Filed: Mar. 31, 2010
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-1945 _ BOENG LIN TAN; HENNY ELLY SANAWATI, Petitioners v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency Nos. A079-734-399 & A096-205-610) Immigration Judge: Honorable R.K. Malloy _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 24, 2010 Before: Chief Judge SCIRICA, SMITH and WEIS, Circuit Judges (Opinion filed: March 31, 2010
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-1945 _ BOENG LIN TAN; HENNY ELLY SANAWATI, Petitioners v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency Nos. A079-734-399 & A096-205-610) Immigration Judge: Honorable R.K. Malloy _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 24, 2010 Before: Chief Judge SCIRICA, SMITH and WEIS, Circuit Judges (Opinion filed: March 31, 2010)..
More
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1945
___________
BOENG LIN TAN; HENNY ELLY SANAWATI,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency Nos. A079-734-399 & A096-205-610)
Immigration Judge: Honorable R.K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 24, 2010
Before: Chief Judge SCIRICA, SMITH and WEIS, Circuit Judges
(Opinion filed: March 31, 2010)
OPINION
___________
PER CURIAM.
Petitioners Boeng Li Tan and Henny Elly Sanawati petition for review of a
decision by the Board of Immigration Appeals (“BIA”) rendered on March 4, 2009. For
the following reasons, we will dismiss in part and deny in part the petition for review.
1
I. Background
Petitioners, a married couple with two United States citizen children, are
natives and citizens of Indonesia. They arrived in the United States in 1998 and were
placed in removal proceedings in 2003. They conceded removability and applied for
asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). Petitioners claim they suffered past persecution and fear future persecution and
torture in Indonesia because they are ethnic Chinese Christians.
After a hearing, the Immigration Judge (“IJ”) issued an oral decision on
March 20, 2008. The IJ determined that Petitioners are statutorily ineligible for asylum
because they filed their applications more than one year after the statutory deadline and
do not satisfy any exception to excuse the untimeliness. The IJ concluded that Petitioners
failed to establish eligibility for withholding of removal or protection under the CAT
because they did not testify to past harm sufficient to rise to the level of persecution and
they failed to establish a clear probability of future persecution or that anyone would
torture them if they were to return to Indonesia.
Petitioners appealed. They did not contest the IJ’s conclusion concerning
their statutory ineligibility for asylum or the decision to deny CAT relief. They claimed
only that they had established a pattern or practice of persecution of ethnic Chinese
Christians in Indonesia. On March 4, 2009, the BIA affirmed the IJ’s decision and
dismissed the appeal.
2
This timely counseled petition for review followed.
II. Analysis
We generally review only final orders of the BIA. See Li v. Att’y Gen., 400
F.3d 157, 162 (3d Cir. 2005). However, in cases where “the BIA both adopts the findings
of the IJ and discusses some of the bases for the IJ's decision, [this Court has] authority to
review the decisions of both the IJ and the BIA.” Chen v. Ashcroft,
376 F.3d 215, 222
(3d Cir. 2004). We review the rejection of Petitioners’ claims under the deferential
substantial evidence standard. See Toure v. Att’y Gen.,
443 F.3d 310, 316 (3d Cir. 2006).
Accordingly, we will not disturb the decision “unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Yu v. Att’y Gen.,
513 F.3d 346, 348 (3d Cir.
2008) (citations omitted).
The BIA affirmed the IJ’s conclusion that Petitioners were not entitled to
withholding of removal because they failed to establish a “pattern or practice of
persecution” of ethnic Chinese Christians in Indonesia. See 8 C.F.R. § 1208.16(b)(2).
Among other things, in order to meet their burden of proof for this claim, Petitioners were
required to present objective evidence demonstrating that persecution of ethnic Chinese
Christians in Indonesia is “systemic, pervasive, or organized.” See Lie v. Ashcroft, 396
F.3d 530, 537 (3d Cir. 2005).
To date, our case law has not conclusively addressed whether or not a
pattern or practice of persecution of ethnic Chinese Christians exists in Indonesia. See
3
Sukwanputra v. Gonzales, 434 F.3d 627, 637 n.10 (3d Cir. 2006). However, we have
considered State Department Reports from 1999, 2003, and 2004, and have concluded
that these reports do not demonstrate persecution that constitutes a pattern or practice.
