2005 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

2-7-2005 

# Lie v . Att y Ge n U S A

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al
D ocke t N o . 03-4106

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w Di g it al Re posit or y

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w Di g it al Re posit or y

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w . v i l l a no va . e du/thir dc ir c uit_2005/1514PRECE DENTI AL

IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

_________________________________________

NO. 03-4106

_________________________________________

IME LD A L AU RE NC IA L IE SOYONO LIEM ANDRE YULI US SUYON O

Petitioners

v.
JOHN AS HCROFT , A TTORNE Y GENERAL OF THE UNIT ED STA TES OFAMERI CA,

Respondent

__________________________________ On Petiti on for Review of Orders of t he Bo ard o f Imm igration Ap peals (Board Nos. A78 696 420, A 78 696 421, A 78 696 422)

__________________________________
Argued: December 13, 2004 Be for e: N YG AA RD , RO SE NN , and BE CK ER , Circuit Judges

. (Fil ed: February 7, 2005)
David E. Piver W. John Vandenberg (Argued) 150 Straffor d Avenue Suite 115 Wayne, PA 19087 Attorney s for Pet iti oner1 Lie filed th e app lication w ith the former Immigration and Naturali zati on Service ( INS), and i ncluded her husband andson as derivat ive app lican ts. The application al so incl uded a clai m based
on the Con vention A gainst Torture (CA T). On appeal, how ever, Lie has n ot r ai se d a ny ar gum en t reg ar di ng t he de ni al of

he r CA T claim except bymentioni ng the Conventi on in h er concl uding paragraph; nor di d she rebut the government ’s argument that s he has waived this i ss ue in he r r ep ly br ie f o r a t o ra l arg ume nt . A s such, we deem her appeal of the CAT claim to have be en waived. See Nagle v. Alspach , 8 F.3d 141, 143 (3d Cir. 1993) (holdi ng that absent“ext raordi nary circumst ances” appel lant must present an argumentin support of

each iss ue rais ed on appeal or such iss ues are aband oned a nd w aived).
2 Linda S. Werney Dou glas E. G insburg John M . McA dams, Jr. Kathleen M. Zapata ( Argued) United States Department of Justi ce Office of Immigrat

ion P.O. Box 878 Ben Franklin St ation Washington, DC 20044 Attorney s for Responde nt

_____ OPINI ON OF THE COURT

BE CK ER , Circuit

Judge

. Imelda Laurenc ia Lie, her husband, Soyono Liem, and her minor son, Andre Yuli us Suyono, petit ion for r eview of

an orderof the Board of Immigration Appeals ( BIA) denyi ng their applic ation for asylum a nd w ithhold ing o f rem oval. 1 This case t rac ks a now famili ar fact p attern: L ie is an Indonesi an citizen who alle ges that she and h er hu sban d w ere pe rsecu ted be caus e they are ethnic ally Chinese and C hristian. More specifi cally, Lie alle ges, as is
common in thes e cases, that s he and her husbandwere robbed on3 sepa rate occa si ons by unknown indi viduals who targete d them because of their et

hnicit y and t heir religi on. How ever, substant

ial e vidence supp orts the BIA ’s conclusi on that thes e robberi es were not moti vated byreli gion or
e th ni cit y, an d tha t, at al l e ve nt s, su ch ro bbe ri es we re no t su ffici ently severe s o as to rise t o the le vel of per secuti on. Mo reover, we agree with the BIA’s conclus ion tha t L ie has not establ ished a well-f

ounded fear o f pers ecutio n if sh e w ere to return to In don es ia . T he re fo re , w e wi llde nyth e p etit io n f orre vi ew.
I. FACTS AN D PROCEDURAL HI STORY
Lie bec ame a natura lize d In don es ia n ci ti zen ar oun d the time she married he r husband in 1990 . Lie and her husband li ved sepa rately for w ork reason s in town s about fo ur h ours ap art. As noted above, both Lie and her husband are et

