Tolego v. Gonzales

• Decision Date: 26 June 2006
• Docket Number: No. 05-3514.,05-3514.
• Citation: 452 F.3d 763
• Parties: Jerry TOLEGO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 763

452 F.3d 763

Jerry TOLEGO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.

No. 05-3514.

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2006.

Filed: June 26, 2006.

Gregory S. Bachmeier, Minneapolis, MN, for appellant.

Roger A. Keller, Jr., Asst. U.S. Attorney, St. Louis, MO, for appellee.

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

MURPHY, Circuit Judge.

Jerry Tolego, a native citizen of Indonesia, entered the United States illegally in December 2000. He filed for asylum on March 18, 2003, claiming that he had suffered past persecution on account of his ethnicity and religion and that he feared future persecution and torture if returned. The immigration judge (IJ) found his asylum claim time barred and denied his requests for withholding of removal and protection under the Convention Against Torture. Tolego appealed that decision to the Board of Immigration Appeals (BIA) which affirmed, and Tolego now petitions this court for review. We deny the petition.

Tolego is ethnic Chinese but was born in Indonesia. He is also a practicing evangelical Christian, and his Indonesian identity card identifies him as Christian. He applied for a non-immigrant visa in December 1999 and again in August 2000, but both applications were denied. He entered the United States in December 2000 with a false passport, and on March 18, 2003 he filed an application for asylum withholding of removal, and protection under the Convention Against Torture, alleging that he had been persecuted in Indonesia because he was a Chinese Christian. The government began removal proceedings on July 23, 2003, and a hearing was held shortly thereafter. The testimony of Tolego and the numerous exhibits filed with the IJ provide the factual background for his claim.

Tolego lived in Bekasi, Indonesia from 1991 until his illegal entry into the United States. In Indonesia he worked as a salesman and took trips to different parts of the country on account of his employment. In July 1996 Tolego was driving in Jakarta in front of the Christian University when his car was stopped by a group of thirty to forty people who asked him whether he was Chinese or Christian. He gave no reply and was subsequently punched in the face. He sought treatment for this injury at home for he feared that he would not be safe at the hospital. He also did not report the incident to the police since they had failed to investigate such incidents in the past. Tolego admitted that this was the only physical harm he suffered while in Indonesia and that he had made additional trips to Jakarta after the 1996 incident. While he lived in Bekasi, Tolego belonged to the Rengasdenkloak Pentecostal Church, an evangelical Christian church. In 1997 his pastor Reinhard Lakawa told him not to go to the church because Muslims had burned it, as well as nearby Chinese owned businesses. The Indonesian government rebuilt the church within six months, and a police station is now located nearby.

The pastor and associate pastor of the church Tolego attends in Minneapolis supported his asylum application. Pastor Dan Peterson submitted a letter which spoke generally about the persecution of Christians in Indonesia and more specifically stated that Chinese Christians are the most threatened group and that attacks on Christian churches have increased from year to year. Associate pastor Erik Ekel submitted a similar letter, and a 2003 International Christian Concern Country Profile indicated that Indonesia is 88% Muslim and 8% Christian with tension between these groups throughout the country. On the other hand, the State Department 2003 Country Report stated that relations between Muslims and Christians have improved and noted that the groups have worked together to rebuild many of the burned churches and to protect them from future violence. Although a State Department travel warning in the same year described hostilities that had broken out between the Indonesian military and an armed militia, the Free Aceh Movement (GAM), the 2003 Country Report concluded that this conflict "has little to do with religion, and much to do with economic and historical grievances." Finally, the 2004 Country Report documented the decline in the number of church burnings from twenty to seven.

Tolego has no family in the United States. His parents are also practicing Christians and have lived in Indonesia their entire lives, as have his two brothers Rafli and Yopi. Tolego received a letter from Rafli in January 2004, which complained that Muslims constantly terrorized and intimidated Chinese Christians and that he had to move around in the region continuously to avoid harm. When Tolego was asked if any of his family had been physically harmed, he answered not that he had heard.

The IJ denied Tolego's application on October 18, 2004. He found Tolego's asylum claim time barred because it had not been filed within one year after entry into the United States as required by statute. The IJ also denied withholding of removal after finding that although Tolego was credible, he had not shown a clear probability of persecution if returned to Indonesia. Tolego's request for protection under the Convention Against Torture was denied because the IJ found no evidence that the Indonesian government had committed...