Ong v. Attorney General of the United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 09-3543
___________

AGUS KURNIA PUTRA ONG,
Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________

On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A096 257 812
Immigration Judge: R.K. Malloy
____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)
September 8, 2010

Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

(Opinion filed :September 9, 2010)
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OPINION
___________

PER CURIAM

Agus Kurnia Putra Ong petitions for review of an order of the Board of

Immigration Appeals (“BIA”), which, following remand by this Court, dismissed once

again his appeal of an Immigration Judge’s (“IJ”) final removal order. We will deny the
petition for review.

I.

Ong is an ethnic Chinese native and citizen of Indonesia. He was baptized a

Christian when he was fourteen years old. Ong entered the United States in 2001 on a

non-immigrant visa and stayed longer than permitted. Ong applied for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”),

based on his allegations that he had been, and would be, persecuted and/or tortured in

Indonesia because of his ethnicity and religion. In his testimony before an IJ, Ong

recounted incidents of criminal behavior that occurred in Indonesia between January 1997

and February 2000 while he was living in Indonesia. The IJ found that Ong was credible,

but that the problems Ong had encountered did not rise to the level of past persecution.

For example, the IJ noted that the robberies Ong had described were crimes rather than

persecution, and the incident in which his parents’ store was looted and his mother was

almost raped occurred during a period of general civil crisis and was thus not persecution.

The IJ also noted Ong’s testimony that he did not attend church often in the United States

because of his work schedule. The IJ noted that Bethany Church, which is the church

Ong said he attended, had services at times other than Sunday mornings, and that Ong did

“not appear to be a person who is so dedicated to the church . . . .” A.R. 166-67.

The IJ found that Ong’s asylum application was untimely, but that even if it were

2
timely, Ong did not meet the burden of showing that he suffered past persecution, or that

he would suffer future persecution on account of a statutorily protected ground in the

future. The IJ acknowledged that there was still discrimination against ethnic Chinese

people in Indonesia, but that discriminatory laws were being abolished. The IJ noted that

Christianity is recognized as one of the major religions in Indonesia, and found no

evidence that the government of Indonesia was singling out Christians for persecution.

The IJ also noted steps that the government was taking to try to protect churches in

Indonesia. The IJ thus denied withholding of removal, and also denied relief under the

CAT, finding no evidence in the record that Ong would be tortured in Indonesia.

On appeal, the BIA agreed that Ong’s asylum application was untimely. The BIA

also agreed with the IJ that Ong’s “testimony was insufficient to establish past

persecution or a well-founded fear of persecution on account of a protected ground for

purposes of asylum,” and that he could thus not meet the higher burden for withholding of

removal. The BIA noted that Ong conceded in his brief to the BIA that this Court and the

BIA had “previously determined, in similar circumstances, that the burden of proof for

relief had not been met,” but that he argued that the existing law should be reexamined

and changed. A.R. 93-94 (see also Respondent’s Brief, A.R. 101-02). The BIA

explained that it was constrained to follow the law of this Court and of the BIA unless

such precedent had been modified or overruled. A.R. 94. The BIA noted that Ong did

not make any argument regarding the denial of relief under the CAT. Id.

3
 Ong filed a timely petition for review, represented by new counsel. See Ong v.

Attorney General, C.A. No. 08-2762. After Ong filed his brief, the Government filed an

unopposed motion to remand, arguing that the BIA should on remand examine claims

Ong raised in his brief “that it was inappropriate to find him ineligible for relief based

on his level of religious dedication since his arrival to the United States,” and argued that

the “BIA should examine the inclusion of extra-record evidence to support that finding.”

This Court granted the motion, and the matter was remanded.

The BIA found that “it was not appropriate for the [IJ] to take administrative

notice of the church services available to the respondent,” and found that Ong’s level or

religious participation in the United States did not “necessarily weaken[] his claim to past

persecution in Indonesia on account of being a Christian or being ethically [sic] Chinese.”