hnical ly Chinese and
are Christians. In the l ate 1990s, Indonesi a’s Chines e C hrist ian populati on bec ame the target of wide spread attacks per petrated by M usli m Indonesi ans. The 1999 Unit ed State s Stat e Department country report for Ind onesia no ted that “[i]nterr eligio us viol ence and violenc e against

ethnic minorities continued. Attacks against houses of worship continue d, and t he lack of an ef fecti ve governm ent r esponse t o punish per petrators and pre vent furt her atta cks led to a llegation s of o fficial c om plicity in som e inc iden ts.” U.S. De p’t of S ta te, 199 9 C oun try Repo rts on H um an R ights Practi ces – Indone sia, Feb. 25, 200 0 (“199 9 Co untry Report”). In May 1998, the re w er e “seri ous and widespre ad att acks” on Chinese-owned busin esses and homes by M uslim Indonesians, which led to the deaths o f ov er o ne th ous and peo ple. Id . Thus, 1998 repres ented a period of si gnific ant viol ence and ri oting against indivi duals of Chine se ori gin throughout Indones ia. Lie allege s that at th e sta rt of thi s tum ultuou s perio d, in 1997, several native, M uslim Indo nesians en tere d he r husban d’s store , threatened him with akni fe, cal le d hi m a “Chinese pi g,” and then robbed h im. Tr aumatized a s a resul t of the robbery , her husband left

for the United State s in December 1997. Lie further

clai ms that i n July1998, two peopl e knocked on the d oo r of her home, call ed her a “Chines e pig, ” and demanded
en try. The y kno ck ed dow n the door brandi shing a kni fe, threate ned to burn do wn her house, and demanded that she gi ve th em m on ey.4 The in trude rs to ok s ome of Lie’s money and j ewelryand struck her in the le ft forearm with the knif e when she tri ed to defend her self. When theyleft , Lie cal led the police , but c laims t hat no one at the police station answered t he phone. Lie received s everal sti tches for the kni fe w oun d. H ow eve r, fo r the nex t tw enty-o ne m ont hs, L i e and h er son contin ued to live in th e sam e hou se w ithout in ciden t. Lie and h er son did n ot leav e Ind ones ia until Ma rc h 2000, when th ey cameto th e U nited Sta tes a s no n-im mig ran t visito rs. On August 14, 2000, Li e fil ed an asy lum applic ation wit h her husband and son as der ivati ve a ppl ican ts. On Se pt emb er26, 200 0, th e I NS commenced removal proceedi ngs against Lie, her husband, and her
son
. The I mm igration Judge (IJ ) ini tial ly indicated he wo uld grantasylum s ubjec t to the admiss ion of additional e vidence fr om both parti es, i ncluding e vidence confi rming that Lie is a Catholi c. Because Lie did not

provide the inf

ormation i n time, the IJdenied her asy lum appli cati on. Lie fi led a timelymotion to reopen the
case and produced evi dence that she is a Catholic and attends mass
eve ry Sunday. The IJ then reopened the ca se and granted t h e mo tion for asylum

. The IJ made credibili ty findings in Lie’ s f avor, i ncluding that the IJhad “no reason to disput e the veraci ty of [the] c laim that [Lie] and h er hu sban d are e thnica lly Chine se” an d that L ie wa s in factCatholi c. The main i ssue addre ssed b y th e IJ was the
mo tivat ion of the i ndi vid ual s who r obbe d Lie ’s husb and a nd Li e
. Whi le finding t

hat the atta ckers had s ome inter est i n simpl e ro bb er y, the IJ conc luded that, “tak ing into acco unt the conte xt in which the res pondent’s clai m arises , it is re asonable to conclude thatthose who robbed t he respondent

and her husband w er e motivat ed at le ast i n part bya desire to punis h t hem becaus e of their ethn icity.” In addition to Lie ’s testim ony abo ut the in ciden t, the IJ reli ed o n evidence of t he 1998 anti -Chinese riots and other violenc e directed against et hnic Chinese duri ng this period documented in t

he 1999 CountryReport. Therefore, the IJ found that Lie and her hus band had suffered pas t pers ecuti on, and that the presumpti on of future pe rsecution had not be en reb utted by evid enc e of cha nge d co ndi tion s in In don esia

