Wong v. Atty Gen USA

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

8-20-2008

Wong v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-3539

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation

"Wong v. Atty Gen USA" (2008). 2008 Decisions. Paper 583.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/583

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

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 06-3539

_____________

SIOE TJEN WONG,

Petitioner

v.

ATTORNEY GENERAL OF

THE UNITED STATES,

Respondent

On Review of a Decision of the

Board of Immigration Appeals

(Agency No. A78-688-745)

Immigration Judge: Charles M. Honeyman

____________

Submitted Under Third Circuit LAR 34.1(a)

March 11, 2008

Before: FUENTES, CHAGARES, and ALDISERT, Circuit

Judges.

(Filed: August 20, 2008)

Joseph C. Hohenstein, Esq.

Orlow, Kaplan & Hohenstein

620 Chestnut Street, Suite 656

Philadelphia, PA 19106

Counsel for Petitioner

David V. Bernal, Esq.

Lance L. Jolley, Esq.

Ernesto H. Molina, Esq.

Jonathan Potter, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_____________

OPINION OF THE COURT

____________

CHAGARES, Circuit Judge.

Sioe Tjen Wong, a native and citizen of Indonesia, petitions

for review of a final order of removal issued by the Board of

Immigration Appeals (BIA). A Catholic Indonesian of Chinese

descent, Wong claims that she has a well-founded fear of

persecution in Indonesia because of her religion and her ethnicity.

As we explain below, substantial evidence supports the BIA’s

denial of asylum, withholding of removal, and relief under the

Convention Against Torture (CAT). Accordingly, we will deny

Wong’s petition for review.

I.

Born in 1962, Wong was raised in Situbondo, a city located

in eastern Java. Six of Wong’s brothers and sisters still live in

eastern Java, as does her mother. Her siblings run businesses, and

her mother works at home.

Wong entered the United States as a non-immigrant in

August 1999 and overstayed her visitor’s visa. She filed an

application for asylum, withholding of removal, and protection

under the CAT in July 2000 and was placed in removal

2

proceedings. In her application for relief, Wong claimed that

ethnic Indonesians persecuted her because she was Chinese and

Catholic and that the government failed to control or prevent the

persecution. Wong asserted that in her hometown, ethnic

Indonesians often broke the windows of Chinese homes when they

smelled Chinese cooking, threatened ethnic Chinese residents with

meat cleavers, and heckled them with ethnic slurs. According to

Wong, “[o]ur churches [we]re burned, women [we]re assaulted and

raped and people [we]re murdered by Muslims without any

consequence at all.” Administrative Record (A.R.) 984.

When Wong was growing up, anti-Chinese riots and attacks

were widespread in Indonesia. Wong personally suffered several

kinds of harassment and discrimination. For example, Wong

recalled ethnic Indonesians lifting her skirt and grabbing her chest

on the way to school. Ethnic Indonesians also stopped Wong in the

street, demanded money, threw stones at her, and called her names

on her way to church. According to Wong, she was not allowed to

sing Christian songs in public or allowed to learn Chinese. Once,

her parents tried to teach her Chinese, and an ethnic Indonesian,

who overheard the lesson, threatened to burn down the store the

Wongs owned as well as their house, if the lesson continued.

Wong pointed to several specific incidents in support of her

application for relief from removal in her affidavit and at a hearing

before the Immigration Judge (IJ). First, she explained that in 1967

the government confiscated businesses run by ethnic Chinese,

including a store run by her parents. Her father opened another

business in the 1970s, delivering and selling construction materials,

but according to Wong, ethnic Indonesians often placed orders and

then refused to pay for the materials. As a result, her father was

forced to shut down the business. Her father then opened a small

fishery, using the name of an ethnic Indonesian to start the business

because as an ethnic Chinese he was not allowed a business

license. This business failed too because “ethnic Indonesians

constantly stole fish from [her] father and the ethnic Indonesian

whose name [her] father had used caused [him] problems.” A.R.

193. According to Wong, these business failures devastated her

father and after the fishery business failed, he suffered a heart

attack and died in June 1979.

