Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-20-2005
Liong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3145
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3145
LINDAWATI SUYONO LIONG; FENNY SUTANO,
Petitioners
v.
* ALBERTO R. GONZALES, Attorney General of the United States,
Respondent
* Substituted pursuant to Rule 43(c), F.R.A.P.
On Petition for Review from the United States Department of Justice
Board of Immigration Appeals
(BIA No. A97-331-442/443)
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
on July 15, 2005
Before: ALITO, VAN ANTWERPEN, and ALDISERT,
Circuit Judges.
(Filed July 20, 2005)
_____
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Petitioners Lindawati Liong and Fenny Sutanto, mother and daughter, are both ethnic
Chinese natives and citizens of Indonesia. They seek review of a final order of the Board of
Immigration Appeals (“BIA”) dated June 30, 2004, summarily affirming the decision of the
Immigration Judge (“IJ”) denying them asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). For the reasons that follow, we will deny their
petition.
I.
Petitioners entered the United States on July 5, 2000, with authorization to remain no
later than January 4, 2001. The former Immigration and Naturalization Service (“INS”)1
placed Petitioners in removal proceedings on August 15, 2001, when it served Notices to
Appear charging them with removability for remaining in the United States longer than
permitted in violation of § 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). Petitioner
Liong submitted, on behalf of herself and her daughter, an application for asylum,
withholding of removal, and relief under the CAT. At an initial hearing before the IJ,
Petitioners admitted the factual allegations stated in the Notices to Appear, conceded
removability, and indicated their desire to seek asylum, withholding of removal, and CAT
protection. At the conclusion of Petitioners’ merits hearing, the IJ denied Petitioners’
applications, finding they had not sustained their burden of proof, and granted voluntary
1
On March 1, 2003, the INS ceased to exist as an agency within the Department of
Justice and the INS’s functions were transferred to the Department of Homeland Security.
See Homeland Security Act of 2002, Pub.L. No. 107-296 §§ 441 & 471, 116 Stat. 2135.
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departure. The BIA affirmed the IJ’s decision per curiam. This petition followed.
II.
Petitioners’ applications for asylum to obtain relief from the alleged persecution they
faced in their native Indonesia are grounded in their claimed ethnic Chinese minority status
as well as their claimed Catholic minority status. The testimonial and documentary support
for their applications may be summarized as follows. As to Ms. Liong, she testified that, as
a youth, she had lost the opportunity to attend a Chinese school when the Indonesian
government shut it down in either 1963 or 1964. She testified to her belief that this occurred
to prevent native Chinese Indonesians from learning Chinese. At this school and at
subsequent schools she attended, Ms. Liong testified, native Indonesian children would
harass her by touching her body. Ms. Liong also testified, without specific reference to time,
that native Indonesians would throw stones at her family’s house, and that local police did
nothing in response unless they were offered payments. Additionally, Ms. Liong testified
that she had been forced to pay higher fees than native Indonesians for official papers such
as those necessary to apply for citizenship, and that her husband, who remained in Indonesia,
had upon several occasions been robbed in his car or at his store. Ms. Liong described the
robbers as gangs. Finally, as to her status as a Catholic minority, Ms. Liong testified that she
feared going to church because of bomb threats and because of individuals throwing stones.
With respect to her Catholicism, Mrs. Liong did not testify to any specific incidents directed
against her personally.
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As to Ms. Sutanto, both Ms. Liong and Ms. Sutanto testified that, as a child, Ms.
Sutanto was repeatedly touched and harassed by native Indonesians. In one instance, they
both testified, four native Indonesians threw sand and garbage at Ms. Sutanto when she was
eight years old. Ms. Sutanto also testified that once, on her way to school, she had been
robbed by native Indonesians. She testified that her ethnic Chinese friends had also been
robbed by native Indonesians.
With respect to the riots that occurred in Indonesian cities in 1998, both Ms. Liong
and Ms. Sutanto testified that they were only affected in one circumstance. While taking
public transportation, a particular transfer caused them to be in a van transporting only native
Indonesians. Both Petitioners testified that the driver of the van stopped the vehicle and
ordered Ms. Liong and her daughter to turn over all jewelry and items of value. Petitioners
complied. Both Ms. Liong and her daughter testified to being fearful of their physical safety
during this incident.
In addition to the above testimony about their situations arising out of their ethnic
Chinese minority status and their Catholic minority status, Petitioners also testified to their
reasons for wanting to leave Indonesia for the United States. Here, Ms. Liong testified that
she wanted to leave Indonesia because the social climate was becoming chaotic, the economy
was failing, and she feared her daughter would be raped. She testified that she came to the
United States with the intent of enrolling her daughter in college. She testified that she
wanted her daughter to live in the United States for security reasons. Ms. Sutanto testified
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that she did not feel secure living in Indonesia, that she feared returning to Indonesia, and
that her father had warned her not to return.
