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


7-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3250




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"Widjojo v. Atty Gen USA" (2007). 2007 Decisions. Paper 776.
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                                                   NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                      No. 06-3250
                      __________

              ERICK RIJANTO WIDJOJO,

                                           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. A96-203-778
            Immigration Judge: R. K. Malloy
                           ____

        Submitted Under Third Circuit LAR 34.1(a)
                    on July 12, 2007

Before: RENDELL, AMBRO, and NYGAARD, Circuit Judges.

                  (Filed July 12, 2007)

                      __________

               OPINION OF THE COURT
                     __________
RENDELL, Circuit Judge.

       Petitioner Erick Rijanto Widjojo arrived in the United States in August of 2001 on

a tourist visa. After remaining longer than the visa permitted, the Immigration and

Naturalization Service instituted removal proceedings against Widjojo, who then sought

asylum and withholding of removal under the Immigration and Nationality Act (“INA”),

8 U.S.C. § 1101 et seq., protection under the United Nations Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), Pub. L.

No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as

Note to 8 U.S.C. § 1231), and voluntary departure in the alternative. The immigration

judge (“IJ”) denied relief, and the Board of Immigration Appeals (“BIA”) adopted and

affirmed the decision of the IJ, granting Widjojo’s request for voluntary departure under

the INA. The BIA agreed with the IJ that Widjojo failed to establish eligibility for

asylum, withholding, or protection under the CAT. The BIA also agreed that Widjojo’s

asylum application was time-barred as it was not filed within one year after his arrival in

the United States, and he had not established changed circumstances affecting his

eligibility or extraordinary circumstances directly related to the failure to meet the

one-year deadline. See 8 U.S.C. § 1158(a)(2)(D). In his petition for review, Widjojo

renews his claims of asylum and withholding of removal. We will deny the petition.



       DISCUSSION

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       We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). Because

the BIA adopted the findings of the IJ and discussed some of the bases for the IJ’s

decision, we review the order of the BIA and the IJ for substantial evidence. Chen v.

Ashcroft, 

, 222 (3d Cir. 2004).

       Widjojo is a Chinese Christian and a citizen of Indonesia who entered the United

States with a tourist visa because, he claims, conditions in Indonesia were unsafe for

Chinese Christians. Widjojo’s claim is premised on three incidents. First, as a child he

was often called “dirty Chinese” and subjected to other unfair treatment. Second, as an

adult, after leaving church one night, native Indonesians banged on the windows of the

car occupied by Widjojo and a friend and demanded money. After Widjojo’s friend gave

them money, the native punched him and told him that he deserved it because he believed

in a false religion. Widjojo and his friend then drove to safety. Some time after this

incident, Widjojo was followed persistently on his motorbike by unknown persons, but

after pulling into a gas station, the persons abandoned their pursuit. Lastly, Widjojo

claims that there is evidence of pattern and practice of persecution in Indonesia against

the Chinese and non-Muslims, and the bombings in Bali in 2000 added to his fear of

persecution.

       In order to establish eligibility for asylum, Widjojo must demonstrate that he is a

“refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A). See 

.

A refugee is “unable or unwilling to return to . . . [his] country because of persecution or

a well-founded fear of persecution on account of race, religion, nationality, membership

                                              3
in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To qualify

for withholding of removal, Widjojo must show a “clear probability” of persecution by

the government, or a group that the government cannot control, on account of one of the

protected grounds. INS v. Stevic, 

, 413 (1984).

       The three incidents he describes, while unpleasant, do not rise to the level of

persecution. Furthermore, nothing happened to Widjojo in Bali, where he was living for

four years before leaving for the United States. Widjojo offers no evidence to suggest

that he has a well-founded fear, much less a clear probability, that he will be persecuted

upon his return to Indonesia.

       The IJ noted that Widjojo was able to attend church in Indonesia, he was baptized

there, and there was no evidence that the government prevented him from following his

Christian beliefs. While our Court has recognized that there is a problem with religious

violence in Indonesia, we have held that we do not believe that circumstances compel the

finding that there is a pattern or practice of persecution against Chinese Christians. Lie v.

Ashcroft, 

, 537-38 (3d Cir. 2005). Indeed, the IJ noted that laws have been

passed which abolish laws that prevented ethnic Chinese from studying Chinese

languages and culture. The IJ also explained that there was absolutely no evidence to

suggest that the Bali bombings were directed at ethnic Chinese. Furthermore, the IJ noted

that Widjojo is currently not an active Christian, and no one would be interested in

harming him based on his religious beliefs. The order denying the asylum claim is



                                              4
supported by substantial evidence.1

      As the standard of “clear probability of persecution” for a claim for withholding of

removal is more stringent than the “well-founded fear” required for asylum, Widjojo’s

withholding claim must fail as well. See Janusiak v. INS, 

, 47 (3d Cir. 1991).



      CONCLUSION

      For the reasons described above, the order by the BIA and IJ denying Widjojo’s

asylum and withholding claims is supported by substantial evidence. The petition for

review will be DENIED.




  1
    While denial on the merits of the request for asylum is supported by substantial
evidence, the asylum application is time-barred. Widjojo testified that he became aware
of the asylum process approximately six months after arriving in the United States. We
agree that Widjojo offered no compelling reasons why his procedural defect should be
excused. See 8 U.S.C. § 1158(a)(2). Additionally, Widjojo does not raise the issue of
timeliness in his opening brief.


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