. The government appeal ed t o the Board of I mmigrati on Ap peals (BIA), which overturned the IJ ’s grant of the Lies’ as yl um petit ion. The BIA found that “with regard t o the single incide nt of abuse [Lie] has descri bed, a r obbe ry of her st ore, t here was no2 Th e BIA seems to have confl ated Lie’ s test imony about the earli er robbery of her husband’s s tore wit

h her tes timonyabout the subsequent

break-i n a nd robberyat her home. This mist ake, how ever, does not appear to undermine the outcome of the BIA ’s
reas oni ng. 5 evidence that i t was motivated by her religion . As f or he r claim that the robb ery wa s mo tivated by her C hines e ethn icity , the on ly evidence to support

that clai m was her testimony t hat her attackers said ‘you C hin ese pig , I wan t your money,’” which the BIA found to be in suff icient. 2 The BIA furthe r reaso ned th at e ven if the ethni c slur was suffici ent to est ablis h that t he intruder s were m otivated by Lie’s ethnic ity or religion , the rob bery incid ent did not co nstitute persecution. See Fat in v. INS , 21 F.3d 12 33, 1240 n.10 (3d C ir. 1993) (holdi ng that

persecution d enotes “ex treme con duct”). The BIA found signi ficant

that Li e’s Chines e neighbors wer e not robbed, that Li e tri ed onlyonce to cont actthe poli ce, and that s he livedfor nearl y two years after the attackwithoutincident befo re fleei ng to the United State s. I t therefore rej ected the IJ’s finding that Li e had suffere d past per secuti on. Si m ila rly, the BIA concluded that Lie l acks a well-f ounded fearof future persecution. I n its view, the fact t hat she remained in Indo nesia f or ne arly two year s after the robbery because her son was in school undermined her clai m thather “prima ry motivation for requesting refuge in the United State s is ‘ fear, ’ i. e., a gen u ine apprehension or awareness of d ang er in ano ther cou ntry.” Matter of Aco sta , 19 I. & N. Dec. 211, 221 (BIA 1985 ). I n additi on, the BIA noted that allof Lie’s a nd her husband’ s sibl ings re m ain in Indo nesia and have been un harmed during this p er iod—a factor which th e BI A h ad previous ly held would reduc e the reasonableness of

alien’s fear of future pers ecuti on . See Matter of A-E-M , 21 I . & N. D ec. 1 157 , 116 0 (B IA 199 8). Concluding that L ie had f ailed to establ ish past persecution
or a well-f

ounded fear of per secuti on, the BIA overturned the IJ’s dec isi on and de nied asylum, w ithholding of remov al, and Lie’s CAT claim . Li e no w petitio ns f orre vi ew on her

as y lu m a n d withholdi ng of removal clai ms. We setforth t he by now famil iar princi ples gover n ing our j urisdi ction and scope and st andard of3 We have juris dicti on to revi ew final or ders of the Board of Immigration Appe als under section 242(a) (1) of the Immigration and National ity

Act, 8 U.S. C. § 1252(a)( 1) (1999). As the peti tion for judici al revi ew was filed within thi rtyday s of the BIA ’s decision, the petition is timely. 8 U.S.C . § 1252(b )(1). Where, as here, the BIA issue d a decisi on on the meri ts and not sim pl y a summary aff irmance, we review the BIA’s, not the IJ’s, dec ision

. Ga o v. A shcro ft , 299 F.3d 266, 271 (3d Cir. 2002); Abdulai v. Ashcroft , 23 9 F

. 3d 54 2, 54 8- 49 ( 3d Ci r
. 20 01 )

