Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-5-2009
Lay v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1443
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1443
GUNADI ALI LAY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A96-203-953
Immigration Judge: Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 1, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: May 5, 2009)
___________
OPINION
___________
PER CURIAM
Petitioner Gunadi Ali Lay, a Chinese Christian native and citizen of Indonesia,
entered the United States on September 17, 1998 as a non-immigrant visitor. He
admittedly stayed without permission beyond the date authorized and thus is removable
under Immigration & Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
On October 14, 2004, Lay filed his application for asylum under INA § 208(a), 8 U.S.C. §
1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for
protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18,
claiming that he will be persecuted on the basis of his ethnicity and religion if he is forced
to return to Indonesia. Lay subsequently withdrew his CAT request.
After Lay waived examination at his merits hearing, the Immigration Judge read
his affidavit into the record. His background materials, including affidavits from Dr.
Jeffrey Winters, an associate professor of political science at Northwestern University,
and Jana Mason, Deputy Director for Government Relations, International Rescue
Committee, were made a part of the record. The 2005 State Department Country and
International Religious Freedom Reports for Indonesia also were made a part of the
record. Following the hearing, the IJ found that Lay’s asylum application was untimely,
and that he failed to satisfy the changed or extraordinary circumstances standard for a late
application.1 The IJ also found that Lay had failed to meet his burden of establishing a
clear probability of future persecution due to his ethnicity or religion. He failed to make
an individualized showing of persecution, and, according to the Country and Religious
1
If the alien can establish “either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing the application,” failure to file the application within the one
year period may be excused. 8 U.S.C. § 1158(a)(2)(D).
2
Freedom reports, the government of Indonesia has taken steps to eliminate discriminatory
laws directed at Lay’s ethnic group. Moreover, the Indonesian government officially
promoted racial and ethnic tolerance. Accordingly, Lay’s application for statutory
withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), was denied.
Lay appealed to the Board of Immigration Appeals, challenging only the
withholding of removal decision, and resting his pattern and practice argument on the
2005 Country Report, as well as two State Department Country Reports, from the years
2003 and 2004, that were not made a part of the record at the merits hearing. A.R. 8. Lay
sought a re-examination of our decision in Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005)
(addressing 1999 Country Report on Indonesia), based on these more recent reports.
On January 17, 2008, the Board dismissed Lay’s appeal and adopted the decision
of the IJ, citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). The Board
specifically affirmed the IJ’s finding that there were not changed or extraordinary
circumstances sufficient to overcome his failure to timely file for asylum, and that he was
not eligible for statutory withholding of removal. Lay now seeks review of the Board’s
decision.
We will deny the petition for review. We have jurisdiction to review final orders
of removal pursuant to 8 U.S.C. § 1252(a)(1), (b)(1). Because the Board adopted the
opinion of the IJ and then added its own brief reasoning, we review both its decision and
the IJ’s decision. See, e.g., Jarbough v. Att’y Gen. of the U.S., 483 F.3d 184, 191 (3d Cir.
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2007). In his brief on appeal, Lay challenges only the Board’s determination that he
failed to meet his burden of proof with respect to statutory withholding of removal. He
does not challenge the untimeliness determination on any constitutional or legal basis that
would give us jurisdiction.2 With respect to statutory withholding of removal, Lay
contended that the IJ failed to consider whether there is a pattern or practice of
persecution against ethnic Chinese Christians in Indonesia. The affidavit of Dr. Winters
in particular, he argued, amply supported that ethnic Chinese Indonesians “face a real and
substantial future likelihood of persecution in the form of intimidation, threats to personal
safety and well being, and physical harm.” See Appellant’s Brief, at 7.
To establish entitlement to withholding of removal under section 241(b)(3) of the
INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a “clear probability” of
persecution, through the presentation of evidence, that it is more likely than not that he
would be subject to persecution if removed to his native country. See Mulanga v.
Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Persecution has a well-established meaning;
it includes confinement, torture, and threats to life or freedom, including severe economic
restrictions, but it does not include treatment that is merely unfair or unjust. See Fatin v.
2
Absent a legal or constitutional argument, the determination that Lay delayed too
long in applying for asylum and that he did not show changed country conditions or
extraordinary circumstances relating to the delay is unreviewable. 8 U.S.C. § 1158(a)(3);
Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). See also Jarbough v. Att’y Gen
of the U.S., 483 F.3d 184, 189 (3d Cir. 2007) (existence of changed country conditions or
extraordinary circumstances is discretionary and factual determination over which courts
of appeals lack jurisdiction).
4
Immigration & Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir. 1993). Persecution is an
extreme concept that is not defined expansively. Id.
The agency’s “findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also
Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under
this deferential standard, the petitioner must establish that the evidence does not just
support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002).
