

In the course of reaching the latter conclusion, the IJ found as follows:

       The Court has examined all of the evidence in the record carefully,
       including the Country Reports and other credible source materials. While
       the Court finds indicative that there may be a pattern or practice of
       persecuting Chinese and Christians, there is no pattern or practice of
       persecuting individuals who are merely Chinese or, in this case, perceived
       to be Chinese sufficient for a finding of statutory eligibility.

App. at 20. The IJ regarded as merely speculation Ms. Nizal’s concerns about Indonesia

becoming an Islamic fundamentalist country in the future. Finally, the IJ noted that Ms.

Nizal’s “well educated, wealthy family” had the capacity to protect her from the kind of

harassment she testified to suffering.

       In her brief before us, Ms. Nizal makes a rather limited attack on the BIA’s order

affirming the IJ’s decision, an attack based solely on a claim that she is entitled to relief

because of persecution as a Chinese Christian. She argues that in “this case the IJ found

that Chinese Christians may suffer a pattern or practice of persecution in Indonesia.”

Petitioner’s Br. at 18. She next insists that the record supports the proposition that there

                                               3
is a “reasonable possibility” that she, in addition to being considered Chinese because of

her light skin, “would also be considered Christian.” Id. Ms. Nizal then concludes that if

“she were considered Christian due to her Chinese appearance, then she would be a

member by imputation of the group of persons who suffer a pattern or practice of

persecution in Indonesia as found by the IJ.” Id.

       The primary problem with this argument is that the IJ did not find that Chinese

Christians suffer a pattern and practice of persecution in Indonesia. While he commented

that such a pattern or practice “may” exist, he had no occasion to find whether it did or

did not because Ms. Nizal did not allege, and had offered no evidence, that she was

persecuted, or feared persecution, because of being perceived to be a Christian. Indeed,

Ms. Nizal’s own evidence undermines any claim that she fears persecution for being

perceived to be a Chinese Christian. In her asylum application, she stated that, before

leaving Indonesia in 2001, her son attended a Catholic school and she further testified

that, if her family is returned there, she would send both of her children to “a Catholic or

Christian school.” She did not testify to any concern that this would subject either herself

or her children to risk of harm.

       While Ms. Nizal insists that the IJ found that a pattern or practice exists in

Indonesia of persecuting Chinese Christians, she does not, and could not, maintain that

the record compels such a conclusion. The Country Reports referenced by the IJ would

support a contrary conclusion. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).



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The petition for review will be denied.




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