Tuesday, May 8, 2007
Asylum Rejection for Chinese Woman From Indonesia Upheld
By KENNETH OFGANG, Staff Writer
An ethnic Chinese woman who claims she would face persecution because of her ethnicity and Christian faith if forced to return to Indonesia is not eligible for asylum, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court, in an en banc decision, overruled an earlier panel and held that Marjorie Konda Lolong had proven that her fear was genuine but not that it was objectively reasonable.
Evidence shows that the government in the predominantly Muslim nation is willing and able to control the sporadic violence that still flares against the Chinese and Christian minorities, Judge Jay Bybee wrote for the court.
An immigration judge had sided with Lolong, who entered the United States as a student and applied for asylum after anti-Chinese riots in her homeland in 1998. The IJ cited evidence that Lolong’s family and friends had been caught up in the violence and said the government appeared unwilling and unable to control militant Islamist groups, in part because some members of the military were sympathetic to, or even members of, such groups.
A divided panel of the Board of Immigration Appeals disagreed, citing State Department reports and concluding that evidence of continuing, occasional outbreaks of violence did not support the conclusion that the government could not or would not protect minorities. The board, which granted voluntary departure, also noted that Lolong did not claim that she had been, or would be, personally targeted by Islamists.
The Ninth Circuit yesterday unanimously rejected arguments by the government that it lacked jurisdiction to review the BIA decision. But the court concluded, by a vote of 11-4, that the ruling was supported by substantial evidence.
In concluding that it had jurisdiction, the court overruled a 2004 decision holding that it could not review the BIA’s denial of asylum because the BIA could not issue final orders of departure and the appeals court could not grant review in the absence of such orders.
Bybee, noting the court’s constitutional concerns over cutting off what under current law would be the only available means of judicial review—a 2005 law bars district courts from hearing such cases under their habeas corpus jurisdiction—said the prior interpretation was “overly narrow.” The “conundrum,” he said, is best resolved by holding that where the IJ has ruled the alien removable, an “order of deportation” has been entered and the ensuing ruling by the BIA is subject to review by the court of appeals.
On the merits, Bybee wrote that the “fears common to ethnic Chinese Christian women generally,” including rape, rioting, and discrimination by courts and police, did not support an individualized determination that Lolong had an objectively reasonable fear of persecution.
“Lolong has provided nothing that suggests that her fears are distinct from those felt by all other ethnic Chinese Christians in Indonesia,” the judge wrote.
The opinion was joined by Chief Judge Mary M. Schroeder and Judges Pamela Ann Rymer, Andrew J. Kleinfeld, Michael Daly Hawkins, Barry G. Silverman, M. Margaret McKeown, Ronald M. Gould, Richard C. Tallman, Johnnie B. Rawlinson, and Carlos T. Bea.
Judge Sidney Thomas, dissenting, argued that “the BIA did not address the pivotal point of Lolong’s claim—that the Indonesian government, for all its good intentions, is unable to control anti-Chinese and anti-Christian elements.” The evidence, he wrote, supported the IJ’s conclusion that Lolong is eligible for asylum.
“The undeniable fact is that over a thousand Chinese Indonesians were killed, churches were burned, and Chinese-Christian women raped just prior to the time when Lolong asked for asylum,” the judge wrote. “By any objective measure, her specific fear of persecution was reasonable, and the BIA should have considered it on the merits of the evidence, under proper legal standards.”
Thomas was joined by Judges Harry Pregerson, Raymond C. Fisher, and Richard A. Paez.
The case is Lolong v. Gonzales, 03-72384.
Copyright 2007, Metropolitan News Company