2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-7-2005

Lie v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-4106

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Lie v. Atty Gen USA" (2005). 2005 Decisions. Paper 1514.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1514
PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________________________________

NO. 03-4106

_________________________________________

IMELDA LAURENCIA LIE

SOYONO LIEM

ANDRE YULIUS SUYONO

 Petitioners

 v.

JOHN ASHCROFT, ATTORNEY GENERAL

OF THE UNITED STATES OF AMERICA,

 Respondent

 __________________________________

On Petition for Review of Orders of the

Board of Immigration Appeals

(Board Nos. A78 696 420, A 78 696 421, A 78 696 422)

__________________________________

Argued: December 13, 2004

Before: NYGAARD, ROSENN, and BECKER, Circuit Judges.

(Filed: February 7, 2005)

David E. Piver

W. John Vandenberg (Argued)

150 Strafford Avenue

Suite 115

Wayne, PA 19087

Attorneys for Petitioner
1

 Lie filed the application with the former Immigration and

Naturalization Service (INS), and included her husband and son as

derivative applicants. The application also included a claim based

on the Convention Against Torture (CAT). On appeal, however,

Lie has not raised any argument regarding the denial of her CAT

claim except by mentioning the Convention in her concluding

paragraph; nor did she rebut the government’s argument that she

has waived this issue in her reply brief or at oral argument. As

such, we deem her appeal of the CAT claim to have been waived.

See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (holding that

absent “extraordinary circumstances” appellant must present an

argument in support of each issue raised on appeal or such issues

are abandoned and waived).

2

Linda S. Werney

Douglas E. Ginsburg

John M. McAdams, Jr.

Kathleen M. Zapata (Argued)

United States Department of Justice

Office of Immigration

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

_____

 OPINION OF THE COURT

 

BECKER, Circuit Judge.

Imelda Laurencia Lie, her husband, Soyono Liem, and her

minor son, Andre Yulius Suyono, petition for review of an order of

the Board of Immigration Appeals (BIA) denying their application

for asylum and withholding of removal.1 This case tracks a now

familiar fact pattern: Lie is an Indonesian citizen who alleges that

she and her husband were persecuted because they are ethnically

Chinese and Christian. More specifically, Lie alleges, as is

common in these cases, that she and her husband were robbed on
3

separate occasions by unknown individuals who targeted them

because of their ethnicity and their religion.

However, substantial evidence supports the BIA’s

conclusion that these robberies were not motivated by religion or

ethnicity, and that, at all events, such robberies were not

sufficiently severe so as to rise to the level of persecution.

Moreover, we agree with the BIA’s conclusion that Lie has not

established a well-founded fear of persecution if she were to return

to Indonesia. Therefore, we will deny the petition for review.

I. FACTS AND PROCEDURAL HISTORY

Lie became a naturalized Indonesian citizen around the time

she married her husband in 1990. Lie and her husband lived

separately for work reasons in towns about four hours apart. As

noted above, both Lie and her husband are ethnically Chinese and

are Christians. In the late 1990s, Indonesia’s Chinese Christian

population became the target of widespread attacks perpetrated by

Muslim Indonesians. The 1999 United States State Department

country report for Indonesia noted that “[i]nterreligious violence

and violence against ethnic minorities continued. Attacks against

houses of worship continued, and the lack of an effective

government response to punish perpetrators and prevent further

attacks led to allegations of official complicity in some incidents.”

U.S. Dep’t of State, 1999 Country Reports on Human Rights

Practices – Indonesia, Feb. 25, 2000 (“1999 Country Report”). In

May 1998, there were “serious and widespread attacks” on

Chinese-owned businesses and homes by Muslim Indonesians,

which led to the deaths of over one thousand people. Id. Thus,

1998 represented a period of significant violence and rioting

against individuals of Chinese origin throughout Indonesia.

