Jemmi Taylor v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-2590
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JEMMI TAYLOR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A79 141 363)
Immigration Judge: Donald Vincent Ferlise
____________
Submitted Under Third Circuit LAR 34.1(a)
September 27, 2007
Before: McKEE, BARRY and FISHER, Circuit Judges.
(Filed: October 3, 2007 )
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Jemmi Taylor petitions for review of the final decision of the Board of
Immigration Appeals (“BIA”) ordering his removal from the United States. He claims

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The INS ceased to exist in 2003. Pursuant to the Homeland Security Act of 2002,1
the enforcement functions of the INS were transferred to the Department of Homeland
Security, Bureau of Immigration and Customs Enforcement. See Homeland Security Act
of 2002, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192.
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that the BIA, in affirming the decision of the Immigration Judge (“IJ”), erred by denying
his application for withholding of removal. We disagree and, for the reasons set forth
below, will deny the petition.
I.
As we write exclusively for the parties, who are familiar with the factual and
procedural history of this case, we will set forth only those facts necessary to our analysis.
Taylor is a native and citizen of Indonesia, of Chinese ethnicity and Christian religion.
He entered the United States on a visitor’s visa on April 13, 1998, and remained in the
United States after the visa expired. He was placed in removal proceedings on
November 10, 2002, when the Immigration and Nationality Service issued a Notice to
Appear. At his initial appearance in front of the IJ, Taylor conceded removability, but1
made applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”).
At a subsequent hearing, Taylor testified regarding his life in Indonesia prior to
1998. Taylor’s testimony focused primarily on his childhood. He testified that when he
was in the fourth grade some fellow students repeatedly took his money from him. The
following year, his fifth grade teacher permitted other students to twist his ear when he

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Taylor also testified that his tuition was higher than that of other high school2
students and that he was hazed in college. However, he admitted at the hearing that these
incidents did not appear to be related to his Chinese ethnicity or Christian religion.
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was unable to complete the assignment of singing a song in front of the class. Taylor also
testified that his high school refused to allow him to participate in a graduation ceremony
because he was improperly dressed. He stated that all of these incidents occurred because
he was a Chinese Christian. As supporting evidence, he testified that the high school
allowed another non-Chinese Indonesian student to participate in the graduation
ceremony despite being improperly dressed.2
In addition to the harassment he suffered as a student, Taylor testified that he was
robbed twice in 1995 and 1997. Finally, Taylor testified that during the 1998 presidential
campaign, a group of native Indonesians overturned his vehicle while he was stopped at a
red light. He testified that both of these incidents were motivated by his religion and
ethnicity.
Following Taylor’s testimony, the IJ issued its decision and ordered Taylor
removed to Indonesia. The IJ found that Taylor’s asylum application was untimely and
that he had not presented extraordinary circumstances which would excuse late filing. In
addition, the IJ denied Taylor’s application for withholding of removal and protection
under the CAT. While the IJ found Taylor’s testimony credible, he found that there was
not sufficient evidence to show past persecution or fear of future persecution should
Taylor return to Indonesia. The IJ also found that it was not more likely than not that

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It is unclear whether Taylor also petitions for review of the IJ’s determination3
regarding his application for protection under the CAT. However, if Taylor is making
such a petition, we will deny it. In order to receive protection under the CAT, a petitioner
must show that “it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). The torture must be inflicted
by the government or with the consent or acquiescence of a public official. Id. Taylor
has provided no evidence that would indicate that he would be tortured by the Indonesian
government if returned to Indonesia.
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Taylor would be tortured in Indonesia. The BIA affirmed the decision of the IJ after
Taylor filed an appeal. This timely petition for review followed.
II.
We have jurisdiction to review a final order of removal from the BIA pursuant to 8
U.S.C. § 1252(a)(1). Where, as here, the BIA has adopted a portion of the IJ’s decision,
we review the decisions of both the BIA and the IJ. Shehu v. Attorney Gen., 482 F.3d
652, 657 (3d Cir. 2007). Our review is for substantial evidence, upholding the decision of
the BIA and IJ if they are “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d
Cir. 1998) (internal quotation marks and citation omitted). “[T]he BIA’s [and IJ’s]
finding must be upheld unless the evidence not only supports a contrary conclusion, but
compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
III.
Taylor petitions for review of the IJ’s denial of his application for withholding of
removal. Pursuant to the Immigration and Nationality Act (“INA”), the Attorney3

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General may not remove an alien to his country of origin if 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.” 8 U.S.C. § 1231(b)(3)(A). In order to
qualify for withholding of removal under § 1231, an alien must show the threat by a clear
probability. INS v. Stevic, 467 U.S. 407, 430 (1984). “A clear probability means ‘more
likely than not.’” Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003) (quoting
Stevic, 467 U.S. at 429-30).
The IJ’s determination that Taylor failed to show that his life or freedom would be
threatened in Indonesia because of his race, religion or nationality by a clear probability is
supported by substantial evidence. Taylor points to isolated incidents of cruelty by school
children and two instances of what may have been unfair treatment by a teacher. While
these incidents were clearly unpleasant for Taylor, they do not rise to the level of “threats
to life, confinement, torture, and economic restrictions so severe that they constitute a
threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Taylor’s
testimony regarding the two robberies and the overturning of his car, likewise, do not rise
to the level of past persecution. Isolated criminal acts, even those that result in minor
theft and injury, cannot support a finding of past persecution. Lie v. Ashcroft, 396 F.3d
530, 536 (3d Cir. 2005).
Even if the incidents Taylor described were sufficiently severe to rise to the level
of persecution, Taylor’s application would still have to be denied. A petitioner may only

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be granted withholding of removal if he is likely to be persecuted “by the government or
forces the government is either unable or unwilling to control.” Abdulrahman v. Ashcroft,
330 F.3d 587, 592 (3d Cir. 2003) (internal quotation marks and citation omitted). Taylor
has set forth no evidence that the harassment he suffered was at the hand of the
Indonesian government.
Therefore, and for the reasons set forth above, we will deny Taylor’s petition for
review.

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