. We must up ho ld th e B IA ’s f ac tu al f in di ng s if th ey a re “ supporte d by reasonabl e, substantial, and pro bative eviden ce on the re cord consider ed as a whole.” INS v. Eli as-Zacari as , 502 U.S. 478, 480 (1992). We should fi nd sub stantial evidence lack ing only wh ere the evidence “was s o compelli ng that no reason a ble factfinder could fail to find t

he ali en eli gible f

o r a sy lu m or withhol ding of
rem ova l.” Id. at 483 -84; see als o 8 U.S.C. § 12 52 (b)(4)(B); Abd ille v. Ash croft , 242 F.3d 477, 483 -84 (3d C ir. 2001).
6 review in t

he margin. 3

II
. DIS CUSS ION
Under 8 U.S.C. § 1158 (b)(1), the Attorney Generalmay grantasylum to an alie n w ho is a “refu gee” with in the meaning of 8 U.S .C. § 1101(a)(42). Generally s peaking, an applicant must show that he or

she
is unable or unwil ling to return to, a nd is unabl e or unwilli ng to ava il himself or hersel f of

the protecti on of [t he countryof such pers on’s nationali ty or in whi c h such a pers on las t habit u ally resi ded], bec ause of persecution or a well- founded fear of per secuti on on accountof race, reli gion, nat ionali ty , membershi p in a par ticul ar so cial g rou p, or pol itical o pin ion

. . . . 8 U. S. C. § 11 01( a)(4 2)(A ). A showing of past persecution gives rise to a rebut

table presumpti on of a well- founded fear of future per sec utio n. 8 C .F.R . § 12 08.1 3(b )(1). Lie chall enges the BIA’s finding that she did not suffer past7 persecution and its co nclusi on that s he has fai led to e stabl ish a
we ll-fo und ed f ear o f fu ture per sec utio n.

A. Past Per secuti on Lie clai ms that t

he intr usion into her hom e and the ro bbery of her husba n d’s st ore constituted past per secuti on on account of her Chinese ethnicit

y andChristian rel igion. As noted above, t he BIA concluded that Lie had not establ ished t

he intr ude rs wer e motivat ed by her

ethnic ity

or rel igion, and that , even i f theyhad such motivation, t

he inc identwa s not su fficien tly severe so as to rise to the le vel of past p ersecu ti on. We a gree w ith the BIA ’s conclusi on and similarly ho ld that L ie has n ot estab lished h er claim of past per secuti on.
1. “On Acco unt Of” An asy lum appli cant must prove that she suffer ed pas t persecution or has a well -founded fear of future p er secuti on “on
accou nt of” o ne of five e num erated grou nds: “ race, re ligio n , na tio na lity, me mb ersh ip in a pa rticu lar so cial g rou p, o r poli tica l opi nio n.” 8 U.S .C. § 110 1(a)(42)(A ); 8 C.F.R. § 1 208.13(b )(1). The Supreme Court, in INS v. Eli as-Zacari as , held th at while an asy lum-seeker

would not “be expected to provi de direc t pr oo f of his p erse cuto rs’ m otiv es,” nev erth eles s,
since the st atute makes motive criti cal, he must provi de
so me evide nce o f [m otive], d irect or c ircum stantial. And if he se eks to obtain judicial reversa l of the BIA ’s determi nation, he must show that the evi dence he present ed wa s so co mp ell ing t hat no reaso nable f actf indercould fai l to fi nd the requi sit e fear of persecution.