Lie alleges that at the start of this tumultuous period, in

1997, several native, Muslim Indonesians entered her husband’s

store, threatened him with a knife, called him a “Chinese pig,” and

then robbed him. Traumatized as a result of the robbery, her

husband left for the United States in December 1997.

Lie further claims that in July 1998, two people knocked on

the door of her home, called her a “Chinese pig,” and demanded

entry. They knocked down the door brandishing a knife, threatened

to burn down her house, and demanded that she give them money.
4

The intruders took some of Lie’s money and jewelry and struck her

in the left forearm with the knife when she tried to defend herself.

When they left, Lie called the police, but claims that no one at the

police station answered the phone. Lie received several stitches for

the knife wound. However, for the next twenty-one months, Lie

and her son continued to live in the same house without incident.

Lie and her son did not leave Indonesia until March 2000,

when they came to the United States as non-immigrant visitors. On

August 14, 2000, Lie filed an asylum application with her husband

and son as derivative applicants. On September 26, 2000, the INS

commenced removal proceedings against Lie, her husband, and her

son. The Immigration Judge (IJ) initially indicated he would

grant asylum subject to the admission of additional evidence from

both parties, including evidence confirming that Lie is a Catholic.

Because Lie did not provide the information in time, the IJ denied

her asylum application. Lie filed a timely motion to reopen the

case and produced evidence that she is a Catholic and attends mass

every Sunday. The IJ then reopened the case and granted the

motion for asylum. 

The IJ made credibility findings in Lie’s favor, including

that the IJ had “no reason to dispute the veracity of [the] claim that

[Lie] and her husband are ethnically Chinese” and that Lie was in

fact Catholic. The main issue addressed by the IJ was the

motivation of the individuals who robbed Lie’s husband and Lie.

While finding that the attackers had some interest in simple

robbery, the IJ concluded that, “taking into account the context in

which the respondent’s claim arises, it is reasonable to conclude

that those who robbed the respondent and her husband were

motivated at least in part by a desire to punish them because of

their ethnicity.” In addition to Lie’s testimony about the incident,

the IJ relied on evidence of the 1998 anti-Chinese riots and other

violence directed against ethnic Chinese during this period

documented in the 1999 Country Report. Therefore, the IJ found

that Lie and her husband had suffered past persecution, and that the

presumption of future persecution had not been rebutted by

evidence of changed conditions in Indonesia. 

The government appealed to the Board of Immigration

Appeals (BIA), which overturned the IJ’s grant of the Lies’ asylum

petition. The BIA found that “with regard to the single incident of

abuse [Lie] has described, a robbery of her store, there was no
2

 The BIA seems to have conflated Lie’s testimony about

the earlier robbery of her husband’s store with her testimony about

the subsequent break-in and robbery at her home. This mistake,

however, does not appear to undermine the outcome of the BIA’s

reasoning. 

5

evidence that it was motivated by her religion. As for her claim that

the robbery was motivated by her Chinese ethnicity, the only

evidence to support that claim was her testimony that her attackers

said ‘you Chinese pig, I want your money,’” which the BIA found

to be insufficient.2 

The BIA further reasoned that even if the ethnic slur was

sufficient to establish that the intruders were motivated by Lie’s

ethnicity or religion, the robbery incident did not constitute

persecution. See Fatin v. INS, 21 F.3d 1233, 1240 n.10 (3d Cir.

1993) (holding that persecution denotes “extreme conduct”). The

BIA found significant that Lie’s Chinese neighbors were not

robbed, that Lie tried only once to contact the police, and that she

lived for nearly two years after the attack without incident before

fleeing to the United States. It therefore rejected the IJ’s finding

that Lie had suffered past persecution.

