Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-15-2006
Wijaya v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3513
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-3513
SUNARYO WIJAYA,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of Final Decision of the
Board of Immigration Appeals
BIA No.: A95-381-265
Immigration Judge: Rosalind K. Malloy
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 13, 2006
Before: SMITH and ROTH, Circuit Judges,
and YOHN District Judge*
(Filed: December 15, 2006 )
*
The Honorable William H. Yohn, Jr., Senior District Judge for the Eastern
District of Pennsylvania, sitting by designation.
1
OPINION
SMITH, Circuit Judge.
Sunaryo Wijaya petitions for review of a final order of the Board of Immigration
Appeals (BIA), affirming the denial by the immigration judge (IJ) of Wijaya’s application
for asylum, withholding of removal, and relief under the Convention Against Torture
(CAT).1 We will deny Wijaya’s petition for review.
Wijaya is a citizen of Indonesia. He is ethnically Chinese and a Roman Catholic.
He first entered the United States on a six-month visitor’s visa on July 27, 2000. He
briefly returned to Indonesia on January 24, 2001, and returned to the United States on
March 13, 2001. He applied for asylum, withholding of removal, and relief under the
CAT on March 6, 2002. The Government informed Wijaya on July 29, 2002 that he had
overstayed his visa and that removal proceedings would be instituted against him. Wijaya
conceded his removability at a hearing on August 29, 2002. The IJ denied Wijaya’s
application at a hearing on March 5, 2004. The BIA adopted and affirmed the IJ’s
decision on June 30, 2005. Wijaya timely appealed.
Wijaya gave credible descriptions of several instances of violence and harassment
that he believed were motivated by his ethnicity and religion. Wijaya testified that a mob
1
The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2(b). The BIA exercised
jurisdiction under 8 C.F.R. § 1003.1(b). We have jurisdiction to review the final order of
the BIA under 8 U.S.C. § 1252. When the BIA affirms an IJ’s decision without opinion,
we review the IJ’s decision as the final agency determination. Berishaj v. Ashcroft, 378
F.3d 314, 322 (3d Cir. 2004).
2
looted and burned his store on May 14, 1998. Wijaya described receiving anonymous
threatening phone calls on April 10, 2000, in which the caller insulted him and demanded
that he convert to Islam. Two days later, a group of men threw stones through his home’s
windows. Wijaya believed the incidents were related. Wijaya testified that, on April 20,
2000, two men attempted to forcibly enter Wijaya’s home, but fled when his wife called
the police. Wijaya stated that on May 12, 2000, three men attempted to force him into
their car and abduct him, but were scared away when his wife began to scream and
onlookers arrived. After Wijaya came to the United States, his church in Indonesia was
bombed, killing 16 people.
Wijaya could not identify any of his assailants. He testified that both he and the
police believed them to be “extremist Muslims.” When asked why he believed he was
targeted by extremists, Wijaya testified that he held frequent prayer meetings in his home
which featured singing which was audible outside his house. His home was located near
a mosque.
Wijaya testified that he came to the United States to visit his sister, who was
granted asylum on the basis of her religion and ethnicity. Wijaya began work within a
week, but returned to Indonesia after five months. He testified that he returned due to his
father’s heart attack, but returned with his sister’s four year old son in tow. The IJ was
skeptical of Wijaya’s description of his reason for returning, but the BIA held that this did
not rise to the level of an adverse credibility determination. Wijaya’s wife is legally in
the United States on a visitor’s visa. Her petition has been consolidated with Wijaya’s.
3
We must determine if substantial evidence supports the IJ’s decision to deny relief
to Wijaya. INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). To hold that Wijaya is
entitled to relief, we must find that the evidence of record “not only supports that
conclusion, but compels it . . . .” Id. at 481 n.1; 8 U.S.C. § 1254(b)(4).
We have held that “[i]n order to establish eligibility for asylum on the basis of past
persecution, an applicant must show (1) an incident, or incidents, that rise to the level of
persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is
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) (internal quotes
omitted). Wijaya did not proffer evidence sufficient to compel the conclusion that these
requirements were met. Apart from the threatening phone call, the IJ correctly observed
that there is no direct evidence establishing that the other attacks were motivated by
religion or ethnicity. Although it would have been eminently reasonable to conclude that
the attacks, particularly the three following the anonymous phone call, were motivated by
religion or ethnicity, the evidence does not compel us to overturn the IJ’s ruling to the
contrary. Similarly, the evidence does not compel us to overturn the IJ’s conclusion that
the Indonesian government is neither unable nor unwilling to control the Muslim
extremists. State Department reports in the record establish that the Indonesian
government has had some success in curbing violence by Muslim extremists. The IJ
appears to have concluded that the assaults on Wijaya amount to generalized mob
violence, which cannot support his petition for relief. See Abdille v. Ashcroft, 242 F.3d
4
477, 494-95 (3d Cir. 2001) (“Mere generalized lawlessness and violence between diverse
populations, of the sort which abounds in numerous countries and inflicts misery upon
millions of innocent people daily around the world, generally is not sufficient to permit
the Attorney General to grant asylum.”).
To establish a well-founded fear of future persecution, a petitioner must
demonstrate: (1) a credible subjective fear of persecution and (2) “pattern or practice in
his or her country of nationality . . . of persecution of a group of persons similarly situated
to the applicant on account of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 C.F.R. § 208.13(b)(1)(iii)(A). In Lie v. Ashcroft, 396 F.3d
530, 537-538 (3d Cir. 2005), we observed that:
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 [State Department] 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.
Id. at 537-38. The evidence in the record before us, particularly the State Department’s
International Religious Freedom Report for 2003, supports the IJ’s conclusion that
conditions for Chinese Christians in Indonesia have not worsened and may have actually
5
improved. Wijaya credibly testified to conduct more severe than that complained of in
Lie. Id. at 536. However, the record does not compel us to disturb our finding in Lie that
there is no “pattern or practice of persecution against Chinese Christians” in Indonesia.
Id. at 538.
The IJ found that because Wijaya had not shown an objectively reasonable basis
for his fear of persecution so as to establish grounds for asylum, he had also not
established the clear probability of persecution required for withholding of removal. See,
e.g., Gabuniya v. Attorney General, 463 F.3d 316, 320-21 (3d Cir. 2006).
To demonstrate entitlement to relief under CAT, Wijaya must show that he is
“more likely than not” to be tortured if he returns to Indonesia. 8 C.F.R. § 1208.16(c)(2).
The torture must be “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). No evidence in the record compels the conclusion that Wijaya suffered
any mistreatment by or with the acquiescence of the Indonesian government.
The evidence in the record does not compel a conclusion contrary to that of the IJ.
We will deny the petition for review.