Lay failed to show that the agency’s conclusion that he failed to demonstrate a
“clear probability” of persecution is not supported by reasonable, substantial and
probative evidence on the record considered as a whole. Elias-Zacarias, 502 U.S. at 481.
He did not establish that the incidents on which his application was based were the type
of harm recognized as constituting persecution. Fatin, 12 F.3d at 1240. In his affidavit,
Lay claimed that:
Ever since I was little until I reached adulthood, I experienced a lot
of pressure, either physically or mentally from native Indonesian people,
which majority of them are Muslims.
Almost every day I received bad words from them about my Chinese
ethnicity. They said “Dirty Chinese! Bad Chinese! Chinese go home to
your country!” Sometimes they even hit me or spit on me. I reported those
to the police but the police did not do anything. They even forced me to
give them money for the service.
See Immigration Judge’s Decision, at 4. Conduct of this nature does not rise to the level
5
of persecution. See Lie, 396 F.3d at 536.
In addition, Lay claimed that: (1) discriminatory laws required him to change from
a Chinese to an Indonesian name; (2) he was unable to enter the university because he
could not obtain and submit the necessary and expensive letter of Indonesian citizenship;
(3) he had to pay higher fees for processing official documents; (4) native Indonesians
played loud music to disturb the worship services in his church; and (5), as a result of
these “incidents” and especially the 1998 riots, he “became a person who was fearful,
timid and not able to interact normally with the surrounding community.” See
Immigration Judge’s Decision, at 5. However, there was no evidence of an actual
physical injury, Lay suffered no financial or physical harm as a result of the May 1998
riots, and discrimination of the type alleged here does not rise to the level of persecution,
see Ahmed v. Ashcroft, 341 F.3d 214, 216-17 (3d Cir. 2003). Given these circumstances,
the agency’s finding that what happened to Lay did not rise to the level of persecution is
supported by substantial evidence in the record. See Jarbough, 483 F.3d at 191 (citing
Fatin, 12 F.3d at 1243).
Furthermore, Lay did not even attempt to show by the presentation of evidence that
he would be singled out for persecution should he be forced to return to Indonesia, and
we conclude, as did the Board and the IJ, that his pattern and practice argument is
unpersuasive. An applicant can satisfy the objective prong of a well-founded fear of
persecution claim by showing that he would be individually singled out for persecution,
6
or by showing that there is a pattern or practice in his country of persecution of a group of
persons similarly situated to him on account of race, religion, nationality, membership in
a particular social group, or political opinion. Id. at 536 (citing 8 C.F.R. §
208.13(b)(2)(iii)(A)). To constitute a pattern or practice, the persecution of the group
must be systemic, pervasive, or organized. Id. at 537. In Lie, we relied on the 1999
Country Report on Indonesia in finding that the evidence did not compel the conclusion
that violence against Chinese Christians rose to the level of a pattern or practice of
persecution. Id. at 537-38. Following Lie, we left open the possibility that subsequent
State Department reports might show a pattern or practice of persecution, see
Sukwanputra v. Gonzales, 434 F.3d 627, 637 n.10 (3d Cir. 2006).
Recently, in Wong v. Att’y Gen. of the U.S., 539 F.3d 225 (3d Cir. 2008), we
addressed the 2003 and 2004 Country and Religious Freedom Reports on Indonesia, and
relied on them in finding that the evidence did not compel the conclusion that violence
against Chinese Christians rose to the level of a pattern or practice of persecution. We
explained:
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. 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, not government officials, are the predominant cause of
7
harassment and violence.
Id. at 233-34 (internal quotation marks and citation removed).
We thus reject, on the basis of Wong, Lay’s pattern or practice argument to the
extent it rests on the 2003 and 2004 State Department Reports. We further conclude that
neither the 2005 Country Report nor 2005 Religious Freedom Report, on which the Board
relied in Lay’s case, compel the conclusion that there is a pattern or practice of
persecution of Chinese Christians in Indonesia. Rather, these reports document the
Indonesian government’s continuing promotion of racial and ethnic tolerance, and that an
anti-discrimination movement is urging the government to remove the remaining laws,
regulations, and decrees that have had a discriminatory effect on ethnic Chinese.
Although not relevant to our decision in Wong, we noted there that “more recent State
Department reports from 2005 to 2007 document similar or improved treatment of
Chinese Christians in Indonesia.” 539 F.3d at 234. Like Lay, the petitioner in Wong
relied unsuccessfully on an affidavit from an expert on Indonesia country conditions, id.
at 229. As in Wong, we conclude that the expert affidavits submitted in Lay’s case do not
compel a contrary conclusion in view of the persuasiveness of the recent State
Department reports.
For the foregoing reasons, we will deny the petition for review.
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