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


9-18-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2598




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 07-2598


                     ROS DIANIE; ACHMAD KARIM DJAELANI;
                     FADILLAH DJAELANI; RIZKY DJAELANI,
                                                  Petitioners

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                   Respondent


                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                          BIA Nos. A95-460-346/347/348/349
                (U.S. Immigration Judge: Honorable Rosalind K. Malloy)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 8, 2008
          Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges.

                               (Filed: September 18, 2008 )


                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Ros Dianie, her husband, Achmad Karim Djaelani, and their two minor sons,

Fadillah and Rizky Djaelani, all natives and citizens of Indonesia, petition for review of
an order of the Board of Immigration Appeals (BIA) dismissing their appeal and

affirming an Immigration Judge’s denial of their application for asylum, withholding of

removal, and protection under the United Nations Convention Against Torture (“CAT”).1

We will deny the petition.

                                               I.

          Dianie, an Indonesian native and citizen, entered the United States with her two

sons on non-immigrant visas on October 2, 2001. Djaelani, her husband, had similarly

been admitted as a non-immigrant visitor on May 17, 2001. On May 30, 2002, the

Government served petitioners with Notices to Appear charging them as removable under

INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for overstaying their visas. Petitioners

conceded the charges of removal but applied for asylum, withholding of removal, and

protection under the CAT. Specifically, Dianie alleged that she had been persecuted in

Indonesia on the basis of her perceived ethnicity and religious practice. Her claims of

ethnic persecution relate to a rape she suffered during the major riots that occurred in

Jakarta in May 1998. Dianie was working in her mother-in-law’s restaurant in the city at

the time. According to Dianie’s account, a group of men entered and began to destroy

property. Dianie heard one rioter state that the restaurant must be destroyed because it

belonged to Chinese people. One man grabbed her and, despite her protests that she was

not Chinese, pulled her into a storage room and raped her. Although Dianie identifies


   1
       Dianie is the lead petitioner. Her husband and children have derivative claims.

                                               2
herself as ethnically Indonesian, she testified her maternal grandmother was ethnically

Chinese and she is often perceived to be Chinese by other Indonesians because of her

physical features. When Dianie and her husband reported the attack to the police the next

day—during which the riots continued—the police suggested an arrest would be unlikely,

since they did not know the identity of her assailant and had to contend with many people

who had been victimized during the riots.

       Dianie’s claims of religious persecution stem from threats and physical

mistreatment by her husband’s family. Raised as a Catholic, Dianie converted to Islam,

the religion of her husband and his family, at the time of her marriage. Her husband’s

family appears to have been constantly dissatisfied with her level of religious practice and

with her upbringing of her children. Her brother-in-law, Jamal, was especially hostile and

aggressive in his disapproval, despite her husband’s attempts to protect her. On two

occasions during her pregnancies, Jamal pushed her to the floor in reaction to her

ostensibly deficient religious practices, also slapping her in the face during the second

incident. In addition, her husband’s family threatened several times to kill her if she did

not reform her religious observance. Pretending that she and her husband were divorced,

Dianie fled to another location in Indonesia, but her husband’s family tracked her down.

She then fled to yet another location, only to be found by two of her brothers-in-law, who

beat her when she refused to return with them to Jakarta. Dianie reported this attack to

the police, but they took no action, claiming to believe the statements of her brothers-in-



                                              3
law that she was lying. Shortly thereafter, Dianie and her children left Indonesia for the

United States.

       After a merits hearing, the Immigration Judge (IJ) denied petitioners’ claims for

relief in an oral decision dated April 26, 2004, finding Dianie had not met her burden of

showing past persecution, a well-founded fear of future persecution, or a likelihood of

torture. On September 30, 2005, the BIA dismissed petitioner’s appeal of the IJ’s

decision. The BIA agreed Dianie had not adequately demonstrated the violence she

suffered in the 1998 riots was on account of her real or perceived ethnicity. In the

alternative, the BIA concluded the information in the record evinced a fundamental

change in circumstances in Indonesia such that ethnically motivated violence against

Dianie in the future was unlikely. Furthermore, the BIA found Dianie had not

demonstrated the Indonesian government was unable or unwilling to protect her from her

mistreatment by her husband’s family on account of her religious practices.