Similarly, the BIA concluded that Lie lacks a well-founded

fear of future persecution. In its view, the fact that she remained

in Indonesia for nearly two years after the robbery because her son

was in school undermined her claim that her “primary motivation

for requesting refuge in the United States is ‘fear,’ i.e., a genuine

apprehension or awareness of danger in another country.” Matter

of Acosta, 19 I. & N. Dec. 211, 221 (BIA 1985). In addition, the

BIA noted that all of Lie’s and her husband’s siblings remain in

Indonesia and have been unharmed during this period—a factor

which the BIA had previously held would reduce the

reasonableness of alien’s fear of future persecution. See Matter of

A-E-M, 21 I. & N. Dec. 1157, 1160 (BIA 1998). 

Concluding that Lie had failed to establish past persecution

or a well-founded fear of persecution, the BIA overturned the IJ’s

decision and denied asylum, withholding of removal, and Lie’s

CAT claim. Lie now petitions for review on her asylum and

withholding of removal claims. We set forth the by now familiar

principles governing our jurisdiction and scope and standard of
3

 We have jurisdiction to review final orders of the Board of

Immigration Appeals under section 242(a)(1) of the Immigration

and Nationality Act, 8 U.S.C. § 1252(a)(1) (1999). As the petition

for judicial review was filed within thirty days of the BIA’s

decision, the petition is timely. 8 U.S.C. § 1252(b)(1).

Where, as here, the BIA issued a decision on the merits and

not simply a summary affirmance, we review the BIA’s, not the

IJ’s, decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002);

Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001). We

must uphold the BIA’s factual findings if they are “supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480

(1992). We should find substantial evidence lacking only where

the evidence “was so compelling that no reasonable factfinder

could fail to find the alien eligible for asylum or withholding of

removal.” Id. at 483-84; see also 8 U.S.C. § 1252(b)(4)(B);

Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).

6

review in the margin.3

II. DISCUSSION

Under 8 U.S.C. § 1158(b)(1), the Attorney General may

grant asylum to an alien who is a “refugee” within the meaning of

8 U.S.C. § 1101(a)(42). Generally speaking, an applicant must

show that he or she 

is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of

[the country of such person’s nationality or in which

such a person last habitually resided], 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). A showing of past persecution gives

rise to a rebuttable presumption of a well-founded fear of future

persecution. 8 C.F.R. § 1208.13(b)(1). 

Lie challenges the BIA’s finding that she did not suffer past
7

persecution and its conclusion that she has failed to establish a

well-founded fear of future persecution. 

A. Past Persecution

Lie claims that the intrusion into her home and the robbery

of her husband’s store constituted past persecution on account of

her Chinese ethnicity and Christian religion. As noted above, the

BIA concluded that Lie had not established the intruders were

motivated by her ethnicity or religion, and that, even if they had

such motivation, the incident was not sufficiently severe so as to

rise to the level of past persecution. We agree with the BIA’s

conclusion and similarly hold that Lie has not established her claim

of past persecution.

1. “On Account Of” 

An asylum applicant must prove that she suffered past

persecution or has a well-founded fear of future persecution “on

account of” one of five enumerated grounds: “race, religion,

nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b)(1).

The Supreme Court, in INS v. Elias-Zacarias, held that while an

asylum-seeker would not “be expected to provide direct proof of

his persecutors’ motives,” nevertheless, 

since the statute makes motive critical, he must provide

some evidence of [motive], direct or circumstantial.

And if he seeks to obtain judicial reversal of the BIA’s

determination, he must show that the evidence he

presented was so compelling that no reasonable

factfinder could fail to find the requisite fear of

persecution.

502 U.S. 478, 483-84 (1992). 

We have recognized that “[a] persecutor may have multiple

motivations for his or her conduct, but the persecutor must be

motivated, at least in part, by one of the enumerated grounds.”

Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003); see also

Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997) (finding

persecution on account of political opinion where persecutor’s

action was “motivated, at least in part” by the applicant’s political
8

opinion). 

