[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 21, 2008
No. 08-10339 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A95-583-417
A95-583-418
HEN NIE TAN,
SIN TIONG GO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 21, 2008)
Before BIRCH, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Hen Nie Tan and Sin Tiong Go, who are Indonesians, petition for review of
a final order of the Board of Immigration Appeals (“BIA”) denying Tan’s claim for
asylum, withholding of removal, and CAT relief and Go’s claim for cancellation of
removal.1 On appeal, Tan argues that if she were returned to Indonesia, she would
be persecuted on account of her race, which is Chinese, and religion, which is
Christian. She contends that she demonstrated that she suffered past persecution
on account of her race and religion, and as a result is entitled to a rebuttable
presumption of future persecution, and that she has provided ample evidence to
support a finding that she would more likely than not face persecution if returned
to Indonesia.
Because Tan is unable to demonstrate the existence of past persecution or
that she is more likely than not to suffer future persecution on account of her
ethnicity or religion, she has failed to demonstrate eligibility for withholding of
removal. Accordingly, we DENY the petition.
I. BACKGROUND
Tan filed an application for asylum and withholding of removal in June of
2002. Administrative Record (“AR”) at 254. She claimed that she had Indonesian
1
On appeal, Tan does not present arguments concerning her asylum claim or her relief
under CAT, and Go does not present arguments concerning the denial of his claim for
cancellation of removal. As a result, those issues are abandoned. See Sepulveda v. U.S.
Attorney General, 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding that, when an appellant
fails to offer an argument on an issue, that issue is abandoned).
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citizenship, her ethnicity was Chinese, and her religion was Christianity. Id. at
247. She entered the United States in 1995. Id. She stated that she married Go in
December of 1996, that he was also an Indonesian citizen of Chinese ethnicity, and
that he was included in the application.2 Id. at 249-250. Although she lived in
Jakarta for several years, she now sought asylum because of fear of persecution on
account her ethnicity and religion and that many of her friends and relatives had
been persecuted, tortured, and killed. Id. at 250. She and her family had been
mistreated and threatened by members of Muslim organizations because of
activities with her Christian church. Id. at 251. She stated that her application was
filed more than one year after her arrival because of changed conditions in
Indonesia. Id. at 253.
Tan received notice to appear in March of 2004. Id. at 374. She was
charged with having entered the country lawfully on nonimmigrant B-2 status in
January 1995 but remaining beyond the allowed six months. Id.
In support, Tan submitted an article from the 9 October 2000 issue of
Business Week entitled “Wage of Hatred,” which detailed the economic and
psychological effect of riots in Jakarta and elsewhere by fundamentalist Muslims
2
Because Go had arrived four years prior to Tan and, as a result, met the prerequisites for
cancellation of removal, he sought relief independently of Tan in addition to being included as a
derivative party on her asylum claim. See AR at 395-401. The Immigration Judge (“IJ”) and
BIA ultimately denied his application for cancellation of removal. See id. at 391, 379.
3
and native Indonesians against Chinese Indonesians. Id. at 242. Also submitted
was an article from Human Rights Watch entitled “The Damage Debate on Rapes
of Ethnic Chinese Women” which detailed the beginning of violence in May of
1998 targeted at Chinese-owned shops and the subsequent rise in violence against
Chinese women. Id. at 231-32.
Tan supplied a supplemental statement in support of her application which
listed the incidents of persecution she suffered when in Indonesia. Id. at 190-91.
When she was in school, she was treated differently by both students and teachers
on account of her ethnicity. Id. at 190. While waiting for a bus, she was fondled
by native Indonesians and once, when riding a bus, the native Indonesian bus
driver refused to stop for her at her requested stop. Id. She was also told to stop
having Christian fellowship meetings in her house. Id. She also explained that
Chinese Indonesians had to pay exorbitant fees to get motor vehicle licenses. Id.
According to the 2004 Indonesia Country Report from the State Department
(“Country Report”) the Indonesian government never established accountability
for the 1998 riots. Id. at 156. The Country Report noted that the political and
economic tensions in some of the provinces continued to cause sectarian violence
resulting unlawful killings, and that ten churches, three more than the previous
year, had been attacked, including in the Jakarta communities of Ciputat and
Pamulang. Id. at 163. The Country Report also noted that in some provinces, such
4
as Ambon, Maluku, North Maluku, and Central Sulawesi, interreligious
cooperation remained poor. Id. The Country Report stated that ethnic Chinese
made up three percent of the population and that instances of discrimination of
Chinese declined compared to previous years. Id. at 171.
