Wong v. Atty Gen USA

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit

8-20-2008

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Precedential or Non-Precedential: Precedential

Docket No. 06-3539

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 06-3539
_____________

SIOE TJEN WONG,

Petitioner

v.

ATTORNEY GENERAL OF
THE UNITED STATES,

Respondent

On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A78-688-745)
Immigration Judge: Charles M. Honeyman
____________

Submitted Under Third Circuit LAR 34.1(a)
March 11, 2008

Before: FUENTES, CHAGARES, and ALDISERT, Circuit
Judges.

(Filed: August 20, 2008)

Joseph C. Hohenstein, Esq.
Orlow, Kaplan & Hohenstein
620 Chestnut Street, Suite 656
Philadelphia, PA 19106
Counsel for Petitioner
David V. Bernal, Esq.
Lance L. Jolley, Esq.
Ernesto H. Molina, Esq.
Jonathan Potter, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent

_____________

OPINION OF THE COURT
____________

CHAGARES, Circuit Judge.

Sioe Tjen Wong, a native and citizen of Indonesia, petitions
for review of a final order of removal issued by the Board of
Immigration Appeals (BIA). A Catholic Indonesian of Chinese
descent, Wong claims that she has a well-founded fear of
persecution in Indonesia because of her religion and her ethnicity.
As we explain below, substantial evidence supports the BIA’s
denial of asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). Accordingly, we will deny
Wong’s petition for review.

I.

Born in 1962, Wong was raised in Situbondo, a city located
in eastern Java. Six of Wong’s brothers and sisters still live in
eastern Java, as does her mother. Her siblings run businesses, and
her mother works at home.

Wong entered the United States as a non-immigrant in
August 1999 and overstayed her visitor’s visa. She filed an
application for asylum, withholding of removal, and protection
under the CAT in July 2000 and was placed in removal

2
proceedings. In her application for relief, Wong claimed that
ethnic Indonesians persecuted her because she was Chinese and
Catholic and that the government failed to control or prevent the
persecution. Wong asserted that in her hometown, ethnic
Indonesians often broke the windows of Chinese homes when they
smelled Chinese cooking, threatened ethnic Chinese residents with
meat cleavers, and heckled them with ethnic slurs. According to
Wong, “[o]ur churches [we]re burned, women [we]re assaulted and
raped and people [we]re murdered by Muslims without any
consequence at all.” Administrative Record (A.R.) 984.

When Wong was growing up, anti-Chinese riots and attacks
were widespread in Indonesia. Wong personally suffered several
kinds of harassment and discrimination. For example, Wong
recalled ethnic Indonesians lifting her skirt and grabbing her chest
on the way to school. Ethnic Indonesians also stopped Wong in the
street, demanded money, threw stones at her, and called her names
on her way to church. According to Wong, she was not allowed to
sing Christian songs in public or allowed to learn Chinese. Once,
her parents tried to teach her Chinese, and an ethnic Indonesian,
who overheard the lesson, threatened to burn down the store the
Wongs owned as well as their house, if the lesson continued.

Wong pointed to several specific incidents in support of her
application for relief from removal in her affidavit and at a hearing
before the Immigration Judge (IJ). First, she explained that in 1967
the government confiscated businesses run by ethnic Chinese,
including a store run by her parents. Her father opened another
business in the 1970s, delivering and selling construction materials,
but according to Wong, ethnic Indonesians often placed orders and
then refused to pay for the materials. As a result, her father was
forced to shut down the business. Her father then opened a small
fishery, using the name of an ethnic Indonesian to start the business
because as an ethnic Chinese he was not allowed a business
license. This business failed too because “ethnic Indonesians
constantly stole fish from [her] father and the ethnic Indonesian
whose name [her] father had used caused [him] problems.” A.R.
193. According to Wong, these business failures devastated her
father and after the fishery business failed, he suffered a heart
attack and died in June 1979.

