2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-4-2009

Ngo v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1999

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-1999

___________

HENDRA UGAHARY NGO,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A96-262-922)

Immigration Judge: Honorable Miriam K. Mills

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 21, 2009

Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges

Opinion filed: November 4, 2009 

___________

OPINION

___________

PER CURIAM.

Hendra Ugahary Ngo, an Indonesian native and citizen, petitions for review

of a final order of the Board of Immigration Appeals (“the Board”), affirming the

Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal

and relief under the Convention Against Torture (“CAT”). For the following reasons, we
2

will deny the petition. 

The Immigration and Naturalization Service placed Ngo in removal

proceedings by the issuance of a Notice to Appear (“NTA”) on May 13, 2003. The NTA

charged Ngo with being removable pursuant to INA § 237(a)(1)(B), for remaining in the

United States without permission of the government. Ngo admitted the factual

allegations in the NTA and sought asylum, withholding of removal, and protection from

removal under the CAT. Ngo’s written application cited “mistreatment and pressure

from people in the government” over the 50 years that he lived in Indonesia as the basis

for relief. (A.R. at 432.) In particular, Ngo stated that he experienced discrimination in

language, schooling, culture, and government benefits. He also experienced assaults in

1974 and 1978, and property damage in 1983. Ngo testified that he and his family were

frequently threatened and harassed by Muslims both because of their Chinese ethnicity

and because they were practicing Christians. In 1992 and 1997, Ngo witnessed

discrimination and assaults against other ethnic Chinese. He also cited the May 1998

riots in which natives violently assaulted the persons and property of ethnic Chinese. 

During this period, although his family found safe refuge, Ngo testified that his home was

damaged, his cars burned, and that he sustained injuries to his hand when it was hit with a

ten-pound brick. Ngo testified that during church bombings in November 1998, his

eyeglasses were broken. Worse, a man with whom he lived was murdered. In 1999,

churches were bombed, causing car glass to shatter and cutting Ngo. According to the
3

IJ’s summary of Ngo’s testimony, Ngo’s church remained unharmed, as did his family. 

At Ngo’s first hearing, the IJ determined that Ngo had missed the one-year

filing deadline for his asylum application. With regard to his withholding of removal and

CAT claims, the IJ found Ngo incredible based on an omission in his testimony as

compared to his written application. The IJ further found that Ngo failed to provide

independent corroborating evidence in support of his testimony. On February 25, 2005,

the Board affirmed the IJ’s finding with regard to the timeliness of Ngo’s asylum

application. With regard to Ngo’s remaining claims for relief, the Board found that the

sole omission relating to his son’s current fear of harm was not sufficient to support an

adverse credibility finding. The Board remanded the case to the IJ to give Ngo the

opportunity to present additional evidence. 

On remand, the IJ again made an adverse credibility finding. The Board

dismissed Ngo’s appeal on March 4, 2008, without addressing the IJ’s adverse credibility

determination. The Board concluded that the alleged events did not rise to the level of

persecution on account of a protected ground or demonstrate that Ngo faced a probability

of future persecution if he returned to Indonesia. The Board also determined that Ngo

failed to show that he was more likely than not to face torture on his return to Indonesia. 

Ngo timely filed a petition for review in this Court. 

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the

Board’s determinations if they are supported by reasonable, substantial and probative
 Ngo does not contest the BIA’s timeliness determination with regard to his asylum 1

application. 

4

evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197

(3d Cir. 2008). Under the substantial evidence standard, “the BIA’s finding 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 be eligible for withholding of removal, petitioners must demonstrate that

“there is a greater-than-fifty-percent chance of persecution” in Indonesia based on one of

the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8

U.S.C. § 1231(b)(3)(C). For relief under the CAT, Ngo must demonstrate that it is more

likely than not that he would be tortured if removed to Indonesia. See 8 C.F.R.

§ 208.16(c)(2). The acts of torture must be 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. § 1208.18(a)(1).1

Ngo argues that the IJ overlooked critical evidence by concluding that he

failed to establish past persecution and fear of future persecution. Specifically, Ngo

claims that he has demonstrated eligibility for withholding of removal based on

aggregated incidents of past mistreatment in Indonesia. 