Even though Lie testified that during both the robbery of her

husband’s store and the robbery of her home the attackers called

each of them a “Chinese pig,” the BIA determined that “a single

ethnic slur” was insufficient to establish that the thieves were

motivated by Lie’s or her husband’s ethnicity. Indeed, the BIA

cited significant evidence supporting the conclusion that the

attackers were motivated by money: the attackers fled after

stealing her jewels and money; her Chinese neighbors were not

robbed; the robbery of relatively wealthy individuals such as the

Lies was not uncommon in Indonesia; and Lie and her son lived in

peace for almost two years following the attack. 

While the 1999 Country Report did provide evidence that

there was widespread animus against ethnic Chinese, the BIA was

nevertheless entitled to rely on the evidence that, in Lie’s particular

case, the robberies were motivated by money. We find that the

evidence of general ethnic difficulties would not compel a

reasonable factfinder to conclude that the intrusions were “on

account of” Lie’s ethnicity or religion. Therefore, the BIA’s

decision to deny Lie’s claim on this basis was supported by

substantial evidence in the record.

2. Not Sufficiently Severe

The BIA also found that, even assuming, arguendo, that the

robberies were motivated by Lie’s ethnicity, the incidents did not

rise to the level of persecution because the harm suffered was not

sufficiently severe. The finding that the robberies did not

constitute persecution seems to be an appropriate application of the

standard announced in Fatin v. INS, where we defined persecution

as “threats to life, confinement, torture, and economic restrictions

so severe that they constitute a threat to life or freedom.” 12 F.3d

1233, 1240 (3d Cir. 1993). 

Simple robbery, in isolation, while unfortunate and

troubling, does not seem to meet this stringent standard. See

Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004)

(“Random, isolated criminal acts perpetrated by anonymous thieves

do not establish persecution.”); Halim v. Ashcroft, 109 Fed. Appx.

164 (9th Cir. 2004) (non-precedential opinion) (holding that a

Chinese Indonesian had not suffered past persecution after begin

robbed at a Chinese restaurant by native Indonesians who said,
9

“You Chinese, give us all your belongings,” but was rather “the

victim of disturbing, but random, crime”); Djap v. Ashcroft, 2004

113 Fed. Appx. 376, 378 (10th Cir. 2004) (non-precedential

opinion) (finding that “the mistreatment [petitioner] experienced

was insufficient to rise to the level of persecution” in the case of an

ethnically Chinese Indonesian who claimed that, because of his

ethnicity, he was beaten and robbed by native Indonesians and that

his shop was looted and burned during the 1998 riots). We agree

with the Ninth and Tenth Circuits that Lie’s account of two isolated

criminal acts, perpetrated by unknown assailants, which resulted

only in the theft of some personal property and a minor injury, is

not sufficiently severe to be considered persecution.

B. Well-Founded Fear of Future Persecution

The BIA also found that Lie failed to establish a wellfounded fear of future persecution if she and her family were to

return to Indonesia. To establish a well-founded fear of future

persecution an applicant must first demonstrate a subjective fear of

persecution through credible testimony that her fear is genuine.

Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). Second, the

applicant must show, objectively, that “a reasonable person in the

alien’s circumstances would fear persecution if returned to the

country in question.” Id. To satisfy the objective prong, a

petitioner must show she would be individually singled out for

persecution or demonstrate 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 . . . . ” 8 C.F.R. § 208.13(b)(2)(iii)(A).

It appears that the BIA denied Lie’s well-founded fear claim

primarily because Lie failed to establish that her fear of future

persecution was genuine. While Lie testified to having a subjective

fear of future persecution, the BIA did not credit this testimony.

Instead, the BIA relied on the fact that Lie acknowledged that she

came to the United States “to see if she wanted to settle here,” and

found that Lie did not flee Indonesia because of her fear of

persecution. Moreover, important to the BIA’s finding that Lie

lacked a subjective fear of returning to Indonesia was the fact that

Lie did not leave Indonesia with her husband after the first robbery,

and waited nearly two years after the subsequent robbery of her
10

home to come to the United States because her son was still in

school. There does not appear to be evidence in the record that

would compel us to disturb the BIA’s finding that Lie’s fear of

future persecution is not genuine or reasonable. Thus, we agree

with the BIA that Lie failed to establish the subjective prong of the

well-founded fear test. 