3

In the early 1980s, Wong’s family reacquired the store the

government had confiscated in 1967. They had to pay the

government for the store, however, and they were not compensated

for the loss of the business during the years in which it was closed.

To help her mother, Wong assisted with running the store and was

harassed as a result. Wong stated that “[y]oung, drunk ethnic

Indonesians often came to the store at night, threatening to burn the

store down” and to burn her face with cigarettes if she did not give

them money. A.R. 193-94.

In August 1992, an ethnic Indonesian struck Wong’s brother

on the back of the head as he was riding his motorcycle home from

work. The assailant stole the motorbike, and Wong’s brother was

taken to the hospital, where he died. Although the hospital

officials told Wong that her brother had lost too much blood to be

saved, Wong asserts that “[n]othing was done to help my brother

at the hospital because ethnic Chinese were required to pay before

receiving treatment, even in emergency situations.” A.R. 194.

According to Wong, the family reported the incident to the police,

but “there was no reaction.” A.R. 565.

Wong officially changed her name from Sioe Tjen Wong to

Veronica Wiyanti in March 1996, “so that [she] would not be

identified as a person of ethnic Chinese descent and discriminated

against.” A.R. 192, 576, 665, 1000-01.1 Later that year, in October

1996, there was rioting in Situbondo and the church Wong attended

was twice set on fire. Christian schools and other churches in the

town were also burned and in one church, a pastor and his family

were killed. In November 1996, after the church burning incidents,

Wong and her church choir were practicing in a tent near the

church when a group of ethnic Indonesians threatened to burn them

unless they stopped singing and praying. After these incidents,

Wong could not attend church “because it was guarded by the

Muslim fanatics.” A.R. 570.

1

However, an affidavit Wong submitted to the BIA states

that she “was born with the name Veronica Wiyanti.” A.R. 192.

4

Wong explained that in 1998, anti-Chinese riots were again

rampant in Indonesia. Ethnic Indonesians burned houses and stores

and raped Chinese women. Wong and her family hid in their house

for days, while rioters threw stones and broke the front window.

The anti-Chinese violence continued into 1999. According to

Wong, she wanted to leave Indonesia immediately, but the U.S.

embassy in Jakarta was closed for about a year after the 1998 riots.

As a result, she was not able to obtain a visa to go to the United

States until August 1999. After Wong left the country, she learned

that her oldest sister had also died. According to Wong, the stress

of constant harassment by ethnic Indonesians caused her sister’s

death.

Wong submitted news articles and reports discussing human

rights and religious freedom in Indonesia, among other materials,

to the IJ. After holding a hearing and reviewing Wong’s testimony

and application, the IJ concluded that the instances of

discrimination and harassment that Wong experienced did not rise

to the level of past persecution. According to the IJ, Wong also

failed to identify any grounds to support a well-founded fear of

persecution. In addition, Wong was unable to show a clear

probability that she would be tortured if returned to Indonesia. As

a result, the IJ denied Wong’s application for relief on December

8, 2000, but granted her voluntary departure.

Wong appealed, and the BIA affirmed the IJ’s denial of

Wong’s application for asylum, withholding of removal, and

protection under the CAT without opinion on March 7, 2003.

Wong timely filed a motion to reopen with the BIA.

After reviewing new reports on country conditions

submitted by Wong, the BIA granted Wong’s motion to reopen on

August 29, 2003, and remanded for the IJ to consider evidence of

changed country conditions in Indonesia during the three years

since the original IJ decision.

On remand, a new IJ reviewed the updated evidence,

including news articles, recent U.S. State Department reports, and

an affidavit from an expert on Indonesia country conditions. Based

on this evidence, the IJ considered whether Wong would be singled

5

out for persecution based on her ethnicity and religion and also

assessed whether there was a “‘pattern or practice’ of persecution

in Indonesia by forces that the government [wa]s unable or

unwilling to control.” A.R. 99. The IJ noted that “there [we]re no

credibility issues in this case” and that the only issue on remand,

therefore, was whether Wong had “a well-founded fear of future

persecution in light of the absence of past persecution,” or, in the

alternative, whether Wong could meet “the higher standard of a

clear probability of future persecution for withholding [of

removal]” or demonstrate that it was “more probable than not []

that she would be tortured by or at the instigation of or with the

consent or acquiescence of a public official or other person acting

in an official capacity. . . .” A.R. 97.

