Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4648




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                                                                NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                   Nos. 04-4648/05-2639


                                    LAN PING LAUW

                                              Petitioner

                                             v.

                   ATTORNEY GENERAL OF THE UNITED STATES *

                                              Respondent


                              Petition for Review of an order
                           of the Board of Immigration Appeals
                                    (No. A79-331-374)
                         Immigration Judge: Charles M. Honeyman


                        Submitted Under Third Circuit LAR 34.1(a)
                                      May 8, 2006

       Before: BARRY and SMITH, Circuit Judges, and RODRIGUEZ ** , District Judge

                                   (Filed: May 25, 2006)




   *
       Amended pursuant to Rule 43(c)(2), Federal Rules of Appellate Procedure.
   **
    The Honorable Joseph H. Rodriguez, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
                              OPINION OF THE COURT


RODRIGUEZ, District Judge.

       Lan Ping Lauw, a native and citizen of Indonesia, petitions this Court for review of

a final order of the Board of Immigration Appeals (“BIA”) reversing the Immigration

Judge’s (“IJ”) grant of her application for asylum and affirming the IJ’s denial of

withholding of removal. She also petitions for review of the BIA’s denial of her motion

for reconsideration. We will deny the petition.

                                             I.

       Petitioner’s testimony before the IJ was as follows. She is of Chinese ethnicity and

practices Roman Catholicism, which has subjected her and her family to repeated threats

and attacks by native Indonesian Muslims, known as pribumi. The first attack occurred in

March of 1998, when Petitioner was approached by ten pribumi who took her bible and

threw it in the trash as she was walking to church. In April of 1998, the second attack

occurred when the Petitioner and her family were threatened by a pribumi taxi driver who

said, “You Chinese Christians will be killed brutally.” Several days after this incident,

Petitioner received a telephone call at her home with the same message repeated.

       The third incident occurred in May of 1998. Petitioner, a bus driver for a Catholic

school, was approached by a group who ultimately burned the school van she drove after

she escaped. In the same month, Petitioner’s husband’s business was destroyed by a fire.

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Additional similar incidents occurred in November and December of 1998.

       On October 18, 2000, Petitioner arrived in the United States at Los Angeles

International Airport as a nonimmigrant visitor for pleasure with permission to remain

until April 16, 2001. Instead of leaving the United States, she filed an application for

asylum and withholding of removal on June 9, 2001. The Immigration and Naturalization

Service placed her in removal proceedings on August 7, 2001. After a hearing on May

23, 2003, her application was granted.

       In his oral opinion, the IJ found that Petitioner did not meet her burden of proof

and persuasion that she suffered past persecution within the meaning of the Immigration

and Nationality Act, regulations and applicable case law. The IJ further found that

Petitioner did not meet her burden as to whether she faces a reasonable possibility of

future persecution leading to a well-founded fear determination. However, the IJ found,

based on the two most recent reports on international religious freedom by the

Department of State, the arguments of counsel, and the relevant portions of the credible

source materials that were submitted, that “there is a ‘pattern or practice’ of persecution

of Chinese Christians by forces of the government or by forces . . . the government [is]

unwilling or unable to control.” (App. at 19.) Accordingly, the IJ granted the application

for asylum based on the pattern or practice finding and did not reach Petitioner’s other

applications for relief.

       The Department of Homeland Security appealed the IJ’s determination. Petitioner,



                                              3
rather than filing a brief in opposition, advised the BIA that she would rely on the IJ’s

decision. On November 19, 2004, the BIA vacated the IJ’s order granting asylum and

ordered Petitioner removed to Indonesia. The BIA reasoned that Petitioner did not

establish that there is a pattern or practice of persecution against Chinese Catholics in

Indonesia for three reasons: (1) the most recent country reports, while describing

widespread conflict between Muslims and Christians in certain parts of Indonesia, did not

indicate that conflict existed on Petitioner’s home island of Java or in her hometown of

Jakarta; (2) the most recent country reports indicated that racially motivated attacks

against Sino-Indonesians have dropped sharply since mid-1998; and (3) the testimony of

Petitioner indicated that her family members, who remain in Indonesia, have not been the

victims of violence since November 2001.

       Following the BIA’s vacatur, Petitioner motioned for reconsideration before the

BIA and petitioned this Court to review the decision. On April 29, 2005, the BIA denied

Petitioner’s motion for reconsideration as follows:

              The respondent first cites two cases decided in the United States Court
       of Appeals for the Ninth Circuit, which are not binding upon the [BIA] in this
       case because the respondent’s case arises in the Third Circuit. See Lie v.
       Ashcroft, 

(3d Cir. 2005) (finding that Indonesian Chinese
       Christian had not shown a pattern or practice of persecution). Second, the
       respondent argued that the [BIA] had failed to cite to case law in its decision.
       However, the [BIA] did cite to regulation and did cite to a variety of evidence
       contained in the record of proceedings in its decision. Third, the respondent
       contends that the [BIA] incorrectly found that the respondent had not suffered
       past persecution and did not have a well-founded fear of future persecution.
       However, the [BIA’s] order clearly states that these issues were not raised on
       appeal; the only finding that was reviewed was the [IJ’s] finding of a pattern

                                              4
       and practice of persecution of Chinese Christians in Indonesia. Fourth, the
       respondent argues that the [BIA] should have granted the respondent
       withholding of removal, but has not supported this argument with citations to
       cases or items in the record. Finally, the respondent argues that the [BIA]
       erred in affirming the [IJ’s] finding in this regard, because the [IJ] did not
       reach the issue of [Convention Against Torture] relief after he granted the
       respondent asylum. Rather, based on the facts as found by the [IJ], we
       concluded that the respondent had not shown a likelihood of torture.

