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


6-1-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2886




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                                                                     NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                    __________

                                          No. 05-2886
                                          __________

                                          FNU JULI,
                                                            Petitioner,

                                               vs.

                             ATTORNEY GENERAL OF THE
                                  UNITED STATES,
                                                 Respondent.
                                    __________

                           On Petition for Review of an Order of
                             the Board of Immigration Appeals
                                 U.S. Department of Justice
                          Executive Office for Immigration Review
                                  (BIA No. A79-734-969)
                                        __________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                     May 16, 2006

                                         ___________

      Before: MCKEE and GARTH, Circuit Judges, and LIFLAND, District Judge*

                                (Opinion Filed: June 1, 2006)


                                           OPINION




       *
          The Honorable John C. Lifland, Senior District Judge for the District of New Jersey,
sitting by designation.
GARTH, Circuit Judge:

        Fnu Juli, an Indonesian of Chinese ethnicity, petitions for review of a final order

of removal issued by the Board of Immigration Appeals (“BIA”). That order summarily

affirmed the denial of his application for withholding of removal and protection under the

Convention Against Torture (“CAT”). His petition essentially rests upon a single

criminal act – mobs, excited by anti-Chinese sentiment, attacked and burned his place of

business, along with many other Chinese-owned businesses, during the May 1998 public

upheaval and rioting in Indonesia. We have recently held, however, on a substantially

similar set of facts, that isolated criminal acts of this sort are not sufficiently severe to

support a claim of either past persecution or likely future persecution. See Lie v. Ashcroft,

396 F.3d 530, 536-37 (3d Cir. 2005). Accordingly, we will deny the petition.

                                                I.

       Writing solely for the benefit of the parties, we recount only those facts essential to

our analysis. Juli claims persecution in Indonesia on account of his Chinese ethnicity and

Christian (specifically, Roman Catholic) religion. He entered the United States on or

about April 28, 2001, as a non-immigrant visitor. As he remained in this country beyond

the authorized period, the immigration authorities placed him in removal proceedings. He

thereafter filed his application for asylum and withholding of removal, and for protection

under CAT.

       Juli submitted an affidavit in connection with his asylum application. At his


                                               -2-
removal hearing, he relied largely, if not exclusively, upon this affidavit, testifying only

in response to specific questions from government counsel and the presiding immigration

judge (“IJ”). According to the affidavit, Juli suffered general harassment and

discrimination by native Indonesians on account of his ethnicity and religion. He also

described one specific incident of alleged persecution. In May 1998, as ethnic and

religious tensions escalated throughout the country and as Indonesia’s Chinese Christian

population became the target of widespread attacks perpetrated by Muslim Indonesians,

rioters attacked and burned down his business and many other Chinese-owned businesses.

Although Juli then decided to flee to the United States, he remained in Indonesia for

nearly three more years, living with his family in the same place without further incident.

       As noted, Juli eventually arrived in the United States in April 2001. He has three

children, all of whom continue to reside in Indonesia. His seven siblings also remain in

Indonesia. Other than intermittent street crimes, the record suggests that his family

remains in Indonesia without meeting harm.

       Once in the United States, Juli waited more than two years – until July 2003 – to

file his asylum application, apparently because he had considered returning to Indonesia.

At his removal hearing, the IJ indicated that Juli’s asylum application, filed more than one

year after his arrival in the United States, was statutorily time-barred. Juli, through

counsel, thereupon withdrew the asylum application, acknowledging that the application

was untimely and that no extraordinary circumstances excused its lateness. He continued

forward, though, with his claims for withholding of removal and protection under CAT.

                                             -3-
       The IJ denied Juli’s remaining claims, finding that he failed to show a clear

probability of persecution upon deportation to Indonesia. The IJ noted that the relevant

country reports showed improvement in ethnic relations between Chinese and native

Indonesians. The IJ further noted that Juli’s children and siblings remain safely in

Indonesia, thus diminishing the reasonableness of his alleged fear of future persecution.

Inasmuch as Juli withdrew his alternative request for voluntary departure, the IJ ordered

him removed to Indonesia.

       The BIA affirmed without opinion. Juli now petitions for review on his asylum

and withholding of removal claims.1

                                              II.

       We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252.

