                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5433




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 05-5433
                                     ____________

                                    HOK SENG GO,

                                          Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                             ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                                (Board No. A96 262 769)
                         Immigration Judge: Miriam K. Mills
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 26, 2007

                Before: FISHER, JORDAN and ROTH, Circuit Judges.

                                 (Filed: April 3, 2007)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Hok Seng Go seeks review of a Board of Immigration Appeals’ (“BIA”) final

order affirming the Immigration Judge’s (“IJ”) decision to deny Go’s requests for

withholding of removal and protection under Article III of the Convention Against
Torture (“CAT”). Because we find that the BIA’s decision was supported by substantial

evidence, we will deny the petition for review.

                                             I.

       As we write only for the parties, we will forgo a lengthy recitation of the factual

and legal background to this case. Go is an ethnic Chinese and practicing Catholic who is

a native and citizen of Indonesia. On March 18, 1999, he entered the United States on a

nonimmigrant tourist visa, which authorized him to remain in the country until

September 17, 1999. On March 24, 2003, the Immigration and Nationalization Service

(“INS”)1 charged Go with removability under § 237(a)(1)(B) of the Immigration and

Nationality Act (“INA”). He requested withholding of removal under INA § 241(b)(3)

and CAT protection.2

       During a hearing before the IJ, Go was the only witness to testify. His claim rested

on one incident that occurred on July 20, 1997. When he and his fiancée were traveling

to church that day, their car was surrounded at a stoplight by a group of five young

Muslim men who yelled at them and beat on the car windows. Go testified that he could

see that they were armed with knives, pipes, and other small weapons. They demanded



       1
        The INS ceased to exist in 2003. Pursuant to the Homeland Security Act of 2002,
the enforcement functions of the INS were transferred to the Department of Homeland
Security, Bureau of Immigration and Customs Enforcement. See Homeland Security Act
of 2002, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192.
       2
       Go withdrew his application for asylum because it was filed well after the one-
year deadline.

                                             2
that the Petitioner give them money. When Go gave them a small amount of money, they

were angered and began banging on the windows and demanding more. Go opened the

window to give them more money, and one of the men attempted to punch him. Go

raised his hand to protect his face, and his hand was sliced by a knife that the assailant

was wielding. Finally, the light turned green, and the Petitioner was able to drive away.

He went right to a police station to report the incident, but he was told that there was

nothing the police could do because he did not have any information about the identity of

the attackers. After the robbery, Go’s fiancée was distraught, and both of them feared for

their safety.

       Based on this testimony, the IJ denied Go’s applications for withholding of

removal and CAT protection. She observed that Go was the victim of a single criminal

act, that there was no evidence his family, who remained in Indonesia, suffered any harm,

or that there was a pattern or practice of ethnic Chinese being targeted for persecution to a

significant degree. On November 16, 2005, the BIA affirmed the IJ’s decision without

opinion. This petition followed.

                                             II.

       We exercise jurisdiction to review the BIA’s final order of removal under 8

U.S.C. § 1252(a)(1). Where, as here, the BIA has adopted the findings and reasoning of

the IJ, we review the IJ’s decision. Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir.

2006). In our review, we apply the substantial evidence standard, under which an IJ’s

decision must be affirmed if it is “supported by reasonable, substantial, and probative

                                              3
evidence on the record considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157,

161 (3d Cir. 1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal

quotation marks omitted). In other words, “the [IJ’s] finding must be upheld unless the

evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,

242 F.3d 477, 483-84 (3d Cir. 2001).

       We are unable to conclude that the evidence in this case compels a result contrary

to the one reached by the IJ. Withholding of removal is proper when an alien can

establish a “clear probability” that his life or freedom would be threatened in the proposed

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

particular social group or political opinion.” INS v. Stevic, 467 U.S. 407, 429 (1984); 8

U.S.C. § 1231(b)(3)(A). Specifically, an alien must prove that it is more likely than not

that he would be persecuted if returned to his home country. See Fatin v. INS, 12 F.3d

1233, 1240 (3d Cir. 1993). Here, the only evidence in the record relating to Go

individually is one criminal incident in 1997, and there is no evidence to suggest that this

was motivated by anything other than a desire to rob Go. The only reason that the police

could not help him after the robbery is that he was unable to provide any identifying

information about the attackers. On this record, we cannot say that it is more likely than

not that Go would be persecuted if he returned to Indonesia.

       There is also substantial evidence to support the IJ’s determination that there is no

pattern or practice of persecution regarding ethnic Chinese or practicing Christians in

Indonesia. As we have explained, “to constitute a ‘pattern or practice,’ the persecution of

                                             4
the group must be ‘systemic, pervasive, or organized.’” Lie v. Ashcroft, 396 F.3d 530,

537 (3d Cir. 2005) (quoting Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)).

Although the Petitioner focuses on the events during the anti-Chinese riots that occurred

in Indonesia in 1998, the evidence in the record suggests that conditions have improved

since that time. The State Department’s 2003 International Religious Freedom Report

and the 2003 Country Report on Human Rights Practices in Indonesia, both part of the

record, support this point. Indeed, the record indicates that a vast majority of the more

recent attacks against Christians occurred in the areas of Moluccas, Sulawesi, Ambon,

and Aceh, undermining any suggestion that such attacks are pervasive. Finally, the IJ’s

decision is supported by the fact that Go’s family continues to live in Indonesia without

incident. See id. (“[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 a petitioner’s well-founded fear of future

persecution is diminished.”). As such, there is no evidence in the record that compels us

to conclude that there is a “clear probability” Go’s life or freedom would be threatened if

he returned to Indonesia.

       Likewise, we conclude that the IJ’s finding that Go is not entitled to CAT

protection is supported by substantial evidence. Such protection is appropriate when an

alien can prove “that it is more likely than not that he will be tortured if he is removed to”

his home country. Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir. 2006) (citing 8

C.F.R. § 208.16(c)(2)). The record in this case is simply devoid of any evidence

                                              5
suggesting that Go might be tortured if he returned to Indonesia. Consequently, we are

not compelled to reach a conclusion on this claim contrary to the one reached by the IJ.

                                           III.

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




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