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


5-25-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1989




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                                                                  NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No: 06-1989
                                   _______________

                              JOHANNES D. WIDJAJA,

                                             Petitioner

                                              v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent
                                   _______________

                     Petition for Review of a Final Decision of the
                             Board of Immigration Appeals
                                (BIA No. A96-262-319)
                      Immigration Judge Charles M. Honeyman
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 10, 2007

            Before: RENDELL, JORDAN and ALDISERT, Circuit Judges

                                  (Filed May 25, 2007)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Johannes D. Widjaja, a citizen of Indonesia, petitions for review of the final order

of the Board of Immigration Appeals (“BIA”) denying his applications for withholding of
removal and for relief under the United Nations Convention Against Torture (“CAT”).

For the reasons that follow, we will deny the petition.

                                             I.

       Widjaja, a native Indonesian of Chinese descent, entered the United States on a

non-immigrant visa in January 2000. He remained in the United States after his visa

expired, and in February 2003, he applied for asylum. Shortly thereafter, Widjaja

received notice to appear in removal proceedings. At his hearing before the Immigration

Judge (“IJ”), Widjaja conceded that he was removable and asked for asylum, withholding

of removal, and relief under the CAT.

       Widjaja testified that he fled Indonesia after an alleged attack on his church in

December 1999. According to his testimony, a group of people attempted to break into

the Catholic church to attack him and other ethnic Chinese who were inside. The group

used ethnic slurs and threatened violence. A fence around the church kept the assailants

out, and the police arrived, preventing any actual violence. In March 2003, Widjaja

claims to have received a letter from his wife, who continued to live in Indonesia, telling

him about threatening phone calls directed to him in February 2003. He testified that he

believed the calls were related to the 1999 incident at the church. Finally, Widjaja

claimed that he was afraid because his wife’s letter mentioned that a fellow church

member in Indonesia was detained or arrested. The IJ understood Widjaja to be

suggesting that this was also related to the 1999 incident.



                                              2
       The IJ denied Widjaja’s applications for asylum, withholding of removal, and

relief under the CAT. First, the IJ found no justification for Widjaja’s late asylum

application and therefore concluded that the application was time barred. Second, the IJ

made an adverse credibility determination with regard to the alleged attack on the church,

because Widjaja failed to describe the 1999 incident, which supposedly caused him to

flee Indonesia, in his application for asylum and never mentioned it until his interview

with the Asylum Office in April 2003. The IJ also made an adverse credibility

determination with regard to the alleged threats in 2003, because Widjaja claimed that he

never contacted his wife after receiving her letter. Widjaja also never tried to discover the

circumstances surrounding the alleged detention of the arrested church member. Thus,

even if the asylum application was considered timely, Widjaja had no credible evidence

of past persecution. Third, the IJ concluded that the incidents described by Widjaja, even

if accepted as true, did not rise to the level of persecution.

       The IJ also considered evidence regarding interreligious violence in Indonesia,

including attacks on churches and on ethnic Chinese. The IJ noted that religious violence

and discrimination still occur, but that the record contained evidence of cooperation

between Muslim and Christian leaders to diffuse tension in the troubled regions of the

country. Also, the IJ observed that, while ethnic discrimination still exists, conditions for

ethnic Chinese have improved. Therefore, the IJ concluded that the evidence did not

show a pattern or practice of persecution of Christians or ethnic Chinese in Indonesia.

       Because Widjaja failed to demonstrate a clear probability that he would be

                                               3
persecuted on his return to Indonesia, the IJ denied his application for withholding of

removal pursuant to 8 U.S.C. § 1231(b)(3). In addition, the evidence did not show that it

was more likely than not that Widjaja would be tortured by or with the consent of the

government on his return, so the IJ also denied his application for relief under the CAT.

       Widjaja appealed, and on February 23, 2006, the BIA adopted and affirmed the

IJ’s decision. The BIA noted that Widjaja’s asylum application was untimely, that his

claims of persecution were not credible, and that, even if true, the events he described did

not establish past persecution. The BIA also addressed the claim that there is a pattern or

practice of persecution of Chinese Christians, finding that the IJ “specifically considered

and rejected that claim.” On that issue, the BIA also noted that it found no precedent

from this Court establishing that there is such a pattern or practice of persecution in

Indonesia.

