[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 13, 2006
No. 06-11421 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos.
A97-189-880
A97-189-881
FRANSISCUS LUKMAN WIBOWO,
TAN FERONICA TANDIONO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 13, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Petitioners Fransiscus Lukman Wibowo and his wife, Tan Feronica
Tandiono, hereinafter “Petitioners” when referred to collectively, seek review of
the Board of Immigration Appeal’s (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) denial of their application for withholding of removal under the
Immigration and Nationality Act (“INA”) and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), 8 U.S.C. § 1231. Petitioners are citizens of Indonesia.
They argue that Petitioner Wibowo’s testimony was sufficient to establish past
persecution and torture, entitling them to withholding of removal and CAT relief.
I. BACKGROUND
Petitioners were admitted to the United States as non-immigrant visitors on
December 5, 2000, with authorization to remain until June 4, 2001. They remained
in the United States beyond this date and, on May 5, 2003, were each charged with
removability. On March 14, 2003, Petitioners filed an application for asylum,1
withholding of removal and CAT relief, alleging fear of persecution and torture
based upon their Chinese ethnicity and Catholic religion.
Wibowo alleged that the Chinese population in Indonesia, a minority within
the country, suffered persecution by Muslim’s and other native Indonesians.
1
Petitioners, conceding that the asylum application was untimely, withdrew their asylum
claim.
2
Wibowo recounted six incidents of insults and/or physical assaults that he suffered
while living in Indonesia. He first described an incident when, at the age of four,
he was called “Cino,” a racial slur for ethnic Chinese in Indonesia. Wibowo also
recalled an incident that occurred in which he was knocked from his bicycle as a
result of being struck by a motorcycle. Many people witnessed the incident but
refused to offer any assistance to Wibowo, remarking on his Chinese ethnicity.
Early in 1990, celebrants in the street during a Muslim holiday grabbed Wibowo
and asked him for money. When he did not have the money they wanted, they hit
Wibowo and spit on him. Then, in 1997, a motorbike with two passengers cut off
Wibowo’s motorbike, causing an accident. The two passengers then began hitting
Wibowo. Native Indonesians also gathered around the scene; they yelled racial
slurs and threatened to burn Wibowo’s bike. A police officer dispersed the crowd
by firing a shot into the air.
The following year, while riding his motorbike with a friend after work,
Wibowo was stopped at a student demonstration and asked for his money and
wallet. When he gave the attackers money, but refused to give them his wallet,
they yelled a racial slur and beat Wibowo and his friend. The police again
disrupted the attack and Wibowo was taken to the hospital. Wibowo obtained a
visa and made a brief visit to the United States from December 1998 until March
1999, after which he returned to Indonesia. Wibowo testified that he returned to
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Indonesia because of his father’s ailing health and to marry and to bring his new
bride to the United States. Upon his return to Indonesia, Wibowo experienced
another incident in which a rock was thrown through the windshield of the car that
he rode in with his brother and two friends. The attackers again yelled racial slurs.
Wibowo’s friend stopped the car, after which the attackers asked for money and
began hitting the car with baseball bats and stones.
In addition to the testimony of the Petitioners, they also submitted
evidentiary materials, including, inter alia, the Country Report on Human Rights
Practices, the World Refugee Survey, the International Religious Freedom Report,
the International Crisis Group, and news articles documenting hardships suffered
by Chinese in Indonesia.
II. STANDARD OF REVIEW
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA adopted the IJ’s decision and
added its own analysis. We, therefore, review both decisions. To the extent that
the BIA’s and IJ’s decision was based upon a legal determination, our review is de
novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). The
BIA’s and IJ’s factual determinations are reviewed under the substantial evidence
test, and we must affirm the IJ’s decision “if it is ‘supported by reasonable,
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substantial and probative evidence on the record considered as a whole.’” Al
Najjar, 257 F.3d at 1283-84 (citation omitted). To reverse the BIA’s and IJ’s fact
findings, “we must find that the record not only supports reversal, but compels it.”
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); see also 8
U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary... .”).
III. DISCUSSION
A request for withholding of removal requires that an alien show that his life
or freedom would more likely than not be threatened in his country of origin on
account of race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1231(b)(3)(A); Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1232 (11th Cir. 2005). The Petitioners allege past persecution and fear
of future persecution based upon their ethnicity and religion. In order to establish
the necessary causal connection between the protected ground and the feared
persecution, the alien must present “specific, detailed facts showing a good reason
to fear that he or she will be singled out for persecution on account of such
[protected group status].” See Al Najjar, 257 F.3d at 1287 (discussing asylum
claim) (quotations and emphasis omitted). “The alien bears the burden of
demonstrating that it is ‘more likely than not’ she will be persecuted or tortured
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upon being returned to her country. This standard is more stringent than the
‘well-founded fear of future persecution’ required for asylum.” Tan v. U.S. Att’y
Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (internal citations omitted).