3
 In the early 1980s, Wong’s family reacquired the store the
government had confiscated in 1967. They had to pay the
government for the store, however, and they were not compensated
for the loss of the business during the years in which it was closed.
To help her mother, Wong assisted with running the store and was
harassed as a result. Wong stated that “[y]oung, drunk ethnic
Indonesians often came to the store at night, threatening to burn the
store down” and to burn her face with cigarettes if she did not give
them money. A.R. 193-94.

In August 1992, an ethnic Indonesian struck Wong’s brother
on the back of the head as he was riding his motorcycle home from
work. The assailant stole the motorbike, and Wong’s brother was
taken to the hospital, where he died. Although the hospital
officials told Wong that her brother had lost too much blood to be
saved, Wong asserts that “[n]othing was done to help my brother
at the hospital because ethnic Chinese were required to pay before
receiving treatment, even in emergency situations.” A.R. 194.
According to Wong, the family reported the incident to the police,
but “there was no reaction.” A.R. 565.

Wong officially changed her name from Sioe Tjen Wong to
Veronica Wiyanti in March 1996, “so that [she] would not be
identified as a person of ethnic Chinese descent and discriminated
against.” A.R. 192, 576, 665, 1000-01.1 Later that year, in October
1996, there was rioting in Situbondo and the church Wong attended
was twice set on fire. Christian schools and other churches in the
town were also burned and in one church, a pastor and his family
were killed. In November 1996, after the church burning incidents,
Wong and her church choir were practicing in a tent near the
church when a group of ethnic Indonesians threatened to burn them
unless they stopped singing and praying. After these incidents,
Wong could not attend church “because it was guarded by the
Muslim fanatics.” A.R. 570.

1
However, an affidavit Wong submitted to the BIA states
that she “was born with the name Veronica Wiyanti.” A.R. 192.

4
 Wong explained that in 1998, anti-Chinese riots were again
rampant in Indonesia. Ethnic Indonesians burned houses and stores
and raped Chinese women. Wong and her family hid in their house
for days, while rioters threw stones and broke the front window.
The anti-Chinese violence continued into 1999. According to
Wong, she wanted to leave Indonesia immediately, but the U.S.
embassy in Jakarta was closed for about a year after the 1998 riots.
As a result, she was not able to obtain a visa to go to the United
States until August 1999. After Wong left the country, she learned
that her oldest sister had also died. According to Wong, the stress
of constant harassment by ethnic Indonesians caused her sister’s
death.

Wong submitted news articles and reports discussing human
rights and religious freedom in Indonesia, among other materials,
to the IJ. After holding a hearing and reviewing Wong’s testimony
and application, the IJ concluded that the instances of
discrimination and harassment that Wong experienced did not rise
to the level of past persecution. According to the IJ, Wong also
failed to identify any grounds to support a well-founded fear of
persecution. In addition, Wong was unable to show a clear
probability that she would be tortured if returned to Indonesia. As
a result, the IJ denied Wong’s application for relief on December
8, 2000, but granted her voluntary departure.

Wong appealed, and the BIA affirmed the IJ’s denial of
Wong’s application for asylum, withholding of removal, and
protection under the CAT without opinion on March 7, 2003.
Wong timely filed a motion to reopen with the BIA.

After reviewing new reports on country conditions
submitted by Wong, the BIA granted Wong’s motion to reopen on
August 29, 2003, and remanded for the IJ to consider evidence of
changed country conditions in Indonesia during the three years
since the original IJ decision.

On remand, a new IJ reviewed the updated evidence,
including news articles, recent U.S. State Department reports, and
an affidavit from an expert on Indonesia country conditions. Based
on this evidence, the IJ considered whether Wong would be singled

5
out for persecution based on her ethnicity and religion and also
assessed whether there was a “‘pattern or practice’ of persecution
in Indonesia by forces that the government [wa]s unable or
unwilling to control.” A.R. 99. The IJ noted that “there [we]re no
credibility issues in this case” and that the only issue on remand,
therefore, was whether Wong had “a well-founded fear of future
persecution in light of the absence of past persecution,” or, in the
alternative, whether Wong could meet “the higher standard of a
clear probability of future persecution for withholding [of
removal]” or demonstrate that it was “more probable than not []
that she would be tortured by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
in an official capacity. . . .” A.R. 97.

