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


7-19-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2319




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   __________

                                      No. 06-2319
                                      __________

                                 HANNY WINARJA,
                                          Petitioner,
                                       v.

                          HON. ALBERTO R. GONZALES,
                         Attorney General of the United States,
                                               Respondent.
                                    __________

                         On Petition for Review of an Order of
                          the Board of Immigration Appeals
                              U.S. Department of Justice
                               (BIA No. A96-262-741)
                                      __________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   June 18, 2007

              Before: McKEE, FISHER, and CHAGARES, Circuit Judges

                             (Opinion Filed: July 19, 2007)

                                      __________

                                       OPINION
                                      __________

McKee, Circuit Judge:

      Hanny Winarja petitions for review of an order of the Board of Immigration

Appeals affirming the Immigration Judge’s denial of his application for asylum,
withholding of removal and relief under the United Nations Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). For the

reasons that follow, we will deny Winarja’s petition for review.1

                                             I.

       We assume the parties’ familiarity with the facts and procedural history and

therefore, need not reiterate them here. In order to qualify for asylum or withholding of

removal, Winarja must establish that he is a “refugee” under the Immigration &

Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42)(A). Accordingly, he has the burden of

proving by clear and convincing evidence that he is unable or unwilling to return to the

country of his nationality “because of persecution or a well-founded fear of persecution

on account of race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A).

       In addition, an application for asylum must be filed within one year of arrival in

the United States absent “extraordinary circumstances relating to the delay in filing an

application.” 8 U.S.C. §§ 1158(a)(2)(B) and (D). We do not have jurisdiction to review

the IJ’s determination of whether extraordinary circumstances justify waiving the one


       1
            We have jurisdiction to review the final order of the BIA under 8 U.S.C. § 1252.
Where the BIA affirms the IJ’s decision without opinion, we review the decision of the IJ
as if it were the decision of the BIA. Zhang v. Gonzales, 

, 155 (3d Cir.
2005). We review the denial of withholding of removal for substantial evidence. Dia v.
Ashcroft, 

, 247 (3d Cir. 2003) (en banc).
         In addition, the BIA adopted the decision of the IJ.. We therefore review the
decision of the IJ as the final agency decision. Gao v. Ashcroft, 

, 271 (3d
Cir. 2002).

                                             2
year time limitation for asylum applications. See Tarrawally v. Ashcroft, 

(3d Cir. 2003). Here, the IJ ruled that Winarja’s application for asylum was not filed

within a year of arrival and that there are no extraordinary circumstances to excuse the

late filing. Accordingly, we have no jurisdiction to review the IJ’s denial of asylum.

However, we do have jurisdiction to review the IJ’s denial of withholding of removal and

relief under the CAT.

                                             II.

       As is the case with asylum, Winarja must establish he is a “refugee” in order to

obtain withholding of removal. Accordingly, he must establish that there is a “clear

probability” persecution if returned to Indonesia. Shehu v. Att’y Gen., 

, 657

(3d Cir. 2007).   Past persecution raises a rebuttal presumption that fear of persecution is

well-founded. 8 C.F.R. § 1208.16(b)(1(i). As we noted in Fatin v. INS, 

,

1240 (3rd Cir. 1993), persecution includes “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to life or freedom.” That

mistreatment must also be “on account of” race, religion, nationality, membership in a

particular social group, or political opinion. 

(citing 8 U.S.C.

§ 1231(b)(3)(A)). Winarja must establish by a clear probability of evidence that it is

more likely than not that he will be persecuted if removed to Indonesia. 8 U.S.C. §

1231(b)(3)(A); Ghebrehiwot v. Att’y Gen., 

, 351 (3d Cir. 2006).

       Winarja’s evidence of past persecution consisted of his testimony of a specific

instance of conflict with Muslim Indonesians. The IJ reviewed this incident and

                                              3
determined that the resulting harm did not rise to the level of past persecution and that

Winarja was not more likely than not to be persecuted in the future. Winarja was riding

in a public minibus on his way home from school when the bus became stuck in a traffic

jam caused by a group of Muslim Indonesians trying to attack and torture ethnic Chinese.

Winarja was the only ethnic Chinese on the minibus, and the attackers identified him as

ethnic Chinese and started to throw rocks and broken glass at him. Winarja was injured

and taken to a health facility where he received stitches and was released the next

morning.2

       In Fatin, we concluded that, while the concept of persecution includes “extreme

conduct[,]” it does not “encompass all treatment that our society regards as unfair, unjust,

or even unlawful or 

, n.10. Thus, although ethnic

Chinese and Christians in Indonesia are apparently subjected to discrimination which can

sometimes assume the form of violence, we agree with the IJ’s conclusion that the record

here does not compel a conclusion of past persecution. The single incident involved

private citizens. Even if that one incident were sufficiently severe to constitute

persecution, the record would still lack any suggestion of the official sponsorship or

government involvement required for a finding of “persecution.” However, Winarja

testified that police responded, and that the crowd/mob dispersed. That is inconsistent

with a showing of government persecution.



       2
           IJ found Winarja’s testimony credible.

                                              4
       Accordingly, we find that substantial evidence supports the IJ’s conclusion that

Winarja has not established past persecution.

                                            III.

       Substantial evidence also supports the IJ’s determination that it is not more likely

than not that Winarja would face persecution on the account of race, religion, nationality,

membership in a particular social group, or political opinion. See 8 C.F.R. §

1208.16(b)(iii). Wanarja’s mother has continued to live and work in Indonesia, and there

is no evidence that she has suffered persecution. Winarja argues that country conditions

are deteriorating with respect to human rights and that there is now a pattern and practice

of persecution against ethnic Chinese Christians. However, the IJ correctly concluded that

he did not establish that the government is responsible or that it is unable or unwilling to

control the activity. See Abdurahman v. Ashcroft, 

, 592 (2003).

       On the contrary, Wanarja’s fear of future persecution rests solely on the isolated

incident discussed above where he was injured by a mob that dispersed when police

arrived.

       Moreover, the IJ assessed the evidence of the State Department Report which

states that the government has made significant efforts to reduce interreligious violence

and that the intergroup strife has improved in respect to religious freedom.

       Accordingly, substantial evidence also supports the IJ’s conclusion that Winarja is

not entitled to withholding of removal.

                                             IV.

                                              5
       As we have noted in Ghebrehiwot, failure to establish eligibility for asylum or

entitlement to withholding of removal does not necessarily preclude relief under the 

. To establish eligibility for relief under the CAT, Winarja must show

that it is more likely than not that he will be tortured if removed. Sevoian v. Ashcroft, 

, 174-175 (3rd Cir. 2002). Protection under the CAT, unlike asylum or

withholding of removal, requires neither a showing of subjective fear nor mistreatment

“on account of” membership in a protected group or political opinion. 

(citations omitted). However, Winarja has not proffered any argument

regarding the denial of the CAT claim and we deem his appeal of the CAT claim to have

been waived. See Nagle v. Alspach, 

, 143 (3rd Cir. 1993) (absent

“extraordinary circumstances” appellant must present an argument in support of each

issue raised on appeal or such issues are abandoned and waived). Moreover, it is clear

from the record that Winarja can not establish relief under the CAT.

                                             V.

       For all the reasons above, we lack jurisdiction to review Winarja’s asylum claim,

and the IJ’s decision withholding of removal is supported by substantial evidence.

Accordingly, we will affirm the decision of the IJ, and deny the petition for review.




                                              6