       We have jurisdiction to review the BIA’s final decision pursuant to 8 U.S.C. §

1252(a)(1). Because it was adopted by the BIA, we review the IJ’s decision. Abdulai v.

Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). The IJ’s factual determinations must be

upheld if supported by substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992), and “can only be reversed if the evidence is such that a reasonable factfinder

would be compelled to conclude otherwise.” Chavarria v. Gonzales, 446 F.3d 508, 515

(3d Cir. 2006).

                                             II.



                                              4
       Widjaja argues that the IJ erred by denying him withholding of removal and relief

under the CAT.1 To be entitled to withholding of removal pursuant to 8 U.S.C. §

1231(b)(3), Widjaja must establish that there is a “clear probability” that he will be

persecuted on account of a protected ground on his return to Indonesia. INS v. Stevic, 467

U.S. 407, 424 (1984). “The question under that [clear probability] standard is whether it

is more likely than not that the alien will be subject to persecution.” Id. To qualify for

relief under the CAT, Widjaja must establish “that it is more likely than not that he . . .

would be tortured if removed” to Indonesia. 8 C.F.R. § 208.16(c)(2). According to

Widjaja, the record evidence demonstrates a pattern or practice of persecution of Chinese

Christians in Indonesia, which, he contends, is sufficient to support his applications.

       Widjaja relies here on two reports prepared by the United States Department of

State. According to the 2004 International Religious Freedom Report for Indonesia (the

“2004 Report”), “certain policies, laws, and official actions restricted religious freedom,

and the police and military occasionally tolerated discrimination against and abuse of

religious groups by private actors.” The 2004 Report documents that, during the time

period covered by the report, at least 93 people were killed in interreligious violence in

two regions of the country, Central Sulawesi and the Moluccas. During that time, at least

13 churches were destroyed. The 2003 Country Report on Human Rights Practices for

Indonesia (the “2003 Report”) states that “[t]errorists, civilians, and armed groups . . .


  1
   Widjaja makes no argument regarding his asylum application, which was found to be
untimely by the IJ.

                                              5
committed serious human rights abuses . . . and the Government was in some cases

unable or unwilling to prevent those abuses.” According to Widjaja, the 2003 Report is

consistent with the rioting that took place in Indonesia in 1998, in which more than 1000

ethnic Chinese were killed or raped and Chinese businesses were burned or looted.

       While the 2003 and 2004 Reports show that discrimination and violence against

Christians and ethnic Chinese continues in at least some regions of Indonesia, we do not

agree with Widjaja that the evidence here compels the conclusion that there is a pattern or

practice of persecution. “[T]o constitute a ‘pattern or practice,’ the persecution of the

group must be systemic, pervasive, or organized . . . [and must be] committed by the

government or forces the government is either unable or unwilling to control.” Lie v.

Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005). Here, the record does not compel us to

conclude that such a pattern or practice exists. According to the more recent Report,

“[s]ome notable advances in interreligious tolerance and cooperation occurred during the

period covered . . . . Government officials together with Muslim and Christian

community leaders continued to work together to diffuse tensions in conflict areas,

particularly in Central Sulawesi and the Moluccas.” Taken as a whole, the evidence

supports the IJ’s conclusion that there is not a pattern or practice of persecution. The

violence and discrimination described by the reports is not sufficiently widespread or

conducted with sufficient government involvement to compel us to conclude otherwise.

We will therefore uphold the IJ’s decision.



                                              6
       Widjaja has failed to demonstrate that there is a pattern or practice of persecution

of Chinese Christians in Indonesia, and he has not argued that his testimony, which was

found not to be credible, is sufficient to support his applications. Therefore, he has failed

to show that he is more likely than not to be persecuted or tortured on his return to

Indonesia, making him ineligible for withholding of removal or relief under the CAT.

                                             III.

       Widjaja also argues that the BIA’s discussion of this Court’s precedents was

problematic. According to Widjaja, the BIA relied on those precedents, which have not

previously found a pattern or practice of persecution of Chinese Christians in Indonesia,

and simply dismissed his claim without considering the evidence he presented in this

case. That assertion is simply untrue. The BIA explicitly stated that the IJ “specifically

considered and rejected” the claim that there is a pattern or practice and then adopted the

IJ’s reasoning. Widjaja’s argument on this point is meritless.

                                             IV.

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




                                              7