The IJ explained that he was “constrained to conclude that
the respondent has not proven by a preponderance of the evidence
that she has a reasonable possibility of future persecution as that
term has been defined in the case law if she were to return to
Indonesia, absent a conclusion by either the BIA or the Circuit
Court that such a pattern or practice conclusion would be supported
by substantial evidence in this record.” A.R. 109. On December
2, 2004, the IJ denied Wong’s petition for asylum, withholding of
removal, and relief under the CAT, but granted her voluntary
departure.

Wong again appealed, and the BIA dismissed Wong’s case
on June 28, 2006. The BIA determined that Wong had failed to
establish a pattern or practice of persecution of ethnic Chinese
Christians in Indonesia and noted that the grant of asylum to
Wong’s husband was not dispositive of her asylum claim. The BIA
observed that the U.S. State Department’s 2003 and 2004
International Religious Freedom Reports for Indonesia (Religious
Freedom Reports) indicated that the government had taken steps to
control anti-Christian violence, and that violence continued only in
specific parts of Indonesia.

Similarly, while the U.S. State Department’s 2003 and 2004
Country Reports on Human Rights Practices for Indonesia

6
(Country Reports)2 documented ongoing harassment and
discrimination against ethnic Chinese in Indonesia, the reports
indicated that violence had ended. The BIA also determined that
Wong was not eligible for withholding of removal or relief under
the CAT.

This timely petition for review followed.

II.

We have jurisdiction to review a final order of removal
under 8 U.S.C. § 1252. See Briseno-Flores v. Att’y Gen., 492 F.3d
226, 228 (3d Cir. 2007). Removal proceedings occurred in
Philadelphia, Pennsylvania, and venue is therefore proper under 8
U.S.C. § 1252(b)(2).

Where the BIA renders its own decision and does not merely
adopt the opinion of the IJ, we review the BIA’s decision, not that
of the IJ. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The
BIA is bound by the IJ’s factual determinations “including findings
as to the credibility of testimony” and reviews these findings only
to determine whether they are clearly erroneous. 8 C.F.R. §
1003.1(d)(3). “The BIA’s conclusions regarding evidence of past
persecution and the well-founded fear of persecution are findings
of fact,” which we review under the deferential substantial
evidence standard. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d
Cir. 2006).

We defer to the BIA’s findings “if they are ‘supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.’” Lie v. Ashcroft, 396 F.3d 530, 534 n.3
(3d Cir. 2005) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 480
(1992)). Under the deferential substantial evidence standard, the
BIA’s findings “must be upheld unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v.
Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001) (citing Elias-Zacarias,

2
We refer to the Country Reports and Religious Freedom
Reports, collectively, as “the State Department reports.”

7
502 U.S. at 481 & n.1); see 8 U.S.C. § 1252(b)(4)(B)
(“[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary. . . .”). In addition, where, as here, “the IJ did not make an
adverse credibility determination [], we proceed as if the alien’s
testimony was credible.” Ghebrehiwot v. Att’y Gen., 467 F.3d
344, 350 (3d Cir. 2006).

We have plenary review over questions of law, “subject to
the principles of deference articulated in Chevron v. Natural
Resources Defense Council, 467 U.S. 837, 844 [] (1984).” Pierre
v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (citing Briseno-
Flores, 492 F.3d at 228; Wang v. Ashcroft, 368 F.3d 347, 349 (3d
Cir. 2004)).

III.

As a threshold matter, we reject Wong’s argument that the
BIA issued a decision that “failed to provide ‘meaningful review’”
of the IJ’s decision. Pet’r Br. at 8-9. Contrary to Wong’s
contentions, the BIA’s explanation of its reasoning is sufficiently
detailed for this Court to review.