The IJ explained that he was “constrained to conclude that

the respondent has not proven by a preponderance of the evidence

that she has a reasonable possibility of future persecution as that

term has been defined in the case law if she were to return to

Indonesia, absent a conclusion by either the BIA or the Circuit

Court that such a pattern or practice conclusion would be supported

by substantial evidence in this record.” A.R. 109. On December

2, 2004, the IJ denied Wong’s petition for asylum, withholding of

removal, and relief under the CAT, but granted her voluntary

departure.

Wong again appealed, and the BIA dismissed Wong’s case

on June 28, 2006. The BIA determined that Wong had failed to

establish a pattern or practice of persecution of ethnic Chinese

Christians in Indonesia and noted that the grant of asylum to

Wong’s husband was not dispositive of her asylum claim. The BIA

observed that the U.S. State Department’s 2003 and 2004

International Religious Freedom Reports for Indonesia (Religious

Freedom Reports) indicated that the government had taken steps to

control anti-Christian violence, and that violence continued only in

specific parts of Indonesia.

Similarly, while the U.S. State Department’s 2003 and 2004

Country Reports on Human Rights Practices for Indonesia

6

(Country Reports)2 documented ongoing harassment and

discrimination against ethnic Chinese in Indonesia, the reports

indicated that violence had ended. The BIA also determined that

Wong was not eligible for withholding of removal or relief under

the CAT.

This timely petition for review followed.

II.

We have jurisdiction to review a final order of removal

under 8 U.S.C. § 1252. See Briseno-Flores v. Att’y Gen., 492 F.3d

226, 228 (3d Cir. 2007). Removal proceedings occurred in

Philadelphia, Pennsylvania, and venue is therefore proper under 8

U.S.C. § 1252(b)(2).

Where the BIA renders its own decision and does not merely

adopt the opinion of the IJ, we review the BIA’s decision, not that

of the IJ. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The

BIA is bound by the IJ’s factual determinations “including findings

as to the credibility of testimony” and reviews these findings only

to determine whether they are clearly erroneous. 8 C.F.R. §

1003.1(d)(3). “The BIA’s conclusions regarding evidence of past

persecution and the well-founded fear of persecution are findings

of fact,” which we review under the deferential substantial

evidence standard. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d

Cir. 2006).

We defer to the BIA’s findings “if they are ‘supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.’” Lie v. Ashcroft, 396 F.3d 530, 534 n.3

(3d Cir. 2005) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 480

(1992)). Under the deferential substantial evidence standard, the

BIA’s findings “must be upheld unless the evidence not only

supports a contrary conclusion, but compels it.” Abdille v.

Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001) (citing Elias-Zacarias,

2

We refer to the Country Reports and Religious Freedom

Reports, collectively, as “the State Department reports.”

7

502 U.S. at 481 & n.1); see 8 U.S.C. § 1252(b)(4)(B)

(“[A]dministrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary. . . .”). In addition, where, as here, “the IJ did not make an

adverse credibility determination [], we proceed as if the alien’s

testimony was credible.” Ghebrehiwot v. Att’y Gen., 467 F.3d

344, 350 (3d Cir. 2006).

We have plenary review over questions of law, “subject to

the principles of deference articulated in Chevron v. Natural

Resources Defense Council, 467 U.S. 837, 844 [] (1984).” Pierre

v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (citing Briseno-

Flores, 492 F.3d at 228; Wang v. Ashcroft, 368 F.3d 347, 349 (3d

Cir. 2004)).

III.

