Oei v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

1-22-2007

Oei v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4448

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 05-4448

AY SIOE OEI; YUKI KODAMA,

Petitioners,

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent.

On Appeal from the Decision of the
Board of Immigration Appeals (BIA)
dated September 2, 2005

Submitted Under Third Circuit LAR 34.1(a)
January 8, 2007

Before: SLOVITER, RENDELL, Circuit Judges, and IRENAS,* Senior District Judge.

(Filed: January 22, 2007)

OPINION

*
Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.

1
IRENAS, Senior United States District Judge.

Petitioners Ay Sioe Oei and Yuki Kodama seek review of a final order issued by

the Board of Immigration Appeals (the “Board”) affirming the decision of the

Immigration Judge denying their applications for asylum and withholding of removal.1

This Court must determine whether the decisions of the Immigration Judge and the Board

of Immigration Appeals denying petitioners’ applications were supported by substantial

evidence in the record.2

I.

The Petitioners, Oei and Kodama, are mother and daughter. (Pet. Br. at 4). Ms.

Oei, a 37-year old female, is a native and citizen of Indonesia and was admitted to the

United States on May 9, 2001, as a non-immigrant with authorization to remain for a six

month period, which expired on November 8, 2001. (Res. Br. at 3). Kodama, her minor

daughter, is a native of Indonesia and citizen of Japan, who was admitted to the United

1
Because the Board issued a single-member decision pursuant to 8 C.F.R. § 1003.1,
this Court will review the decision of the Board and the Immigration Judge. See Board of
Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg.
54878, 54886 (August 26, 2002) (“the parties and any reviewing court would be able to
look to the combination of the Immigration Judge’s opinion and the single-member
decision to understand the conclusions reached in the adjudication.”) Chen v. BIA, 435
F.3d 141, 144 (2d Cir. 2006); Abebe v. Gonzoles, 432 F.3d 1037, 1040-41 (9th Cir. 2005).
2
Under the “substantial evidence” standard of review, the ruling of the Board of
Immigration Appeals must be upheld unless “any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-
Zacarias, 502 U.S. 478 n.1 (1992) (to reverse the Board, the evidence must not merely
support reversal, but compel reversal).

2
States on July 11, 2000 as a non-immigrant with authorization to remain until January 10,

2001. (Id.)

On August 21, 2002, Oei filed a Form I-558, “Application for Asylum and for

Withholding of Removal,” with the former Immigration and Naturalization Service (the

“INS”). (Id.) On October 16, 2002, the INS commenced removal proceedings against

Petitioners by issuing to both petitioners a Form I-862, “Notice to Appear,” charging

them with being removable under Section 237(a)(1)(B) of the Immigration Naturalization

Act (the “INA”), 8 U.S.C. § 1227(a)(1)(B), as aliens who remained in the Unites States

for a time longer than permitted. (Id.).

On May 17, 2004, after an evidentiary hearing, an Immigration Judge denied

Petitioners’ application for asylum and for withholding of removal and protection under

the Convention Against Torture,3 and ordered them removed from the United States to

Indonesia. (Id. at 4). On September 2, 2005, the Board affirmed the decision of the

Immigration Judge. (Id.).

Petitioners’ case for asylum focuses on alleged persecution Ms. Oei claims to have

suffered because she is ethnically Chinese, and because she is a Catholic in

predominantly Islamic Indonesia. (Pet. Br. at 5). Ms. Oei claims that if returned to

Indonesia, she and her daughter would suffer further discrimination and persecution,

3
Petitioner does not advance the argument that the Convention Against Torture
requires the stay of the removal order against her. The record also does not contain any
evidence of torture.

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creating an unsafe environment for her daughter to grow into adulthood. (Id.).

