Sioe Tjen Wong v. Attorney General of U.S.

• Decision Date: 20 August 2008
• Docket Number: No. 06-3539.,06-3539.
• Citation: 539 F.3d 225
• Parties: SIOE TJEN WONG, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

539 F.3d 225

SIOE TJEN WONG, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 06-3539.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) March 11, 2008.

Filed: August 20, 2008.

Joseph C. Hohenstein, Esq., Orlow, Kaplan & Hohenstein, Philadelphia, PA, 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, Washington, DC, for Respondent.

Before FUENTES, CHAGARES, and ALDISERT, Circuit Judges.

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 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.

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.

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 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...