Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2411




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-2411


                            ALBERT MULYAWAN NG,
                                            Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                   Respondent


                      On Petition for Review of a Decision of the
                           Board of Immigration Appeals
                                BIA No. A78-498-624
               (U.S. Immigration Judge: Honorable Rosalind K. Malloy)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 17, 2009

     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

                                (Filed: June 26, 2009 )


                             OPINION OF THE COURT


PER CURIAM.

      Petitioner Albert Mulyawan Ng seeks review of a final decision by the Board of

Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) to
deny Ng’s application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). For the reasons that follow, we will deny the

petition for review.

                                      I. Background

       Ng is an Indonesian, ethnically Chinese Buddhist. He spent most of his life in

Pontianak, Indonesia, but lived in Jakarta for several months prior to leaving for the

United States. He arrived in this country on December 2, 2000, on a non-immigrant

visitor visa, and remained after the visa expired. His wife and three children continue to

reside in Jakarta.

       In March 2002, Ng filed an application for asylum, withholding of removal, and

protection under the CAT. Ng did not apply for asylum within one year of his arrival in

the United States as generally required by INA § 208(a)(2)(B) [8 U.S.C. § 1158(a)(2)(B)].

However, the Immigration Judge (“IJ”) concluded that several changes in the assignment

of judges handling Ng’s case constituted sufficiently extraordinary circumstances to

excuse the delay. INA § 208(a)(2)(D) [8 U.S.C. § 1158(a)(2)(D)]. The IJ therefore ruled

on the merits of Ng’s application in its entirety. On September 25, 2006, the IJ denied

Ng’s application and ordered his removal.

       Ng appealed to the Board of Immigration Appeals (“BIA”), which affirmed the

IJ’s order without opinion. This petition for review followed.




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                                        II. Analysis

       Because the BIA affirmed the IJ’s decision without issuing an opinion, “we review

the IJ’s opinion and scrutinize its reasoning.” Dia v. Ashcroft, 

, 245 (3d

Cir.2003). We will review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 

, 405 (3d Cir. 2003), and we will uphold factual determinations if they are

supported “by reasonable, substantial and probative evidence on the record considered as

a whole.” Guo v. Ashcroft, 

, 561 (3d Cir. 2004).

       Ng’s sole argument on appeal is that, despite the IJ’s conclusion to the contrary,

his subjective and objective evidence was sufficient to meet his burden of proof for his

claim of persecution on account of his Chinese ethnicity.

       We first note that Ng states in his brief that he does not claim to have experienced

past persecution. This is consistent with his position before the IJ, where he stated that

“[m]y claim for asylum is based solely on my fear of future persecution. . . . I really do

not have any prior experiences of harm.” A.R. 338. However, Ng later argues in his brief

that he “met his burden of proof and persuasion that he suffered past persecution. . . .”

Thus, it is unclear whether or not Ng is pressing a claim of past persecution. In any event,

we have reviewed the record and conclude that substantial evidence supports the IJ’s

decision that Ng’s evidence was insufficient to show past persecution.

       Ng’s testimony focused on an ongoing violent tribal conflict between two groups –

the Dyaks and the Madurese – in Pontianak, Indonesia, where Ng was raised. However,



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Ng stated that “the ethnic Chinese did not get involved in this conflict between these two

ethnic groups. . . .” Ng did not testify that he personally suffered persecution (or indeed,

any harm whatsoever) on account of his Chinese ethnicity as a result of the tribal conflict.

Ng testified to a single 1997 incident involving his brother-in-law, who experienced

harassment and an extortion threat from Madurese individuals who blamed the brother-in-

law for the arrest of their family member. Indonesian officials intervened and put an end

to the harassment.

       The IJ held that this lone incident did not rise to the level of persecution. We

agree. Persecution refers to “‘extreme conduct’” such as “‘threats to life, confinement,

torture, and economic restrictions so severe that they constitute a threat to life or

freedom.’” Lie v. Ashcroft, 

, 534, 536 (3d Cir. 2005) (quoting Fatin v. INS,

, 1240 (3d Cir. 1993)). Persecution does not include “isolated incidents that

do not result in serious injury.” Voci v. Gonzales, 

, 615 (3d Cir. 2005).

