* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 19 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SWANDOJO LIMERTA; SEN TJONG; MIE IE LIE,

Petitioners,

v. JOHN ASHCROFT, United States Attorney General,

Respondent. No. 02-9576 (BIA Nos. A77-739-829, A77-739- 830, A77-739-831) (Petition for Review)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 “The INS ceased to exist on March 1, 2003, and its functions were

transferred to the U.S. Citizenship and ImmigrationServices (“USCIS”) within the newly formed Department of Homeland Security.” Yuk v. Ashcroft , 355 F.3d 1222, 1224 (10th Cir. 2004). -2- Petitioners, Swandojo Limerta, his wife Mie Ie Lie, and their adult son, Sen Tjong, seek review of respondent’s 1 determination that they do not qualify for asylum. We deny review. Petitioners, ethnic Chinese, are natives and citize ns of Indonesia. They arrived in the United States in 1999 and 2000 on no n-immigrant visitors’ visas with authorization to remain six months. They file d timely applications for political asylum, withholding of removal, and relie f under the Convention Against Torture. I.

There are three ways to establish refugee status, two of which are pertinent here: One way is by showing [the app licant] has a well-founded fear of future persecution. A second way is by establishing that he or she has suffered past perse cution, which gives rise to a [rebuttable] presumption that he or she h as a well-founded fear of future persecution. The persecution involv ed must be on account of [the applicant’s] race, religion, nation ality, membership in a particular social group, or political opinion, an d must be imposed by the government or by groups which the governmentis unwilling or unable to control. Vatulev v. Ashcroft , 354 F.3d 1207, 1208-09 (10th Cir. 2003) (citation s and quotation omitted; alterations in original).2 Due to problems with the interpreters, several hear ings were required

before all the relevant testimony was presented. D espite these problems, neither party contends any errors are present in the transl ated testimony. -3- Petitioners claimed they were eligible for refugee status because they had suffered past persecution and had “well-founded fear of future persecution,” based on their Chinese ethnicity and Christian faith. They alleged they were persecuted by Indonesian Muslims whom the government was “unwilling or unable to control.”

II. At hearings 2 before the immigration judge (IJ), petitioners pre sented evidence of various incidents they experienced. Du ring these incidents, they were berated for being Chinese, which petitioners conten d shows that the attacks were based on their ethnicity. Mr. Limerta related three encounters over a period of nine months beginning in 1998. He also testified that he closed the bakery he owned due to fear that he would be accosted and rob bed by Muslims while he was making his deliveries to various markets. Ms. Lie related three encounters over a period of six months beginning in 1998. Mr. Tjong related five incidents, three from his childhood, and two when he was a young adu lt, one of which involved a threat with a knife. Petitioners presented no acts of violence based on their-4-

Christian faith aside from one incident related by Mr. Tjong when he was accosted while carrying a Bible after returning fro m a local Christian church. The IJ denied relief, noting that the related incid ents occurred during a period of high unrest and instability in Indonesia. The IJ was unable to conclude that petitioners were specifically targeted, but rather, determined that the incidents were random acts of violence. He held th at while petitioners had experienced harassment, they had not experienced pe rsecution. The IJ noted that, in spite of the unrest, ethnic Chinese during that period were disproportionately successful economically. The IJ also determined th at petitioners did not have a well-founded fear of future persecution, noting that the Country Report for Indonesia and the testimony of petitioners’ ministe r supported his conclusion that Indonesia has stabilized to some extent since the 1 998 riots. On appeal, petitioners argue that they did establis h past persecution and a well-founded fear of future persecution and, thus, should have been granted asylum. They do not challenge the IJ’s determinati on that they did not qualify for withholding of removal or for relief under the Conv ention Against Terror.

III. We review the IJ’s resolution of the initial refuge e status question under a substantial evidence standard. Th e BIA’s determination that [the applicant is] not eligible for asylum must be upheld if supported by reasonable, substantial, andprobative-5-

evidence on the record considered as a whole. It c an be reversed only if the evidence presented by [the applicant] w as such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. We do not weigh the eviden ce or evaluate the witnesses’ credibility. The BIA’s findings of factare conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary. Yuk , 355 F.3d at 1233 (citations and quotations omitte d). “[I] t is not our prerogative to reweigh the evidence, but only to decide if substantial evidence supports the IJ’s decision. W e only determine whether a reasonable factfinder could find that petitioners d o not have a well-founded fear of persecution.” Id. at 1236 . In other words, petitioners’ evidence must be “s o compelling that no reasonable factfinder could fail to find the requisite” persecution or fear of future persecution. INS v. Elias-Zacarias , 502 U.S. 478, 484 (1992) .

IV. Defining “persecution” is “a most elusive and imprecise task.” Balazoski v. INS , 932 F.2d 638, 641 (7th Cir. 1991). It is, howeve r, “an extreme concept that does not include every sort of treatment our s ociety regards as offensive.” Ghaly v. INS , 58 F.3d 1425, 1431 (9th Cir. 1995) (quotation omitted). “Mere generalized lawlessness and violence between divers e populations, of the sort which abounds in numerous countries and inflicts mi sery upon millions of-6-

innocent people daily around the world, generally i s not sufficient to permit the Attorney General to grant asylum . . . .” Singh v. INS , 134 F.3d 962, 967 (9th Cir. 1998). Rather, “persecution requires the infliction of suffering or harm upon those who differ (in race, religion, or political o pinion) in a way regarded as offensive and requires more than just restrictions or threats to life and liberty.” Yuk , 355 F.3d at 1232 (quotations omitted). Accordingly, we have held that “acts of common criminality or personal hostility . . . do not implicate asylum eligibility.” Vatulev , 354 F.3d at 1209. Nor do threats alone generally constitute actual persecution. Yuk , 355 F.3d at 1233. “Discrimination on the basis of race or religion, as morally reprehensible as it may be, does not ordinarily amount to ‘persecution’ within the meaning of the Act.” Ghaly , 58 F.3d at 1431.

V. The actions petitioners described fail to meet this high standard. Although petitioners were threatened because of their Chines e ethnicity, these threats did not rise to the level of persecution. Thus, “we ca nnot say the IJ’s conclusion that petitioner[s] failed to qualify as . . . refugee[s] is contrary to what a reasonable factfinder would have been compelled to conclude. Under our deferential review of immigration decisions, we must affirm.” Vatulev , 354 F.3d at 1210-11.-7-

The petition for review is DENIED. The stay of rem oval pending appeal issued by this court is lifted.

Entered for the Court

Robert H. Henry Circuit Judge