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


9-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4542




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                                                              NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                    __________

                                       No. 05-4542
                                       __________

                                   TJWIE HOO KWEE,
                                                 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. A96-260-081)
                                    I.J. R.K. Malloy
                                      __________

                        Submitted Under Third Circuit L.A.R. 34.1(a)
                                   September 15, 2006
                                      ___________

                Before: SLOVITER, WEIS and GARTH, Circuit Judges

                                (Filed: September 20, 2006)


                                        __________

                                         OPINION
                                        __________
Garth, Circuit Judge:

      Tjwie Hoo Kwee petitions for review of the BIA’s affirmance of an IJ’s denial of


                                             1
his application for asylum and withholding of removal. We will grant the petition insofar

as it challenges the outcome of Kwee’s withholding of removal claim.



                                              I

       Kwee is a native and citizen of Indonesia, and is ethnically Chinese. Kwee claims

that throughout his life he has suffered in Indonesia because he is Chinese. For example,

he claims, people motivated by anti-Chinese sentiment have thrown stones at him,

demanded money from him, and hit his car when he refused to give them money.

       Kwee claims that at 11:30 p.m. on May 29, 1998, a mob of people armed with

clubs, knives and other weapons gathered outside his home and electrical equipment

store, stating that they were doing this because the home and store belonged to a Chinese

person. The mob allegedly tore the door off of his home and store using a vehicle and a

chain, looted his home and the store, and then beat him with fists, feet, and clubs, and

threw him in a river.1 Kwee sustained permanent injury to the little finger of his left hand

(he cannot straighten it) and the lower part of his right leg (he has a scar). During this

incident, Kwee “thought [he] was dead already.” Administrative Record (“A.R.”) 98.

       Several months later, Kwee procured a temporary visa and fled to the United

States. He arrived on November 24, 1998, and remained in the country without

permission after his visa expired. Because he had overstayed his visa, the government


1
 This incident apparently occurred in the context of widespread attacks on Chinese
Indonesians in 1998. See, e.g., Lie v. Ashcroft, 396 F.3d 530, 532-33 (3d Cir. 2005).

                                              2
placed Kwee in removal proceedings in April 2003. Kwee applied for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”),

claiming he had experienced persecution because of his Chinese ethnicity in Indonesia,

and feared more of the same should he be returned to that country.

       The IJ denied Kwee’s asylum application because he filed it after the one-year

filing deadline had passed, 8 U.S.C. §1158(a)(2)(B), and the IJ determined that Kwee

failed to demonstrate changed or extraordinary circumstances which would justify a

waiver of that deadline. 8 U.S.C. §1158(a)(2)(D).

       The IJ held unqualifiedly that Kwee had suffered past persecution. She stated:

       The respondent has testified to an incident that the Court would certainly find
       to be persecution. Here is an individual who is awakened at 11:30 at night
       after he has gone to bed. He is at home. He hears loud noises outside of his
       house. He looks outside and sees a mob of people that he doesn’t recognize.
       He watches them as they tie a chain to the front of his store and the other end
       to a truck, lift the door off the store and then enter, screaming and shouting,
       kill the Chinese, beat the Chinese. They destroy his store. His mother and
       brother were able to escape. He wasn’t. He was beaten; he was kicked; and
       then it’s not clear how they transported him to the river, which was behind his
       house, but after enduring the beatings and the kickings, these individuals
       tossed him into the river. Fortunately for this respondent, he is a swimmer and
       was able to swim to the bank of the river and survive. Had he been a shorter
       individual, or an individual who could not swim, surely he would have
       drowned. This is a traumatic incident. This is short of putting a weight on
       him, this almost amounts to a lynching and it was – the Court finds that an
       incident like this certainly constitutes past persecution because the government
       could not control these individuals.

A.R. 36-37. (emphasis added). She also acknowledged that, due to his age (53) “it is

highly unlikely that he would be able to reestablish his life” in Indonesia, and thus “the

past persecution . . . affects his future as well.” She nevertheless denied his application

                                              3
for withholding of removal because she found that Kwee had not presented evidence

demonstrating that he would be persecuted on account of his ethnicity if he were returned

to Indonesia. She further found that “[t]he government of Indonesia has passed certain

laws now which improve the situation for ethnic Chinese citizens.”2

       The BIA “adopted and affirmed” the IJ’s decision.

       To the extent Kwee challenges the denial of his asylum application based on the

determination that he filed it out of time, and that changed or extraordinary circumstances

warranting waiver of the one-year filing deadline were absent, we lack jurisdiction to

consider the challenge. 8 U.S.C. §1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627,

635 (3d Cir. 2006). We have jurisdiction pursuant to 8 U.S.C. §1252, however, to

consider Kwee’s challenge to the denial of his withholding of removal claim.

       Because the BIA affirmed the IJ’s decision and adopted the IJ’s rationale, we

review the IJ’s opinion. See, e.g., Korytnyuk v. Ashcroft, 396 F.3d 272, 286 (3d Cir.

2005). We review findings of fact, such as “findings regarding changed country

conditions, under 8 U.S.C. §1252(b)(4)(B), which provides that ‘administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary.’” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir. 2004). We have read

2
 The IJ also denied Kwee’s claim for relief under the CAT. While Kwee’s petition for
review states generally that Kwee is challenging the BIA’s “order of dismissal,” Kwee’s
brief does not mention the denial of his CAT claim. We thus will review only the denial
of his asylum and withholding of removal claims. Nagle v. Alspach, 8 F.3d 141, 143 (3d
Cir. 1993) (“When an issue is either not set forth in the statement of issues presented or
not pursued in the argument section of the brief, the appellant has abandoned and waived
that issue on appeal.”).

