2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-31-2010

Boeng Tan v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1945

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1945

___________

BOENG LIN TAN; HENNY ELLY SANAWATI,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of a Decision of the

Board of Immigration Appeals

(Agency Nos. A079-734-399 & A096-205-610)

Immigration Judge: Honorable R.K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 24, 2010

Before: Chief Judge SCIRICA, SMITH and WEIS, Circuit Judges

(Opinion filed: March 31, 2010)

 

 OPINION

___________

PER CURIAM.

Petitioners Boeng Li Tan and Henny Elly Sanawati petition for review of a

decision by the Board of Immigration Appeals (“BIA”) rendered on March 4, 2009. For

the following reasons, we will dismiss in part and deny in part the petition for review.
2

I. Background

Petitioners, a married couple with two United States citizen children, are

natives and citizens of Indonesia. They arrived in the United States in 1998 and were

placed in removal proceedings in 2003. They conceded removability and applied for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”). Petitioners claim they suffered past persecution and fear future persecution and

torture in Indonesia because they are ethnic Chinese Christians.

After a hearing, the Immigration Judge (“IJ”) issued an oral decision on

March 20, 2008. The IJ determined that Petitioners are statutorily ineligible for asylum

because they filed their applications more than one year after the statutory deadline and

do not satisfy any exception to excuse the untimeliness. The IJ concluded that Petitioners

failed to establish eligibility for withholding of removal or protection under the CAT

because they did not testify to past harm sufficient to rise to the level of persecution and

they failed to establish a clear probability of future persecution or that anyone would

torture them if they were to return to Indonesia.

Petitioners appealed. They did not contest the IJ’s conclusion concerning

their statutory ineligibility for asylum or the decision to deny CAT relief. They claimed

only that they had established a pattern or practice of persecution of ethnic Chinese

Christians in Indonesia. On March 4, 2009, the BIA affirmed the IJ’s decision and

dismissed the appeal. 
3

This timely counseled petition for review followed. 

II. Analysis

We generally review only final orders of the BIA. See Li v. Att’y Gen., 400

F.3d 157, 162 (3d Cir. 2005). However, in cases where “the BIA both adopts the findings

of the IJ and discusses some of the bases for the IJ's decision, [this Court has] authority to

review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222

(3d Cir. 2004). We review the rejection of Petitioners’ claims under the deferential

substantial evidence standard. See Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006). 

Accordingly, we will not disturb the decision “unless any reasonable adjudicator would

be compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.

2008) (citations omitted). 

The BIA affirmed the IJ’s conclusion that Petitioners were not entitled to

withholding of removal because they failed to establish a “pattern or practice of

persecution” of ethnic Chinese Christians in Indonesia. See 8 C.F.R. § 1208.16(b)(2). 

Among other things, in order to meet their burden of proof for this claim, Petitioners were

required to present objective evidence demonstrating that persecution of ethnic Chinese

Christians in Indonesia is “systemic, pervasive, or organized.” See Lie v. Ashcroft, 396

F.3d 530, 537 (3d Cir. 2005). 

To date, our case law has not conclusively addressed whether or not a

pattern or practice of persecution of ethnic Chinese Christians exists in Indonesia. See
 For example, the 2003 and 2004 State Department Reports “generally emphasize the 1

steps taken by the Indonesian government to promote religious, racial, and ethnic

tolerance and to reduce interreligious violence . . . [and] indicate that private parties, not

government officials, are the predominant cause of harassment and violence.” Wong, 539

F.3d at 233-34. 

4

Sukwanputra v. Gonzales, 434 F.3d 627, 637 n.10 (3d Cir. 2006). However, we have

considered State Department Reports from 1999, 2003, and 2004, and have concluded

that these reports do not demonstrate persecution that constitutes a pattern or practice. 

See Wong v. Att’y Gen., 539 F.3d 225, 233-34 (3d Cir. 2008); Lie, 396 F.3d at 537. We 1

have also noted that recent State Department reports tend to reflect improving treatment

of ethnic Chinese Christians in Indonesia. See Wong, 539 F.3d at 234. 

In reaching a decision in this case, the IJ relied upon the most recent State

Department Reports that appear in the record, which are from 2006 and 2007. (See

A.R.312-22, 394-405, 419-46.) In essence, the IJ concluded that the reports reflect that

the Indonesian government has made efforts to improve the situations for ethnic Chinese

and Christian individuals. For instance, she noted that Indonesia has abolished

discriminatory laws and does not support the religious tensions in the country. The BIA

upheld the IJ’s factual findings based upon these reports, concluding that they did not

establish the necessary “systemic, pervasive, or organized” persecution of ethnic Chinese

Christians. See Lie, 396 F.3d at 537. 

Based upon our close review of the record, we conclude that substantial

evidence supports the decision that Petitioners failed to establish a pattern or practice of
 For example, the 2007 State Department Report on International Religious Freedom 2

states that “the Government generally respected” religious freedom, that “[t]here was no

change in the status of respect for religious freedom by the Government during the

reporting period,” and that “most of the population enjoyed a high degree of religious

freedom.” (A.R. 394.)

 Petitioners attempt to rely upon Mufied v. Mukasey, 508 F.3d 88, 91-92 (2d Cir.

3

2007), a decision by the Court of Appeals for the Second Circuit. In Mufied, the

applicant argued that there was a pattern or practice of persecution of Christians in

Indonesia, but the IJ and BIA failed to consider the claim. Accordingly, the Second

Circuit remanded the matter so the BIA could consider in the first instance whether the

applicant had proffered evidence that established “systemic, pervasive, or organized”

persecution of Christians in Indonesia. Id. at 93. Here, in contrast, the IJ and BIA

considered and rejected Petitioners’ pattern or practice claim. Accordingly, Mufied is not

relevant to our consideration of this matter.

5

persecution of ethnic Chinese Christians in Indonesia. Similarly to the reports we

considered in Lie and Wong, Petitioners’ proffered 2006 and 2007 State Department

reports contain evidence undermining their pattern or practice claim. The evidence in 2

the record does not compel the conclusion that a pattern or practice of persecution of

ethnic Chinese Christians exists in Indonesia. See INS v. Elias-Zacarias, 502 U.S. 478,

481 n.1 (1992); see also Wong, 539 F.3d at 233-34; Lie, 396 F.3d at 537. 

Although Petitioners dispute this result, they offer nothing more than

conclusory statements to the effect that they presented “overwhelming evidence of . . . a

pattern or practice of persecution against ethnic Chinese and Christians in Indonesia. . . .” 

They point to nothing in the record to undermine the substantial evidence supporting the

IJ’s and BIA’s conclusions. Accordingly, we must deny their withholding of removal

claim.3
6

Throughout their brief on appeal, Petitioners also contend they are entitled

to asylum and CAT relief. We must dismiss these claims. We lack jurisdiction to review

the IJ’s conclusion that Petitioners applied for asylum outside of the statutory deadline

and failed to present circumstances to toll the deadline. See Tarrawally v. Ashcroft, 338

F.3d 180, 185 (3d Cir. 2003). In addition, when they appealed to the BIA, Petitioners

failed to dispute the IJ’s decision to deny CAT relief. Accordingly, that claim remains

unexhausted. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003); INA

§ 242(d)(1) [8 U.S.C. § 1252(d)(1)]. 

III. Conclusion

For the foregoing reasons, we will dismiss in part and deny in part the

petition for review.