A.R. 4. The BIA stated, however, “based on the testimony and other evidence presented

by [Ong], we find now, as we did in our May 22, 2008, decision, that the respondent

failed to satisfy his burden of proof of establishing past persecution or a likelihood of

future persecution, on account of a protected ground.” Id.

The BIA noted that Ong had submitted with his brief the United States Department

of State International Religious Freedom Report for Indonesia for 2008. The BIA held

that to the extent the submission could be construed as a motion to remand, it was

insufficient, absent supporting affidavits or other materials, to show that the claim for

withholding of removal would be likely to succeed on the merits. The BIA noted that the

4
voluntary departure period could not be tolled, as it had expired. The BIA ordered that

the “appeal remains dismissed.” Ong filed a timely petition for review.

II.

Ong seeks to raise two issues in his brief here.1 First, he argues that “the BIA’s

failure to properly review the entire record below deprived the Petitioner [of] his

procedural due process right to a full and fair hearing.” Second, he argues that the BIA

erred in affirming the IJ’s decision denying withholding of removal “on the grounds that

he had not established a clear probability of future persecution.” 2 Petitioner’s Brief at 7.

We first consider the scope of our review. Ong filed a timely petition for review

of the May 22, 2008 decision of the BIA. We thus have jurisdiction to consider the BIA’s

original decision denying withholding of removal, and, as the BIA adopted some of the

findings of the IJ and made additional findings, we also review the decision of the IJ.

Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 339 (3d Cir. 2008). Because we granted

1
Ong makes no mention of the IJ’s decision to pretermit his asylum application, and in
any event, this Court lacks jurisdiction to review the IJ’s determination that Ong’s asylum
application was not timely filed. See 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338
F.3d 180, 185 (3d Cir. 2003). Ong’s brief also lacks any reference to the denial of relief
under the CAT. Accordingly, the claim has been waived. Chen v. Ashcroft, 381 F.3d
221, 235 (3d Cir. 2004).
2
To be eligible for withholding of removal, Ong was required to demonstrate that
“there is a greater-than-fifty-percent chance of persecution” in Indonesia based on one of
the protected grounds, such as religion or ethnicity. Senathirajah v. INS, 157 F.3d 210,
215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(C). If an alien proves past
persecution, a rebuttable presumption of future persecution is created. Kaita v. Att’y
Gen., 522 F.3d 288, 296 (3d Cir. 2008).

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the Government’s motion to remand for consideration of two discrete issues (the “church

attendance issues”), the BIA properly found that the remand was limited to consideration

of those two issues, and we may review its treatment of the church attendance issues here.

We also have jurisdiction to consider the BIA’s denial of the motion to remand. Our

scope of review is limited by the requirement that an alien “raise and exhaust his or her

remedies as to each claim or ground for relief if he or she is to preserve the right of

judicial review of that claim.” Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.

2003); 8 U.S.C. § 1252(d)(1).

Ong did not raise a Due Process claim in either of his briefs to the BIA. We thus

lack jurisdiction to consider it as such. Ong did, however, argue in his first brief to the

BIA that the IJ erred by failing to find that the cumulative mistreatment Ong suffered

constituted past persecution for purposes of withholding of removal. A.R. 100.3 Ong

notes that the BIA failed to discuss certain incidents in its decisions; e.g., his claim that

his neighbors threatened to burn down his house if he did not stop hosting worship

services in his home, and an incident in July 1999 when he was beaten in front of his

home by a native Indonesian who used racial epithets.

The BIA must provide sufficient detail to allow the reviewing court to discern the

3
Because the remand (and thus the second brief to the BIA) should have been
limited to the church attendance issues, the claim that the IJ failed to consider the
cumulative effect of the incidents Ong experienced was only properly raised in the first
brief to the BIA.

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basis of its decision, but we will not find a decision insufficient merely because it “could

be more detailed.” Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006) (quotation

and citation omitted). Here, the Board provided enough detail for us to conduct a

meaningful review of its denial of Ong’s withholding claim. The BIA’s determination

that Ong had not met his burden of proving by objective evidence that it was more likely

than not that he would be persecuted upon his return to Indonesia indicates that the Board

had considered all of the evidence of record. Cf. Toussaint, 455 F.3d at 415 (“BIA’s

reference to ‘insufficient evidence’ indicates that it weighed the evidence and found it

lacking . . . .”).