In addition, we agree with the BIA, that Lie has failed to

establish either that she faces an individualized risk of persecution

or that there is a “pattern or practice” of persecution of Chinese

Christians in Indonesia. See 8 C.F.R. § 208.13(b)(2)(iii)(A). First,

Lie failed to show she has a reasonable, individualized fear of

persecution. The BIA noted that all of Lie’s and her husband’s

siblings remain safely in Indonesia, and found that their continued

well-being cuts against Lie’s argument that she reasonably should

fear returning to Indonesia. 

We agree that when family members remain in petitioner’s

native country without meeting harm, and there is no individualized

showing that petitioner would be singled out for persecution, the

reasonableness of a petitioner’s well-founded fear of future

persecution is diminished. See Hakeem v. INS, 273 F.3d 812, 816

(9th Cir. 2001) (“An applicant’s claim of persecution upon return

is weakened, even undercut, when similarly-situated family

members continue to live in the country without incident . . . .”);

Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004) (“The

reasonableness of a fear of persecution is diminished when family

members remain in the native country unharmed, and the applicant

himself had not been singled out for abuse.”). In this case, there is

little evidence that Lie would face an individualized risk of

persecution any more severe than that faced by her family members

or other Chinese Christians in Indonesia.

Second, the evidence in the record does not establish that

there is a pattern or practice of persecution of Chinese Christians

in Indonesia. The INA regulations do not define what country

conditions constitute a “pattern or practice of persecution,” and this

court has yet to provide further clarification of the standard. At the

threshold, we agree with other courts that have held that, to

constitute a “pattern or practice,” the persecution of the group must

be “systemic, pervasive, or organized.” Ngure v. Ashcroft, 367

F.3d 975, 991 (8th Cir. 2004); see also Woldemeskel v. INS, 257

F.3d 1185, 1191 (10th Cir. 2001). At all events, as with any claim
4

In Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), the Ninth

Circuit found that an ethnically Chinese citizen of Indonesia

established a well-founded fear of persecution. In Sael, the panel

did not find sufficient evidence of a “pattern or practice” of

persecution of Chinese Christians in Indonesia, but rather required

a lower level of individualized fear of future persecution because

Chinese Christians were at least a “disfavored group.” Id. at 925-

27. A group may be deemed “disfavored” on the basis of evidence

of mistreatment that is less pervasive and less severe than would be

required to establish a “pattern or practice” of persecution,

although “the ‘more serious and widespread the threat’ to the group

in general, ‘the less individualized the threat of persecution needs

to be.’” Id. at 925 (quoting Mgoian v. INS, 184 F.3d 1029, 1035 n.4

(9th Cir. 1999)). We disagree with the Ninth Circuit’s use of a

lowerstandard for individualized fear absent a “pattern or practice”

of persecution and, similarly, we reject the establishment of a

11

of persecution, violence or other harm perpetrated by civilians

against the petitioner’s group does not constitute persecution unless

such acts are “committed by the government or forces the

government is either ‘unable or unwilling’ to control.”

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003); see

also Yan Lan Wu v. Ashcroft, --- F.3d ---, 2005 WL 14754, *3 (3rd

Cir. Jan. 4, 2005).

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.4 
“disfavored group” category.

12

In sum, Lie has failed to demonstrate she has a subjective

fear of persecution, which alone would be sufficient to foreclose

her claim. Even if she could establish she subjectively fears

persecution upon her return to Indonesia, Lie has not established

the objective prong of the well-founded fear test because she has

failed to establish an individualized risk of persecution or that there

is pattern or practice of persecution of Chinese Christians in

Indonesia. For the foregoing reasons, we will deny the petition for

review