Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3012




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"Winata v. Atty Gen USA" (2007). 2007 Decisions. Paper 170.
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                                                 NOT PRECEDENTIAL
                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                    No: 06-3012
                                  _______________

                                 YENYTA WINATA,

                                           Petitioner

                                            v.

                         Attorney General of the United States,

                                          Respondent
                                  _______________

                      Petition for Review of an Order of the
                       United States Department of Justice
                          Board of Immigration Appeals
                             (BIA No. A96-266-157)
                     Immigration Judge: Hon. R.K. Malloy
                                _______________
                   Submitted Under Third Circuit LAR 34.1(a)
                                November 8, 2007

       Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges

                              (Filed November 30, 2007 )
                                   _______________

                             OPINION OF THE COURT
                                 _______________

JORDAN, Circuit Judge.
           Yenyta Winata (“Winata”) petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of her claim for withholding of removal. We will deny the

petition.1

I.         BACKGROUND

           Winata is a citizen of Indonesia and ethnically Chinese. She entered the United

States in April of 2001. Approximately two years later, she filed an application for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”). Her claims are based on two incidents that occurred while she was living in

Indonesia. First, in 1980, after some riots in her hometown that pitted ethnic Indonesians

against ethnic Chinese, an ethnically Indonesian man killed Winata’s four-year-old

brother. The assailant later told police that he had killed the boy out of anger about the

riots and, when he saw Chinese people, he was overtaken by the devil. The man received

a two year jail sentence, although Winata believes he did not serve his full sentence.

           The second incident occurred in December 2000, when three ethnic Indonesians

attempted to rob Winata and her boyfriend. Like Winata, her boyfriend was also

ethnically Chinese. During the confrontation, one of the men stabbed Winata’s boyfriend.



     1
         We have jurisdiction to review a final decision of the BIA under 8 U.S.C. § 1252(a).
We must sustain the BIA’s decision if it is supported by substantial evidence. Jarbough
v. Attorney General of U.S., 

, 191-92 (3d Cir. 2007). This is a highly
deferential standard of review. The BIA's decision “must be upheld unless the evidence
not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 

, 483-84 (3d Cir. 2001).


                                                2
When Winata and her boyfriend went to the hospital, the hospital staff did not treat the

boyfriend immediately, and he eventually bled to death. Although the police investigated

the murder, Winata does not know if they ever caught the men responsible.

       An Immigration Judge (“IJ”) held a hearing on Winata’s application on

February 25, 2005, and denied all of her claims for relief. Winata filed a timely appeal to

the BIA, and the BIA affirmed. It denied Winata’s asylum claim because she filed the

claim more than one year after entering the United States. It denied her withholding of

removal claim because the two incidents in Indonesia did not establish that she would

likely be persecuted if she returned to Indonesia. It denied her claim for relief under the

CAT because she had not shown that she would be tortured if she returned to Indonesia.

II.    DISCUSSION

       Winata limits her appeal to the BIA’s denial of her claim for withholding of

removal. To qualify for withholding of removal, an applicant must demonstrate that she

faces a "clear probability of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(42)(A);

INS v. Stevic, 

, 429-30 (1984); Janusiak v. INS, 

, 47 (3d Cir.

1991). We have explained that persecution “does not encompass all treatment that our

society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 

, 1240 (3d Cir. 1993).




                                              3
       Winata argues that she faces a clear probability of persecution on account of her

race or her membership in a particular social group if she returns to Indonesia. According

to Winata, she is eligible for withholding of removal since her brother was killed because

of his race and the government did little to bring the murderer to justice. She further

argues that she is eligible for withholding of removal because hospital personnel did not

treat her boyfriend in time to prevent his death and the police did not catch her

boyfriend’s killer.

       We conclude that the BIA’s decision denying Winata’s withholding of removal

claim is supported by substantial evidence. Although the deaths of Winata’s young

brother and her boyfriend are terrible to contemplate, they occurred over twenty years

apart and appear to have been the result of random acts of violence. Winata’s outrage at

the brief sentence and early release of her brother’s killer is more than understandable,

but to conclude that the sentence and release were racially motivated would be

speculative and would, in any event, be only obliquely relevant to Winata’s assertion that

she would be the target of persecution if she returned to Indonesia. Similarly, nothing in

the record indicates that the hospital staff’s failure to treat Winata’s boyfriend in time to

prevent his death was motivated by Winata’s, or her boyfriend’s, race or group

membership. Finally, Winata testified only that she did not know if her boyfriend’s killer

was caught, and nothing in the record indicates that any failure to catch the killer was due

to race or membership in a particular social group.



                                               4
       Because the BIA’s decision is supported by substantial evidence, we must deny the

petition for review.




                                           5