Also submitted was the State Department’s International Religious Freedom
Report for Indonesia for 2005, which noted that sporadic incidents of possible
inter-religious strife continued in a couple of Indonesian provinces, including
Central Sulawesi and the Moluccas, but at a significantly lower rate than the
previous reporting period. Id. at 177. The Freedom Report noted that the province
of Aceh was authorized to implement Islamic law, but the remainder of Indonesia
was not. Id. The 2005 Freedom Report noted that 5.9% of the Indonesian
population was Protestant and 3.1% was Catholic. Id. It noted that local police
displayed significantly more willingness to indict security forces allegedly
involved in religious violence, but violence between Christians and Muslims
continued during the period covered by this report. Id. at 184-186.
Tan conceded the facts alleged in the notice to appear and conceded
removability. Id. at 75. At an asylum hearing in January of 2006, Tan testified
that when she was in grade school she was treated differently than students from
the indigenous populations and in high school she was chased by someone who
wanted to do inappropriate things to her. Id. at 96. She never complained to any
5
officials because every time she had to go to government offices there would
always be problems because she was Chinese. Id. at 103. When she tried to get
her driver’s license, she was made to wait longer than native Indonesians and
ignored by the employees. Id. at 103-104. She stated that she went to Catholic
church in Indonesia, that she joined in middle school by joining small faith groups,
but she was not baptized until she came to the United States. Id. at 95-96, 109.
She admitted that she was never physically harmed, but she was robbed once by
Muslims while riding a bus, although she did not actually see them rob her, she
assumed that it must have been Muslims because Chinese Indonesians do not
usually ride the bus. Id. at 110-11. On cross-examination she also admitted that
she was never arrested, detained, or tortured by the government of Indonesia and
that her life was never threatened, although her liberty was, while living in
Indonesia. Id. at 118-29. She also stated that the last incident inspiring fear in her
was in 1993, more than eight years before her present application, although she
always had fear of something happening, and that she left in 1995. Id. at 120.
The IJ issued his decision and denied asylum status because the application
from Tan and Go was beyond the one year limitation period. Id. at 62. The IJ
found Tan credible, but none of the instances amounted to persecution and would
not amount to an asylum claim, let alone a withholding claim. Id. at 63. The IJ
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then found that CAT relief was unavailable, and in a separate opinion, denied Go’s
application for cancellation of removal . Id. at 64, 52.
Tan and Go appealed to the BIA and argued that the one year limitation
period should not have applied because of change in personal circumstances due to
her marriage and child, and change in country conditions because Indonesia was
more dangerous following September 11 and a rise in Christian and Muslim
hostilities. Id. at 10-11. Tan also argued that there was past persecution because
of the continuous discrimination and harassment she suffered, and that, she had a
reasonable fear of future persecution because Chinese Indonesians are regularly
threatened with extinction and attacked. Id. at 11-12. Nevertheless, she did not
argue that there was a pattern or practice of persecuting Chinese Christians in
Indonesia. Id. at 10-12. Go argued that the IJ erred because he should have
considered the political and economic conditions of the country when determining
economic hardship, and the current conditions weighed in favor of finding an
extreme hardship. Id. at 14.
The BIA adopted and affirmed the IJ’s decision. Id. at 2. The BIA agreed
that Tan failed to establish past persecution and that she failed to demonstrate a
clear probability of future persecution or a pattern and practice of persecution. Id.
As to Go, the BIA affirmed the IJ’s decision. Id. at 379.
7
Tan and Go timely filed a petition for review with this court. Administrative
Papers at 2.
II. DISCUSSION
On appeal, Tan argues that a reasonable factfinder would have been
compelled to find that it was more likely than not that she would be persecuted if
she returned to Indonesia. She contends that her testimony makes it clear that she
would suffer persecution if returned to Indonesia and that the country reports
support her testimony. She also argues that there are numerous bombings on
churches that she has personal knowledge of, and that there is a clear probability
she would be harmed if returned to Indonesia.