502 U.S . 478 , 483 -84 (19 92)

. We have recogni zed that “[a] p ersecu tor ma y have m ultiple motivations for his or her conduct , but t he persecutor must be motivat ed, at least in par t, by on e of the e num erate d gr oun ds.” Lukwago v. Ash croft , 329 F.3d 157 , 170 ( 3d C ir. 2003 ); see also Chang v. INS , 119 F.3d 1 055 , 1065 (3d Cir . 1997) ( finding perse cutio n o n accou nt of political opinion whe re persecutor’s acti on was “motivat ed, at leastin part ” by t

he appli cant’s political8 opi nio n). Even though Lie testi fied that duri ng both the robbery of her husban d’s store and the robbe ry of her home the at tackers c alle d each of them a “Chine se pig, ” t he B IA d eterm ined th at “a sin gle ethnic slur” w as insu fficien t to estab lish that th e thie v es were motivat ed by Lie ’s or her husb and’s ethn icity. Indeed, the B IA cite d signi ficant

evidence s upporti ng the concl usion that the attackers were motivated by money : the attac kers fl ed after steal ing her jewel s and money; her Chinese ne ighbors were no t robb ed ; the robbery of r elatively wealthyindivi duals suc h as the Lies was not unco mm on in Indo nesia; a nd L ie and her so n lived in pea ce f or a lmo st tw o yea rs fo llow ing the a ttack

. Wh ile th e 1 99 9 C ou nt ry Re port di d provide evi dence that there was wid espre ad an imus again st ethnic Chinese, the BIA was nevertheless entitled to relyon the evi dence that , in Li e’s particul ar case, the robberies were moti vated bymone y. We find that the evidence of g enera l ethnic diffic ulties w ould not co mp el a
reaso nable factfi nder to conc lude that the i ntrusi ons were “on accountof” Lie ’s eth nicit y or rel igio n. T her efo re, t he B IA’s decisi on to den y Lie’s cla im on thi s basis was supported by substant ial e vidence i n the rec ord.

2. Not Sufficiently Severe The BIA also fou nd t hat, e ven assu min g, arguendo , that t he robberi es we re mo tivated by Lie’s e thnicity, the in ciden ts did not rise to the l evel of

persecution because the harm suff ered was not suffici ent ly sev ere. The fi nding that the robberies di d not
cons titute perse cution seem s to be an appr opriate applic ation of the standard announced in Fat in v. INS , where we defined persecution
as “threa ts to life , confi nement, t ortur e, and economi c rest rictions
so severe that the y constitute a threa t to life or freedom. ” 12 F.3d 123 3, 12 40 ( 3d C ir. 19 93)

. Sim ple robbery, i n iso lat ion, whil e unfortunate and troubl ing, doe s no t see m to me et thi s strin gen t stan dar d. See Gormley v. Ash croft , 364 F.3d 1172, 1177 (9th Cir . 2004) (“ Rand om, isolate d criminal acts perpetrat ed by anonymous thieves do not establish perse cution.”); Ha lim v. A shcro ft , 109 Fed. Appx. 164 (9 th Cir. 20 04) (n on-p reced ential o pinion ) (hold ing tha t a Chinese Indo nesian had n ot suf fered past p ersecu ti on after beg in robbed ata Ch inese rest aurant by native Indonesi ans who said,9 “You Ch ines e, g ive us al l y our belongi ngs,” but was rather

“the victim of d isturbin g, but ra ndo m, crim e”); Djap v. Ash croft , 2004 113 Fed . A ppx. 376, 378 (10t h Cir. 2004) (non-pre cedenti al opinion) (findi ng that “ the mist reatment [peti tioner ] experi enced
was insuffi cient

to ri se to t

he levelof persecution” in t he case of an et hnic ally Ch inese I ndo nesian wh o claim ed tha t, becau se of his eth ni cit y, he was beaten and robbed by native Indones ians and t hat his shop was looted and burned duri ng the 1998 ri ots). We agree with the N inth and Tenth Circui ts that Lie’s ac count of two isolated crimina l acts , per petr ated by un kno wn assa ilant s, wh ich res ulted only in the t

heft of some perso nal pro perty and a min or injur y, is not suffi ciently severe t o be considered persecut ion.
B. Well-Founded Fear