As a threshold matter, we reject Wong’s argument that the

BIA issued a decision that “failed to provide ‘meaningful review’”

of the IJ’s decision. Pet’r Br. at 8-9. Contrary to Wong’s

contentions, the BIA’s explanation of its reasoning is sufficiently

detailed for this Court to review.

In support of her argument, Wong relies on Miah v.

Ashcroft, 346 F.3d 434 (3d Cir. 2003), in which we held that the

BIA’s failure to explain its reasoning precluded this Court from

conducting a meaningful review of its analysis. In Miah, the BIA

rejected the IJ’s determination that the petitioner was not credible,

but then adopted the IJ’s reasoning as to corroboration. The BIA

did not analyze how its assessment that the petitioner’s testimony

was credible affected the degree of corroboration necessary for the

petitioner to meet his burden of proof. Because the BIA “adopted

a conclusion of the IJ after rejecting the finding of the IJ which

informed that conclusion,” we concluded that “meaningful review

of the BIA’s decision” was not possible. Id. at 440; see also

Awolesi v. Ashcroft, 341 F.3d 227, 233 (3d Cir. 2003) (noting that

“we are particularly concerned about being able to give meaningful

review to the BIA’s decision where the BIA reverses the IJ without

explanation” (emphasis in original)).

8

Here, in contrast, the BIA did not reject the IJ’s decision.

Rather, the BIA considered the merits of Wong’s asylum,

withholding of removal, and CAT claims and dismissed Wong’s

appeal. The BIA considered the 2003 and 2004 State Department

reports and concluded that there was no pattern or practice of

persecution of ethnic Chinese in Indonesia. As we have previously

observed, “[w]e will not hold [] that a BIA decision is insufficient

merely because its discussion of certain issues ‘could have been

more detailed.’” Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d

Cir. 2006) (concluding that the BIA’s two-page decision provided

the Court with adequate insight into its reasoning and allowed for

a meaningful review) (quoting Sevoian v. Ashcroft, 290 F.3d 166,

178 (3d Cir. 2002)). The BIA need not “‘write an exegesis on

every contention.’” Toussaint, 455 F.3d at 414 (quoting Zubeda v.

Ashcroft, 333 F.3d 463, 477 (3d Cir. 2003)). Although the BIA’s

explanation in the instant case is brief, we conclude that the

decision is nonetheless sufficiently detailed to allow for meaningful

review. Accordingly, we turn to the merits of the BIA’s decision.

IV.

Wong contends that the BIA’s decision is not supported by

substantial evidence. Specifically, Wong argues that the BIA failed

to consider the entire record in assessing the objective basis for her

fear of persecution, applied the incorrect legal standard in

analyzing her claim, erred in introducing the concept of relocation

within Indonesia, and misinterpreted her argument regarding her

husband’s asylee status. We disagree. While the record does

indicate that Chinese Christians in Indonesia are victims of

harassment and intimidation, we cannot say that they are subject to

a pattern or practice of persecution as defined in Lie, 396 F.3d at

536. As we explain further below, the record does not compel a

finding that Wong has a well-founded fear of persecution.

The Attorney General may grant asylum to an alien in

removal proceedings if the alien establishes that he or she is a

“refugee” under the Immigration and Nationality Act (INA). 8

U.S.C. § 1158(a), (b). The INA defines “refugee” as

9

any person who is outside any country of

such person’s nationality . . . and who is

unable or unwilling to return to, and is unable

or unwilling to avail himself or herself of the

protection of, that 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 . . . .

Id. § 1101(a)(42)(A) (emphasis added). A person seeking asylum

bears the burden of demonstrating that he or she meets this

definition. Id. § 1158(b)(1)(B)(I).

Persecution includes “‘threats to life, confinement, torture,

and economic restrictions so severe that they constitute a threat to

life or freedom.’” Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d

Cir. 2007) (quoting Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.

1993)). However, persecution “‘does not encompass all treatment

our society regards as unfair, unjust or even unlawful or

unconstitutional.’” Id. (quoting Fatin, 12 F.3d at 1240); see

Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007) (noting

that “[a]busive treatment and harassment, while always deplorable,

may not rise to the level of persecution”); Lie, 396 F.3d at 536

(explaining that robberies motivated by ethnicity do not constitute

persecution); Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir.

