Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-31-2007
Si v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2686
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2686
LINDAWATI SI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
No. A96-259-961
Immigration Judge: Miriam K. Mills
Submitted Under Third Circuit LAR 34.1(a)
July 12, 2007
Before: SLOVITER, ALDISERT and ROTH, Circuit Judges.
(Filed: July 31, 2007)
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Lindawati Si, a native and citizen of Indonesia, petitions for review of a final order
of the Board of Immigration Appeals (“BIA” or “Board”). The Immigration Judge (“IJ”)
denied her application for withholding of removal and relief under the Convention
Against Torture (“CAT”). Petitioner then unsuccessfully appealed to the Board. We
have jurisdiction to review the BIA’s final order pursuant to 8 U.S.C. § 1252. We will
deny the Petition.
I.
The parties are familiar with the facts and proceedings before the BIA and the IJ,
so we will revisit them only briefly. Si is a Christian and an ethnically Chinese citizen of
Indonesia. On April 19, 2000, she entered the United States for an authorized six-month
stay. On July 16, 2003—almost three years after the expiration of her legal status—Si
filed an application for asylum, withholding of removal and relief under CAT, however
she withdrew her time-barred application for asylum because she was statutorily
ineligible for relief. In support of her application, Si argued that she suffered persecution
in Indonesia on account of her religion and ethnicity. She asserted persecution based on
five alleged grounds: (1) being called “cheap Chinese,” (2) sexual harassment in the form
of groping, (3) an incident when a rock was thrown through the window of her church, (4)
demonstrators beating sticks on a car she was riding in, and (5) a robbery in which she did
not suffer physical injury. App. 345.
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The IJ who considered Si’s case rejected her argument on all grounds. She
decided that Si did not qualify for withholding of removal because she had failed to
establish past persecution or that it was more likely than not that she would suffer future
persecution. See 8 C.F.R. § 1208.16 (governing withholding of removal claims).
Specifically, the IJ determined that the incidents alleged were not sufficient to support a
finding of past persecution on account of ethnicity or religion. The IJ also determined
that recent reports on country conditions in Indonesia undercut Si’s argument that she
would suffer future persecution if she returned. Turning to Si’s request for protection
under CAT, the IJ concluded that she had failed to prove it was more likely than not that
she would be tortured by, or with the acquiescence of, the government. See 8 C.F.R. §
1208.16 (governing CAT claims).
The BIA affirmed and adopted the IJ’s findings. Specifically, the BIA agreed with
the IJ that Si did not establish that it was more likely than not that she would be
persecuted or tortured upon return to Indonesia.
Si petitions this Court to review the decision of the Board.
II.
We now turn to the standard of review for Si’s petition. We must give significant
deference to the BIA’s decision. The decision must be upheld if it is supported by
“substantial evidence,” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and “can only be
reversed if the evidence is such that a reasonable fact finder would be compelled to
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conclude otherwise.” Chavarria v. Gonzales, 446 F.3d 508, 515 (3d Cir. 2006).
Although we generally review only the decisions of the BIA, where the BIA both adopts
the findings of the IJ and discusses some of the bases for the IJ’s decision, we review the
decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
III.
The law surrounding withholding of removal is well-settled. To be entitled to
withholding of removal, an alien must demonstrate that “‘it is more likely than not that
[she] would be subject to persecution’ in the country to which [she] would be returned.”
INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (quoting INS v. Stevic, 467 U.S. 407,
429-430 (1984)). An alien can establish eligibility for withholding of removal either (1)
by creating a rebuttable presumption of future persecution by demonstrating past
persecution or, (2) by showing that it is more likely than not that she will suffer future
persecution. 8 C.F.R. § 1208.16(b); see 8 U.S.C. § 1101(a)(42)(A) (stating a petitioner
must meet the burden of showing persecution or a well founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion). After review of the record, we conclude that substantial evidence supports the
IJ’s conclusion that Si does not qualify for withholding of removal.
Si argues that the treatment she received at the hands of Muslim extremists and
ethnic Indonesians amounts to past persecution. Substantial evidence supports the IJ’s
decision to the contrary. This Court has defined persecution to include “threats to life,
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confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom.” Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) (citing Fatin v.
INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). There is nothing in the record to indicate that
the alleged incidents—being called “cheap Chinese,” the sexual harassment, the incident
when a rock was thrown through the window of her church, the demonstrators beating
sticks on her car, or the robbery—were sufficiently severe to amount to persecution.