An applicant may satisfy this burden of proof by showing either: (1) past
persecution that “was, at least in part, motivated by a protected ground”; or (2)
“that it is more likely than not that she would be persecuted on account of [a
protected ground] upon removal to that country.” Id. (citing 8 C.F.R. §
208.16(b)(2)). Once an alien has met this burden, withholding of removal is
mandatory. See 8 C.F.R. § 208.16(d)(1). “The statutes governing asylum and
withholding of removal protect not only against persecution by government forces,
but also against persecution by non-governmental groups that the government
cannot control. . . .” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
After reviewing the record and reading the parties’ briefs, we conclude that
substantial evidence supports the BIA’s and IJ’s determination that Petitioners
failed to meet their burden of proof for withholding of removal. Wibowo
recounted six incidents that occurred during his lifetime in Indonesia, which he
alleges amounted to past persecution. While some incidents involved only ethnic
slurs, at least two incidents involved assaults. Several of the incidents also
involved attempts to rob Wibowo. Each incident was initiated by private
individuals. Although it is likely that Wibowo was targeted because he is Chinese,
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collectively, these incidents amount to harassment, not persecution. “[M]ere
harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231.
Although the INA does not expressly define “persecution,” we have stated that
“persecution is an extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation.” Sepulveda, 401 F.3d at1231 (quotations
omitted). Moreover, not all exceptional or unjust treatment is persecution. See
Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000); see also Ghaly v. I.N.S,
58 F.3d 1425, 1431 (9 th Cir. 1995) (explaining that “persecution is an extreme
concept that does not include every sort of treatment our society regards as
offensive”). Further, evidence showing that Wibowo has been the victim of crime
does not constitute evidence of persecution. See Ruiz, 440 F.3d at 1258.
Petitioners’ evidentiary materials also do not support a finding of past
persecution or a well-founded fear of persecution upon return. Although the
materials submitted by the Petitioners, including the Country Report, the World
Refugee Survey, and news articles support Wibowo’s testimony regarding the
violence and prejudice against both Christians and ethnic Chinese in Indonesia, the
bulk of this evidence relates to the conflict between Muslims and Christians in
areas of the country other than Surabaya, the Petitioners’ former home. Further,
there is no evidence to indicate that the Petitioners could not relocate to another
area of the country where they would not face the harassment and intimidation that
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they have alleged. “An alien cannot demonstrate that [he] more-likely-than-not
would be persecuted on a protected ground if the [Immigration Judge] finds that
the alien could avoid a future threat by relocating to another part of [his] country.”
Tan, 446 F.3d at 1375.
Moreover, the Petitioners’ claim of persecution is contradicted by testimony
that Wibowo’s brother and Tandiono’s parents, brother, and two sisters continue to
live unharmed in Indonesia. Aside from one of Tandiono’s sisters being mugged,2
the record does not contain any evidence that Wibowo’s and Tandiono’s families
have suffered harm in Indonesia. Cf. Ruiz, 440 F.3d at 1259 (concluding that an
alien did not establish a well-founded fear where, among other things, his family
continued to live in Colombia without incident).
Finally, Wibowo failed to provide any examples of how he was harmed due
to practicing Catholicism. Tandiono’s testimony indicated that she did not practice
Catholicism in Indonesia, but has recently attended a Catholic church. In either
case, Tandiono testified that she had not suffered any harm in Indonesia because of
her religion. Thus, Petitioners have failed to prove past persecution or fear of
future persecution based upon their ethnicity or religion.
In order to obtain CAT relief, the burden is on the applicant to establish that
it is “more likely than not” that he will be tortured in the country of origin. 8
2
Tandiono testified that her sister’s purse was stolen.
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 for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted 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. § 208.18(a)(1). “Torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or degrading
treatment or punishment that do not amount to torture.” 8 C.F.R. § 208.18(a)(2).
The Petitioners presented no evidence that they have been or would be tortured
upon their return to Indonesia by a public official or with a public official’s
acquiescence. The incidents recounted by Wibowo were committed by private
individuals; there was no evidence that government officials were involved.
Moreover, Indonesian police disrupted at least two of the assaults. Therefore, the
denial of CAT relief was supported by substantial evidence.
For the foregoing reasons, the record does not compel the conclusion that
Petitioners have suffered past persecution or torture or have a well-founded fear of
suffering such if they return to Indonesia. Accordingly, we deny the petition for
review.
PETITION DENIED.
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