2005) (determining that a requirement to change one’s name based

on ethnicity is not enough to establish a claim for persecution).

The well-founded fear of persecution standard has both a

subjective and an objective component. See Ghebrehiwot, 467

F.3d at 351. First, an applicant must show that his or her subjective

fear is genuine and second that “‘a reasonable person in the alien’s

circumstances would fear persecution if returned to the country in

question.’” Guo v. Ashcroft, 386 F.3d 556, 564-65 (3d Cir. 2004)

(quoting Zubeda, 333 F.3d at 469).

Wong’s subjective fear of persecution is not contested. As

noted above, Wong presented credible testimony and neither the IJ

nor the BIA questioned the genuine nature of her fear of

10

persecution. Rather, the key issue herein is whether the record

compels a finding that Wong’s fear is objectively reasonable and

that she has a well-founded fear of persecution.

An applicant can satisfy the objective prong of the well-

founded fear of persecution standard in two ways: by showing that

he or she “would be individually singled out for persecution” or by

“demonstrat[ing] that ‘there is a pattern or practice in his or her

country of nationality . . . of persecution of a group of persons

similarly situated to the applicant on account of race, religion,

nationality, membership in a particular social group, or political

opinion . . . .’” Lie, 396 F.3d at 536 (quoting 8 C.F.R. §

208.13(b)(2)(iii)(A)). As part of a pattern or practice claim, an

applicant must “establish[] his or her own inclusion in, and

identification with, such group of [similarly situated] persons such

that his or her fear of persecution upon return is reasonable.” 8

C.F.R. § 208.13(b)(2)(iii)(B).

Although the regulations do not define the meaning of a

“pattern or practice of persecution,” we explained in Lie that “to

constitute a ‘pattern or practice,’ the persecution of the group must

be ‘systemic, pervasive, or organized.’” 396 F.3d at 537 (quoting

Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004)). The BIA

has adopted the definition of “pattern or practice of persecution”

set forth in Lie, see In re A-M-, 23 I. & N. Dec. 737, 740-41 (BIA

2005), as have other courts. See, e.g., Wijono v. Gonzales, 439

F.3d 868, 874 (8th Cir. 2006) (“[T]he persecution of the group

must be ‘systemic, pervasive, or organized.’”) (quoting Ngure, 367

F.3d at 991); Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir.

2005) (noting that “persecution of a protected group must be

‘extreme,’” “[t]here must be a ‘systematic, pervasive, or organized’

effort to kill, imprison, or severely injure members of the protected

group, and this effort must be perpetrated or tolerated by state

actors”) (citations omitted); Woldemeskel v. I.N.S., 257 F.3d 1185,

1191 (10th Cir. 2001) (defining “pattern or practice of persecution”

as “‘something on the order of systematic or pervasive

persecution’”) (quoting Makonnen v. I.N.S., 44 F.3d 1378, 1383

(8th Cir. 1995); cf. Mufied v. Mukasey, 508 F.3d 88, 93 (2d Cir.

2007) (citing the need for further clarification of the standard and

remanding for BIA to “elaborate upon the ‘systemic, pervasive, or

11

organized’ standard”); Sahi v. Gonzales, 416 F.3d 587, 589 (7th

Cir. 2005) (noting that the BIA has not “explain[ed] the distinction

between mere harassment and outright persecution” and remanding

for BIA to define what constitutes religious persecution).

In addition, for purposes of a pattern or practice claim, “as

with any claim of persecution, violence or other harm perpetrated

by civilians against the petitioner’s group does not constitute

persecution unless such acts are committed by the government or

forces the government is either unable or unwilling to control.”

Lie, 396 F.3d at 537 (quotation marks omitted). Nor do “general

unrest and violence . . . support an asylum claim standing alone . .

. .” Konan v. Att’y Gen., 432 F.3d 497, 506 (3d Cir. 2005).

A.

