2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-1-2006

Tjandra v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2970

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-2970

 

FARIAWATY TJANDRA;

SAMUEL HALIM LIEM,

 Petitioners

v.

ATTORNEY GENERAL OF

THE UNITED STATES,

 Respondent

 

PETITION FOR REVIEW OF A DECISION OF 

THE BOARD OF IMMIGRATION APPEALS

Agency Nos. A95-841-010 & A95-841-011

 

Submitted Under Third Circuit LAR 34.1(a)

May 9, 2006

 

Before: BARRY, SMITH and ALDISERT, Circuit Judges

 

(Opinion Filed: June 1, 2006)

 

OPINION

 

BARRY, Circuit Judge

The Board of Immigration Appeals (“BIA”) denied Fariawaty Tjandra’s
 1

 Samuel Halim Liem, co-petitioner in this case and Tjandra’s husband, was a

derivative applicant on her application for asylum. We will refer solely to Tjandra, as

Liem’s relevant legal claims are identical to hers.

 2

 We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s findings of fact

for support by substantial evidence. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.

2001). “[T]he BIA’s finding must be upheld unless the evidence not only supports a

contrary conclusion, but compels it.” Id.

 3 Although Tjandra alludes to withholding and CAT withholding in her brief to us, she

did not raise these claims to the BIA after the IJ denied them. Instead, in her brief to the

2

application for asylum.1

 She now petitions for review. We will deny the petition.

Because we write primarily for the parties, we omit any discussion of facts not

relevant to our decision. Tjandra is an ethnic Chinese Christian from Indonesia. She

fears that she will be persecuted on account of her ethnicity and religion if she returns to

Indonesia. She entered the United States on February 8, 2002. Her visa expired on

August 8, 2002. On September 2, 2002, she filed an application for asylum, withholding

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

withholding”). The government served her with a Notice to Appear on October 22, 2002,

alleging that she was removable as an alien who had overstayed her visa. See 8 U.S.C. §

1227(a)(1)(C)(i). She appeared at hearings before an Immigration Judge (“IJ”) on

December 4, 2002 and January 29, 2004. The IJ issued an oral decision at the close of the

second hearing. He rejected her claims for withholding and CAT withholding, but

granted the asylum claim. The government appealed to the BIA, which reversed on May

10, 2005. This timely petition for review followed.2

Only the asylum claim is before us.3 The Attorney General has the discretion to
BIA, she “adopt[ed] the decision of the Immigration Judge.” Accordingly, she has not

exhausted available administrative remedies with respect to her withholding and CAT

withholding claims and we lack jurisdiction to entertain these claims. 8 U.S.C. §

1252(d)(1). 

 4

 Other possible ways of showing a well-founded fear are not at issue in this petition. 

Tjandra stipulated that she had not suffered past persecution in Indonesia. 8 C.F.R. §

208.13(b)(1). She did not challenge the IJ’s finding that she had no objectively reasonable

fear of being “singled out individually for persecution.” Id. § 208.13(b)(2)(iii). 

3

grant asylum to an alien who is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is,

for present purposes, a person who is unwilling to return to a 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). To be well-founded, a subjective fear of persecution must be objectively

reasonable. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). The IJ held that here

it was because, in the words of the implementing regulations, there was “a pattern or

practice in [Indonesia] of persecution of a group of persons similarly situated to the

applicant on account of [one of the five listed grounds].”4

 See 8 C.F.R. §

208.13(b)(2)(iii)(A). The BIA reversed this finding on the basis of our decision in Lie v.

Ashcroft, 396 F.3d 530 (3d Cir. 2005), in which we upheld a BIA determination that the

petitioner had not shown a pattern or practice of persecution of Chinese Christians in

Indonesia. 

Tjandra first invites us to overrule Lie. We decline the invitation. Prior

precedential decisions of this Court are binding on future panels. See, e.g., In re Suprema
 5

 Tjandra submitted the 2003 Country Report with her brief to the BIA, but the BIA

“considers only that evidence that was admitted in the proceedings below.” Board of

Immigration Appeals Practice Manual 62 (2004). She cites extensively to the 2004

Country Report in her brief to us, but our jurisdiction is limited to reviewing “the

administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A).

4

Specialties, Inc. Sec. Litig., 438 F.3d 256, 270 (3d Cir. 2006). Accordingly, we do not

consider the argument that Lie was wrongly decided.

Tjandra also asks us to distinguish Lie on the basis of new evidence. In Lie, the

BIA had before it the 1999 State Department Country Report on Human Rights Practices

for Indonesia. That Country Report led us to write: 

“Petitioners argue, with some force, that anti-Chinese violence persists,

citing evidence in the record of widespread attacks on Chinese Christians in

Indonesia, including press accounts of riots, vandalism, and robbery

targeting Chinese Christians. Nevertheless, such violence does not appear to

be sufficiently widespread as to constitute a pattern or practice. The 1999

Country Report on Indonesia indicated that there was a sharp decline in

violence against Chinese Christians following the period of intense violence

in 1998, and noted that the Indonesian government officially promotes

religious and ethnic tolerance. Moreover, this violence seems to have been

primarily wrought by fellow citizens and not the result of governmental

action or acquiescence. Given these considerations, we are not compelled to

find that such attacks constitute a pattern or practice of persecution against

Chinese Christians.”

Lie, 396 F.3d at 537-38. The record relied upon by the BIA here included the Country

Reports for Indonesia from 1998 through 2002, the 2003 State Department International

Religious Freedom Report for Indonesia, and a number of newspaper articles.5

 These

sources lead us to reach the same conclusion we did in Lie. The Country Reports, in

particular, belie any argument that the situation of ethnic Chinese Christians in Indonesia
5

has significantly deteriorated. While the Indonesian government continues to

discriminate against ethnic Chinese by requiring them to obtain citizenship certificates

and continues to drag its heels in investigating the anti-Chinese riots of May 1998, there

also continues to be little widespread violence directed at ethnic Chinese or Christians in

most parts of Indonesia. The passage of time has increasingly confirmed that the riots

were an aberration, not the normal state of affairs. A reasonable factfinder would not be

compelled to find that there is a pattern or practice in Indonesia of persecution of ethnic

Chinese Christians.

Accordingly, we will deny the petition for review.