With regard to the alleged persecution based on her ethnicity, Ms. Oei claims that

native Indonesians threw stones at Chinese people’s stores in her neighborhood, to which

the police did not respond or assist. (Pet. Br. at 5). In another instance, Ms. Oei testified

that as she was passing a soccer stadium on her motorcycle, some teenagers bumped into

the rear of her cycle causing her to fall off and hurt her leg. (Id.). She claims that she

was burned by the motorcycle’s exhaust pipe, and that the teenagers then ran over her

foot, laughing and yelling obscenities. (Id.). Ms. Oei’s affidavit states that she was

hospitalized for two weeks, but her testimony states that she was hospitalized for two to

three weeks. When asked to resolve the discrepancy between her affidavit and testimony,

she stated that she was hospitalized for two weeks and treated as an outpatient for one

week. (Res. Br. at 11). Ms. Oei also claims that the police witnessed the incident but

refused to assist her. (Pet Br. at 6). In another alleged instance of persecution because of

her ethnicity, Ms. Oei claims that she was fondled and harassed by a group of young men

near a graveyard while she was walking home from school. (Id.).

With respect to persecution based on her religion, Ms. Oei states that such

persecution “was not as severe as other incidents.” (Id. at 7). She recounts one alleged

occasion in 1986; when she was attending mass, stones were thrown at the church,

breaking some of the church’s artwork. (Id.). Ms. Oei also testified about another

incident that occurred while she was using public transportation, where other passengers

asked Ms. Oei what her religion is. She testified that upon answering that she is Catholic,

4
the other passengers became negative and asked “why did you join Catholicism” and

urged her to join Islam. (Id.).

The Immigration Judge found that Ms. Oei’s testimony was not credible because

of several discrepancies and inconsistencies between her testimony and asylum

application. (Id. at 12). The Judge also found that even assuming Ms. Oei’s testimony

were credible, she would not have proven that she had been “persecuted” either for her

ethnicity or religion to the extent that would warrant the granting of asylum or

withholding of removal. (Id. at 14). The Board, affirmed the Immigration Judge’s

decision. (Id. at 17).

II.

This Court has appellate jurisdiction to review any final order of removal under 8

U.S.C. §§ 1252(a)(1), 1252(b). See also Dia v. Ashcroft, 353 F.3d 228, 234-46 (3d Cir.

2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001).

III.

The issue before this Court is whether Ms. Oei established a “well-founded fear”

of persecution in Indonesia, assuming the hostilities she experienced in Indonesia were

true.4

4
Ms. Oei also argues that the Board and the Immigration Judge erred by not crediting her
claims. This argument is moot because we assume that her claims are true in this opinion.

5
 Section 208(b)(1) of the INA grants the Attorney General the discretion to grant

asylum to “refugees.” 8 U.S.C. § 1158(b)(1); see also INS v. Cardoza-Fonseca, 480 U.S.

421, 428 n.5 (1987). An alien who seeks asylum must establish that she is a “refugee” as

defined by the INA. Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). A refugee is

defined by the INA as a person who is unable or unwilling to return to his country of

nationality “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.”

Id.

Section 243 of the INA governs withholding of removal of an illegal alien. 8

U.S.C. § 1252. In order to be eligible for a withholding of removal, an alien must show

that there is clear probability that she would be subject to persecution on account of one

or more of five statutory grounds. INS v. Stevic, 467 U.S. 407, 423 (1984); 8 C.F.R.

§ 208.16(b). If the petitioner establishes that he or she has experienced a past threat to

such life or liberty interests, a rebuttable presumption exists that there is a clear

probability of future prosecution. 8 C.F.R. § 208.16(b)(1). The presumption may be

rebutted if the Immigration Judge finds, by a preponderance of the evidence, that: (A)

there has been a fundamental change in circumstances such that the applicant’s life or

freedom would not be threatened on account of the statutory grounds after the applicant’s

removal to that country; or (B) the applicant could avoid a future threat to his or her life

or freedom by relocating to another part of the proposed country of removal and it would

be reasonable to expect the applicant to do so under the totality of the circumstances. 8

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C.F.R. §§ 208.16(b)(1)(i)(A) and (B).

In cases in which the applicant has established past persecution, the INS bears the

burden to establish, by a preponderance of the evidence, the requirements of

§ (b)(1)(i)(A) or (B). If the applicant’s fear of future threat to life or freedom is unrelated

to the past persecution, the applicant bears the burden to establish that she would suffer

such harm. Id.

The “clear probability of persecution” burden of proof required to establish

withholding of removal is more stringent than the “well-founded fear” standard of proof

required for asylum. Cardoza-Fonseca, 480 U.S. at 441. Withholding of removal

requires that an applicant satisfy two burdens: (1) that she is a refugee, i.e., she has at

least a “well-founded fear of persecution”; and (2) that the refugee show that his or her

life or freedom would be threatened if deported. Thus, if an alien does not meet the

eligibility standard for asylum, he or she will necessarily be unable to meet the standard

for withholding of removal. Id; Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).

