Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-5-2007
Widjaja v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3268
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No: 05-3268
TJAN TING WIDJAJA,
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 File No. A79-734-386
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 2, 2007
BEFORE: SCIRICA, Chief Judge, McKEE and NOONAN*, Circuit Judges
(Filed April 5, 2007)
OPINION
McKee, Circuit Judge
Tjan Ting Widjaja petitions for a review of a decision of the Board of Immigration
Appeals adopting and affirming and Immigration Judge’s denial of Widjaja’s request for
*
The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
asylum, withholding of removal, and relief under the United Nations Convention Against
Torture (“CAT”).1 For the reasons that follow, we will dismiss the petition.
Inasmuch as we write primarily for the parties who are familiar with the
background of this case, we need not repeat the factual or procedural history except
insofar as may be helpful to our brief discussion.
Widjaja is a native citizen of Indonesia. He is an ethnic Chinese Christian. He
testified that persons of Chinese ancestry routinely suffer discrimination in Indonesia. He
related several examples of what can best be described as bigoted interactions with native
Indonesians who expressed hostility towards him because of his ancestry. These included
an ethnic slur that was hurled at him during a traffic accident as well as encounters he had
while in school in Indonesia. The Immigration Judge held that the actions which Widjaja
complained of evidenced discrimination, but did not rise to the level of “persecution” as
required for the relief he was seeking. Moreover, the fact that Widjaja’s family continued
to live in Indonesia without apparent harm, and the fact that Widjaja was himself never
prevented from practicing Christianity while he was in Indonesia undermined his attempt
to establish the objectively reasonable fear of persecution required for someone seeking
“refugee” status under our immigration laws. The Board of Immigration Appeals agreed
1
Widjaja subsequently withdrew his application for asylum and relief under the CAT.
See A.R. 65. Accordingly, the only issued raised by the instant petition for review is the
BIA’s affirmance of the Immigration Judge’s denial of his request for withholding of
removal.
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and adopted the decision of the Immigration Judge as its own.2
Section 208 of the Immigration and Nationality Act (“INA”) gives the Attorney
General discretion to grant asylum to a removable alien who can establish that he/she is a
“refugee.” 8 U.S.C. § 1158(a). “Refugee” is defined by statute as:
[A]ny person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside of any country in which such person last habitually
resided, and who is unable or unwilling to avail himself or
herself of the protection of 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). The asylum applicant must present some evidence that the
alleged persecutors want to punish him/her “on account of” one of the five statutory
grounds in order to establish eligibility for asylum. Elias-Zacarias, 502 U.S. 478 (1992).
An applicant who establishes past persecution is “entitled to a presumption that his
life or freedom will be threatened if he returns.” Gabuniya v. Attorney General of the
United States, 463 F.3d 316, 321 (3d Cir. 2006); see 8 C.F.R. § 208.16(b)(1)). Where an
applicant is unable to demonstrate past persecution, the applicant nonetheless becomes
eligible for asylum upon demonstrating a well-founded fear of future persecution. See
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). The “well-founded fear of
2
Where the BIA adopts the decision of the Immigration Judge, we review the decision
of the Immigration Judge. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The
factual findings of the Immigration Judge are deemed conclusive “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B), 8
U.S.C. § 1252(b)(4)(B); See INS v. Elias-Zacarias. 502 U.S. 478, 488 n.1 (1992).
3
persecution” standard involves both a subjectively genuine fear of persecution and an
objectively reasonable possibility of persecution. INS v. Cardoza-Fonseca, 480 U.S.
421, 430-31 (1987). The subjective prong requires a showing that the fear is genuine.
Mitey v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995). Determination of an objectively
reasonable possibility requires ascertaining whether a reasonable person in the alien’s
circumstances would fear persecution if returned to a given country. Chang v. INS, 119
F.3d 1055, 1065 (3d Cir. 1997).
Withholding of removal is mandatory once “the Attorney General determines that
[the] alien’s life or freedom would be threatened” on account of a protected ground. 8
U.S.C. § 1253(h)(1) (re-codified, as amended, at 8 U.S.C. § 1231(b)(3)). To obtain such
relief, an alien must establish a “clear probability,” i.e., that it is more likely than not, that
he would suffer persecution. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). Because
this standard is higher than that governing eligibility for asylum, an alien who has failed
to satisfy the standards for eligibility for asylum is necessarily ineligible for withholding
of removal. Zhang v. Slattery, 55 F.3d 732, 738 (2d Cir. 1995). Based upon our review
of the record, we conclude that the Immigration Judge correctly concluded that Widjaja
has not established his eligibility for relief.
As noted above, Widjaja testified that his family still lives in Indonesia without
apparent harm. The incidents of bigotry towards him in Indonesia which he testified
about are abhorrent, but they do not rise to the level of persecution.
Persecution is an “extreme concept” that does not include all actions which may be
4
unfair, unjust “or even unlawful.” Lukwago v. Ashcroft, 329 F.3d 157, 168-69 (3d Cir.
2003). Moreover, the Immigration Judge also considered documentary evidence which
undermined Widjaja’s claim of persecution. The documentary evidence established that
the rights of Christians are not ignored by the government of Indonesia. Although it is
clear from the documentary evidence and Widjaja’s testimony that discrimination against
Christians and ethnic Chinese persists in Indonesia, this record does not support Widjaja’s
claim that the discrimination is tantamount to persecution as explained by the
Immigration judge.
Accordingly, for the reasons set for above, the petition for review will be
dismissed.
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