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


1-23-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4383




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-4383


                                ANITA CHANDRA;
                              TADIUS HADIPRANATA,
                                              Petitioners

                                           v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                              Respondent


                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                       BIA Nos. A95-869-998 & A95-869-999
                 (Immigration Judge: Honorable Charles M. Honeyman)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 21, 2009

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

                                (Filed: January 23, 2009)


                              OPINION OF THE COURT


PER CURIAM.

      Petitioners Anita Chandra and Tadius Hadipranata seek review of an order of the

Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order
of removal. For the reasons that follow, we will deny their petition.

       Chandra is a native and citizen of Indonesia and an ethnic Chinese Christian. She

most recently entered the United States as a non-immigrant visitor on August 22, 2002 and

overstayed her visa. She married Hadipranata in Indonesia in 1993. He is also a native and

citizen of Indonesia. He entered the United States as a non-immigrant visitor on April 21,

1998 and overstayed his visa. They have three children, all of whom remain in Indonesia,

along with Chandra’s mother, father and two siblings. On November 13, 2002, Chandra filed

an application for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). Hadipranata sought asylum as a derivative of Chandra’s application. On

July 19, 2004, both petitioners were charged with removability. The IJ found petitioners

removable as charged and denied all relief. The BIA affirmed without opinion. Through

counsel, petitioners filed a petition for review, which the Government opposes.

       We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Because the

BIA affirmed without opinion, we review the IJ’s decision as if it were the decision of the

BIA. See Dia v. Ashcroft, 

, 245 (3d Cir. 2003). We review the IJ’s factual

findings for “substantial evidence.” See Abdille v. Ashcroft, 

, 483-84 (3d Cir.

2001). Under this standard, we will uphold these findings unless the evidence not only

supports a contrary conclusion, but compels it. See 

granted asylum, an applicant must establish that she is unable or unwilling to

return to her country of origin “because of persecution or a well-founded fear of persecution

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

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opinion.” 8 U.S.C. § 1101(a)(42). To be entitled to withholding of removal, an applicant

must prove that it is more likely than not that her “life or freedom would be threatened in that

country” on account of a protected ground. See 8 U.S.C. § 1231(b)(3). For relief under the

CAT, an applicant must demonstrate that it is more likely than not that she would be tortured

if removed to her country of origin. See 8 C.F.R. § 208.16(c)(2).

       This Court has defined persecution as “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS,

, 1240 (3d Cir. 1993). It is clear that there must be a nexus between the alleged

persecution and a protected ground. See 8 U.S.C. §§ 1101(a)(42), 1231(b)(3). Accordingly,

an applicant must provide some evidence of motive, whether direct or circumstantial. See

Lie v. Ashcroft, 

, 535 (3d Cir. 2005) (citing INS v. Elias-Zacarias, 

, 483-84 (1992)). An asylum applicant who has demonstrated past persecution is entitled

to a rebuttable presumption of a well-founded fear of future persecution.                   See

8 C.F.R. § 1208.13(b)(1). Absent a showing of past persecution, an applicant must

demonstrate a subjective fear of future persecution and show that a reasonable person in her

situation would fear persecution if returned to her country of origin.                  See 8

C.F.R. § 1208.13(b)(2). An applicant can meet this objective prong either by showing that

she would be individually singled out for persecution upon her return or that a pattern and

practice of such persecution exists. See 8 C.F.R. § 1208.13(b)(2)(iii).




                                               3
       We agree with the IJ that Chandra failed to demonstrate past persecution or a

likelihood of future persecution should she be returned to Indonesia. In support of her

application, Chandra testified that she was sexually harassed on at least two occasions as a

child, that during the riots in 1998 her car was attacked by a mob and she was robbed, and

that in 2002 she and her sister were driving during a rainstorm when her car got stuck in the

rain and some people blocked the car and demanded money. According to Chandra, neither

she nor her parents ever reported any of these incidents to the police because they did not

have money to pay their bribes and did not think the police would believe them. Chandra

explained that she is afraid to return to Indonesia because she believes it is unsafe for her and

that such incidents will happen to her again. She testified that since first entering the United

States in February 1999, she has returned to Indonesia three times to see her children, who

remain there with her parents.

       The IJ found that, while Chandra’s testimony was credible, the incidents she related

were not sufficiently severe and extreme to constitute past persecution, and that there was

no evidence in the record to suggest that Chandra might be singled out for future persecution

if she and her husband were to return to Indonesia. Additionally, the IJ found that neither

our case law nor the evidence in the record supported a finding of a pattern and practice of

persecution of ethnic Chinese Christians in Indonesia. In her petition for review, Chandra

argues that the IJ ignored the nature and gravity of the incidents described by Chandra in her

testimony, erred in concluding that she had not established a nexus between the incidents she

described and a protected ground, and did not adequately consider the evidence in the record

                                               4
indicating that ethnic Chinese Christians continue to be discriminated against by native

Indonesians. We have reviewed Chandra’s arguments as well as the record before the IJ, and

we cannot conclude that the evidence presented compels a contrary conclusion.

       Chandra claims that the IJ failed to accord sufficient weight to the sexual nature of the

attacks against her, and challenges the IJ’s conclusion that she failed to demonstrate a

sufficient nexus between the attacks she described and a protected ground. She relies in part

on Matter of O-Z- & I-Z-, 22 I. & N. Dec. 23 (BIA 1998), in which the asylee’s son was

forced to pull down his pants in school to prove that he was circumcised, a fact which was

cited by the BIA as proof that he was targeted for harassment based on his religion. 

She also argues that her case is distinguishable from Lie v. Ashcroft, 

(3d Cir. 2005), in which we held that “the evidence of general ethnic difficulties would not

compel a reasonable fact finder to conclude that the intrusions were ‘on account of’ Lie’s

ethnicity or religion.” 

In the instant case, however, Chandra set forth no

evidence that any of the attacks against her, sexual or otherwise, were motivated by her

religion or ethnicity.

       Next, Chandra contests the IJ’s conclusion that she failed to establish a pattern and

practice of persecution of ethnic Chinese Christians in Indonesia. Chandra argues that the

IJ failed to adequately consider the background materials she submitted, which she contends

demonstrate that such persecution is ongoing. We considered such material in Wong v.

Attorney General, 

(3d Cir. 2008), in which we held that petitioner had not

demonstrated a pattern and practice of persecution of ethnic Chinese Christians in Indonesia

                                               5
based on the 2003 and 2004 State Department reports. See 

see also Lie v.

Ashcroft, 

(3d Cir. 2005) (concluding no pattern and practice of persecution

based on 1999 State Department report). Additionally, we noted in dicta that the more recent

State Department reports published between 2005 and 2007 document similar or improved

treatment of Chinese Christians in Indonesia. See 

.

       Based on the foregoing, we cannot conclude that the evidence in the record compels

a conclusion contrary to that reached by the IJ. Additionally, we conclude that Chandra’s

claim that the BIA erred in affirming the decision if the IJ without opinion is without merit.

See 8 C.F.R. § 1003.1(e)(4); Smriko v. Ashcroft, 

, 294 (3d Cir. 2004).

Accordingly, we will deny the petition for review.




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