In support of her argument, Wong relies on Miah v.
Ashcroft, 346 F.3d 434 (3d Cir. 2003), in which we held that the
BIA’s failure to explain its reasoning precluded this Court from
conducting a meaningful review of its analysis. In Miah, the BIA
rejected the IJ’s determination that the petitioner was not credible,
but then adopted the IJ’s reasoning as to corroboration. The BIA
did not analyze how its assessment that the petitioner’s testimony
was credible affected the degree of corroboration necessary for the
petitioner to meet his burden of proof. Because the BIA “adopted
a conclusion of the IJ after rejecting the finding of the IJ which
informed that conclusion,” we concluded that “meaningful review
of the BIA’s decision” was not possible. Id. at 440; see also
Awolesi v. Ashcroft, 341 F.3d 227, 233 (3d Cir. 2003) (noting that
“we are particularly concerned about being able to give meaningful
review to the BIA’s decision where the BIA reverses the IJ without
explanation” (emphasis in original)).

8
 Here, in contrast, the BIA did not reject the IJ’s decision.
Rather, the BIA considered the merits of Wong’s asylum,
withholding of removal, and CAT claims and dismissed Wong’s
appeal. The BIA considered the 2003 and 2004 State Department
reports and concluded that there was no pattern or practice of
persecution of ethnic Chinese in Indonesia. As we have previously
observed, “[w]e will not hold [] that a BIA decision is insufficient
merely because its discussion of certain issues ‘could have been
more detailed.’” Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d
Cir. 2006) (concluding that the BIA’s two-page decision provided
the Court with adequate insight into its reasoning and allowed for
a meaningful review) (quoting Sevoian v. Ashcroft, 290 F.3d 166,
178 (3d Cir. 2002)). The BIA need not “‘write an exegesis on
every contention.’” Toussaint, 455 F.3d at 414 (quoting Zubeda v.
Ashcroft, 333 F.3d 463, 477 (3d Cir. 2003)). Although the BIA’s
explanation in the instant case is brief, we conclude that the
decision is nonetheless sufficiently detailed to allow for meaningful
review. Accordingly, we turn to the merits of the BIA’s decision.

IV.

Wong contends that the BIA’s decision is not supported by
substantial evidence. Specifically, Wong argues that the BIA failed
to consider the entire record in assessing the objective basis for her
fear of persecution, applied the incorrect legal standard in
analyzing her claim, erred in introducing the concept of relocation
within Indonesia, and misinterpreted her argument regarding her
husband’s asylee status. We disagree. While the record does
indicate that Chinese Christians in Indonesia are victims of
harassment and intimidation, we cannot say that they are subject to
a pattern or practice of persecution as defined in Lie, 396 F.3d at
536. As we explain further below, the record does not compel a
finding that Wong has a well-founded fear of persecution.

The Attorney General may grant asylum to an alien in
removal proceedings if the alien establishes that he or she is a
“refugee” under the Immigration and Nationality Act (INA). 8
U.S.C. § 1158(a), (b). The INA defines “refugee” as

9
 any person who is outside any country of
such person’s nationality . . . and who is
unable or unwilling to return to, and 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 . . . .

Id. § 1101(a)(42)(A) (emphasis added). A person seeking asylum
bears the burden of demonstrating that he or she meets this
definition. Id. § 1158(b)(1)(B)(I).

Persecution includes “‘threats to life, confinement, torture,
and economic restrictions so severe that they constitute a threat to
life or freedom.’” Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d
Cir. 2007) (quoting Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.
1993)). However, persecution “‘does not encompass all treatment
our society regards as unfair, unjust or even unlawful or
unconstitutional.’” Id. (quoting Fatin, 12 F.3d at 1240); see
Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007) (noting
that “[a]busive treatment and harassment, while always deplorable,
may not rise to the level of persecution”); Lie, 396 F.3d at 536
(explaining that robberies motivated by ethnicity do not constitute
persecution); Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir.
2005) (determining that a requirement to change one’s name based
on ethnicity is not enough to establish a claim for persecution).

