NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 13

- 2635

____________ ALEX CHANDRA TAN, Petitioner

v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

__________________________________ On a Petition For Revi ew of an Order of the Board of Immigration Appeals ( Agency No. A 0 88

- 646

- 878 ) Immigration Judge: Philip Verril l o

__________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) March 26, 2014 Before: HARDIMAN, NYG AARD and ROTH, Circuit Judges (Opinion filed : June 13, 2014 )

____________ OPINION

____________
PER CURIAM Alex Chandra Tan (“ Tan ”) petitions for review of the Board of Immigration Appeals’ final order of removal. For the reasons that follow, we wi ll deny the petition for review.2 Tan , an ethnic Chinese Christian native of Indonesia, entered the United States on April 24, 2003 as a nonimmigrant visitor and overstayed his visa. In F ebruary, 2008, the Department of Homeland Security commenced removal proceedings against him through the filing of a Notice to Appear in Immigration Court, which alleged that he was removable pursuant to Immigration & Nationality Act (“INA”) § 237(a)(1)(B) , 8 U.S.C. § 1227(a)(1)(B), as an al ien who remained in the United S tates for a time longer than permitted. It is undisputed that Tan is removable as charged. Tan applied for statutory withholding of removal , INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), claiming that he was persecuted on the basis of his ethnicity in Indonesi a and would be again if forced to return there

. Tan testified at his hearing about several incidents of brutality perpetrated on him and his family by native Muslims when he was a child and teenager. Those incidents occurred in 1985, 1990, and 1995. In 2003, Tan’s wife’s uncle was robbed. As a result of these incidents Tan claimed that he has suffered both physically and emotionally. In support of his claim of persecution , Tan submitted numerous supporting documents, including a letter from Matthew Clark, M.D. indicating that the scars on Tan’s legs and head are consistent with injuries sustained in the manner he describe d; a letter from Lawrence B. Egbert, M.D. indicating that Tan exhibits symptoms consistent with post

traumatic stress disorder ; a letter confirming his membership in a C hristian c hurch in Philadelphia; several newspaper articles regarding conditions in Indonesia; a n a ffidavit from Dr. Jeffrey A. Winters , a professor with expertise in the area of Southeast Asia and Indonesia, stating his opinion on conditions in Indonesia f or the ethnic Chinese3 community and reli gious minorities ; and the State Department ’s 2009 Country Report for Indonesia and 2009 International Religious Freedom Report for Indonesia

. On October 21, 2010, the Immigrat ion Judge denied Tan’s application for withholding of removal. The IJ found Tan’s testimony to be credible and noted that his experiences in Indonesia could rise t o the level of past persecution on account of a protected ground . Nevertheless , the Governm ent had successfully rebutted any presumption of a future threat to his life or freedom. The IJ noted the State Department reports for Indonesia in the record, and concluded that they did not demonstrate a system at ic, pervasive or organized persecution of the ethnic Chinese community in Indonesia

. Rather, these reports noted efforts by the Indonesian Government to stop interreligious violence, a constitutional provision providing the right for all persons to worship according to their beliefs, and Indones ia’s official recognition of six faiths including Protestantism and Catholicism . Also, the record evidence did not show that Tan would be singled out for harm upon his return. The IJ pointed out that he had considered the other background materials submi tted by Tan , particularly the affidavit of Dr. Winters

. The IJ did not agree with Dr. Winters’ assessment that current conditions in Indonesia supported Tan’s claim of a future threat to his life or freedom . In addition, the IJ o bserved that the last phy sical attack on Tan occurred long ago , that Tan lived in Indonesia from August, 1990 through April, 2003 without suffering any additional physical attacks, and that h is three siblings and mother resid e in Indonesia and have not been harmed.4 Tan appealed t o the Board of Immigration Appeals. On May 28, 2013, the Board dismissed the appeal. The Board agreed with the IJ that, even assuming that Tan had established past persecution, the presumption of future harm had been rebutted by the
Government and the re cord evidence of current conditions in Indonesia. The Board additionally held that Tan had not demonstrated that he would be singled out individually for persecution upon his return to Indonesia, pointing out that he “remained in Indonesia for approximate ly 13 years after the church bus incident in 1995 and he and his future wife were not harmed at the hardware store in 2003.” A.R. 4. To the extent that the IJ appeared to have cited the wrong date in association with Tan’s description of a particular inc ident of harm, the Board found this error to be harmless. The Board also observed that Tan’s three siblings and mother all continue to live in Indonesia and have not been harmed since his departure in 2003

. Last, the Board agreed with the IJ that Tan had not established a system at ic, pervasive or organized pattern or practice of persecution of ethnic Chinese C hristians in Indonesia

. Tan has timely petitioned for review of the Board’s decision. We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1) . I n his brief, Tan contends that the Board’s determination that it is not more likely than not that he would be persecuted in the future is unsupported by substantial evidence

. Specifically, Tan argues that he did not receive a sufficiently individualized a ssessment of his evidence of current country conditions. Petitioner’s Brief, at 13. In particular, the Board failed to even mention Dr. Winters’ expert opinion that there is a real and ongoing danger of violent attacks against the ethnic5 Chinese communit y in Indonesia