Wong’s contention that the State Department reports and

other background materials document a pattern or practice of

persecution of Chinese Christians in Indonesia is without merit. It

is well-established that “[a]n alien may demonstrate that his/her

[well-founded fear of persecution] is objectively reasonable by

documentary or expert evidence about the conditions in a given

country.” Lusingo v. Gonzales, 420 F.3d 193, 199 (3d Cir. 2005).

The evidence in this record, however, does not support Wong’s

claim.

Although the 2003 and 2004 State Department reports

document ongoing harassment of Chinese Indonesians and isolated

incidents of anti-Christian violence, including the burning of seven

churches in 2003 and ten churches in 2004, the reports do not

indicate that such violence is widespread or systemic. In fact,

according to the 2004 Country Report, “discrimination and

harassment of ethnic Chinese Indonesians declined compared with

previous years.” A.R. 69. Moreover, the State Department reports

generally emphasize the steps taken by the Indonesian government

to promote religious, racial, and ethnic tolerance and to reduce

interreligious violence. The reports indicate that private parties,

12

not government officials, are the predominant cause of harassment

and violence.3

Indeed, other courts of appeals considering the same 2003

and 2004 Country Reports have rejected similar pattern or practice

claims of persecution on the grounds that violence against Chinese

Christians in Indonesia has declined, cooperation among groups

has increased, and government officials have neither acquiesced to

nor engaged in the persecution of Chinese Christians as a group.

See, e.g., Kho v. Keisler, 505 F.3d 50, 54, 58 & n.7 (1st Cir. 2007)

(finding “no ongoing pattern or practice of persecution against

ethnic Chinese or Christians in Indonesia” and citing the State

Department’s 2004 Country Report for the lack of evidence of

government action or inaction in anti-Chinese harassment); Tolego

v. Gonzales, 452 F.3d 763, 766 (8th Cir. 2006) (reviewing the 2003

and 2004 State Department Country Reports and rejecting

petitioner’s claim for withholding of removal based on a pattern or

practice of persecution against Chinese Christians in Indonesia).

Furthermore, although not relevant to the decision in this case,

more recent State Department reports from 2005 to 2007 document

similar or improved treatment of Chinese Christians in Indonesia.4

3

Wong is correct that the factual findings in Lie, which were

based on a now-outdated 1999 Country Report, are not dispositive

in this case. Yet, contrary to Wong’s contention, the BIA did not

rely on the factual findings in Lie in assessing the merits of Wong’s

claim. Rather, the BIA based its ruling that there was no pattern or

practice of persecution of ethnic Chinese Christians in Indonesia on

the record before it, which included the 2003 and 2004 State

Department reports, discussed above.

4

It is important to note that these recent reports are not part

of the record and do not therefore control our decision-making.

Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir. 2004) (“It is a

salutary principle of administrative law review that the reviewing

court act upon a closed record.”). Although other courts of appeals

have taken judicial notice of new country reports released after a

final agency determination, see, e.g., Pelinkovic v. Ashcroft, 366

F.3d 532, 540-41 (7th Cir. 2004), we have declined to do so. See

Berishaj, 378 F.3d at 330 (explaining that we have followed “the

13

Wong’s argument that the BIA did not apply the correct

legal standard is unpersuasive. Although the BIA did not expressly

cite the “systemic, pervasive, or organized” standard set forth in

Lie, 396 F.3d at 537, the BIA properly reviewed the record and

determined that violence was not sufficiently widespread and

incidents of harassment and discrimination were not sufficiently

severe to constitute a pattern or practice of persecution.

Moreover, Wong’s reliance on Sael v. Ashcroft, 386 F.3d

922 (9th Cir. 2004), and Eduard v. Ashcroft, 379 F.3d 182 (5th Cir.

2004), is unavailing. Contrary to Wong’s contention, the Court of

Appeals for the Ninth Circuit’s factual finding in Sael that the

Chinese were “scapegoats” in Indonesia is not “a persuasive

evaluation of country conditions,” as the decision was based on

now-outdated country condition information from 1998, 1999, and

2000. Pet’r Br. at 21.5 The Court of Appeals for the Fifth Circuit’s

clear command from SEC v. Chenery Corp., 318 U.S. 80 [] (1943),

that courts reviewing the determination of an administrative agency

must approve or reject the agency’s action purely on the basis of

the reasons offered by, and the record compiled before, the agency

itself”).