See Wong v. Att’y Gen.,
539 F.3d 225, 233-34 (3d Cir. 2008);
Lie, 396 F.3d at 537.1 We
have also noted that recent State Department reports tend to reflect improving treatment
of ethnic Chinese Christians in Indonesia. See
Wong, 539 F.3d at 234.
In reaching a decision in this case, the IJ relied upon the most recent State
Department Reports that appear in the record, which are from 2006 and 2007. (See
A.R.312-22, 394-405, 419-46.) In essence, the IJ concluded that the reports reflect that
the Indonesian government has made efforts to improve the situations for ethnic Chinese
and Christian individuals. For instance, she noted that Indonesia has abolished
discriminatory laws and does not support the religious tensions in the country. The BIA
upheld the IJ’s factual findings based upon these reports, concluding that they did not
establish the necessary “systemic, pervasive, or organized” persecution of ethnic Chinese
Christians. See Lie, 396 F.3d at 537.
Based upon our close review of the record, we conclude that substantial
evidence supports the decision that Petitioners failed to establish a pattern or practice of
1
For example, the 2003 and 2004 State Department Reports “generally emphasize the
steps taken by the Indonesian government to promote religious, racial, and ethnic
tolerance and to reduce interreligious violence . . . [and] indicate that private parties, not
government officials, are the predominant cause of harassment and violence.” Wong, 539
F.3d at 233-34.
4
persecution of ethnic Chinese Christians in Indonesia. Similarly to the reports we
considered in Lie and Wong, Petitioners’ proffered 2006 and 2007 State Department
reports contain evidence undermining their pattern or practice claim.2 The evidence in
the record does not compel the conclusion that a pattern or practice of persecution of
ethnic Chinese Christians exists in Indonesia. See INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992); see also
Wong, 539 F.3d at 233-34;
Lie, 396 F.3d at 537.
Although Petitioners dispute this result, they offer nothing more than
conclusory statements to the effect that they presented “overwhelming evidence of . . . a
pattern or practice of persecution against ethnic Chinese and Christians in Indonesia. . . .”
They point to nothing in the record to undermine the substantial evidence supporting the
IJ’s and BIA’s conclusions. Accordingly, we must deny their withholding of removal
claim.3
2
For example, the 2007 State Department Report on International Religious Freedom
states that “the Government generally respected” religious freedom, that “[t]here was no
change in the status of respect for religious freedom by the Government during the
reporting period,” and that “most of the population enjoyed a high degree of religious
freedom.” (A.R. 394.)
3
Petitioners attempt to rely upon Mufied v. Mukasey, 508 F.3d 88, 91-92 (2d Cir.
2007), a decision by the Court of Appeals for the Second Circuit. In Mufied, the
applicant argued that there was a pattern or practice of persecution of Christians in
Indonesia, but the IJ and BIA failed to consider the claim. Accordingly, the Second
Circuit remanded the matter so the BIA could consider in the first instance whether the
applicant had proffered evidence that established “systemic, pervasive, or organized”
persecution of Christians in Indonesia.
Id. at 93. Here, in contrast, the IJ and BIA
considered and rejected Petitioners’ pattern or practice claim. Accordingly, Mufied is not
relevant to our consideration of this matter.
5
Throughout their brief on appeal, Petitioners also contend they are entitled
to asylum and CAT relief. We must dismiss these claims. We lack jurisdiction to review
the IJ’s conclusion that Petitioners applied for asylum outside of the statutory deadline
and failed to present circumstances to toll the deadline. See Tarrawally v. Ashcroft, 338
F.3d 180, 185 (3d Cir. 2003). In addition, when they appealed to the BIA, Petitioners
failed to dispute the IJ’s decision to deny CAT relief. Accordingly, that claim remains
unexhausted. See Abdulrahman v. Ashcroft,
330 F.3d 587, 594-95 (3d Cir. 2003); INA
§ 242(d)(1) [8 U.S.C. § 1252(d)(1)].
III. Conclusion
For the foregoing reasons, we will dismiss in part and deny in part the
petition for review.
6
