Filed: Jun. 13, 2014
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2635 _ ALEX CHANDRA TAN, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On a Petition For Review of an Order of the Board of Immigration Appeals (Agency No. A088-646-878) Immigration Judge: Philip Verrillo _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 26, 2014 Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges (Opinion filed: June 13, 2014) _ OPINION _ PER CURIAM Alex Chandra Tan (“Tan
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2635 _ ALEX CHANDRA TAN, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On a Petition For Review of an Order of the Board of Immigration Appeals (Agency No. A088-646-878) Immigration Judge: Philip Verrillo _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 26, 2014 Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges (Opinion filed: June 13, 2014) _ OPINION _ PER CURIAM Alex Chandra Tan (“Tan”..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-2635
____________
ALEX CHANDRA TAN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A088-646-878)
Immigration Judge: Philip Verrillo
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 26, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Opinion filed: June 13, 2014)
____________
OPINION
____________
PER CURIAM
Alex Chandra Tan (“Tan”) petitions for review of the Board of Immigration
Appeals’ final order of removal. For the reasons that follow, we will deny the petition for
review.
Tan, an ethnic Chinese Christian native of Indonesia, entered the United States on
April 24, 2003 as a nonimmigrant visitor and overstayed his visa. In February, 2008, the
Department of Homeland Security commenced removal proceedings against him through
the filing of a Notice to Appear in Immigration Court, which alleged that he was
removable pursuant to Immigration & Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B), as an alien who remained in the United States for a time longer than
permitted. It is undisputed that Tan is removable as charged. Tan applied for statutory
withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), claiming that he was
persecuted on the basis of his ethnicity in Indonesia and would be again if forced to
return there.
Tan testified at his hearing about several incidents of brutality perpetrated on him
and his family by native Muslims when he was a child and teenager. Those incidents
occurred in 1985, 1990, and 1995. In 2003, Tan’s wife’s uncle was robbed. As a result
of these incidents Tan claimed that he has suffered both physically and emotionally. In
support of his claim of persecution, Tan submitted numerous supporting documents,
including a letter from Matthew Clark, M.D. indicating that the scars on Tan’s legs and
head are consistent with injuries sustained in the manner he described; a letter from
Lawrence B. Egbert, M.D. indicating that Tan exhibits symptoms consistent with post-
traumatic stress disorder; a letter confirming his membership in a Christian church in
Philadelphia; several newspaper articles regarding conditions in Indonesia; an affidavit
from Dr. Jeffrey A. Winters, a professor with expertise in the area of Southeast Asia and
Indonesia, stating his opinion on conditions in Indonesia for the ethnic Chinese
2
community and religious minorities; and the State Department’s 2009 Country Report for
Indonesia and 2009 International Religious Freedom Report for Indonesia.
On October 21, 2010, the Immigration Judge denied Tan’s application for
withholding of removal. The IJ found Tan’s testimony to be credible and noted that his
experiences in Indonesia could rise to the level of past persecution on account of a
protected ground. Nevertheless, the Government had successfully rebutted any
presumption of a future threat to his life or freedom. The IJ noted the State Department
reports for Indonesia in the record, and concluded that they did not demonstrate a
systematic, pervasive or organized persecution of the ethnic Chinese community in
Indonesia. Rather, these reports noted efforts by the Indonesian Government to stop
interreligious violence, a constitutional provision providing the right for all persons to
worship according to their beliefs, and Indonesia’s official recognition of six faiths
including Protestantism and Catholicism. Also, the record evidence did not show that
Tan would be singled out for harm upon his return.
The IJ pointed out that he had considered the other background materials
submitted by Tan, particularly the affidavit of Dr. Winters. The IJ did not agree with Dr.
Winters’ assessment that current conditions in Indonesia supported Tan’s claim of a
future threat to his life or freedom. In addition, the IJ observed that the last physical
attack on Tan occurred long ago, that Tan lived in Indonesia from August, 1990 through
April, 2003 without suffering any additional physical attacks, and that his three siblings
and mother reside in Indonesia and have not been harmed.
3
Tan appealed to the Board of Immigration Appeals. On May 28, 2013, the Board
dismissed the appeal. The Board agreed with the IJ that, even assuming that Tan had
established past persecution, the presumption of future harm had been rebutted by the
Government and the record evidence of current conditions in Indonesia. The Board
additionally held that Tan had not demonstrated that he would be singled out individually
for persecution upon his return to Indonesia, pointing out that he “remained in Indonesia
for approximately 13 years after the church bus incident in 1995 and he and his future
wife were not harmed at the hardware store in 2003.” A.R. 4. To the extent that the IJ
appeared to have cited the wrong date in association with Tan’s description of a particular
incident of harm, the Board found this error to be harmless. The Board also observed that
Tan’s three siblings and mother all continue to live in Indonesia and have not been
harmed since his departure in 2003. Last, the Board agreed with the IJ that Tan had not
established a systematic, pervasive or organized pattern or practice of persecution of
ethnic Chinese Christians in Indonesia.
Tan has timely petitioned for review of the Board’s decision. We have jurisdiction
under 8 U.S.C. § 1252(a)(1), (b)(1). In his brief, Tan contends that the Board’s
determination that it is not more likely than not that he would be persecuted in the future
is unsupported by substantial evidence. Specifically, Tan argues that he did not receive a
sufficiently individualized assessment of his evidence of current country conditions.