. See id. at 25

- 26. 1 Tan seeks a remand for further analysis. See id. at 14. We will deny the petition for review. When the Board issues a separate opinion, we review the Board’s decision and look to the IJ’s ruling only insofar as the Board deferred to it. Chavarria v. Gonzalez , 446 F.3d 508, 515 (3d Cir. 2006). Here, the Board summarized the IJ’s decision by specifically citing to it , and gave every indication that it was deferring to it

. To overturn the Board’s decision, Tan must show us that his evidence was “so compelling that no reasonable factfinder could fail to find” in his favor. Immigration & Naturalization Serv. v. Elias

- Zacarias , 502 U.S. 478, 483

- 84 (1992). Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b )(3)(A), withholding of removal is not discretionary: “ T he Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nat ionality, membership in a particular social group or political opinion.” Id. The a pplicant must establish by a “clear probability” that h is life or freedom would be threatened in the proposed country. Immigration & Naturalization Serv. v. Stevic , 467 U. S. 407, 429 (1984). Clear probability is defined to mean that it is more likely than not that an alien would be subject to persecution. See id. at 429

- 30. It is the applicant’s burden to prove h is c ase. 8 U.S.C. § 1231(b)(3)(C).

1 Tan also contended that the ag ency applied the wrong standard, but we are confident that t he agency applied the correct withholding of removal legal standard in Tan’s case

.6 In claiming a well

- fou nded fear of persecution, the applicant must show that (1) he would be individually singled out for persecution or that (2) there is a pattern or practice of persecution of similarly situated individuals. Lie v. Ashcroft , 396 F.3d 530, 536 (3d Cir. 2005). If the applicant proves that he has suffered past persecution, “it shall be presumed that the applicant ’ s life or freedom would be threatened in the future . . .” 8 C.F.R. § 1208.16(b) (1)(i)

. The G overnment may rebut this presumption by showing through a preponderance of the evidence a “fundamental change in circumstances” such that the applicant’s life or freedom would not be threatened, see id. at § 1208.16(b)(1)(i)(A). As with any claim of persecution, the acts constituting persecution must be commi tted by the government or forces the government is either unable or unwilling to control. See Garcia v. Att’y Gen. of U.S. , 665 F.3d 496, 505 (3d Cir. 2013)

. S u bstantial evidence supports the agency’s conclusion that the Government rebutted the presumpt ion of any future threat to Tan’s life or freedom. As noted by the IJ, and affirmed by the Board, the State Department reports from 2009 do not support a claim that Tan’s life or freedom would be threatened in Indonesia. O verall , these reports demonstrat e much better conditions in Indonesia since Tan was last harmed. T he 2009 State Department reports reflect governmental efforts to stop inter religious violence , and thus show that the Indonesian government does not condone or acquiesce in attacks by priva te actors. Moreover, w e have held that the agency may rely on State Department reports. See Zubeda v. Ashcroft , 333 F.3d 463, 477

- 78 (3d Cir. 2003) ( State Department

c ountry reports are most appropriate and perhaps best resource for information on politi cal situations in foreign nations).7 T an’s contention that the agency’s analysis of his evidence was not sufficiently particularized is based in part on Berishaj v. Ashcroft , 378 F.3d 314, 327 (3d Cir. 2004), where we held that generalized improvements in country conditions would not suffice to

r ebut credible testimony and other evidence supporting the specific basis for the alien’s fear of persecution. Berishaj is inapposite here because Tan’s claim , unlike the alien ’s in Berishaj , is based generally on his Chinese appearance and his practice of Christianity; nothing in the record here indicates that Tan has been or will be subjected to harm based on a characteristic or action specific to him

. Moreover, we are satisfied that the agency , and specifically the Board, properly considered Tan’s evidence, including Dr. Winters’ affidavit , in concluding that the Government rebutted the presumption that Tan’s life or freedom would be threatened in the future , 8 C.F.R. § 1208.16(b)(1)(i). There is no merit to Ta n’s claim that the Board failed fully to consider the evidence that he proffered. Unlike in the case he cites in his Rule 28 (j) letter, Fed. R. App. Pro. 28(j), Indradjaja v. Holder , 737 F.3d 212 (2d Cir. 2013), there is no indication here that the Board completely discounted or disparaged the Winters affidavit. Although the Board di d not itself mention Dr. Winter s ’ affidavit, it cited page 13 of the IJ’s Oral D ecision three times; on page 13 of the Oral Decision the IJ discussed Dr. Winters’ affidavit a nd explained why less weight had been given to it. That sufficiently indicates to us that the Board was aware of the Winters affidavit, particularly in view of the fact that Tan devoted over twenty pages of his brief to discussing it, A.R. 19

- 42.8 Relyin g heavily on Dr. Winters ’ opinion , Tan contends that he is nevertheless able to demonstrate a clear probability of future persecution upon returning to Indonesia, even without the benefit of the presumption

. We disagree. Dr. Winters observed that there has been no “ massive upsurge of violence against the ethnic Chinese since 1998.”
A.R. 234. In addition, t here is no evidence that T an experienced any problems rising to the level of persecution between 1995 when he last was harmed and 2003 when he depart ed Indonesia , and he testified that his three siblings and mother continue to reside
in Indonesia, and that none of them have been harmed or threatened

. In sum, o n this record, the agency properly concluded that Tan neither demonstrated a clear probability that he would be singled out individually for persecution upon his return to Indonesia, n or established the existence of a systemic, pervasive or organized pattern or practice of persecution of ethnic Chinese Christians in Indonesia.
Fo r th e foregoing rea sons, we will deny the petition for review.