Filed: Apr. 25, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 4-25-2008 Sinaga v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1055 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Sinaga v. Atty Gen USA" (2008). 2008 Decisions. Paper 1330. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1330 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 4-25-2008 Sinaga v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1055 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Sinaga v. Atty Gen USA" (2008). 2008 Decisions. Paper 1330. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1330 This decision is brought to you for free and open access by the Opinions o..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-25-2008
Sinaga v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1055
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Sinaga v. Atty Gen USA" (2008). 2008 Decisions. Paper 1330.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1330
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-1055
_____________
ROBBY DANIEL SINAGA,
Petitioner
v.
ALBERTO GONZALES, as ATTORNEY GENERAL USA;
MICHAEL CHERTOFF, as SECRETARY OF THE U.S. DEPARTMENT OF
HOMELAND SECURITY; JULIE MYERS, ASSISTANT SECRETARY
OF THE U.S. DEPARTMENT OF HOMELAND SECURITY;
JOHN P. TORRES, DIRECTOR OF DETENTION AND REMOVAL OFFICE,
IMMIGRATION AND CUSTOMS ENFORCEMENT; SCOTT WEBER,
as DIRECTOR FOR DETENTION AND REMOVAL, NEW JERSEY DISTRICT;
UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
_______________
Petition for Review of an Order of the United States
Department of Justice Board of Immigration Appeals
(BIA No. A97-152-983)
Immigration Judge Mirlande Tadal
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 18, 2008
Before: SLOVITER, JORDAN, and ALARCON*, Circuit Judges.
_______________
*Honorable Arthur L. Alarcon, Senior Circuit Judge of the Ninth Circuit Court of
Appeals sitting by designation.
_______________
(Filed: April 25, 2008)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Robby Daniel Sinaga petitions for review from the final order of the Board of
Immigration Appeals denying his application for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture (“CAT”). For the following
reasons, we will deny Sinaga’s petition.
I.
Sinaga is a native and citizen of Indonesia and a practicing Christian. He was
admitted to the United States in October of 2000. In April of 2004, Sinaga received a
notice to appear for removal proceedings for his failure to submit valid entry documents,
in violation of 8 U.S.C. §§ 1227(a)(1)(A) and 1182(a)(7)(A)(i). He conceded his
removability but requested relief in the form of asylum, withholding of removal, relief
under the CAT, or, in the alternative, voluntary departure.
During removal proceedings, Sinaga made two arguments in support of his
requests for relief. First, he claimed that he had suffered past persecution in Indonesia
because of his religious beliefs. He testified that, while walking home from high school
in Indonesia, he was accosted by five individuals who stole his money because he was a
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Christian. Second, Sinaga claimed that he had a well-founded fear he would be
persecuted if returned to Indonesia. To support his claim, he submitted various news
articles reporting attacks on Christians and Christian churches in Indonesia.
The Immigration Judge (“IJ”) denied Sinaga’s requests for asylum and
withholding of removal. In response to the claim of past persecution, the IJ accepted
Sinaga’s testimony as credible but found that his description of the robbery failed to meet
the definition of past persecution. In reaching that conclusion, the IJ considered that the
incident was isolated, that it did not result in significant injury to Sinaga, and that it was
not reported to the authorities. The IJ further noted that Sinaga had remained without
harm in Indonesia for at least five years following the alleged incident.
The IJ also found that Sinaga had not established a well-founded fear of future
persecution if he were returned to Indonesia. Although Sinaga’s fear was found to be
subjectively genuine, the IJ concluded that the articles submitted by Sinaga did not
establish a pattern or practice of persecution of Christians in Indonesia. Rather, the IJ
determined that the evidence indicated that the government was taking steps to reduce the
interreligious violence.
Finally, the IJ denied Sinaga’s request for relief under the CAT and for voluntary
departure, the former because Sinaga failed to present any evidence of torture, and the
latter because Sinaga testified that he would not leave the United States if such relief were
granted.
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On appeal, the Board of Immigration Appeals (BIA) affirmed, without opinion, the
decision of the IJ. Sinaga then filed his petition for review.
II.
We have jurisdiction over a petition for review from a final order of removal under
8 U.S.C. § 1252(a)(1). Because the BIA affirmed the decision of the IJ without opinion,
we review the decision of the IJ. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).