The well-founded fear of persecution standard has both a
subjective and an objective component. See Ghebrehiwot, 467
F.3d at 351. First, an applicant must show that his or her subjective
fear is genuine and second that “‘a reasonable person in the alien’s
circumstances would fear persecution if returned to the country in
question.’” Guo v. Ashcroft, 386 F.3d 556, 564-65 (3d Cir. 2004)
(quoting Zubeda, 333 F.3d at 469).

Wong’s subjective fear of persecution is not contested. As
noted above, Wong presented credible testimony and neither the IJ
nor the BIA questioned the genuine nature of her fear of

10
persecution. Rather, the key issue herein is whether the record
compels a finding that Wong’s fear is objectively reasonable and
that she has a well-founded fear of persecution.

An applicant can satisfy the objective prong of the well-
founded fear of persecution standard in two ways: by showing that
he or she “would be individually singled out for persecution” or by
“demonstrat[ing] 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 . . . .’” Lie, 396 F.3d at 536 (quoting 8 C.F.R. §
208.13(b)(2)(iii)(A)). As part of a pattern or practice claim, an
applicant must “establish[] his or her own inclusion in, and
identification with, such group of [similarly situated] persons such
that his or her fear of persecution upon return is reasonable.” 8
C.F.R. § 208.13(b)(2)(iii)(B).

Although the regulations do not define the meaning of a
“pattern or practice of persecution,” we explained in Lie that “to
constitute a ‘pattern or practice,’ the persecution of the group must
be ‘systemic, pervasive, or organized.’” 396 F.3d at 537 (quoting
Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)). The BIA
has adopted the definition of “pattern or practice of persecution”
set forth in Lie, see In re A-M-, 23 I. & N. Dec. 737, 740-41 (BIA
2005), as have other courts. See, e.g., Wijono v. Gonzales, 439
F.3d 868, 874 (8th Cir. 2006) (“[T]he persecution of the group
must be ‘systemic, pervasive, or organized.’”) (quoting Ngure, 367
F.3d at 991); Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir.
2005) (noting that “persecution of a protected group must be
‘extreme,’” “[t]here must be a ‘systematic, pervasive, or organized’
effort to kill, imprison, or severely injure members of the protected
group, and this effort must be perpetrated or tolerated by state
actors”) (citations omitted); Woldemeskel v. I.N.S., 257 F.3d 1185,
1191 (10th Cir. 2001) (defining “pattern or practice of persecution”
as “‘something on the order of systematic or pervasive
persecution’”) (quoting Makonnen v. I.N.S., 44 F.3d 1378, 1383
(8th Cir. 1995); cf. Mufied v. Mukasey, 508 F.3d 88, 93 (2d Cir.
2007) (citing the need for further clarification of the standard and
remanding for BIA to “elaborate upon the ‘systemic, pervasive, or

11
organized’ standard”); Sahi v. Gonzales, 416 F.3d 587, 589 (7th
Cir. 2005) (noting that the BIA has not “explain[ed] the distinction
between mere harassment and outright persecution” and remanding
for BIA to define what constitutes religious persecution).

In addition, for purposes of a pattern or practice claim, “as
with any claim of persecution, violence or other harm perpetrated
by civilians against the petitioner’s group does not constitute
persecution unless such acts are committed by the government or
forces the government is either unable or unwilling to control.”
Lie, 396 F.3d at 537 (quotation marks omitted). Nor do “general
unrest and violence . . . support an asylum claim standing alone . .
. .” Konan v. Att’y Gen., 432 F.3d 497, 506 (3d Cir. 2005).

A.

Wong’s contention that the State Department reports and
other background materials document a pattern or practice of
persecution of Chinese Christians in Indonesia is without merit. It
is well-established that “[a]n alien may demonstrate that his/her
[well-founded fear of persecution] is objectively reasonable by
documentary or expert evidence about the conditions in a given
country.” Lusingo v. Gonzales, 420 F.3d 193, 199 (3d Cir. 2005).
The evidence in this record, however, does not support Wong’s
claim.