Petitioners also offered documentary evidence. This consisted of a letter from the St.
Thomas Aquinas Rectory in Philadelphia stating that Ms. Liong was a member of that
church. Upon objection to the document by the government on authentication grounds, Ms.
Liong testified that she had not known that she could, or should, ask a witness from the
Rectory to testify. Ms. Liong also submitted two baptism certificates, one for herself and one
for her daughter. The IJ reviewed them, then stated for the record that they would be given
no weight because Ms. Sutanto’s certificate suffered from obvious white-out alterations
involving different typewriter print fonts as to her date of baptism.
III.
Because the BIA did not issue a separate order but merely adopted the opinion of the
IJ, we must review the decision of the IJ. Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d
Cir. 2001). We have jurisdiction to review the Board's final order of removal pursuant to
INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). We review to determine whether substantial
evidence exists to support the agency decision. Under this highly deferential standard of
review, the findings of the BIA or an IJ “must be upheld unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84
(3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1 (1992)).
To establish an asylum claim under INA § 208(a), 8 U.S.C. § 1158(a), a petitioner
5
must show that he or she qualifies as a refugee. A “refugee” is defined as an individual who
is outside of his country of nationality and “unable or unwilling to return to . . . . that country
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). Petitioners had the burden of supporting their asylum claim through credible
evidence. Abdille, 242 F.3d at 482. Because the standard for asylum is lower than the
standard for withholding of removal, if Petitioners cannot meet the substantial evidence
standard as to their asylum claim, relief under their withholding of removal claim must also
fail. See Abdulrahman v. Ashcroft, 330 F.3d 587, 591 n. 2 (3d Cir. 2003) (citing 8 C.F.R. §
208.16(c)(2) & (4)). Petitioner’s claim for relief under the CAT fails for similar reasons, as
the CAT only applies to torture that “is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R.
§ 208.18(a)(1).
Here, the IJ found that Petitioners’ testimony regarding the alleged persecution they
faced arising from both their native Chinese minority status and their Catholic minority status
was insufficient to carry their burden of proof. Our review of the record confirms that
substantial evidence supports this determination. The incidents that Petitioners have testified
to do not amount to persecution, which we have held to mean “threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or freedom”)
but (“does not encompass all treatment that our society regards as unfair, unjust, or even
6
unlawful or unconstitutional”). Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).
Furthermore, even if Petitioners’ testimony had articulated attacks rising to a level sufficient
to be considered persecution, the necessary nexus to government action or inaction is absent
here. Petitioners have recounted only incidents perpetrated by other Indonesians with, at
most, a peripheral government nexus. This is insufficient to meet Petitioners’ burden of
proof, because the concept of “persecution” necessarily involves either government
involvement or the involvement of individuals that the government is “unable or unwilling”
to control. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Here, there is no such
evidence, and Petitioners’ testimony that police officers were unwilling to respond when
native Indonesians threw rocks at Petitioners’ house is not enough under the substantial
evidence standard of review to compel us to reach a conclusion different from that of the IJ
and BIA below. Similarly, there is no evidence in the record of persecution arising from
Petitioners’ Catholic minority status; and even if there was, Petitioners have failed to show
that any such mistreatment was attributable to either direct government involvement or the
government’s inability to control native Indonesians in relation to Petitioners’ religious
status.
Finally, we observe that the government introduced into the record in this case a
March 2002 Report on Human Rights Practices issued by the United States Department of
State. In the Report, the State Department indicates that racially-motivated attacks against
Sino-Indonesians have sharply curtailed since the middle of 1998, that Indonesians are now
7
permitted to teach, speak, and print the Chinese language, and that Indonesia no longer bans
Chinese language publications. While the Report clearly acknowledges that attacks do
continue to be reported, it nonetheless constitutes substantial evidence supporting the IJ’s
determination that country conditions have changed, and it rebuts any possible presumption
of future persecution. See, e.g., Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003).
We have considered all of the remaining arguments advanced by the parties and
conclude that no further discussion is necessary. Substantial evidence in the record supports
the finding that Petitioners failed to meet their burden of proof that they experienced past
persecution due to their ethnicity or religion or that they would be subject to persecution on
account of their ethnicity or religion if returned to Indonesia.
IV.
For the reasons set forth, we will deny the petition for review.
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