Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-30-2007
Winata v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3012
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No: 06-3012
_______________
YENYTA WINATA,
Petitioner
v.
Attorney General of the United States,
Respondent
_______________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A96-266-157)
Immigration Judge: Hon. R.K. Malloy
_______________
Submitted Under Third Circuit LAR 34.1(a)
November 8, 2007
Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges
(Filed November 30, 2007 )
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Yenyta Winata (“Winata”) petitions for review of the Board of Immigration
Appeals’ (“BIA”) denial of her claim for withholding of removal. We will deny the
petition.1
I. BACKGROUND
Winata is a citizen of Indonesia and ethnically Chinese. She entered the United
States in April of 2001. Approximately two years later, she filed an application for
asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). Her claims are based on two incidents that occurred while she was living in
Indonesia. First, in 1980, after some riots in her hometown that pitted ethnic Indonesians
against ethnic Chinese, an ethnically Indonesian man killed Winata’s four-year-old
brother. The assailant later told police that he had killed the boy out of anger about the
riots and, when he saw Chinese people, he was overtaken by the devil. The man received
a two year jail sentence, although Winata believes he did not serve his full sentence.
The second incident occurred in December 2000, when three ethnic Indonesians
attempted to rob Winata and her boyfriend. Like Winata, her boyfriend was also
ethnically Chinese. During the confrontation, one of the men stabbed Winata’s boyfriend.
1
We have jurisdiction to review a final decision of the BIA under 8 U.S.C. § 1252(a).
We must sustain the BIA’s decision if it is supported by substantial evidence. Jarbough
v. Attorney General of U.S., 483 F.3d 184, 191-92 (3d Cir. 2007). This is a highly
deferential standard of review. The BIA's decision “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).
2
When Winata and her boyfriend went to the hospital, the hospital staff did not treat the
boyfriend immediately, and he eventually bled to death. Although the police investigated
the murder, Winata does not know if they ever caught the men responsible.
An Immigration Judge (“IJ”) held a hearing on Winata’s application on
February 25, 2005, and denied all of her claims for relief. Winata filed a timely appeal to
the BIA, and the BIA affirmed. It denied Winata’s asylum claim because she filed the
claim more than one year after entering the United States. It denied her withholding of
removal claim because the two incidents in Indonesia did not establish that she would
likely be persecuted if she returned to Indonesia. It denied her claim for relief under the
CAT because she had not shown that she would be tortured if she returned to Indonesia.
II. DISCUSSION
Winata limits her appeal to the BIA’s denial of her claim for withholding of
removal. To qualify for withholding of removal, an applicant must demonstrate that she
faces a "clear probability of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(42)(A);
INS v. Stevic, 467 U.S. 407, 429-30 (1984); Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.
1991). We have explained that persecution “does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12
F.3d 1233, 1240 (3d Cir. 1993).
3
Winata argues that she faces a clear probability of persecution on account of her
race or her membership in a particular social group if she returns to Indonesia. According
to Winata, she is eligible for withholding of removal since her brother was killed because
of his race and the government did little to bring the murderer to justice. She further
argues that she is eligible for withholding of removal because hospital personnel did not
treat her boyfriend in time to prevent his death and the police did not catch her
boyfriend’s killer.
We conclude that the BIA’s decision denying Winata’s withholding of removal
claim is supported by substantial evidence. Although the deaths of Winata’s young
brother and her boyfriend are terrible to contemplate, they occurred over twenty years
apart and appear to have been the result of random acts of violence. Winata’s outrage at
the brief sentence and early release of her brother’s killer is more than understandable,
but to conclude that the sentence and release were racially motivated would be
speculative and would, in any event, be only obliquely relevant to Winata’s assertion that
she would be the target of persecution if she returned to Indonesia. Similarly, nothing in
the record indicates that the hospital staff’s failure to treat Winata’s boyfriend in time to
prevent his death was motivated by Winata’s, or her boyfriend’s, race or group
membership. Finally, Winata testified only that she did not know if her boyfriend’s killer
was caught, and nothing in the record indicates that any failure to catch the killer was due
to race or membership in a particular social group.
4
Because the BIA’s decision is supported by substantial evidence, we must deny the
petition for review.
5