Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit

11-4-2003

Lauw v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4225

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Recommended Citation "Lauw v. Atty Gen USA" (2003). 2003 Decisions. Paper 145. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/145

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 02-4225 ________________

HARIYANTO SETIAWAN LAUW, Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On a Petition For Review of an Order of the Board of Immigration Appeals Agency No. A72-351-732

__________________________

Submitted Under Third Circuit LAR 34.1(a) September 4, 2003

Before: SLOVITER, NYGAARD AND ROTH, CIRCUIT JUDGES

(Filed: November 4, 2003) _________________

OPINION _________________

ROTH, Circuit Judge.

Petitioner Hariyanto Setiawan Lauw, an ethnic Chinese and Christian native and

citizen of Indonesia, timely petitions for review of a final order of removal issued against him by the Board of Immigration Appeals on October 23, 2002. Lauw was admitted to

the United States in August 1999 as a non-immigrant visitor and remained without

authorization. As such he is removable to Indonesia under section 237(a)(1)(B) of the

Immigration and Nationality Act (“INA”), 8 U.S.C § 1227(a)(1)(B). The Board’s order

affirmed an immigration judge’s decision denying Lauw’s application for asylum,

withholding of removal, and protection under the Convention Against Torture. We have

jurisdiction under INA § 242(a)(1),

(a)(1).

We will deny the petition for review. Pursuant to INA § 208(a),

(a) (West 1999), the Attorney General may, in his discretion, grant asylum to

individuals who are "refugees" within the meaning of

(a)(42)(A). A

"refugee" includes any person who is unable or unwilling to return to his 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. Id.; Abdille v.

Ashcroft,

(3d Cir. 2001).

To be entitled to withholding of removal to a particular country, an applicant must

prove that his “life or freedom would be threatened in that country because of [his] race,

religion, nationality, membership in a particular social group, or political opinion.”

(b)(3). To prevail on a claim under the Convention Against Torture an

applicant must “establish that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.”

(c)(2) (2002).

Lauw contends on appeal that he suffered past persecution in Indonesia on the basis of his Chinese ethnicity, and that the Board erred by failing to properly credit the

violence Lauw and other ethnic Chinese suffered during the 1998 riots in Indonesia, the

fact that these events are documented in a United States Department of State report, and

his claim that the Muslim government of Indonesia’s prohibitions against the public

practice of Chinese traditions establishes the government’s unwillingness to protect him.

He testified about several incidents that he or his family witnessed or experienced,

including that, during the May 1998 riots, economically disadvantaged M uslim

Indonesians attacked the ethnic Chinese community by stoning and burning their

businesses and houses. As a result of the attacks, the windows of Lauw’s family’s home

and furniture store were broken and some of the furniture inside of the store was

damaged. He also was robbed once by Muslims while he was in college. He also alleged

widespread discrimination against ethnic Chinese in Indonesia.

Under Immigration & Naturalization Serv. v. Elias-Zacarias,

(1992), we can reverse the Board’s finding that Lauw did not establish a well-founded

fear of present or future persecution only if the evidence compels a reversal. We hold

that the Board properly concluded that the evidence taken as a whole was insufficient to

establish that Lauw’s experiences constituted persecution with the meaning of the

Immigration and Nationality Act. From May 13 to M ay 15, 1998, political and economic

instability in Indonesia led to wide-scale rioting and attacks on ethnic Chinese, who play a

major role in Indonesia’s economy. The concept of persecution, however, is defined

narrowly. “If persecution were defined ... expansively, a significant percentage of the world’s population would qualify for asylum in this country – and it seems most unlikely

that Congress intended such a result.” Fatin v. Immigration & Naturalization Serv.,

(3d Cir. 1993). The property damage experiences shared by Lauw and

other ethnic Chinese during the 1998 riots in Indonesia, because they are attributable to

economic chaos rather than to systematic persecution, do not by themselves establish a

claim of past persecution.

Nothing else in the record, including the mugging incident and the general

allegations of discrimination against ethnic Chinese by the Muslim majority in Indonesia,

supports a claim of past persecution. Nor is there a factual basis in the record to support

Lauw’s asserted fear of future persecution.

(b)(1) (presumption of well-

founded fear of future persecution applicable only where applicant makes showing of past

persecution). It is clear from the record that since the riots Lauw’s family has lived in the

same area without incident. Lauw’s failure to establish a well-founded fear of

persecution for purposes of asylum forecloses relief in the form of withholding of

removal. See Immigration & Naturalization Serv. v. Cardoza-Fonseca,

(1987). Finally, nothing in the record establishes a factual basis for a grant of

relief under the Convention Against Torture.

We will deny the petition for review. TO THE CLERK:

Please file the foregoing opinion.

/s/ JANE R. ROTH Circuit Judge