2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-21-2006

Yulianty v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3398

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Recommended Citation

"Yulianty v. Atty Gen USA" (2006). 2006 Decisions. Paper 427.

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*

The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth

Circuit, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 05-3398

____________

HELEN YULIANTY,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A95 473 719)

Immigration Judge Miriam K. Mills

____________

Submitted Under Third Circuit LAR 34.1(a)

September 13, 2006

Before: FUENTES, FISHER and McKAY,* Circuit Judges.

(Filed September 21, 2006)

____________

OPINION OF THE COURT

____________
1

To the extent that the BIA’s opinion adopts or defers to the IJ’s opinion, we also

review the IJ’s opinion. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).

2

FISHER, Circuit Judge.

We write only for the parties and thus will forgo lengthy recitation of the factual

and legal background to this case. Helen Yulianty petitions for review of the BIA’s

denial of her application for asylum and withholding of removal under the Immigration

and Nationality Act and the Convention Against Torture. The BIA affirmed the opinion

of the immigration judge (IJ), Miriam Mills. We review the BIA’s opinion.1

To qualify for asylum, an applicant must demonstrate a well-founded fear that if

returned to her home country she will be persecuted on account of one of the five grounds

enumerated at 8 U.S.C. § 1101(a)(42)(A). The grounds alleged here are national origin

and religion. Because the standard for withholding of removal is more stringent than for

asylum eligibility, if a petitioner fails to meet the criteria for asylum, she necessarily fails

to meet the criteria for withholding of removal. Wang v. Gonzales, 405 F.3d 134, 144 (3d

Cir. 2005).

The IJ denied Yulianty’s application on two alternative grounds: first, that her

story was not credible; second, that she would fail to meet the statutory asylum eligibility

standard even if her story were true. The BIA affirmed on the latter ground, as will we.

Assuming Yulianty’s story is true, she is an Indonesian citizen of ethnic Chinese

descent. She was born and raised a Buddhist, and later attended Christian churches and a

Christian college in Indonesia. She experienced several incidents of harassment and
3

crime: on various occasions she heard ethnic slurs shouted at her on the streets; on at

least one occasion rocks were thrown at her house; during street riots in 1998, there was

an attempted break-in of her house; on one occasion a boy riding a bike “grabbed [her]

breasts” while riding by her on the street; on another occasion her purse was snatched by

a thief riding a motorcycle.

“Persecution” means “extreme behavior, including threats to life, confinement,

torture, and economic restrictions so severe that they constitute a threat to life or freedom. 

This definition does not include all treatment that our society regards as unfair, unjust, or

even unlawful or unconstitutional.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003)

(internal citations omitted). Further, the acts must be carried out by the government, or

by forces that the government either will not or cannot control. Gao v. Ashcroft, 299 F.3d

266, 272 (3d Cir. 2002).

We agree with the BIA that the incidents described by Yulianty do not rise to the

level of persecution as we have defined that term. The two incidents of street crime bear

no evident connection to ethnicity or religion, nor does Yulianty allege that the

government was responsible for the incidents or is incapable of protecting her from

threats or violence. She reported the purse-snatching to the police, who took her report in

writing. Yulianty presented no evidence that ethnicity or religion played any role in the

crime or the government’s response. Nor do the State Department Country reports

substantiate the suggestion that the Indonesian police are unwilling or unable to
4

investigate crimes against ethnic Chinese. What we said in Lie v. Ashcroft applies equally

to the record before us in this case:

[T]he 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 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, 393 F.3d 418, 2005 WL

14754, *3 (3rd Cir. 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.

Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).

The facts alleged in this case are far less extreme and threatening than those

alleged in Lie, see id. at 533, and the record does not include any evidence that social
5

conditions or government practices have changed sufficiently in the past year as to cast

doubt on our holding in Lie. Accordingly, the petition for review will be denied.