Where, as here, the BIA adopts the IJ’s opinion, we review the IJ’s decision. Gao v.

Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We do so under the highly deferential

substantial evidence standard. Id. at 272. Under this standard, we will uphold the

findings of the IJ unless the evidence “not only supports a contrary conclusion, but

compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001).

       An alien seeking withholding of removal must establish by a “clear probability”



       1
         We will consider only his claim for withholding of removal. His asylum claim, insofar
as he seeks our review on that claim, is not properly before us, having been withdrawn as
untimely during the removal proceedings. In addition, Juli’s petition for review makes no
argument as to his claim for protection under CAT. We therefore deem that claim waived.
Konan v. Attorney Gen. of the U.S., 432 F.3d 497, 500 n.2 (3d Cir. 2005).


                                             -4-
that his life or freedom would be threatened in his country of origin because of, inter alia,

his race or religion. Chang v. INS, 119 F.3d 1055, 1059 (3d Cir. 1997). To meet this

burden, the applicant must demonstrate that it is more likely than not that he will be

persecuted upon his return. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). An

applicant can establish eligibility for withholding of removal either by demonstrating past

persecution or by showing a likelihood of future persecution. See 8 C.F.R. § 1208.16(b).

A demonstration of past persecution creates a rebuttable presumption that the applicant’s

life or freedom would be threatened in the country of removal. Id.

                                              III.

       Our recent decision in Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005), compels the

denial of the instant petition for review. At the heart of Juli’s petition lies the claim that

the general pattern of molestation and violence against Chinese-Indonesians, culminating

in the May 1998 looting and burning of his place of business and other Chinese-run

businesses, is sufficiently severe to constitute past persecution or evince a clear

probability of future persecution. We rejected substantially similar claims in Lie, supra.

We there held, under the less onerous standard for asylum claims, that isolated criminal

acts, perpetrated by unknown assailants, are not sufficiently severe to be considered

persecution. Id. at 536; see also Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)

(defining persecution as “threats to life, confinement, torture, and economic restrictions

so severe that they constitute a threat to life or freedom”). We have also indicated that

“persecution does not encompass all treatment that our society regards as unfair, unjust,

                                              -5-
or even unlawful or unconstitutional.” Fatin, 12 F.3d at 1240. Leaving aside, therefore,

any lingering issues as to the motivation of the perpetrators or government sponsorship of

the disturbances, the incidents and events recounted in Juli’s affidavit are not sufficiently

severe to constitute persecution. As such, Juli cannot establish past persecution.2

       Nor can Juli establish a credible fear of future persecution. We agree with the IJ

that the fact that Juli’s children and siblings remain safely in Indonesia seriously

undermines his alleged fear of future persecution. See id. (“[W]hen family members

remain in petitioner’s native country without meeting harm . . . the reasonableness of a

petitioner’s well-founded fear of persecution is diminished.”). Furthermore, we held in

Lie, on a similar (and seemingly more persuasive) record, that the recurring anti-Chinese

violence and the otherwise generally harsh conditions facing Chinese-Indonesians are not

sufficiently widespread to constitute a “pattern or practice” of persecution. Id. at 537.

As Juli makes no showing that he would be individually singled out for persecution, we

conclude that substantial evidence supports the IJ’s decision that Juli failed to make the

requisite showing to merit withholding of removal.3


       2
         The IJ did not explicitly address past persecution, holding instead that the country
reports and the continued presence of his family in Indonesia contradicted Juli’s alleged fear of
future persecution. See 8 C.F.R. § 1208.16 (b) (demonstration of past persecution creates
rebuttable presumption of likely future persecution) (emphasis added). We add that there is no
record support for past persecution, particularly when that record is examined, as it must,
through the lens of our decision in Lie, supra.
       3
         Juli also argues that the Attorney General should exercise his discretion against
deportation. “If the alien fails to establish that his or her life or freedom will be threatened upon
return so as to require that deportation be withheld, the Attorney General may still exercise her
discretion and not deport the alien by a grant of asylum.” Senathirajah, 157 F.3d at 215. Here,

                                                 -6-
                                            ***

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




however, Juli withdrew his asylum claim as untimely, and as the government points out, the
alien must be statutorily eligible before discretion can be exercised.

                                              -7-
