Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-7-2007
Widjaja v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3100
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
No. 06-3100
____________________
ROBY WIDJAYA, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent
___________________
Petition for Review of An Order of the
Board of Immigration Appeals
U.S. Department of Justice
BIA File No. A96-264-427
______________________
Submitted Under Third Circuit LAR 34.1 (a)
September 28, 2007
BEFORE: McKEE, BARRY and FISHER, Circuit Judges
(Opinion Filed: December 7, 2007)
__________________________
OPINION
__________________________
McKee, Circuit Judge
Roby Widjaya petitions for review of the final Order of the Board of
Immigration Appeals affirming the Immigration Judge’s denial of his claims for
withholding of removal and relief under the United Nations Convention Against
Torture (“CAT”).1 For the reasons stated below, we will deny the petition.2
I.
Inasmuch as we write primarily for the parties who are familiar with this
case, we need not set forth the factual or historical background except insofar as
may be helpful to our brief discussion.
The IJ ruled that Widjaya’s claim for asylum was time-barred and that the
late filing is not excused by any “exceptional circumstances.” We do not have
jurisdiction to review that ruling. Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d
Cir. 2003). Accordingly, we limit our review to the denial of Widjaya’s application
1
Although we do not specifically discuss Widjaya’s CAT claim, it is evident from
our discussion of his claim for withholding of removal that he can not establish the
kind of harsh treatment required to establish a claim based upon torture under the
CAT. See Auguste v. Ridge, 395 F.3d 123, 136 (3d Cir. 2005).
2
We have jurisdiction under 8 U.S.C § 1252(a)(1). See Abdulai v. Ashcroft, 239
F.3d 542, 547 (3d Cir. 2001). Where, as here, the BIA defers to the IJ’s decision
and does not render its own opinion, we review the decision of the IJ as the final
agency order. Id. at 549 n.2; see also Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.
2002). We review the IJ’s decision for substantial evidence: see, e.g., Lie v.
Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005). We reverse only if, “the evidence
is such that a reasonable factfinder would be compelled to conclude otherwise.”
Chavarria v. Gonzales, 446 F.3d 508, 515 (3d Cir. 2006); see also INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992).
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for withholding of removal, and relief under the United Nations Convention
Against Torture (“CAT”).
II.
Widjaya testified that he was fearful of living in Indonesia because he is a
Christian of Chinese ancestry. However, he has not introduced evidence of past
persecution. Rather, his claim rests upon a pattern or practice of prejudice that
would support a well founded belief in the likelihood of future persecution. To
establish eligibility for withholding of removal, he must show that “it is more
likely than not that [he] would be subject to persecution.” INS v. Stevic, 467 U.S.
407, 424, (1984) (emphasis added). Widjaya testified that he had to pay
“protection” money in high school; that his family business was subjected to
extortionate threats; that he was robbed on a couple of occasions; that his home
was burglarized; and that fruit from his guava tree was taken without permission.
App. Vol. II. at 31. However, with the exception of being called a “stingy
Chinese” by the children stealing guava, there is no reference to any threat or
activity that would qualify for “refugee” status, and the name-calling he mentioned
falls woefully short of satisfying his burden. Being called derogatory ethnic names
by children stealing guava from one’s yard hardly rises to the level of persecution
or torture that Widjaya must establish to qualify for the relief he is seeking.
Widjaya asserts that his well founded fear of persecution is a direct result of
the pattern or practice of the Indonesian government persecuting Christians
3
throughout Indonesia. He relies in part upon our decision in Sukwanputra v.
Gonzales, 434 F.3d 627 (3d Cir. 2006). This argument, however, is misplaced. In
Sukwanputra, we remanded so the IJ could consider documents that he had
originally ignored because they had not been properly certified under 8 C.F.R. §
287.6. In addition, the IJ never addressed the petitioner’s claim of a pattern or
practice of persecution. However, in remanding, we were careful to explain:
Significantly, we do not hold that a pattern or practice of
persecution in Indonesia in fact exists, nor do we hold that the
Lie decision establishes that a pattern or practice does not
exist since the record in this case contains a 2001 country
report whereas the record in Lie contained an earlier 1999
country report.
Sukwanputra, 434 F.3d at 636, n.10 (citing Lie v. Ashcroft, 396 F.3d 530, 537) (3d
Cir. 2005)
In Lie, we explained that in order for a pattern or practice of persecution to
support relief from removal, the petitioner must show that the persecution is
“systemic, pervasive, or organized.” Lie, 396 F.3d at 537 (citing Ngure v.
Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)). Furthermore, it must be “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) (quoting
Gao, 299 F.3d at 272). Nothing in Sukwanputra lessens that evidentiary burden.
The Country Reports Widjaya introduced pertained to 2006. The BIA took
administrative notice of those reports and concluded that they did not establish a
4
pattern or practice of persecution of Chinese Christians in Indonesia. The IJ
concluded that “[t]he only harm to ethnic Chinese is silent or systemic
discrimination.” Although Widjaya claims that the IJ did not consider his
evidence, the record is to the contrary. The IJ specifically noted that, although
Widjaya based his claim on religious persecution as well as ethnicity, he failed to
introduce any evidence to support his claim of religious persecution. Moreover,
Widjaya concedes that his family continues to reside in Indonesia, apparently
without incident.
Thus, the record establishes that the IJ did consider Widjaya’s evidence.
The IJ simply did not agree that the evidence establishes that Widjaya is a
“refugee” under the immigration laws. However, that does not mean that the IJ
ignored Widjaya’s evidence. Rather, the evidence is simply insufficient to
establish past persecution or an objectively reasonable belief in the likelihood of
future persecution. Accordingly, we will deny Widjaya’s request for withholding
of removal, and for relief under the CAT.
5