Although the 2003 and 2004 State Department reports
document ongoing harassment of Chinese Indonesians and isolated
incidents of anti-Christian violence, including the burning of seven
churches in 2003 and ten churches in 2004, the reports do not
indicate that such violence is widespread or systemic. In fact,
according to the 2004 Country Report, “discrimination and
harassment of ethnic Chinese Indonesians declined compared with
previous years.” A.R. 69. Moreover, the State Department reports
generally emphasize the steps taken by the Indonesian government
to promote religious, racial, and ethnic tolerance and to reduce
interreligious violence. The reports indicate that private parties,

12
not government officials, are the predominant cause of harassment
and violence.3

Indeed, other courts of appeals considering the same 2003
and 2004 Country Reports have rejected similar pattern or practice
claims of persecution on the grounds that violence against Chinese
Christians in Indonesia has declined, cooperation among groups
has increased, and government officials have neither acquiesced to
nor engaged in the persecution of Chinese Christians as a group.
See, e.g., Kho v. Keisler, 505 F.3d 50, 54, 58 & n.7 (1st Cir. 2007)
(finding “no ongoing pattern or practice of persecution against
ethnic Chinese or Christians in Indonesia” and citing the State
Department’s 2004 Country Report for the lack of evidence of
government action or inaction in anti-Chinese harassment); Tolego
v. Gonzales, 452 F.3d 763, 766 (8th Cir. 2006) (reviewing the 2003
and 2004 State Department Country Reports and rejecting
petitioner’s claim for withholding of removal based on a pattern or
practice of persecution against Chinese Christians in Indonesia).
Furthermore, although not relevant to the decision in this case,
more recent State Department reports from 2005 to 2007 document
similar or improved treatment of Chinese Christians in Indonesia.4

3
Wong is correct that the factual findings in Lie, which were
based on a now-outdated 1999 Country Report, are not dispositive
in this case. Yet, contrary to Wong’s contention, the BIA did not
rely on the factual findings in Lie in assessing the merits of Wong’s
claim. Rather, the BIA based its ruling that there was no pattern or
practice of persecution of ethnic Chinese Christians in Indonesia on
the record before it, which included the 2003 and 2004 State
Department reports, discussed above.
4
It is important to note that these recent reports are not part
of the record and do not therefore control our decision-making.
Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir. 2004) (“It is a
salutary principle of administrative law review that the reviewing
court act upon a closed record.”). Although other courts of appeals
have taken judicial notice of new country reports released after a
final agency determination, see, e.g., Pelinkovic v. Ashcroft, 366
F.3d 532, 540-41 (7th Cir. 2004), we have declined to do so. See
Berishaj, 378 F.3d at 330 (explaining that we have followed “the

13
 Wong’s argument that the BIA did not apply the correct
legal standard is unpersuasive. Although the BIA did not expressly
cite the “systemic, pervasive, or organized” standard set forth in
Lie, 396 F.3d at 537, the BIA properly reviewed the record and
determined that violence was not sufficiently widespread and
incidents of harassment and discrimination were not sufficiently
severe to constitute a pattern or practice of persecution.

Moreover, Wong’s reliance on Sael v. Ashcroft, 386 F.3d
922 (9th Cir. 2004), and Eduard v. Ashcroft, 379 F.3d 182 (5th Cir.
2004), is unavailing. Contrary to Wong’s contention, the Court of
Appeals for the Ninth Circuit’s factual finding in Sael that the
Chinese were “scapegoats” in Indonesia is not “a persuasive
evaluation of country conditions,” as the decision was based on
now-outdated country condition information from 1998, 1999, and
2000. Pet’r Br. at 21.5 The Court of Appeals for the Fifth Circuit’s

clear command from SEC v. Chenery Corp., 318 U.S. 80 [] (1943),
that courts reviewing the determination of an administrative agency
must approve or reject the agency’s action purely on the basis of
the reasons offered by, and the record compiled before, the agency
itself”).