To the extent the BIA’s decision is based on legal determinations, the
standard of review is de novo. D-Muhumed v. U.S. Attorney General, 388 F.3d
814, 817 (11th Cir. 2004). The BIA’s findings of fact are reviewed under the
substantial evidence test, and we “must affirm the [IJ’s] decision if it is ‘supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (quoting
Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th Cir. 1997). We view “the record
evidence in the light most favorable to the agency’s decision and draws all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc). Under this highly deferential standard of
8
review, the IJ’s decision can be reversed only if the evidence “compels” a
reasonable fact finder to find otherwise. Sepulveda v. U.S. Attorney General, 401
F.3d 1226, 1230 (11th Cir. 2005).
When the BIA issues its own opinion, we review only the decision of the
BIA, except to the extent the BIA expressly adopts the IJ’s decision. Rodriguez
Morales v. U.S. Attorney General, 488 F.3d 884, 890 (11th Cir. 2007). In the
present case, the BIA affirmed and adopted the IJ’s opinion, and therefore we will
review the IJ’s opinion.
An alien is entitled to withholding of removal under the INA if she can show
that her life or freedom would be threatened on account of, inter alia, her race or
religion.3 INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). For withholding of
removal, the applicant has the burden of showing that it is “more likely than not”
she will be persecuted or tortured upon return to her country. Sepulveda, 401 F.3d
at 1232. A showing of past persecution creates a rebuttable presumption of a well-
founded fear of future persecution. Id. at 1231. Persecution is an extreme concept,
3
An applicant for withholding of removal need not show that she would be singled out
for persecution if she can demonstrate a pattern or practice of persecution of persons similarly
situated to her on account of, inter alia, race or religion. 8 C.F.R. § 208.13(b)(2)(iii). In the
instant case, Tan did not raise the pattern or practice argument before the BIA, and therefore we
are without jurisdiction to review such an argument, even though the BIA sua sponte addressed
it. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (holding
that we lack jurisdiction to review a claim not brought before the BIA even when the BIA
addresses it sua sponte). In addition, she does not raise the argument on appeal, so it is deemed
abandoned. See Sepulveda v. U.S. Attorney General, 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
9
requiring more than a few isolated incidents of verbal harassment or intimidation,
and mere harassment does not amount to persecution. Id.
Tan failed to demonstrate that a reasonable factfinder would have been
compelled to find that it was more likely than not that she would have faced
persecution if returned to Indonesia. She failed to establish past persecution
because none of the events to which she referred, including the robbery, the
discrimination, and the problems at the department of motor vehicles, rose to the
level of extreme conduct that persecution encompasses. See AR at 96, 103-04,
110-11; Sepulveda, 401 F.3d at 1231 (holding that persecution is an extreme
concept requiring more than mere harassment). Indeed, she testified that she had
never been physically harmed. See AR at 110. Thus, she was unable to establish
past persecution and therefore unable to establish a rebuttable presumption of
future persecution. See Sepulveda, 401 F.3d at 1231 (holding that a showing of
past persecution creates a rebuttable presumption of future persecution).
She also failed to adduce evidence that would compel a reasonable factfinder
to find that it was more likely than not she would face persecution upon her return
to Indonesia. See id. at 1232 (holding that the standard for withholding of removal
is a showing that it is more likely than not that a petitioner will face persecution
upon her return). Tan relies on stories of attacks on churches, but the Country
Reports indicate that while attacks on churches had risen from three to ten, overall
10
incidence of inter-religious strife had decreased. See AR at 163, 177. Moreover,
the picture as to development of inter-religious cooperation was mixed at best, with
some areas demonstrating increased cooperation and others demonstrating
decreased cooperation. See AR at 163. Furthermore, incidents against ethnic
Chinese had decreased in the last year. See AR at 171. Thus, the 2004 Country
Reports indicated a mixed picture at best, which would not compel a reasonable
factfinder to conclude that Tan would face discrimination. See Sepulveda, 401
F.3d at 1230 (holding that the IJ’s decision can be reversed only if the evidence
compels a reasonable fact finder to find otherwise). As a result, Tan has failed to
demonstrate that she is eligible for withholding of removal.
III. CONCLUSION
For the reasons set out above, we find that Go has abandoned his claim for
cancellation of removal and that his wife, Tan, is not entitled to the relief she seeks.
PETITION DENIED.
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