Ngo testified that during the riots of 1998, an organization of extremists
 The only instance in which Ngo implicates the Government’s involvement is with 2

regard to the discrimination he faced when it refused to issue him certain requested

documents. Such acts do not constitute persecution or torture. 

5

comprised primarily of native Muslims burned down the Christian church he attended. 

Ngo also witnessed native Muslims burning down the homes of Chinese Christians near

his home in Jakarta. Ngo testified to a code that was used to intimidate and threaten

Christians, in which red and yellow colorings were painted on the homes of Chinese

Christians. Red coloring on the home signified that Christians lived in the home and

should be killed. A Christian home with yellow coloring indicated a female Christian

resided in the home and should be raped. Ngo stated that he was affected by these actions

because he had a female daughter and yellow coloring was placed on his house. 

Ngo further testified that, when he lived in Indonesia he was often targeted

while driving his car. During one incident, unidentified assailants in a truck threw stones

at his car. In another incident, assailants “hit” Ngo while he was stopped at a traffic light

and his eyeglasses were broken. (A.R. at 72.) In addition to the physical incidents, Ngo

testified that the government discriminated against him by refusing to provide him with

documents because of his Christian religion. 

Ngo’s claims of past persecution must fail because he has not shown that

the incidents he describes were committed by the government or by forces the

government is unable or unwilling to control. See Valdiviezo-Galdamez v. Att’y Gen.,

2
 While the Court in Valdiviezo-Galdamez was referring to persecution in the context 3

of an asylum claim, the same substantive criteria apply to determining persecution for

purposes of withholding of removal. Wakkary v. Holder, 558 F.3d 1049, 1053 (9th Cir.

2009). 

6

502 F.3d 285, 288 (3d Cir. 2007) (citation and internal quotation marks omitted).3

Further, he has not demonstrated that the incidents he experienced were motivated by an

anti-Christian or anti-Chinese animus. See 8 U.S.C. § 1101(a)(42)(A) (requiring that

persecution be “on account of” a petitioner’s religion or ethnicity); see also Lie v.

Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005). Finally, although the incidents Ngo describes

were indeed unfortunate, they are not the type of harm recognized as constituting

persecution under our precedent. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)

(defining persecution as “threats to life, confinement, torture, and economic restrictions

so severe that they constitute a threat to life or freedom.”).

The Board’s rejection of Ngo’s claim to withholding of removal based on

fear of future persecution is supported by substantial evidence because he had not

presented evidence of his own persecution, or a pattern or practice of persecution of

ethnic Chinese or Christians in Indonesia. See Wong v. Att’y Gen., 539 F.3d 225, 232

(3d Cir. 2008). In order to show a well-founded fear of future persecution the applicant

must show a well founded subjective fear, “supported by objective evidence that

persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.

1997). The objective prong is satisfied either by showing that the applicant would be
 Ngo relies on Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), for the proposition that 4

“the more serious and widespread the threat to the group in general, the less

individualized the threat of persecution needs to be.” Sael, 386 F.3d at 925 (internal

quotation marks and citations omitted). This reasoning is part of the Ninth Circuit’s

“disfavored group” rationale which we have declined to follow. See Lie v. Ashcroft, 396

F.3d 530, 538 n.4 (3d Cir. 2005). 

7

individually singled out for persecution, or that “ ‘there is a pattern or practice in his or

her country of nationality . . . of persecution of a group of persons similarly situated to the

applicant on account of race, religion, nationality, membership in a particular social

group, or political opinion.’ ” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006)

(quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)). Ngo provides no evidence to refute the finding

that the record reflects steps by the Indonesian government to control and diffuse violence

against Christians like Ngo. (A.R. at 51-53.). Thus, Ngo has failed to establish either 4

past or a clear probability of future persecution based on one of the protected grounds. 

See INS v. Stevic, 467 U.S. 407, 430 (1984); see also 8 C.F.R. § 1208.16(b). 

The Board’s rejection of Ngo’s CAT claim also finds substantial support. 

Ngo has not presented any evidence that upon his return to Indonesia he would be

tortured by the government or that the government would acquiesce in any torture of him

by third parties. Thus, Ngo is not eligible for protection under the CAT. Pierre v. Att’y

Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc). 

For the foregoing reasons, we will deny Ngo’s petition.