For informational purposes only, we note that the 2007
Country Report, for example, states that attacks against churches
in West and East Java, where Wong’s hometown is located, were
“less frequent” than in the past. The 2007 Religious Freedom
Report observes that while “extremist groups used violence and
intimidation to force eight small, unlicensed churches and one
Ahmadiyya mosque to close,” the government and the public
generally respected religious freedom. According to the report, the
government took steps to promote interfaith dialogue, and the
president gave a speech to reassure Chinese Indonesians “that their
rights were legally and constitutionally guaranteed.”
5
In addition, we have previously rejected the “disfavored
group” analysis in Sael, and we will not revisit that decision here.
See Lie, 396 F.3d at 538 n.4. In any event, the Court of Appeals
for the Ninth Circuit itself appears to have moved away from its
reasoning in Sael. See Lolong v. Gonzales, 484 F.3d 1173, 1180-

14
decision in Eduard is similarly unpersuasive. There, the court
based its finding of a pattern and practice of persecution on country
conditions in Indonesia in 2000. The factual determination as to a
pattern or practice claim must, however, be based on the most
current information in the record (in this case, the State Department
reports from 2004), not on outdated information from 2000. See
Sukwanputra v. Gonzales, 434 F.3d 627, 637 & n.10 (3d Cir. 2006)
(remanding for the BIA to consider petitioners’ pattern or practice
claim in light of the 2001 Country Report in the record and noting
that the Lie decision was not controlling because it was based on
an outdated 1999 Country Report).

Furthermore, as the Court of Appeals for the Seventh Circuit
observed in distinguishing Eduard, “each of the other circuits to
address the issue has declined to find a pattern or practice of
persecution of Christian Indonesians of Chinese descent.”
Kaharudin v. Gonzales, 500 F.3d 619, 624 n.4 (7th Cir. 2007)
(citing Lolong, 484 F.3d at 1180-81; Tolego, 452 F.3d at 766;
Tulengkey v. Gonzales, 425 F.3d 1277, 1281-82 (10th Cir. 2005));
see also Kho, 505 F.3d at 54-55; In re A-M-, 23 I. & N. Dec. at 741
(“We do not find . . . on the record before us, that the threat of
harm to Chinese Christians in Indonesia by the Government, or by
forces that the Government is unable or unwilling to control, is so
systemic or pervasive as to amount to a pattern or practice of
persecution.”). Accordingly, the record before us does not
compel a finding of a pattern or practice of persecution of Chinese
Christians in Indonesia.

B.

Wong’s remaining arguments that the BIA (1) incorrectly
introduced the concept of relocation within Indonesia and (2) failed

81 (9th Cir. 2007) (en banc) (acknowledging “history of ethnic and
religious strife” in Indonesia, including attacks on Chinese
Christians, but concluding that “the record supports the BIA’s
conclusion that Lolong has not shown that the Indonesian
government is unable or unwilling to control the perpetrators of
this violence”).

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to consider the importance of her husband’s grant of asylum are
unpersuasive.

First, as the Government correctly notes, “[e]ven assuming
the Board ‘improperly introduced’ the issue of internal relocation,
. . . the issue was not determinative to the [IJ]’s findings of fact in
this case. . . . The [IJ] found, and the Board agreed, that [] Wong
did not establish a pattern or practice of persecution of Chinese
Christians in Indonesia.” Gov’t Br. at 17-18 n.3. As we explained
above, in order to establish a well-founded fear of persecution,
Wong needed to demonstrate an objectively reasonable fear of
persecution. Without evidence of a pattern or practice of
persecution of Chinese Christians in Indonesia or that she would be
individually singled out for persecution, Wong’s claim necessarily
fails.