Petitioner’s Brief, at 13. In particular, the Board failed to even mention Dr. Winters’
expert opinion that there is a real and ongoing danger of violent attacks against the ethnic
4
Chinese community in Indonesia. See id. at 25-26. 1 Tan seeks a remand for further
analysis. See
id. at 14.
We will deny the petition for review. When the Board issues a separate opinion,
we review the Board’s decision and look to the IJ’s ruling only insofar as the Board
deferred to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Here, the Board
summarized the IJ’s decision by specifically citing to it, and gave every indication that it
was deferring to it. To overturn the Board’s decision, Tan must show us that his evidence
was “so compelling that no reasonable factfinder could fail to find” in his favor.
Immigration & Naturalization Serv. v. Elias-Zacarias,
502 U.S. 478, 483-84 (1992).
Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), withholding of removal is
not discretionary: “The Attorney General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom would be threatened in that
country because of the alien’s race, religion, nationality, membership in a particular
social group or political opinion.” Id. The applicant must establish by a “clear
probability” that his life or freedom would be threatened in the proposed country.
Immigration & Naturalization Serv. v. Stevic,
467 U.S. 407, 429 (1984). Clear
probability is defined to mean that it is more likely than not that an alien would be subject
to persecution. See
id. at 429-30. It is the applicant’s burden to prove his case. 8 U.S.C.
§ 1231(b)(3)(C).
1
Tan also contended that the agency applied the wrong standard, but we are confident
that the agency applied the correct withholding of removal legal standard in Tan’s case.
5
In claiming a well-founded fear of persecution, the applicant must show that (1) he
would be individually singled out for persecution or that (2) there is a pattern or practice
of persecution of similarly situated individuals. Lie v. Ashcroft, 396 F.3d 530, 536 (3d
Cir. 2005). If the applicant proves that he has suffered past persecution, “it shall be
presumed that the applicant’s life or freedom would be threatened in the future . . .” 8
C.F.R. § 1208.16(b)(1)(i). The Government may rebut this presumption by showing
through a preponderance of the evidence a “fundamental change in circumstances” such
that the applicant’s life or freedom would not be threatened, see
id. at §
1208.16(b)(1)(i)(A). As with any claim of persecution, the acts constituting persecution
must be committed by the government or forces the government is either unable or
unwilling to control. See Garcia v. Att’y Gen. of U.S.,
665 F.3d 496, 505 (3d Cir. 2013).
Substantial evidence supports the agency’s conclusion that the Government
rebutted the presumption of any future threat to Tan’s life or freedom. As noted by the
IJ, and affirmed by the Board, the State Department reports from 2009 do not support a
claim that Tan’s life or freedom would be threatened in Indonesia. Overall, these reports
demonstrate much better conditions in Indonesia since Tan was last harmed. The 2009
State Department reports reflect governmental efforts to stop interreligious violence, and
thus show that the Indonesian government does not condone or acquiesce in attacks by
private actors. Moreover, we have held that the agency may rely on State Department
reports. See Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d Cir. 2003) (State Department
country reports are most appropriate and perhaps best resource for information on
political situations in foreign nations).
6
Tan’s contention that the agency’s analysis of his evidence was not sufficiently
particularized is based in part on Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004),
where we held that generalized improvements in country conditions would not suffice to
rebut credible testimony and other evidence supporting the specific basis for the alien’s
fear of persecution. Berishaj is inapposite here because Tan’s claim, unlike the alien’s in
Berishaj, is based generally on his Chinese appearance and his practice of Christianity;
nothing in the record here indicates that Tan has been or will be subjected to harm based
on a characteristic or action specific to him.
Moreover, we are satisfied that the agency, and specifically the Board, properly
considered Tan’s evidence, including Dr. Winters’ affidavit, in concluding that the
Government rebutted the presumption that Tan’s life or freedom would be threatened in
the future, 8 C.F.R. § 1208.16(b)(1)(i). There is no merit to Tan’s claim that the Board
failed fully to consider the evidence that he proffered. Unlike in the case he cites in his
Rule 28 (j) letter, Fed. R. App. Pro. 28(j), Indradjaja v. Holder, 737 F.3d 212 (2d Cir.
2013), there is no indication here that the Board completely discounted or disparaged the
Winters affidavit. Although the Board did not itself mention Dr. Winters’ affidavit, it
cited page 13 of the IJ’s Oral Decision three times; on page 13 of the Oral Decision the IJ
discussed Dr. Winters’ affidavit and explained why less weight had been given to it.
That sufficiently indicates to us that the Board was aware of the Winters affidavit,
particularly in view of the fact that Tan devoted over twenty pages of his brief to
discussing it, A.R. 19-42.
7
Relying heavily on Dr. Winters’ opinion, Tan contends that he is nevertheless
able to demonstrate a clear probability of future persecution upon returning to Indonesia,
even without the benefit of the presumption. We disagree. Dr. Winters observed that
there has been no “massive upsurge of violence against the ethnic Chinese since 1998.”
A.R. 234. In addition, there is no evidence that Tan experienced any problems rising to
the level of persecution between 1995 when he last was harmed and 2003 when he
departed Indonesia, and he testified that his three siblings and mother continue to reside
in Indonesia, and that none of them have been harmed or threatened.
In sum, on this record, the agency properly concluded that Tan neither
demonstrated a clear probability that he would be singled out individually for persecution
upon his return to Indonesia, nor established the existence of a systemic, pervasive or
organized pattern or practice of persecution of ethnic Chinese Christians in Indonesia.
For the foregoing reasons, we will deny the petition for review.
8
