2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-20-2005

Liong v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3145

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-3145

 

LINDAWATI SUYONO LIONG; FENNY SUTANO,

Petitioners

v.

* ALBERTO R. GONZALES, Attorney General of the United States,

Respondent

* Substituted pursuant to Rule 43(c), F.R.A.P.

 

On Petition for Review from the United States Department of Justice 

Board of Immigration Appeals

(BIA No. A97-331-442/443)

Submitted pursuant to Third Circuit L.A.R. 34.1(a)

on July 15, 2005

 

Before: ALITO, VAN ANTWERPEN, and ALDISERT, 

Circuit Judges.

(Filed July 20, 2005)

_____

 OPINION OF THE COURT

 

VAN ANTWERPEN, Circuit Judge.
 On March 1, 2003, the INS ceased to exist as an agency within the Department of 1

Justice and the INS’s functions were transferred to the Department of Homeland Security. 

See Homeland Security Act of 2002, Pub.L. No. 107-296 §§ 441 & 471, 116 Stat. 2135.

2

Petitioners Lindawati Liong and Fenny Sutanto, mother and daughter, are both ethnic

Chinese natives and citizens of Indonesia. They seek review of a final order of the Board of

Immigration Appeals (“BIA”) dated June 30, 2004, summarily affirming the decision of the

Immigration Judge (“IJ”) denying them asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). For the reasons that follow, we will deny their

petition.

I.

Petitioners entered the United States on July 5, 2000, with authorization to remain no

later than January 4, 2001. The former Immigration and Naturalization Service (“INS”)1

placed Petitioners in removal proceedings on August 15, 2001, when it served Notices to

Appear charging them with removability for remaining in the United States longer than

permitted in violation of § 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). Petitioner

Liong submitted, on behalf of herself and her daughter, an application for asylum,

withholding of removal, and relief under the CAT. At an initial hearing before the IJ,

Petitioners admitted the factual allegations stated in the Notices to Appear, conceded

removability, and indicated their desire to seek asylum, withholding of removal, and CAT

protection. At the conclusion of Petitioners’ merits hearing, the IJ denied Petitioners’

applications, finding they had not sustained their burden of proof, and granted voluntary
3

departure. The BIA affirmed the IJ’s decision per curiam. This petition followed.

II.

Petitioners’ applications for asylum to obtain relief from the alleged persecution they

faced in their native Indonesia are grounded in their claimed ethnic Chinese minority status

as well as their claimed Catholic minority status. The testimonial and documentary support

for their applications may be summarized as follows. As to Ms. Liong, she testified that, as

a youth, she had lost the opportunity to attend a Chinese school when the Indonesian

government shut it down in either 1963 or 1964. She testified to her belief that this occurred

to prevent native Chinese Indonesians from learning Chinese. At this school and at

subsequent schools she attended, Ms. Liong testified, native Indonesian children would

harass her by touching her body. Ms. Liong also testified, without specific reference to time,

that native Indonesians would throw stones at her family’s house, and that local police did

nothing in response unless they were offered payments. Additionally, Ms. Liong testified

that she had been forced to pay higher fees than native Indonesians for official papers such

as those necessary to apply for citizenship, and that her husband, who remained in Indonesia,

had upon several occasions been robbed in his car or at his store. Ms. Liong described the

robbers as gangs. Finally, as to her status as a Catholic minority, Ms. Liong testified that she

feared going to church because of bomb threats and because of individuals throwing stones.

With respect to her Catholicism, Mrs. Liong did not testify to any specific incidents directed

against her personally. 
4

As to Ms. Sutanto, both Ms. Liong and Ms. Sutanto testified that, as a child, Ms.

Sutanto was repeatedly touched and harassed by native Indonesians. In one instance, they

both testified, four native Indonesians threw sand and garbage at Ms. Sutanto when she was

eight years old. Ms. Sutanto also testified that once, on her way to school, she had been

robbed by native Indonesians. She testified that her ethnic Chinese friends had also been

robbed by native Indonesians. 

With respect to the riots that occurred in Indonesian cities in 1998, both Ms. Liong

and Ms. Sutanto testified that they were only affected in one circumstance. While taking

public transportation, a particular transfer caused them to be in a van transporting only native

Indonesians. Both Petitioners testified that the driver of the van stopped the vehicle and

ordered Ms. Liong and her daughter to turn over all jewelry and items of value. Petitioners

complied. Both Ms. Liong and her daughter testified to being fearful of their physical safety

during this incident.