       In Lie v. Ashcroft, we held that an Indonesian asylum applicant of Chinese origin

failed to submit sufficient evidence to support her claim of past persecution, because she

did not establish that two robberies of which she was the victim were “on account of” her

ethnicity, or were sufficiently serious to amount to persecution. See 

. Although Ng argues that Lie is distinguishable and that his case “rises and falls

on its own merits,” Ng fails to explain how or why his evidence of past persecution is

more persuasive than that of the applicant in Lie. Indeed, Ng, like the applicant in Lie,



                                               4
did not demonstrate that he faces persecution “on account of” his ethnicity, nor did he

describe any incident rising to the level of persecution. Thus, the IJ correctly held that Ng

did not meet his burden of proving that he suffered past persecution.

       In order to establish a well-founded fear of future persecution, Ng was required to

show both a subjective fear of persecution through credible testimony and an objective

basis for that fear. 

. Substantial evidence supports the IJ’s

conclusion that Ng failed to satisfy the subjective aspect of the analysis.

       Although Ng claimed to fear future violence as a result of the Dyak/Madurese

tribal conflict, he did not testify that his fear is based upon violence specifically targeted

at ethnic Chinese individuals. Rather, Ng testified to a fear of incidental harm,

acknowledging that ethnic Chinese individuals are not directly involved in the conflict.

See A.R. 339 (“I did not experience any direct harm during any fighting between the

Dyaks and the Madurese. However, as one who is ethnic Chinese I do fear that I could,

in the future, be victimized as I would find myself in the middle of that conflict.”). In

addition, Ng testified that to his knowledge, the tribal conflict did not extend to Jakarta,

where his wife and children have been residing since 1995, see A.R. 338, and where Ng

lived prior to fleeing Indonesia.




                                               5
       Ng testified that he left Jakarta due to economic problems and the fact that he did

not own a home, not because of a fear of persecution.1 Indeed, Ng’s wife and children

continue to reside there without suffering persecution, which diminishes the

reasonableness of Ng’s claim. See 

.

       Ng responds that he should prevail because he provided sufficient objective

evidence of a “pattern or practice” of persecution of ethnic Chinese individuals in

Indonesia, including a 2005 Country Report on Human Rights Practices, a 2005

International Religious Freedom Report, a 2002 Amnesty International Report, and other

articles. However, because Ng failed to satisfy the subjective prong of the well-founded

fear test, see 

-37, his objective “pattern or practice” evidence is not

sufficient to sustain Ng’s burden.2

       In sum, substantial evidence supports the IJ’s conclusion that Ng failed to meet his

burden of proof to demonstrate past persecution or a well-founded fear of future

persecution on account of his Chinese ethnicity for purposes of asylum. In addition,

   1
    We have recognized that deliberate imposition of severe economic disadvantage
which threatens a petitioner’s life or freedom may constitute persecution. See Li v. Att’y
Gen., 

, 167-68 (3d Cir. 2005). However, Ng did not testify to any severe
economic hardship, or to any economic challenge not generally faced by others in
Indonesia. See 

   2
     In addition, contrary to Ng’s arguments, it is not clear that the objective evidence
would compel a finding that there is a “pattern or practice” of persecution of ethnic
Chinese individuals in Indonesia. For instance, the 2005 Country Report provides: “The
government officially promotes racial and ethnic tolerance. . . . Instances of
discrimination and harassment of ethnic Chinese declined compared with previous years.
Recent reforms increased religious and cultural freedoms.” A.R. 63.

                                              6
because Ng did not meet his burden of proof for asylum, the IJ correctly determined that

Ng necessarily failed to meet the higher burden required for withholding of removal. See,

e.g., Gomez-Zuluaga v. Att’y Gen., 

, 348-49 (3d Cir. 2008). Finally,

although Ng’s brief makes passing reference to the CAT, he raised no argument that he

would face any likelihood of torture in Indonesia, see, e.g., 8 C.F.R. § 208.16(c)(2), or

that the IJ erred in any respect in denying his CAT claim. We therefore must conclude

that Ng abandoned the claim for CAT protection. See, e.g., Chen v. Ashcroft, 

, 221 (3d Cir. 2004).

                                      III. Conclusion

       For the foregoing reasons, we will affirm the BIA’s decision and deny the petition

for review.




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