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


4-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3268




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                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEAL
                           FOR THE THIRD CIRCUIT

                                      No: 05-3268

                                TJAN TING WIDJAJA,

                                           Petitioner


                                            v.

                           ATTORNEY GENERAL OF THE
                                UNITED STATES,

                                           Respondent

                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                               BIA File No. A79-734-386

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 2, 2007

       BEFORE: SCIRICA, Chief Judge, McKEE and NOONAN*, Circuit Judges

                                  (Filed April 5, 2007)

                                       OPINION

McKee, Circuit Judge

       Tjan Ting Widjaja petitions for a review of a decision of the Board of Immigration

Appeals adopting and affirming and Immigration Judge’s denial of Widjaja’s request for



   *
    The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
asylum, withholding of removal, and relief under the United Nations Convention Against

Torture (“CAT”).1 For the reasons that follow, we will dismiss the petition.

       Inasmuch as we write primarily for the parties who are familiar with the

background of this case, we need not repeat the factual or procedural history except

insofar as may be helpful to our brief discussion.

       Widjaja is a native citizen of Indonesia. He is an ethnic Chinese Christian. He

testified that persons of Chinese ancestry routinely suffer discrimination in Indonesia. He

related several examples of what can best be described as bigoted interactions with native

Indonesians who expressed hostility towards him because of his ancestry. These included

an ethnic slur that was hurled at him during a traffic accident as well as encounters he had

while in school in Indonesia. The Immigration Judge held that the actions which Widjaja

complained of evidenced discrimination, but did not rise to the level of “persecution” as

required for the relief he was seeking. Moreover, the fact that Widjaja’s family continued

to live in Indonesia without apparent harm, and the fact that Widjaja was himself never

prevented from practicing Christianity while he was in Indonesia undermined his attempt

to establish the objectively reasonable fear of persecution required for someone seeking

“refugee” status under our immigration laws. The Board of Immigration Appeals agreed




   1
    Widjaja subsequently withdrew his application for asylum and relief under the CAT.
See A.R. 65. Accordingly, the only issued raised by the instant petition for review is the
BIA’s affirmance of the Immigration Judge’s denial of his request for withholding of
removal.
                                             2
and adopted the decision of the Immigration Judge as its own.2

       Section 208 of the Immigration and Nationality Act (“INA”) gives the Attorney

General discretion to grant asylum to a removable alien who can establish that he/she is a

“refugee.” 8 U.S.C. § 1158(a). “Refugee” is defined by statute as:

              [A]ny person who is outside any country of such person’s
              nationality or, in the case of a person having no nationality, is
              outside of any country in which such person last habitually
              resided, and who is unable or unwilling to avail himself or
              herself of the protection of that country 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)(A). The asylum applicant must present some evidence that the

alleged persecutors want to punish him/her “on account of” one of the five statutory

grounds in order to establish eligibility for asylum. Elias-Zacarias, 502 U.S. 478 (1992).

       An applicant who establishes past persecution is “entitled to a presumption that his

life or freedom will be threatened if he returns.” Gabuniya v. Attorney General of the

United States, 463 F.3d 316, 321 (3d Cir. 2006); see 8 C.F.R. § 208.16(b)(1)). Where an

applicant is unable to demonstrate past persecution, the applicant nonetheless becomes

eligible for asylum upon demonstrating a well-founded fear of future persecution. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). The “well-founded fear of


   2
    Where the BIA adopts the decision of the Immigration Judge, we review the decision
of the Immigration Judge. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The
factual findings of the Immigration Judge are deemed conclusive “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B), 8
U.S.C. § 1252(b)(4)(B); See INS v. Elias-Zacarias. 502 U.S. 478, 488 n.1 (1992).
                                              3
persecution” standard involves both a subjectively genuine fear of persecution and an

objectively reasonable possibility of persecution. INS v. Cardoza-Fonseca, 480 U.S.

421, 430-31 (1987). The subjective prong requires a showing that the fear is genuine.

Mitey v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995). Determination of an objectively

reasonable possibility requires ascertaining whether a reasonable person in the alien’s

circumstances would fear persecution if returned to a given country. Chang v. INS, 119

F.3d 1055, 1065 (3d Cir. 1997).

       Withholding of removal is mandatory once “the Attorney General determines that

[the] alien’s life or freedom would be threatened” on account of a protected ground. 8

U.S.C. § 1253(h)(1) (re-codified, as amended, at 8 U.S.C. § 1231(b)(3)). To obtain such

relief, an alien must establish a “clear probability,” i.e., that it is more likely than not, that

he would suffer persecution. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). Because

this standard is higher than that governing eligibility for asylum, an alien who has failed

to satisfy the standards for eligibility for asylum is necessarily ineligible for withholding

of removal. Zhang v. Slattery, 55 F.3d 732, 738 (2d Cir. 1995). Based upon our review

of the record, we conclude that the Immigration Judge correctly concluded that Widjaja

has not established his eligibility for relief.

       As noted above, Widjaja testified that his family still lives in Indonesia without

apparent harm. The incidents of bigotry towards him in Indonesia which he testified

about are abhorrent, but they do not rise to the level of persecution.

       Persecution is an “extreme concept” that does not include all actions which may be

                                                  4
unfair, unjust “or even unlawful.” Lukwago v. Ashcroft, 329 F.3d 157, 168-69 (3d Cir.

2003). Moreover, the Immigration Judge also considered documentary evidence which

undermined Widjaja’s claim of persecution. The documentary evidence established that

the rights of Christians are not ignored by the government of Indonesia. Although it is

clear from the documentary evidence and Widjaja’s testimony that discrimination against

Christians and ethnic Chinese persists in Indonesia, this record does not support Widjaja’s

claim that the discrimination is tantamount to persecution as explained by the

Immigration judge.

       Accordingly, for the reasons set for above, the petition for review will be

dismissed.




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