In addition to the above testimony about their situations arising out of their ethnic

Chinese minority status and their Catholic minority status, Petitioners also testified to their

reasons for wanting to leave Indonesia for the United States. Here, Ms. Liong testified that

she wanted to leave Indonesia because the social climate was becoming chaotic, the economy

was failing, and she feared her daughter would be raped. She testified that she came to the

United States with the intent of enrolling her daughter in college. She testified that she

wanted her daughter to live in the United States for security reasons. Ms. Sutanto testified
5

that she did not feel secure living in Indonesia, that she feared returning to Indonesia, and

that her father had warned her not to return.

Petitioners also offered documentary evidence. This consisted of a letter from the St.

Thomas Aquinas Rectory in Philadelphia stating that Ms. Liong was a member of that

church. Upon objection to the document by the government on authentication grounds, Ms.

Liong testified that she had not known that she could, or should, ask a witness from the

Rectory to testify. Ms. Liong also submitted two baptism certificates, one for herself and one

for her daughter. The IJ reviewed them, then stated for the record that they would be given

no weight because Ms. Sutanto’s certificate suffered from obvious white-out alterations

involving different typewriter print fonts as to her date of baptism.

III.

Because the BIA did not issue a separate order but merely adopted the opinion of the

IJ, we must review the decision of the IJ. Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d

Cir. 2001). We have jurisdiction to review the Board's final order of removal pursuant to

INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). We review to determine whether substantial

evidence exists to support the agency decision. Under this highly deferential standard of

review, the findings of the BIA or an IJ “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) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1 (1992)).

 To establish an asylum claim under INA § 208(a), 8 U.S.C. § 1158(a), a petitioner
6

must show that he or she qualifies as a refugee. A “refugee” is defined as an individual who

is outside of his country of nationality and “unable or unwilling to return to . . . . 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). Petitioners had the burden of supporting their asylum claim through credible

evidence. Abdille, 242 F.3d at 482. Because the standard for asylum is lower than the

standard for withholding of removal, if Petitioners cannot meet the substantial evidence

standard as to their asylum claim, relief under their withholding of removal claim must also

fail. See Abdulrahman v. Ashcroft, 330 F.3d 587, 591 n. 2 (3d Cir. 2003) (citing 8 C.F.R. §

208.16(c)(2) & (4)). Petitioner’s claim for relief under the CAT fails for similar reasons, as

the CAT only applies to torture that “is inflicted by or at the instigation of or with the consent

or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R.

§ 208.18(a)(1). 

Here, the IJ found that Petitioners’ testimony regarding the alleged persecution they

faced arising from both their native Chinese minority status and their Catholic minority status

was insufficient to carry their burden of proof. Our review of the record confirms that

substantial evidence supports this determination. The incidents that Petitioners have testified

to do not amount to persecution, which we have held to mean “threats to life, confinement,

torture, and economic restrictions so severe that they constitute a threat to life or freedom”)

but (“does not encompass all treatment that our society regards as unfair, unjust, or even
7

unlawful or unconstitutional”). Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).

Furthermore, even if Petitioners’ testimony had articulated attacks rising to a level sufficient

to be considered persecution, the necessary nexus to government action or inaction is absent

here. Petitioners have recounted only incidents perpetrated by other Indonesians with, at

most, a peripheral government nexus. This is insufficient to meet Petitioners’ burden of

proof, because the concept of “persecution” necessarily involves either government

involvement or the involvement of individuals that the government is “unable or unwilling”

to control. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Here, there is no such

evidence, and Petitioners’ testimony that police officers were unwilling to respond when

native Indonesians threw rocks at Petitioners’ house is not enough under the substantial

evidence standard of review to compel us to reach a conclusion different from that of the IJ

and BIA below. Similarly, there is no evidence in the record of persecution arising from

Petitioners’ Catholic minority status; and even if there was, Petitioners have failed to show

that any such mistreatment was attributable to either direct government involvement or the

government’s inability to control native Indonesians in relation to Petitioners’ religious

status.

Finally, we observe that the government introduced into the record in this case a

March 2002 Report on Human Rights Practices issued by the United States Department of

State. In the Report, the State Department indicates that racially-motivated attacks against

Sino-Indonesians have sharply curtailed since the middle of 1998, that Indonesians are now
8

permitted to teach, speak, and print the Chinese language, and that Indonesia no longer bans

Chinese language publications. While the Report clearly acknowledges that attacks do

continue to be reported, it nonetheless constitutes substantial evidence supporting the IJ’s

determination that country conditions have changed, and it rebuts any possible presumption

of future persecution. See, e.g., Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003).

We have considered all of the remaining arguments advanced by the parties and

conclude that no further discussion is necessary. Substantial evidence in the record supports

the finding that Petitioners failed to meet their burden of proof that they experienced past

persecution due to their ethnicity or religion or that they would be subject to persecution on

account of their ethnicity or religion if returned to Indonesia. 

IV.

For the reasons set forth, we will deny the petition for review.