of Future Per secuti on The BIA also fo und that L ie failed to estab lish a w ellfounded fear of fu ture persecution if she and her fa m ily we re to return to Indones ia. To establ ish a well -founded fear of f uture persecution an applicant must first demonstrate a subjec tive f ear of persecution through credible testimony t hat her f e ar is genui ne. Zubeda v. Ash croft , 333 F.3d 463, 469 ( 3d Cir. 2003) . Second, the applic ant must sh ow , ob jec tiv ely, that “ a reasonabl e person i n the alien’s circumst ances would fear persecution if returned to th e country in question.” Id. To satis fy the obj ectiv e pr ong , a petit ionerm ust sh ow she w ould be ind ividua lly singl ed out for persecution or demonstrate that “there i s a patte rn orpractic e in his
or her country of nationali ty

. . . of persecution of a group of pers ons si milarl y si tuate d to the applicant on account of race, reli gion, nationa lit

y, membership i n a parti cular s ocial group, or political opinion . . . . ” 8 C.F.R . § 208.13(b )(2)(iii)(A). It appears that t

he BIA denied Lie’s w ell-fou nded fear c laim prima rily beca use L ie faile d to est ablish that her fea r of future persecution wa s gen uine. W hile L ie testifie d to having a subjective fearof future pe rsecution, t he BIA did not cre dit t his t esti mon y
. Inste ad, the BIA reli ed on the fact that Lie ac knowledged that she
cameto the United States “to s ee if she wante d to settle he re,” and found that Li e did not flee I ndo nesia bec ause of her fe ar of persecution. M oreo ver, im portan t to the B IA’s findin g that L ie lacked a subject

ive fear of returning to I ndonesia was the fact that Lie did not l eave Indonesi a with her hus band after the fir st r ob be ry, and waited nearly two year s af ter the s ubsequent r obbery of her10 home to come to t

he United States because he r s on w a s still in scho ol. There does not appear t o be evidence i n t he record t hat
wo uld compel us to dist urb the BIA’s f inding t hat Lie’ s fear of future per sec utio n is n ot g enu ine o r rea son able

. Thus, we agree with the BIA that L ie fail ed to est ablis h the subj ecti ve prong of the
we ll-fo und ed f ear te st. In addit ion, w e agre e w ith the B IA, th at Lie h as faile d to establisheithe r that

she faces an indivi dualiz ed ris k of persecution
or that t here is a “patt ern or practice” of persecuti on of Chinese Christians in In don esia

. See 8 C .F.R . § 208 .13(b )(2)(iii)(A ). First, Lie fail ed to show she has a reason able , indi viduali zed fear of persecution. The BIA noted that all o f Lie’s and her husb and’s sibl ings rema in safe ly in Indonesi a, and found t hat their continue d well-bei ng cuts againstLie’s argument that she reaso nably sh ould fea r retu rnin g to Ind one sia. We agree that

whe n fam ily members rem ain in petitioner’s nati ve country w ithout

meeting harm, and ther e is no i ndividual ized showing that petitioner wo uld be singled out for pe rs ec ution, the
reason able ness of a petitioner’s w ell-founded fear of fu ture persecution is di minished. See Hakeem v. INS , 273 F.3d 812, 816 (9th Cir. 2001) (“An appli cant’s clai m of persecution upon re turn is wea k ened , even und ercut, w hen s imilarly-situate d fam ily
mem bers continue to li ve in the cou nt ry withou t incident . . . .”); Krasnopivt

sev v. Ash croft , 382 F.3d 832, 839 (8th Cir . 2004) ( “The reasonableness of a fear of per secuti on is dim inished wh en fa mily
mem bers rema in in the native countryunharmed, and t he appli cant hims elf had not been si ngled out for abuse .”). In this cas e, there is little evidence t

hat Lie would fa ce an indi viduali ze d ri sk of persecution any more sev ere than that faced by her family mem bers or other Chinese Chris tians in Indones ia. Se cond, the ev idenc e in the record does not es tablish th a t there is a pat