For informational purposes only, we note that the 2007

Country Report, for example, states that attacks against churches

in West and East Java, where Wong’s hometown is located, were

“less frequent” than in the past. The 2007 Religious Freedom

Report observes that while “extremist groups used violence and

intimidation to force eight small, unlicensed churches and one

Ahmadiyya mosque to close,” the government and the public

generally respected religious freedom. According to the report, the

government took steps to promote interfaith dialogue, and the

president gave a speech to reassure Chinese Indonesians “that their

rights were legally and constitutionally guaranteed.”

5

In addition, we have previously rejected the “disfavored

group” analysis in Sael, and we will not revisit that decision here.

See Lie, 396 F.3d at 538 n.4. In any event, the Court of Appeals

for the Ninth Circuit itself appears to have moved away from its

reasoning in Sael. See Lolong v. Gonzales, 484 F.3d 1173, 1180-

14

decision in Eduard is similarly unpersuasive. There, the court

based its finding of a pattern and practice of persecution on country

conditions in Indonesia in 2000. The factual determination as to a

pattern or practice claim must, however, be based on the most

current information in the record (in this case, the State Department

reports from 2004), not on outdated information from 2000. See

Sukwanputra v. Gonzales, 434 F.3d 627, 637 & n.10 (3d Cir. 2006)

(remanding for the BIA to consider petitioners’ pattern or practice

claim in light of the 2001 Country Report in the record and noting

that the Lie decision was not controlling because it was based on

an outdated 1999 Country Report).

Furthermore, as the Court of Appeals for the Seventh Circuit

observed in distinguishing Eduard, “each of the other circuits to

address the issue has declined to find a pattern or practice of

persecution of Christian Indonesians of Chinese descent.”

Kaharudin v. Gonzales, 500 F.3d 619, 624 n.4 (7th Cir. 2007)

(citing Lolong, 484 F.3d at 1180-81; Tolego, 452 F.3d at 766;

Tulengkey v. Gonzales, 425 F.3d 1277, 1281-82 (10th Cir. 2005));

see also Kho, 505 F.3d at 54-55; In re A-M-, 23 I. & N. Dec. at 741

(“We do not find . . . on the record before us, that the threat of

harm to Chinese Christians in Indonesia by the Government, or by

forces that the Government is unable or unwilling to control, is so

systemic or pervasive as to amount to a pattern or practice of

persecution.”). Accordingly, the record before us does not

compel a finding of a pattern or practice of persecution of Chinese

Christians in Indonesia.

B.

Wong’s remaining arguments that the BIA (1) incorrectly

introduced the concept of relocation within Indonesia and (2) failed

81 (9th Cir. 2007) (en banc) (acknowledging “history of ethnic and

religious strife” in Indonesia, including attacks on Chinese

Christians, but concluding that “the record supports the BIA’s

conclusion that Lolong has not shown that the Indonesian

government is unable or unwilling to control the perpetrators of

this violence”).

15

to consider the importance of her husband’s grant of asylum are

unpersuasive.

First, as the Government correctly notes, “[e]ven assuming

the Board ‘improperly introduced’ the issue of internal relocation,

. . . the issue was not determinative to the [IJ]’s findings of fact in

this case. . . . The [IJ] found, and the Board agreed, that [] Wong

did not establish a pattern or practice of persecution of Chinese

Christians in Indonesia.” Gov’t Br. at 17-18 n.3. As we explained

above, in order to establish a well-founded fear of persecution,

Wong needed to demonstrate an objectively reasonable fear of

persecution. Without evidence of a pattern or practice of

persecution of Chinese Christians in Indonesia or that she would be

individually singled out for persecution, Wong’s claim necessarily

fails.