(App. at 22-23.) The Petitioner once again petitioned this Court to review the BIA’s

decision. On May 20, 2005, the petitions were consolidated by this Court for purposes of

briefing and disposition.

                                             II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of

removal issued by the BIA. We review the BIA’s factual determination that a petitioner

failed to prove pattern or practice under the substantial evidence standard. Lusingo v.

Ashcroft, 

, 199 (3d Cir. 2005) (citing Balasubramanrim v. INS, 

, 161 (3d Cir. 1998)). “To reverse the BIA finding we must find that the evidence not

only supports that conclusion, but compels it. . . .” INS v. Elias-Zacarias, 

,

481 n.1 (1992). We review the BIA’s denial of a motion for reconsideration for abuse of

discretion. Goa v. Ashcroft, 

, 562 (3d Cir. 2004).

                                            III.

       Petitioner argues that the BIA’s finding that she failed to prove a pattern or

practice of persecution of Chinese Catholics in Indonesia is unsupported by substantial

evidence. We disagree.

                                              5
       Persecution constitutes a pattern or practice when it is “systemic, pervasive, or

organized.” Lie v. Ashcroft, 

, 537 (3d Cir. 2005) (quoting Ngure v.

Ashcroft, 

, 991 (8th Cir. 2004)). Moreover, the “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.’” 

v. Ashcroft, 

,

592 (3d Cir. 2003)).

       In Lie, the petitioner argued with “some force” that “anti-Chinese violence

persists, citing evidence in the record of widespread attacks against Chinese Christians in

Indonesia, including press accounts of riots, vandalism, and robbery targeting Chinese

Christians.” 

held that “such violence does not appear to be sufficiently

widespread as to constitute a pattern or practice.” 

that: (1) the 1999

Country Report on Indonesia indicated that there was a sharp decline in violence against

Chinese Christians since 1998; (2) the Indonesian government officially promotes

religious and ethnic tolerance; and (3) the violence was primarily wrought by fellow

citizens, rather than the result of governmental action or acquiescence. 

BIA relied on the United States Department of State 2001 and 2002

Country Reports on Human Rights Practices for Indonesia and the United States

Department of State 2001 and 2002 International Religious Freedom Reports for

Indonesia. See e.g., Indonesia: Country Report on Human Rights Practices-2002, App.



                                             6
Vol. II, at 172 (stating that Catholicism is one of five recognized religions in Indonesia

and noting that while “[c]hurches continued to come under attack during the year . . . such

incidents were much less frequent than in previous years”). Moreover, the BIA relied on

Petitioner’s testimony that her family members have remained in Indonesia free from

violence since November of 2001. See 

(noting that an applicant’s

claim of persecution upon return to her home country is weakened when similarly-

situated family members continue to live in that country without incident). Therefore,

substantial evidence supports the BIA’s determination that Petitioner failed to show that

there is a pattern or practice of persecution of Chinese Christians in Indonesia.

                                               IV.

          Petitioner also argues that the BIA abused its discretion by denying her motion for

reconsideration. We disagree.

          “We will disturb the BIA's denial of a motion to reopen or to reconsider only if it

was arbitrary, irrational, or contrary to law.” Borges v. Gonzales, 

, 404 (3d

Cir. 2005) (quotation marks and citations omitted). In her application for reconsideration,

Petitioner raises claims identical to those at issue here. We conclude that the BIA's denial

was a correct application of relevant law and therefore was neither arbitrary nor contrary

to law.

                                               V.

          Petitioner’s remaining arguments were raised in her motion for reconsideration



                                                7
rather than on direct appeal to the BIA. Therefore, the issues were not properly preserved

for review by this Court. See Alleyne v. INS, 

, 1182 (3d Cir. 1989) (noting

that the exhaustion requirement “bars consideration of particular questions not raised in

an appeal to the [BIA]”); see also Seegobin v. Ashcroft, 112 Fed. Appx. 195, 197-98 (3d

Cir. 2004) (recognizing that even when a petitioner is the prevailing party before the IJ,

once an appeal is in motion, a petitioner must, in order to preserve her right to appeal

adverse determinations below, develop all points of error in her opposition to the appeal).

Accordingly, we will not discuss Petitioner’s additional arguments here.

                                            VI.

       Based on the foregoing, the BIA’s finding that Petitioner failed to establish a

pattern or practice of persecution of Chinese Christians in Indonesia is supported by

substantial evidence. Moreover, the BIA did not abuse its discretion by denying

Petitioner’s motion for reconsideration. Therefore, the petition for review will be denied.




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