Fnu Moeljono v. Attorney General of the United States

Hon. Arthur L. Alarcón, Senior Judge, United States*
Court of Appeals for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-4176
FNU MOELJONO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A96-203-942)
Immigration Judge: Hon. Charles M. Honeyman
Submitted Under Third Circuit LAR 34.1(a)
April 14, 2008
Before: SLOVITER, JORDAN and ALARCÓN, Circuit Judges*
(Filed: April 14, 2008)
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OPINION

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SLOVITER, Circuit Judge.
Fnu Moeljono petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming the decision of the Immigration Judge (IJ), denying him
withholding of removal and protection under the United Nations Convention Against
Torture (CAT). For the following reasons, we will deny Moeljono’s petition for review.
I.
Moeljono is a citizen of Indonesia of Chinese ethnicity, who arrived in the United
States as a non-immigrant visitor on June 8, 2001, with authorization to stay through
December 7, 2001. His stay was extended to June 7, 2002, but he remained in the United
States beyond that date. After he received a Notice to Appear before an IJ, Moeljono
filed an application for asylum and withholding of removal. Moeljono’s application was
based on his race and religion. He alleged that because of his Chinese ethnicity he had
been harassed by schoolchildren when he was young, and was charged higher than normal
fees for an identification card. He also cited fears of persecution based on the Indonesian
riots of 1998 that targeted Chinese citizens and business owners, leading to the closure of
stores owned by his relatives and the burning of churches in Chinese neighborhoods.
At the immigration hearing, Moeljono acknowledged that he exceeded the one-
year deadline to apply for asylum, and requested that the application be considered as
seeking relief from withholding of removal and protection under the CAT. After hearing
Moeljono’s testimony that he feared the aforementioned incidents in Indonesia, the IJ

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denied Moeljono’s application, concluding that he presented no evidence that established
a clear probability of persecution or the likelihood of torture. On appeal, the BIA adopted
and affirmed the IJ’s decision.
II.
We review withholding of removal and CAT claims under the substantial evidence
standard and do not disturb the IJ’s credibility determination and findings of fact if
“‘supported by reasonable, substantial and probative evidence on the record considered as
a whole.’” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003) (quoting
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)).
An alien may not be removed to the designated country “if the Attorney General
decides that the alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). Withholding of removal requires a “clear
probability” of persecution. Toussaint v. Attorney Gen., 455 F.3d 409, 413 (3d Cir.
2006). The petitioner has the burden of demonstrating that persecution will be
“committed either by the government or by forces that the government is either unable or
unwilling to control.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). Where
violence is “primarily wrought by fellow citizens and not the result of governmental
action or acquiescence,” there is no pattern of persecution sufficient to support the
granting of withholding of removal. Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir. 2005)

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The definition of torture can be found at 8 C.F.R. §1
1208.18(a)(1).
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(holding that evidence of anti-Chinese violence in Indonesia did not support the
petitioner’s claim that persecution would result from removal). Similarly, to obtain relief
under the CAT, a petitioner must establish that “it is more likely than not” that s/he will
be tortured upon removal to the designated country. Sevoian v. Ashcroft, 290 F.3d 166,1
174-75 (3d Cir. 2002).
III.
Moeljono failed to carry his burden of demonstrating a clear probability of
persecution or the likelihood of torture. His allegations of harassment as a school-aged
child do not substantiate his claims; nor does reference to the generalized animosity
toward ethnic Chinese in Indonesia suggest a clear probability of persecution. To that
end, the IJ correctly applied our precedent in Lie, concluding that such discrimination did
not necessitate withholding of removal or protection under the CAT. Moeljono also
points to the riots of 1998 which led to the closure of his family’s businesses to support
his petition. This evidence failed to establish an individualized risk of persecution, nor
did it prove any act of the government that could potentially give rise to the need for
protection under the CAT. See Abdille v. Ashcroft, 242 F.3d 477, 492-95 (3d Cir. 2001).
Therefore, the IJ did not err in concluding that Moeljono had not established the evidence
necessary for a grant of withholding of removal or protection under the CAT.

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IV.
We conclude that substantial evidence supports the IJ’s denial of removal of
withholding and protection under the CAT. Accordingly, we deny the petition for review.
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