Tan v. Atty Gen USA, (3rd Cir. 2006)

Status: Not Precedential

Docket Number: 05-3995

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Text

NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 05-3995

LILINA TAN, EKO BUDIYANTO TANATO,

Petitioner

v. A T T O R N E Y GENERAL OF THE UNITED STATES

Respondent

O n Petition for Review of an Order of the

Board of Immigration Appeals

(A g e n c y No. A95-838-171)

Submitted under Third Circuit LAR 34.1(a)

S e p te m b e r 26, 2006

B e f o re : RENDELL, CHAGARES, and ROTH, Circuit Judges

(F ile d : November 6, 2006

OPINION

ROTH, Circuit Judge: L ilin a Tan and her husband, Eko Tanata, petition for review of the order of the Board o f Immigration Appeals (BIA) affirming, without opinion, the Immigration Judge's (IJ) d e n ia l of their application for asylum, withholding of removal, and protection under the C o n v e n tio n Against Torture (CAT). We will deny the petition.

T a n , a native and citizen of Surabaya, Indonesia, as well as an ethnic Chinese C a th o lic , entered the United States on or about September 6, 2001 as a nonimmigrant visitor f o r pleasure. On October 24, 2002, the Immigration and Naturalization Service issued Tan a Notice to Appear, charging that she was subject to removal under Section 237(a)(1)(B) of th e Immigration and Nationality Act, 8U.S.C. § 1227(a)(1)(B), in that she was admitted into th e United States as a nonimmigrant under 8U.S.C. § 1101(a)(15) and remained for a time lo n g e r than permitted. Tan and her husband 1 appeared before the IJ on March 16, 2004, c o n c e d in g removability and seeking relief from removal by filing applications for asylum, w ith h o ldin g of removal, and protection under CAT, or, in the alternative, voluntary d e p a rt u re .

In support of her application for asylum, Tan filed a sworn statement describing her e x p e r ie n c e s in Indonesia. According to her statement, as well as her testimony before the IJ, T a n indicated that she and her family were the subject of ridicule, harassment, and physical a tta c k s by the native Indonesian people due to their Chinese descent. In particular, Tan alleg ed that she and her husband, in their official leadership positions in their village, were b la m e d for the problems experienced by the native Indonesians. Additionally, Tan discussed th e riot that erupted at the Catholic school attended by her children, the fire that was set to f if te e n churches in Surabaya, and the destruction of the Chinese bank at which her husband w o rk e d . On a personal level, Tan explained that she was robbed at knife-point by two native In d o n e sia n s and that her aunt's family was killed in a fire set to their home. In operating her re sta u ra n t in Surabaya, Tan alleged that she obtained her license only with the assistance of h e r native Indonesian friend. Even then, she was forced to pay a higher rent than s u rro u n d in g businesses and when police officers ate at her restaurant, they refused to pay for th e i r meals.

O n March 16, 2004, the IJ denied Tan's application for asylum, withholding of re m o v a l, and protection under CAT, and ordered that both Tan and her husband voluntarily d ep art the United States. On July 28, 2005, the BIA affirmed, without opinion, the IJ's d e c is io n . A timely petition for review followed, in which the petitioner seeks relief from the d e n ial of her application for asylum and withholding of removal.2 W e have jurisdiction to review final orders of the BIA under § 242(a) of the Im m ig ra tio n and Nationality Act, 8U.S.C. § 1252 (2005). Where, as here, the BIA affirms th e IJ's decision without opinion, we review the IJ's decision as the final agency d eterm inatio n . Konan v. Attorney General, 432 F.3d 497, 500 (3d Cir. 2005).

P u r s u a n t to 8U.S.C. § 1158(b), the Attorney General may grant asylum to an alien w h o demonstrates that she is a refugee, which is defined as a "person unable or unwilling to r e tu r n to the country of that person's nationality or habitual residence because of past p e rs e c u tio n or because of a well-founded fear of future persecution on account of his race, re lig io n , nationality, membership in a particular social group, or political opinion." Gao v. A s h c r o f t, 299 F.3d 266, 271-72 (3d Cir. 2002). To be eligible for asylum on the basis of past p e rse c u tio n , an alien must establish the following: "(1) an incident, or incidents, that rise to th e level of persecution; (2) that is `on account of' one of the statutorily protected grounds; a n d (3) is committed by the government or forces the government is either `unable or u n w illin g ' to control." Id. at 272 (quoting Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2 0 0 0 )). Likewise, to be eligible for asylum based on a well-founded fear of future p e rse c u tio n , an alien must establish both that her fear is genuine and that "a reasonable p e rs o n in her circumstances would fear persecution if returned to her native country." Id. at 272.

W h e th e r the alien has demonstrated either past persecution or a well-founded fear of f u tu re persecution is reviewed under the substantial evidence standard, which grants sig n if ica n t deference to the IJ's determinations. Id. As such, the IJ's factual findings will b e upheld when they are grounded in evidence in the record and supported by specific re a so n in g . Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003). Likewise, reversal o f such findings is permitted only when the record evidence "would `compel' a reasonable f a ctf in d e r to make a contrary determination." Id.

In this instance, substantial evidence supports the IJ's determination that Tan failed to demonstrate past persecution or a well-founded fear of future persecution if returned to In d o n e sia . On appeal, Tan points to a number of incidents that, according to her, constituted p a st persecution and generated a fear of future persecution, all of which were included in her af fid av it and testified to at the hearing before the IJ on March 16, 2004. In denying Tan's p e titio n for asylum, the IJ considered these incidents and determined that they did not amount to past persecution or a well-founded fear of future persecution. For instance, the IJ noted th a t many of the incidents, including Tan's testimony regarding the discriminatory way in w h ic h businesses are licensed in Surabaya, the burning of fifteen churches, and the fire set to her aunt's home, were not substantiated with any documentary evidence. In the same way, the IJ concluded that many of the other incidents referenced by Tan could be viewed as mere a c ts of lawlessness rather than acts of persecution. For instance, any evidence of native In d o n e sia n hostility towards Tan and her husband could easily arise from their official role a s leaders in the village.

U ltim a tely, this is not a case of failure to consider evidence in the record. Indeed, in h er brief, Tan does not point to any evidence that the IJ failed to consider. Rather, the IJ c o n c lu d e d that the evidence presented to him did not amount to past persecution or a wellf o u n d e d fear of future persecution if Tan returned to Indonesia. Because such conclusions w e r e based on the evidence in the record and were supported by specific reasoning, they must b e upheld under the substantial evidence standard of review.3 We are not compelled to make a finding contrary to that of the IJ. Therefore, we will deny the petition for review.

1 Husband-petitioner, Eka Tanata, was considered for asylum as a derivative of his w if e 's application, and, like his wife, was also considered for voluntary departure.

2 On appeal, Tan has not raised any argument with respect to the denial of her claim s e e k in g protection under CAT. Absent extraordinary circumstances, an appellant must p re se n t an argument in support of each issue raised on appeal or such issues are deemed w a iv e d . Lie v. Ashcroft, 396 F.3d 530, 532 (3d Cir. 2005). As such, we deem her appeal o f the denial of protection under CAT waived.

3 Because Tan has not established a well-founded fear of persecution for asylum p u rp o s e s, she also has not met the more rigorous standard of eligibility for withholding of rem o v al. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).