App. 345; see Kibinda v. Attorney General, 477 F.3d 113, 119 (3d Cir. 2007) (quoting
Fatin, 12 F.3d at 1240) (stating that persecution refers only to “severe” conduct and does
not encompass all treatment our society regards as unfair, unjust or even unlawful). The
only allegation that arguably approaches the level of severity required for persecution is
the robbery Si suffered. In Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005), however,
we held that an isolated robbery was not sufficiently severe to rise to the level of
persecution when the only harms suffered were loss of property and minor injury. Unlike
the petitioner in Lie, Si does not allege that she was assaulted or physically injured during
the robbery. See id. Substantial evidence therefore supports the IJ’s determination that
the alleged events were not sufficiently severe to rise to the level of persecution.
We next turn to Si’s contention that she will be subjected to future persecution in
Indonesia because she is an ethnically Chinese Christian. Substantial evidence supports
the IJ’s holding that Si did not prove it is more likely than not that she will suffer future
persecution. To establish a future persecution claim, petitioner must demonstrate by clear
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probability either (1) that she would be singled out for persecution on account of her race
or religion, or (2) that there is a “pattern or practice of persecution of a group of persons
similarly situated to the applicant . . . .” 8 C.F.R. § 208.16(b)(2). To constitute a “pattern
or practice,” the persecution of a group must be “systemic, pervasive, or organized.” Lie,
396 F.3d at 537 (quoting Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)).
Upon petition to this Court, Si does not argue that she will be singled out for future
persecution, but contends that the treatment of Chinese Christians in Indonesia by Muslim
extremists and ethnic Indonesians constitutes a pattern or practice of persecution. This
argument is foreclosed by precedent in this Court. In Lie, 396 F.3d at 537-538, we held
that ethnically Chinese Christians like Si do not face systemic persecution in Indonesia
because any ongoing violence appears to be “wrought by fellow citizens” and not the
result of “governmental action or acquiescence.” See Abdulrahman v. Ashcroft, 330 F.3d
587, 592 (3d Cir. 2003) (holding that an act does not constitute persecution unless it is
committed by the government or forces the government is either unable or unwilling to
control).
Si has not demonstrated that conditions in Indonesia have changed since our
decision in Lie. According to the 2003 International Religious Freedom Report on
Indonesia, the worst of the interreligious fighting occurred in Central Sulawesi and the
Malukus, areas to which Petitioner has no connection. Importantly, “[s]ome notable
advances in interreligious tolerance and cooperation occurred . . . ,” App. 270, and “the
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Government encouraged tolerance . . . .” App. 283. We would not go so far as to say
there is no evidence of problems with the policing of ethnic and religious violence in
Indonesia, but the country reports support the conclusion that the Indonesian government
is, on the whole, trying to prevent interreligious conflict. Substantial evidence therefore
supports the IJ’s conclusion that the violence is not sufficiently widespread or conducted
with sufficient government involvement to qualify as persecution.
IV.
Si also argues that the IJ’s CAT determination is not supported by substantial
evidence. We disagree. Si must establish that “it is more likely than not” that she will be
tortured if returned to Indonesia. See 8 C.F.R. § 208.16(c)(2). “Torture is defined as any
act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person . . . 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. § 1208.18(a)(1).
In evaluating whether an applicant is more likely than not to be tortured when returned,
we consider evidence of past torture and conditions in the country of removal. 8 C.F.R.
§§ 208.16(c)(3)(i), 208.16(c)(3)(iv).
Si does not argue that any of her experiences constituted torture, but she does
argue that country conditions in Indonesia are sufficient to find that it is more likely than
not that she would be tortured if returned. The record does not support this assertion.
The State Department International Religious Freedom Report of 2003 states,
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“[i]nterreligious violence plummeted, and peaceful conditions prompted many displaced
persons to return to their homes.” App. 124. Substantial evidence therefore supports the
IJ’s determination that country conditions in Indonesia are insufficient to find that it is
more likely than not that Si will be tortured if returned. See Tarrawally v. Ashcroft, 338
F.3d 180, 188 (3d Cir. 2003) (quoting Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir.
2001)) (“[C]ountry conditions alone can play a decisive role in granting relief under the
Convention.”). Accordingly, we hold that the denial of CAT relief was supported by
substantial evidence.
******
We have considered all contentions of the parties and conclude that no further
discussion is necessary.
The Petition for Review will be denied.
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