Further, the evidence Ong points to does not appear sufficient to change the IJ’s

decision that Ong had not met his burden of showing that it is more likely than not that he

would be persecuted. Persecution is defined as “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to life or freedom.” Lie v.

Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d

Cir. 1993)). Although the incidents that Ong suffered are deplorable, the criminal acts and

harassment do not rise to the level of persecution that would compel a conclusion

contrary to the determinations of the IJ and the BIA. See Lie, 396 F.3d at 536; Kho v.

Keisler, 505 F.3d 50, 57- 58 (1st Cir. 2007) (where two churches that petitioner attended

in Indonesia were burned down and he experienced a non-violent mugging,

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discrimination, and a verbal insult, petitioner had not established past persecution).4

Ong’s second argument is that the BIA erred in affirming the IJ’s decision denying

withholding of removal on the grounds that he had not established a clear probability of

future persecution. Because Ong did not establish past persecution, there was no

presumption that he would be persecuted in the future. Ong acknowledged in his first

brief to the BIA, citing Lie, that this Court had denied asylum for a Chinese Christian

victim of a robbery in Indonesia, and that this Court had not found a pattern or practice of

persecution of Christians in Indonesia, but he argued that the law should be re-examined.

A.R. 101-02. The BIA properly found that it was constrained to follow the law of the

Court.

Relatedly, Ong now argues that evidence in the 2005 and 2008 Country Reports

shows “that violence against ethnic Chinese Christians is widespread, systemic and

pervasive.” Petitioner’s Brief at 30. The 2005 Country Reports were part of the record

before the IJ. Exhibit 7A & 7B, A.R. 154. Any argument that the IJ failed to consider

those reports is waived as Ong did not so argue in his first brief to the BIA. Further, the

2005 reports have little relevance to a consideration of whether Ong will be persecuted in

4
Ong also appears to argue that the IJ’s consideration of Ong’s religious dedication
in the United States caused the IJ to fail to find that Ong was persecuted in the past. Even
if the IJ improperly allowed the issue of Ong’s church attendance to color her
consideration of whether Ong was persecuted in the past, the BIA recognized the IJ’s
possible error and still found that Ong had failed to meet his burden of showing past
persecution. The record does not compel us to find otherwise.

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the future.

Ong does not explicitly challenge the BIA’s denial of what it construed as his

motion to remand for consideration of the State Department’s 2008 religious freedom

report. He does, however, complain that the “Board erroneously refused to consider” the

report, and that it erroneously found the report was not “new material evidence of

persecution of Christians in Indonesia.” We find that the BIA did not abuse its discretion

in denying Ong’s implicit motion. Ong quotes the report’s finding that the Indonesian

“government tolerated discrimination against and the abuse of religious groups by private

actors and often failed to punish perpetrators.” Petitioner’s Brief at 31, quoting the report

at A.R. 26. Discrimination is not the same as persecution, and it is not even clear from

the report whether this quote refers to discrimination against Christians. The Report does

say that “[s]ome groups used violence and intimidation to force at least twelve churches []

to close.” A.R. 26. However, this does not appear to be significantly different than the

conditions that we have found to fall short of a pattern or practice of persecution.

Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 233 (3d Cir. 2008) (although “2003 and

2004 State Department reports document ongoing harassment of Chinese Indonesians and

isolated incidents of anti-Christian violence, including the burning of seven churches in

2003 and ten churches in 2004, the reports do not indicate that such violence is

widespread or systemic.”). The BIA thus did not abuse its discretion in denying the

motion for remand.

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 For the foregoing reasons, we will deny the petition for review.5

5
As the BIA noted, Ong’s voluntary departure period expired long ago. We thus
deny his request to toll the period as moot.
10