       The BIA reissued its decision on May 1, 2007. This timely appeal followed.

Although petitioners’ original petition for review included a claim for relief under the

CAT, petitioners have conceded they did not adequately raise this issue before the BIA.

Petr.’s Reply Br. 17-18; see 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d

587, 594-95 (3d Cir. 2003) (“[A]n alien is required to raise and exhaust his or her

remedies as to each claim or ground for relief if he or she is to preserve the right of




                                              4
judicial review of that claim . . . .”). Accordingly, we consider below only the claims for

asylum and withholding of removal.2

                                             II.

       To qualify for asylum, an applicant must establish she is a “refugee” under 8

U.S.C. § 1158(b), that is, a person unable or unwilling to return to the country of removal

“because of persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1101(a)(42). Persecution involves “threats to life, confinement, torture, and

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

I.N.S., 12 F.3d 1233, 1240 & n.10 (3d Cir. 1993), and includes only acts “committed

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

control,” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Once an applicant

establishes persecution on account of one of the specified grounds, there is a presumption

that her fear of future persecution is well-founded. That presumption may be rebutted by

a finding that there has been a fundamental change in circumstances in the applicant’s




   2
    We have jurisdiction over the petition under 8 U.S.C. § 1252. Where, as here, the
BIA discusses and adopts some of the bases for the IJ’s decision, we may consider the
decisions of both the BIA and the IJ. Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 276
(3d Cir. 2007). We review administrative determinations as to asylum and withholding of
removal for substantial evidence. Under this “extraordinarily deferential” standard,
Abdulrahman, 330 F.3d at 598, the agency’s determinations “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).

                                              5
country of nationality such that she no longer has a well-founded fear of persecution, or

that the applicant could avoid future persecution by relocating to another part of that

country. 8 C.F.R. 1208.13(b)(1). In the absence of past persecution, an alien may

establish a well-founded fear of persecution by demonstrating “both a subjectively

genuine fear of persecution and an objectively reasonable possibility of persecution.”

Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (emphasis omitted).

                                             A.

       Substantial evidence supports the BIA’s determination that Dianie was not

persecuted on account of her real or perceived ethnicity. We agree with petitioners that it

was improper for the IJ to conclude, on the basis of her own observations of the physical

features of Chinese and Indonesians, that Dianie’s testimony that she is often viewed by

other Indonesians as ethnically Chinese was incredible. But the BIA rightly criticized this

finding as inappropriate and did not rely on it in its opinion. Even if we accept as true the

entirety of Dianie’s account of the 1998 incident in Jakarta, we cannot say the record

compels a conclusion contrary to that reached by the BIA. Rape is certainly the kind of

severe crime that may rise to the level of persecution. Indeed, “[r]ape can constitute

torture.” Id. at 472. But a reasonable factfinder could find, as the BIA did, that

petitioners have not adequately demonstrated Dianie was raped on account of her

ethnicity. That one of the rioters allegedly stated the restaurant should be destroyed

because it belonged to Chinese does not compel a contrary determination. In Lie v.



                                              6
Ashcroft, another case involving the anti-Chinese violence in Indonesia in the late 1990's,

we agreed with the BIA that neither a “single ethnic slur,” nor “evidence of general ethnic

difficulties” during the time period in question was sufficient to demonstrate that an

attack was motivated by the perceived ethnicity of the victim. 396 F.3d 530, 535 (3d Cir.

2005). In Lie, the petitioners alleged that their attackers had called each of them a

“Chinese pig” during two different robberies. Here, the evidence Dianie was singled out

for attack because of her perceived ethnicity is even less conclusive. The sole anti-

Chinese statement was directed against the owners of the restaurant and not specifically

against Dianie. Furthermore, Dianie informed her attacker she was not Chinese, and he

replied he did not care. These circumstances do not present a stronger case for an

ethnically motivated attack than existed in Lie. Even assuming the rape was ethnically

motivated, there is no evidence that it was committed by the government or by forces that

the government was unable or unwilling to control. While the police expressed

skepticism that, given the circumstances, they would be able to bring the perpetrator to

justice, there is no indication that the police were generally unwilling or unable to control

rapes of ethnically Chinese women. Petitioners argue that because “the Indonesian police

did not protect [Dianie], they were unable and unwilling to do so.” Petr.’s Reply Br. 2.