tern or practi ce of persec ution of Chine se Christ

ians in Indone sia. The IN A reg ulations do n ot define w hat coun try conditi ons con stitute a “p atter n or pra ctice of p erse cutio n,” and th is court has y et to provi de furthe r clari fication of the standar d. At the thres hold, we agree w ith other courts t hat have held th at, to cons titute a “patt ern or pr acti ce,” t he persecut

ion of the group must be “syste mic , per vas ive, o r or ganized. ” Ng ure v. A shc roft, 367 F.3d 975, 991 (8t

h Cir. 2004 ); see a ls o Woldeme sk elv. INS , 257 F.3d 118 5, 119 1 ( 10t

h Ci r. 200 1) . A t all events, as w ith any claim4 In Sael v . Ashc roft , 386 F.3d 922 (9th Cir. 20 04), the Nin th Circu it found that

an ethni call y Chines e c itizen o f Ind ones ia establ ished a well-founde d fear of per secuti on. In Sael , the panel did not fin d suf ficien t evid ence of a “patt ern or pr acti ce” of persecution of C hines e Ch ristians in Indonesi a, but rather required
a lower leve l of indi viduali zed fearof future persecution because Chinese Christians were at least a “disfa vored group. ” Id. at 925- 27. A group may be deemed “di sfavored” on t he basis of evidence of mistr eatment t

hat is less pe rvasi ve and less severe t han would be requir ed to est ablis h a “pat te rn or pra ctic e” of persec ution, although“the ‘more seri ous and widespre ad the threat’ to the group in general, ‘t

he less indivi dualiz ed the t hreat of persecution needs to be.’” Id. at 925 (quoting Mgoi an v . I NS , 184 F.3d1029, 1035 n.4 (9th Cir . 1 999 )) . We di sa gr ee wi th th e Ni nth Ci rcuit’ s use of a lower st andard for i ndividual ized fear absent a “ patte rn or pra ctic e” of perse cution and, s imilarly , we r eject the est ablis hment of a
11 of persecution, vio lence or other harm perpetrated bycivil ians against the petiti oner’s gr oup does no t cons titute per secution unless such acts are “committ ed b y the go vernment or f orces the governmentis eith er ‘u nab le or unw illing ’ to c ont rol.” Abdulrahman v. A shc roft, 330 F .3d 587, 59 2 (3d C ir. 2003); s e e also Yan Lan Wu v. Ash croft , -- - F.3d - --, 2005 WL 14754, *3 (3rd Cir. Jan. 4, 2005 ). Petitioners argue, with some force, that anti -Chinese violenc e persi sts, c iti ng evidence i n the rec ord of widespr ead atta cks on C hin ese Ch ristian s in In don esia , inc luding press
acco unts of riots, vandali sm, and robbery targeting Chinese Christians. Neverthel ess, such viol ence does not appear t o be suffici ently

widespread as to constitute a patt ern or pr acti ce. The 1999 Country Report on Indones ia indi cated that there was a sharp decli ne in violenc e against Chinese Chris tians following t he period
o f intense violenc e in 1998 , and noted that the In don esia n governmentoff icially p rom otes relig iou s an d eth nic to leran ce. Mo reover, this violenc e seem s to have been pri marily wrought by fell ow citi zens and not t he resul t of government al action or acquiesc ence. Given these c onsider ations , we are not compelled to find that such at

tacks cons tit

ute a pattern or

practi ce of persecution against Chinese Christi ans. 4“d isf av or ed gr ou p” ca teg or y. 12 In sum, Lie has fail ed to demonstr ate she ha s a subjective fearof persecution, whi ch alone would be sufficient to foreclose her claim . Eve n if sh e cou ld estab lish she subje cti v ely fears per sec utio n up on h er re turn to In don esia , Lie has not establ ished the objective prong of the well -founded fear test because she has fail ed to establi sh an individu alized risk of pe rsecution or that there is pat tern orpractic e of p ersecu tion of Ch inese C hristians in Indonesi a. For the for egoing rea sons, we wil l denythe petiti on for
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