The IJ’s factual determinations must be upheld if supported by substantial evidence, INS
v. Elias-Zacarias,
502 U.S. 478, 481 (1992), and can only be reversed if “any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
III.
On appeal, Sinaga argues that the IJ erred by denying his requests for asylum and
withholding of removal. “In order to establish eligibility for asylum on the basis of past
persecution, an applicant must show: ‘(1) an incident, or incidents, that rise to the level
of persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and
(3) is committed by the government or forces the government is either ‘unable or
unwilling’ to control.’” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting
Navas v. INS,
217 F.3d 646, 655 (9th Cir. 2000)). Sinaga argues that the robbery
committed against him when he was in high school is sufficient to constitute past
persecution. However, we have held that “persecution connotes extreme behavior,
including ‘threats to life, confinement, torture, and economic restrictions so severe that
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they constitute a threat to life or freedom.’” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d
Cir. 2003) (quoting Fatin v. I.N.S.,
12 F.3d 1233, 1240 (3d Cir. 1993)). Here, the IJ’s
conclusion that this isolated event did not rise to the level of persecution was not
erroneous. See Lie v. Ashcroft,
396 F.3d 530, 536 (3d Cir. 2005) (holding that “isolated
criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some
personal property and a minor injury, [are] not sufficiently severe to be considered
persecution”).
To qualify for asylum based on a well-founded fear of future persecution, an
applicant must show “that she has a genuine fear, and that a reasonable person in her
circumstances would fear persecution if returned to her native country.” Gao, 299 F.3d
at 272 (quoting Elnager v. INS,
930 F.2d 784, 786 (9th Cir. 1991)). We do not agree
with Sinaga that the record compels us to conclude that he has established a well-founded
fear of future persecution because there is a pattern or practice of persecution of
Christians in Indonesia. “[T]o constitute a pattern or practice, the persecution of the
group must be systemic, pervasive, or organized” and must be “committed by the
government or forces the government is either unable or unwilling to control.” Lie v.
Ashcroft,
396 F.3d 530, 537 (3d Cir. 2005) (internal quotation marks and citations
omitted). Here, substantial evidence supports the IJ’s conclusion that Sinaga failed to
establish a pattern or practice of persecution of Christians in Indonesia.
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Sinaga nevertheless points to numerous articles and reports from international
news agencies to support his assertion that there is a practice of persecution of Christians
in Indonesia. However, the IJ found that, “[t]he background materials ... indicate that the
government is making enormous attempts to combat the violence that is taking place in
Indonesia and that the government is taking steps to go after the Muslim insurgency that
is causing these incidents.” (Appendix [“App.”] at 20.) The violence described in the
reports, although disturbing, does not compel us to conclude to the contrary.
Furthermore, we agree with the IJ that “[t]he fact that one remains in his home
country ... for a significant period of time after the incident of alleged past persecution
without further mistreatment [undermines] the objective basis of the ... fear of
persecution.” (App. at 19.) The fact that Sinaga’s family continues to reside in Indonesia
and attends the same church, without incident, similarly weakens Sinaga’s claim. See Lie,
396 F.3d at 537 (“[W]hen family members remain in petitioner’s native country without
meeting harm, and there is no individualized showing that petitioner would be singled out
for persecution, the reasonableness of petitioner’s well-founded fear of future persecution
is diminished.”).
To be entitled to withholding of removal, an applicant must show that he faces a
“clear probability of persecution” on account of one of the statutorily protected grounds.
INS v. Stevic, 467 U.S. 407, 430 (1984); Janusiak v. INS,
947 F.2d 46, 47 (3d Cir. 1991).
The “clear probability” standard is more stringent than the “well-founded fear” standard
6
and, thus, an applicant who fails to demonstrate a well-founded fear of persecution with
respect to an asylum application will be unable to demonstrate a clear probability of
persecution with respect to a withholding of removal application. Janusiak, 947 F.2d at
47. Because Sinaga has failed to establish his eligibility for asylum, it follows that he will
also not be able to meet the more stringent standard to qualify for withholding of removal.
IV.
For the foregoing reasons we will deny Sinaga’s petition for review.
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