But if this were true, then any ethnically motivated crimes perpetrated by private

citizens—or, on a narrower interpretation of petitioners’ proposition, at least those that

remain unsolved by the police—would qualify the victim for asylum. Such a result would



                                              7
reduce the requirement of a meaningful nexus between the government and the

persecutional acts to a virtual nullity. For these reasons, we conclude the BIA’s finding

there was no past persecution is supported by substantial evidence.

       We also agree that petitioners have not succeeded in demonstrating a well-founded

fear she would be singled out for future ethnic persecution, or that there is a pattern or

practice of persecution in Indonesia against ethnic Chinese. As the BIA pointed out, the

record shows the treatment of ethnic Chinese in Indonesia has improved since the 1998

riots. In Lie, we found no pattern or practice of persecution against ethnic Chinese

existed because the violence in Indonesia is insufficiently widespread and appears to be

“wrought by fellow citizens” rather than caused by “governmental action or

acquiescence.” Lie, 396 F.3d at 537-38. Nothing in the record demonstrates subsequent

developments compelling a revision of that determination. See Sukwanputra v. Gonzales,

434 F.3d 627, 637 n.10 (3d Cir. 2006); see also Wong v. Att’y Gen., No. 06-3539, 2008

U.S. App. LEXIS 17720, at *19-21 (Aug. 20, 2008) (affirming the continuing validity of

Lie’s finding in light of more recent reports of Indonesian conditions).

                                              B.

       Petitioners are similarly unable to show no reasonable factfinder could conclude,

as did the BIA, that Dianie was not subject to religious persecution. In their briefs,

petitioners vigorously contest the BIA’s and IJ’s finding that inconsistencies in Dianie’s

and her husband’s accounts of his family’s mistreatment undercut the credibility of her



                                              8
allegations. But accepting her allegations of abuse, we find sufficient evidence to support

the BIA’s and IJ’s determination that this abuse was not the product of governmental

acquiescence but rather a matter of private actors. Petitioners cite Matter of S-A-, 22 I. &

N. Dec. 1328 (BIA 2000), for the proposition that family abuse over differences in

religious practice can constitute persecution, but that case is distinguishable. In Matter of

S-A-, the BIA found the abuse inflicted on petitioner by her father amounted to

persecution, but the Board emphasized that in Morocco, the proposed country of removal,

it would have been “not only unproductive but potentially dangerous” for the petitioner to

have sought governmental protection. Testimony by the petitioner and her aunt, as well

as reports by the U.S. government, demonstrated that “the judicial procedure is skewed

against” women who complain of domestic abuse. The record in this case is insufficient

to compel such a finding regarding the Indonesian authorities. Only one incident was

reported to the police—the beating of Dianie by two of her brothers-in-law after she had

fled Jakarta.3 Although the police apparently did not believe her, this fact does not

compel a finding that the Indonesian police were generally unwilling to protect her or

other women from domestic abuse, nor does the record demonstrate that the police would

be unwilling to protect her in the future, or that there is a pattern or practice of

governmental acquiescence to domestic abuse. In short, substantial evidence supports the


   3
    Although Dianie’s husband initially told her he had reported to the police his family’s
attempt to abduct and circumcise their son, apparently he had not actually done so. A.R.
198.

                                               9
BIA’s finding that petitioners do not qualify for asylum because they have not established

past persecution or a well-founded fear of future persecution on account of Dianie’s

religious practice.

                                             III.

       In order to qualify for withholding of removal, petitioners must show a clear

probability that their “[lives] or freedom would be threatened in [the country of removal]

because of [their] race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3)(A); Chen v. Gonzales, 434 F.3d 212, 216 (3d

Cir. 2005). This is “a more rigorous standard than the ‘well-founded fear’ standard for

asylum. Thus, if an alien fails to establish the well-founded fear of persecution required

for a grant of asylum, he or she will, by definition, have failed to establish the clear

probability of persecution required for withholding of deportation.” Zubeda, 333 F.3d at

469-70 (citation omitted). Having found petitioners have not demonstrated eligibility for

asylum, we must also find they have not established their entitlement to withholding of

removal.

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




                                              10
