Mei Ping Ie v. Atty Gen USA

Court Case Details
Court Case Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-4288

MEI PING IE,

Petitioner

v.

JOHN ASHCROFT,

ATTORNEY GENERAL OF THE U NITED STATES,

Respondent

Petition for Review of an Order of the

United States Department of Justice

Board of Imm igration Appeals

(BIA No. A79-309-103)

Submitted Under Third Circuit LAR 34.1(a)

November 29, 2004

Before: RENDELL, ALDISERT and MAG ILL*, Circuit Judges.

(Filed: December 10, 2004)

OPINION OF THE COURT

* Honorable Frank J. Magill, Senior Circuit Judge for the Eighth Circuit, sitting by

designation.

REND ELL, Circuit Judge.

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Ming Ping Ie

(“Ie”) petitioned this Court for review of the Attorney General’s denial of

her claims for asylum and relief from removal. W e have jurisdiction under 8 U.S.C. §

1252(a). For the reasons stated below, we will deny the petition for review.

I.

Ie, a native and citizen of Indonesia, entered the United States as a non-immigrant

visitor with authorization to remain in the country until March 16, 2001. Respondent’s

Br. at 2. When she remained beyond that time, she was placed in removal proceedings.

She conceded removability, but claimed eligibility for asylum and requested withholding

of removal as well as relief under the U nited Nations Convention Against Torture

(“CA T”) because of persecution in her home country on account of her Chinese ethnicity

and Catholic religious beliefs.

As we write solely for the parties, our recitation of the facts will be limited to those

necessary to our determination. In her application for asylum and at a hearing before the

Immigration Judge (“IJ”), Ie described multiple incidents which, she alleged, were

evidence of harassment as a result of her ethnicity and religious beliefs. These incidents

included being bullied as a child by other school children, robberies by persons she

believed to be ethnic Indonesian Muslims, and the destruction of her home and business

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Ming Ping Ie’s son, Rikie Tjahjadi, is also a part of Ms. Ie’s petition for asylum

and withholding of removal, however, his claims are derivative of Ms. Ie’s. 8 U.S.C. §
1158(b)(3)(A).

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during widespread riots in Jakarta in M ay 1998.

The IJ found that Ie failed to establish her eligibility for asylum on the grounds that

there was no basis to conclude that Ie had suffered past persecution in her home country

or that she will suffer future persecution on the basis of her ethnicity or religion. Id. at

19. The IJ also held that Ie failed to demonstrate that she was under a discernable threat

of torture should she return to Indonesia and, therefore, failed to establish eligibility for

relief under the C AT. Id. at 19-20. The IJ’s order denying Ie’s application for asylum

and withholding of removal to Indonesia and denying her relief under the CAT w as

affirmed without opinion by the Board of Immigration Appeals (“BIA”) pursuant to 8

C.F.R. § 1003.1(e)(4). Id. at 2. Ie then filed a petition for review with this Court alleging

that the IJ’s assessment of her claims of past persecution and her fear of future

persecution was not based on substantial evidence in the record.

II.

Where, as here, the BIA defers to the IJ’s opinion and affirms without opinion, we

review the IJ’s decision to address substantive challenges. Gao v. Ashcroft, 299 F.3d

266, 271 (3d Cir. 2002). Whether an applicant for asylum has demonstrated past

persecution, or a well-founded fear of future persecution, is a factual question which we

review under the substantial evidence standard. Id. at 272. We will uphold the IJ’s

decision if her conclusions are supported by “‘reasonable, substantial and probative

evidence on the record considered as a whole’” and w ill reverse “‘only if there is

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evidence so compelling that no reasonable factfinder could conclude as the [IJ] did.’”

Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003) (quoting Kayembe v. Ashcroft,

334 F.3d 231, 234 (3d Cir. 2003)).

III.

To qualify for a grant of asylum, Ie must prove that she meets the statutory

definition of a refugee, i.e., that she is an alien who is unable or unwilling to return to her

home country “because of persecution or a well-founded fear of persecution on account

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

opinion.” 8 U.S.C. § 1101(a)(42)(A). To qualify for withholding of removal, Ie must

show that, if deported, there is a “clear probability” that she will be persecuted on account

of a specified ground, in this case ethnicity or religion, if returned to Indonesia. See

Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). This standard requires a showing

that “it is more likely than not that the alien w ould be subject to persecution” upon return

to the alien’s home country. INS v. Stevic, 467 U.S. 407, 424 (1984).

IV.

The IJ found that none of the incidents reported by Ie rose to the level of

persecution required for a grant of asylum. While Ie testified to incidents of alleged

discrimination from her childhood to adulthood, she failed to establish that these incidents

were motivated by animus towards her ethnicity or religion. In each of her confrontations

with ethnic Indonesians, her assailants apparently demanded money or possessions, and

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every incident concluded w ithout physical violence to Ie. Id. The IJ interpreted these

incidents as street crimes that “could happen anywhere in the world because a person

wanted something that was possessed by someone else,” rather than evidence of ethnic or

religious persecution. Id. at 18.

Regarding the 1998 riots in Jakarta which reportedly destroyed Ie’s home and

shop, Ie was not in the city when the riots occurred and was never in immediate physical

danger. Id. at 17. While Ie testified she did not rebuild after the riots for fear of a

recurrence, she did remain in the country, without similar incident, for two years before

leaving Indonesia for the United States. Since the 1998 riots, there have been favorable

changes in Indonesia directed at improving religious and ethnic tolerance. Id. at 71-73.

These changes included the repeal on government prohibitions on teaching the Chinese

language and celebration of the Chinese New Year as well as a decrease in racially

motivated attacks in Indonesia. Id. Ie also has an adult son who still lives in Jakarta. Id.

at 74-75, 87-88 & 91. He is of ethnic Chinese descent and a Catholic, like Ie, but he

continues to reside in Indonesia apparently without any problems or indication that he

wishes to flee the country for fear of ethnic or religious persecution. Id.

Based on the evidence presented, the IJ concluded that Ie failed to demonstrate

past persecution on the basis of her ethnicity or religious beliefs and was not entitled to a

presumption of future persecution. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d

Cir. 2003). Without such a presumption, Ie must present evidence to establish a

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“well-founded fear of future persecution” by showing “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. This subjective fear of future persecution must be

“supported by objective evidence that persecution is a reasonable possibility.” Chang v.

INS, 119 F.3d 1055, 1066 (3d Cir. 1997). The IJ found that Ie failed to present objective

evidence to establish a reasonable fear of future persecution on the basis of her ethnicity

or religion, and failed to establish her eligibility for a grant of asylum.

The standard for eligibility for withholding of removal is more exacting than that

for asylum . Zubeda, 333 F.3d at 469-70. Having failed to establish a well-founded fear

of persecution required for a grant of asylum, by definition, Ie has also failed to establish

the clear probability of persecution required for withholding of removal. Id.

V.

There is substantial evidence to support the IJ’s denial of Ie’s application for

asylum and withholding of removal. For the foregoing reasons, we will DENY the

petition for review of the decision of the Board of Immigration Appeals.

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