To be eligible for asylum, an applicant must show that he or she has a “well-

founded fear of future persecution.” INS v. Cardoza-Fonseca, 480 US 421, 438-39. This

test has been described as having both an objective and subjective component. To satisfy

the subjective component, the petitioner must demonstrate a subjective fear of persecution

through credible testimony that her fear is genuine. Zubeda v. Ashcroft, 333 F.3d at 469.

To satisfy the objective component, the petitioner’s fear must be of the degree which

would be experienced by a “reasonable person in the same circumstances.” Id. This may

7
be accomplished either by showing that the petitioner would be individually singled out

for persecution, or by demonstrating that “there is a 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...” Id.; 8 C.F.R. § 208.13(b)(2)(iii)(A).

The “well founded fear of future prosecution” standard does not require proof that

persecution is “more likely than not” if an alien is deported. INS v. Cardoza-Fonseca,

480 U.S. at 438. Nevertheless, the Third Circuit has held that “persecution is an extreme

concept that does not include every sort of treatment our society regards as offensive.”

Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993). It extends only to grave harms such as

threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom. Id. at 1240.

Past persecution requires proof of (1) one or more incidents rising to the level of

persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and (3) is

committed either by the government or by forces that the government is either unable or

unwilling to control. In the absence of evidence of an intent to persecute on account of a

protected ground, it was not unreasonable for the Immigration Judge to conclude that an

incident did not constitute past persecution. Silvana v. AG of the United States, 2006 U.S.

App. LEXIS 29222 at *4 (3d Cir. 2006). Random, isolated acts perpetrated by

anonymous thieves do not establish persecution. Id.

Under these standards, even assuming Ms. Oei’s account of her experience were

8
found to be credible, the harassment and unlawful conduct that she was subjected to does

not rise to the level of persecution under the INA. With regard to the two alleged

incidents involving Ms. Oei’s religion, the stoning of her church two decades ago and the

verbal confrontation she experienced while riding on public transportation do not amount

to “threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom.” Fatin, 12 F.3d at 1240. As the Immigration Judge

observed, no one was injured when stones were thrown at Ms. Oei’s church, and the

stoning was an isolated incident. (Res. Br. at 15). In addition, the encounter on public

transportation, in which other riders asked her about her religion and expressed some

disapproval, clearly does not rise to the level of “persecution” described above. See

Fatin, 12 F.3d at 1240.

Ms. Oei testified to incidents, including unwanted touching and sexual advances,

as well as an assault and resulting hospitalization. However, none of these unfortunate

events have been linked to any evidence in the record indicating that they were

perpetrated because of Ms. Oei’s Chinese ethnicity. Such random isolated acts by

anonymous perpetrators do not amount to persecution under the INA. Gormley v.

Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004); see also Lie v. Ashcroft, 396 F.3d 530,

537-38 (3d Cir. 2005).

Ms. Oei also argues that anti-Chinese sentiment in Indonesia has led to severe,

widespread violence against Chinese owned businesses, and against Chinese women and

girls. (Pet. Br. at 13). However, the this Court observed in Lie, 396 F.3d at 537, a case

9
with similar facts to this one, that such violence was not sufficiently widespread to

constitute a pattern or practice of violence. Moreover, this Court noted in Lie that there

appears to have been a sharp decline in violence against Chinese Christians following the

height of the violence in 1998. Id.; see 1999 Country Report on Indonesia; see also Pui v.

AG of the United States, 2006 U.S. App. LEXIS 28871 (3d Cir. 2006) (rejecting the

argument that the violence against ethnic Chinese in Indonesia amounted to a “pattern or

practice”).

Ms. Oei’s account of her experiences in Indonesia did not satisfy the standard for

asylum. Because the burden of proof required for withholding of removal is more

stringent that the burden of proof for asylum, she necessarily fails to meet the standard for

withholding of removal. Lukwago v. Ashcroft, 329 F.3d at 182.

IV.

For the reasons set forth above, the petition for review will be Denied.

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