Second, Wong’s argument that she should be granted
asylum because her husband, a Chinese Christian from the east end
of Java, faced similar experiences and was granted asylum in 2001
is also unpersuasive. Wong cites Gebremichael v. I.N.S., 10 F.3d
28 (1st Cir. 1993), for the proposition that “[t]he persecution of a
family member is a relevant concern for an asylum claim,
especially where it is feared on the same basis as an applicant.”
Pet’r Br. at 16. It is true that successful asylum applications by
family members can be relevant to a petitioner’s claim. See, e.g.,
Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir. 2006) (noting
relevance of persecution of family members, particularly where
“there is a high degree of factual similarity between the applicant’s
claim and those of his family members, and where his claim of
political persecution rests on that very familial relationship”).

Yet, as the Government correctly notes, Wong has not
provided any details as to her husband’s claim and we therefore
cannot assess its similarity or relevance to her claim. It is clear that
Wong “cannot rely solely on the persecution of [her] family
members to qualify for asylum or bootstrap” one case onto

16
another.6 Id. (citations and quotation marks omitted); see also
Surya v. Gonzales, 454 F.3d 874, 878 (8th Cir. 2006) (“[A]ttacks
on family members, absent a pattern of persecution tied to the
applicant, do not establish a well-founded fear of persecution; nor
do isolated acts of violence.”). Contrary to Wong’s contentions,
the grant of asylum to her husband does not assist Wong in
establishing her claim.

Furthermore, Wong’s siblings and mother still live in
Indonesia and practice Catholicism, undermining her claim to a
well-founded fear of persecution in Indonesia. See Setiadi v.
Gonzales, 437 F.3d 710, 714 & n.3 (8th Cir. 2006) (rejecting
petitioner’s claim to a well-founded fear of persecution where
Christian relatives remained unharmed in contentious part of
Indonesia and noting that “there are many possible areas in
Indonesia where [petitioner] and his family could relocate”);
Nikijuluw v. Gonzales, 427 F.3d 115, 122 (1st Cir. 2005) (noting
that petitioner’s Christian relatives lived peaceably in Indonesia
and determining that “[w]hile a reasonable person in the
petitioner’s position might fear encountering some private hostility
in a majority Muslim country on account of his Christian Protestant
beliefs, the record does not make manifest any objective basis for
a fear of persecution”).

Although we are sympathetic to Wong’s plight, harassment
and discrimination do not constitute persecution. The 2003 and
2004 State Department reports indicate that attacks on Chinese
Christians continued in certain areas, but violence was not
widespread, and the Indonesian government was taking steps to
control it. Moreover, as documented in the State Department
reports, the Indonesian government has shown a general
commitment to freedom of religion, as well as to ethnic tolerance.
Wong has not demonstrated an objectively reasonable fear of

6
Wong submitted an I-730 petition to qualify her as a
derivative asylee based on her husband’s asylee status, but she
concedes that we do not have jurisdiction over that petition, and we
will therefore not address it further.

17
persecution, and we hold that the BIA’s decision is supported by
substantial evidence.

V.

Wong also seeks relief in the form of withholding of
removal and protection under the CAT. These claims also fail.

To qualify for withholding of removal, a petitioner must
“establish a clear probability,” meaning “that it is more likely than
not, that he/she would suffer persecution.” Ghebrehiwot, 467 F.3d
at 351 (quotation marks omitted). Where, as here, a petitioner has
not met her burden of proof with respect to asylum, the petitioner
is also not eligible for withholding of removal. See, e.g., Guo, 386
F.3d at 561 n.4. Wong has not established a well-founded fear of
persecution and, as a result, also cannot show a “clear probability”
of persecution in Indonesia because of her status as a Chinese
Christian.

In addition, although Wong’s initial application for relief
included a CAT claim, Wong fails to challenge the BIA’s denial of
relief under the CAT, and we will therefore not consider her CAT
claim. See, e.g., Sukwanputra, 434 F.3d at 636 n.8.

VI.

For the foregoing reasons, we will deny Wong’s petition for
review.

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