                                             4
this standard to require that the conclusion be supported by “substantial evidence.” Id.



                                             II

        An alien in removal proceedings is entitled to withholding of removal to a

country if his “life or freedom would be threatened in that country because of [his] race,

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

U.S.C. §1231(b)(3)(A). If the alien can show that he suffered past persecution in the

proposed country of removal on account of one of these five grounds, he is entitled to a

presumption that his life or freedom would be threatened in the future. 8 C.F.R.

§208.16(b)(1); Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir. 2005); Gambashidze v.

Ashcroft, 381 F.3d 187, 191 (3d Cir. 2004). The government may rebut that presumption

by showing by a preponderance of the evidence, inter alia, that there has been a

fundamental change in circumstances such that the alien’s life or freedom would not be

threatened on account of one of the five grounds upon his removal to that country. 8

C.F.R. §208.16(b)(1)(i) & (ii); Wang, 405 F.3d at 139; Berishaj, 378 F.3d at 326.3

       We will reverse the denial of Kwee’s withholding of removal claim. As noted, the

IJ found that Kwee had “certainly” suffered past persecution. Substantial evidence

supports this finding. That is, we cannot find that a “reasonable adjudicator would be


3
 Berishaj deals with 8 C.F.R. §208.13(b) (relevant to eligibility for asylum) rather than 8
C.F.R. §208.16(b) (relevant to eligibility for withholding of removal), but we have
previously acknowledged that these two regulations are “virtually identical.”
Gambashidze, 381 F.3d at 192 n.1.

                                             5
compelled to conclude to the contrary.”4

       From the finding of past persecution there should have arisen a presumption that

Kwee’s life or freedom would be threatened in the future if he were returned to Indonesia.

8 C.F.R. §208.16(b)(1). Instead, the IJ denied Kwee’s claim because the court “had not

been presented with any evidence that [Kwee] would be persecuted on account of his

ethnicity should he be returned to Indonesia.” Again, however, the court need not have

been presented with any such evidence. Rather, the court should have presumed future

threat to life or freedom unless and until the government rebutted that presumption by

showing by a preponderance of evidence that, for example, circumstances in Indonesia

had changed fundamentally such that Kwee “would not be threatened on account of” his

ethnicity if returned there. 8 C.F.R. §208.16(b)(1)(i)(A).

       The IJ did note that the “government of Indonesia has passed certain laws now

which improve the situation for ethnic Chinese citizens.” Even if we generously assume

that this statement was shorthand indicating that the IJ did, in fact, correctly presume that

Kwee faced future threat to life or freedom, but found that the government had rebutted

that presumption by demonstrating a fundamental change in circumstances,5 we would


4
 The abuse Kwee claims he suffered is more severe than that suffered by the petitioner in
Lie v. Ashcroft, 396 F.3d 530, 533 (3d Cir. 2005) (denying petition for review in part
because abuse Chinese Indonesian suffered incident to the robbery of her store was not
sufficiently severe in Lie to constitute persecution).
5
 We are reluctant to give this benefit of the doubt, especially because the IJ did not
mention the presumption that arises under 8 C.F.R. §208.16(b)(1) in her lengthy
statement of the law governing Kwee’s claim.

                                              6
still reverse.

       This is because the record as it now stands does not contain substantial evidence of

changed circumstances. First, while the government did mention changed circumstances

during its closing at the hearing before the IJ, see A.R. 131-132, it did not focus on them

or point to anything specific in the record that demonstrated changed circumstances,6

though the “burden of proof in a changed-country-conditions rebuttal is squarely on the

government.” Berishaj, 378 F.3d at 328. Moreover, “nothing in the country reports, or

elsewhere in the record, rebuts [petitioner’s] fear of persecution.” Id. (reversing IJ’s

denial of asylum application based on changed circumstances for this reason). In fact, the

documentary evidence in this case indicates that racial and ethnic minorities in Indonesia

do still face copious challenges. The 2003 U.S. State Department Report (“Report”), for

example, indicates that “[a]lthough the year started well for Chinese citizens . . . there

were many instances of discrimination and harassment during the year,” and went on to

describe various challenges facing the Chinese-Indonesian community, including

extortion and blackmail. Most relevant to Kwee’s case, the Report states that “some

Chinese citizens complained that the Government had not done enough to prosecute those

responsible for the 1998 violence against them and their businesses.”

       The government urges us to uphold the IJ’s decision on several bases not explored

by the IJ, i.e., the possibility that Kwee could relocate internally in Indonesia and the fact


6
 Notably, in its brief to this court the government does not urge us to deny the petition for
review on the basis of changed circumstances.

                                              7
that several of Kwee’s relatives still live in Indonesia. We will not review these

arguments. It would, of course, “be manifestly inappropriate for us, rather than the

Agency, to undertake that inquiry in the first instance.” Berishaj, 378 F.3d at 328 (citing

INS v. Ventura, 537 U.S. 12 (2002)). See also Wang v. Attorney General, 423 F.3d 260,

270 (3d Cir. 2005) (“a ‘simple but fundamental rule of administrative law [is] that a

reviewing court, in dealing with a determination of judgment which an administrative

agency alone is authorized to make, must judge the propriety of such action solely by the

grounds invoked by the agency.’”) (quoting SEC v. Chenery, 332 U.S. 194, 196 (1947)).

       For the foregoing reasons, we will grant Kwee’s petition for review insofar as it

challenges the denial of his withholding of removal claim. We will remand to the BIA

with instructions that it remand to the IJ for further proceedings in light of our opinion. In

those proceedings, the IJ should, in particular, make a point of considering whether the

government has presented sufficient evidence to rebut the presumption that Kwee’s life or

freedom would be threatened in the future.




                                              8