Second, Wong’s argument that she should be granted

asylum because her husband, a Chinese Christian from the east end

of Java, faced similar experiences and was granted asylum in 2001

is also unpersuasive. Wong cites Gebremichael v. I.N.S., 10 F.3d

28 (1st Cir. 1993), for the proposition that “[t]he persecution of a

family member is a relevant concern for an asylum claim,

especially where it is feared on the same basis as an applicant.”

Pet’r Br. at 16. It is true that successful asylum applications by

family members can be relevant to a petitioner’s claim. See, e.g.,

Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir. 2006) (noting

relevance of persecution of family members, particularly where

“there is a high degree of factual similarity between the applicant’s

claim and those of his family members, and where his claim of

political persecution rests on that very familial relationship”).

Yet, as the Government correctly notes, Wong has not

provided any details as to her husband’s claim and we therefore

cannot assess its similarity or relevance to her claim. It is clear that

Wong “cannot rely solely on the persecution of [her] family

members to qualify for asylum or bootstrap” one case onto

16

another.6 Id. (citations and quotation marks omitted); see also

Surya v. Gonzales, 454 F.3d 874, 878 (8th Cir. 2006) (“[A]ttacks

on family members, absent a pattern of persecution tied to the

applicant, do not establish a well-founded fear of persecution; nor

do isolated acts of violence.”). Contrary to Wong’s contentions,

the grant of asylum to her husband does not assist Wong in

establishing her claim.

Furthermore, Wong’s siblings and mother still live in

Indonesia and practice Catholicism, undermining her claim to a

well-founded fear of persecution in Indonesia. See Setiadi v.

Gonzales, 437 F.3d 710, 714 & n.3 (8th Cir. 2006) (rejecting

petitioner’s claim to a well-founded fear of persecution where

Christian relatives remained unharmed in contentious part of

Indonesia and noting that “there are many possible areas in

Indonesia where [petitioner] and his family could relocate”);

Nikijuluw v. Gonzales, 427 F.3d 115, 122 (1st Cir. 2005) (noting

that petitioner’s Christian relatives lived peaceably in Indonesia

and determining that “[w]hile a reasonable person in the

petitioner’s position might fear encountering some private hostility

in a majority Muslim country on account of his Christian Protestant

beliefs, the record does not make manifest any objective basis for

a fear of persecution”).

Although we are sympathetic to Wong’s plight, harassment

and discrimination do not constitute persecution. The 2003 and

2004 State Department reports indicate that attacks on Chinese

Christians continued in certain areas, but violence was not

widespread, and the Indonesian government was taking steps to

control it. Moreover, as documented in the State Department

reports, the Indonesian government has shown a general

commitment to freedom of religion, as well as to ethnic tolerance.

Wong has not demonstrated an objectively reasonable fear of

6

Wong submitted an I-730 petition to qualify her as a

derivative asylee based on her husband’s asylee status, but she

concedes that we do not have jurisdiction over that petition, and we

will therefore not address it further.

17

persecution, and we hold that the BIA’s decision is supported by

substantial evidence.

V.

Wong also seeks relief in the form of withholding of

removal and protection under the CAT. These claims also fail.

To qualify for withholding of removal, a petitioner must

“establish a clear probability,” meaning “that it is more likely than

not, that he/she would suffer persecution.” Ghebrehiwot, 467 F.3d

at 351 (quotation marks omitted). Where, as here, a petitioner has

not met her burden of proof with respect to asylum, the petitioner

is also not eligible for withholding of removal. See, e.g., Guo, 386

F.3d at 561 n.4. Wong has not established a well-founded fear of

persecution and, as a result, also cannot show a “clear probability”

of persecution in Indonesia because of her status as a Chinese

Christian.

In addition, although Wong’s initial application for relief

included a CAT claim, Wong fails to challenge the BIA’s denial of

relief under the CAT, and we will therefore not consider her CAT

claim. See, e.g., Sukwanputra, 434 F.3d at 636 n.8.

VI.

For the foregoing reasons, we will deny Wong’s petition for

review.

18