* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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 Immigration Services (“USCIS”) within

the newly formed Department of Homeland Security.” Yuk v. Ashcroft, 355 F.3d

1222, 1224 (10th Cir. 2004).

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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 citizens of Indonesia. They

arrived in the United States in 1999 and 2000 on non-immigrant visitors’ visas

with authorization to remain six months. They filed timely applications for

political asylum, withholding of removal, and relief 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 applicant] has a 

well-founded fear of future persecution. A second way is by

establishing that he or she has suffered past persecution, which gives

rise to a [rebuttable] presumption that he or she has a well-founded

fear of future persecution. The persecution involved must be on

account of [the applicant’s] race, religion, nationality, membership in

a particular social group, or political opinion, and must be imposed

by the government or by groups which the government is unwilling

or unable to control.

Vatulev v. Ashcroft , 354 F.3d 1207, 1208-09 (10th Cir. 2003) (citations and

quotation omitted; alterations in original).
2 Due to problems with the interpreters, several hearings were required

before all the relevant testimony was presented. Despite these problems, neither

party contends any errors are present in the translated 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 presented

evidence of various incidents they experienced. During these incidents, they were

berated for being Chinese, which petitioners contend 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 robbed 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 adult, 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 from a local Christian church. 

The IJ denied relief, noting that the related incidents 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 that while petitioners had

experienced harassment, they had not experienced persecution. The IJ noted that,

in spite of the unrest, ethnic Chinese during that period were disproportionately

successful economically. The IJ also determined that petitioners did not have a

well-founded fear of future persecution, noting that the Country Report for

Indonesia and the testimony of petitioners’ minister supported his conclusion that

Indonesia has stabilized to some extent since the 1998 riots.

On appeal, petitioners argue that they did establish past persecution and a

well-founded fear of future persecution and, thus, should have been granted

asylum. They do not challenge the IJ’s determination that they did not qualify for

withholding of removal or for relief under the Convention Against Terror.

III.

We review the IJ’s resolution of the initial refugee status

question under a substantial evidence standard. The BIA’s

determination that [the applicant is] not eligible for asylum must be

upheld if supported by reasonable, substantial, and probative
-5-

evidence on the record considered as a whole. It can be reversed

only if the evidence presented by [the applicant] was such that a

reasonable factfinder would have to conclude that the requisite fear

of persecution existed. We do not weigh the evidence or evaluate the

witnesses’ credibility. The BIA’s findings of fact are 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 omitted).

“[I] t is not our prerogative to reweigh the evidence, but only to decide if

substantial evidence supports the IJ’s decision. We only determine whether a

reasonable factfinder could find that petitioners do not have a well-founded fear

of persecution.” Id. at 1236 . In other words, petitioners’ evidence must be “so

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, however, “an extreme concept

that does not include every sort of treatment our society regards as offensive.” 

Ghaly v. INS , 58 F.3d 1425, 1431 (9th Cir. 1995) (quotation omitted). “Mere

generalized lawlessness and violence between diverse populations, of the sort

which abounds in numerous countries and inflicts misery upon millions of
-6-

innocent people daily around the world, generally is 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 opinion) 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 Chinese ethnicity, these threats did

not rise to the level of persecution. Thus, “we cannot 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 removal pending appeal

issued by this court is lifted.

Entered for the Court

Robert H. Henry 

Circuit Judge