Hendra Ugahary Ngo v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1999
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HENDRA UGAHARY NGO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A96-262-922)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 21, 2009
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
Opinion filed: November 4, 2009
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OPINION
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PER CURIAM.
Hendra Ugahary Ngo, an Indonesian native and citizen, petitions for review
of a final order of the Board of Immigration Appeals (“the Board”), affirming the
Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal
and relief under the Convention Against Torture (“CAT”). For the following reasons, we

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will deny the petition.
The Immigration and Naturalization Service placed Ngo in removal
proceedings by the issuance of a Notice to Appear (“NTA”) on May 13, 2003. The NTA
charged Ngo with being removable pursuant to INA § 237(a)(1)(B), for remaining in the
United States without permission of the government. Ngo admitted the factual
allegations in the NTA and sought asylum, withholding of removal, and protection from
removal under the CAT. Ngo’s written application cited “mistreatment and pressure
from people in the government” over the 50 years that he lived in Indonesia as the basis
for relief. (A.R. at 432.) In particular, Ngo stated that he experienced discrimination in
language, schooling, culture, and government benefits. He also experienced assaults in
1974 and 1978, and property damage in 1983. Ngo testified that he and his family were
frequently threatened and harassed by Muslims both because of their Chinese ethnicity
and because they were practicing Christians. In 1992 and 1997, Ngo witnessed
discrimination and assaults against other ethnic Chinese. He also cited the May 1998
riots in which natives violently assaulted the persons and property of ethnic Chinese.
During this period, although his family found safe refuge, Ngo testified that his home was
damaged, his cars burned, and that he sustained injuries to his hand when it was hit with a
ten-pound brick. Ngo testified that during church bombings in November 1998, his
eyeglasses were broken. Worse, a man with whom he lived was murdered. In 1999,
churches were bombed, causing car glass to shatter and cutting Ngo. According to the

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IJ’s summary of Ngo’s testimony, Ngo’s church remained unharmed, as did his family.
At Ngo’s first hearing, the IJ determined that Ngo had missed the one-year
filing deadline for his asylum application. With regard to his withholding of removal and
CAT claims, the IJ found Ngo incredible based on an omission in his testimony as
compared to his written application. The IJ further found that Ngo failed to provide
independent corroborating evidence in support of his testimony. On February 25, 2005,
the Board affirmed the IJ’s finding with regard to the timeliness of Ngo’s asylum
application. With regard to Ngo’s remaining claims for relief, the Board found that the
sole omission relating to his son’s current fear of harm was not sufficient to support an
adverse credibility finding. The Board remanded the case to the IJ to give Ngo the
opportunity to present additional evidence.
On remand, the IJ again made an adverse credibility finding. The Board
dismissed Ngo’s appeal on March 4, 2008, without addressing the IJ’s adverse credibility
determination. The Board concluded that the alleged events did not rise to the level of
persecution on account of a protected ground or demonstrate that Ngo faced a probability
of future persecution if he returned to Indonesia. The Board also determined that Ngo
failed to show that he was more likely than not to face torture on his return to Indonesia.
Ngo timely filed a petition for review in this Court.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the
Board’s determinations if they are supported by reasonable, substantial and probative

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Ngo does not contest the BIA’s timeliness determination with regard to his asylum1
application.
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evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197
(3d Cir. 2008). Under the substantial evidence standard, “the BIA’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) (citing INS v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992)).
To be eligible for withholding of removal, petitioners must demonstrate that
“there is a greater-than-fifty-percent chance of persecution” in Indonesia based on one of
the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8
U.S.C. § 1231(b)(3)(C). For relief under the CAT, Ngo must demonstrate that it is more
likely than not that he would be tortured if removed to Indonesia. See 8 C.F.R.
§ 208.16(c)(2). The acts of torture must be inflicted “by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1).1
Ngo argues that the IJ overlooked critical evidence by concluding that he
failed to establish past persecution and fear of future persecution. Specifically, Ngo
claims that he has demonstrated eligibility for withholding of removal based on
aggregated incidents of past mistreatment in Indonesia.
Ngo testified that during the riots of 1998, an organization of extremists

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The only instance in which Ngo implicates the Government’s involvement is with2
regard to the discrimination he faced when it refused to issue him certain requested
documents. Such acts do not constitute persecution or torture.
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comprised primarily of native Muslims burned down the Christian church he attended.
Ngo also witnessed native Muslims burning down the homes of Chinese Christians near
his home in Jakarta. Ngo testified to a code that was used to intimidate and threaten
Christians, in which red and yellow colorings were painted on the homes of Chinese
Christians. Red coloring on the home signified that Christians lived in the home and
should be killed. A Christian home with yellow coloring indicated a female Christian
resided in the home and should be raped. Ngo stated that he was affected by these actions
because he had a female daughter and yellow coloring was placed on his house.
Ngo further testified that, when he lived in Indonesia he was often targeted
while driving his car. During one incident, unidentified assailants in a truck threw stones
at his car. In another incident, assailants “hit” Ngo while he was stopped at a traffic light
and his eyeglasses were broken. (A.R. at 72.) In addition to the physical incidents, Ngo
testified that the government discriminated against him by refusing to provide him with
documents because of his Christian religion.
Ngo’s claims of past persecution must fail because he has not shown that
the incidents he describes were committed by the government or by forces the
government is unable or unwilling to control. See Valdiviezo-Galdamez v. Att’y Gen.,2

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While the Court in Valdiviezo-Galdamez was referring to persecution in the context3
of an asylum claim, the same substantive criteria apply to determining persecution for
purposes of withholding of removal. Wakkary v. Holder, 558 F.3d 1049, 1053 (9th Cir.
2009).
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502 F.3d 285, 288 (3d Cir. 2007) (citation and internal quotation marks omitted). 3
Further, he has not demonstrated that the incidents he experienced were motivated by an
anti-Christian or anti-Chinese animus. See 8 U.S.C. § 1101(a)(42)(A) (requiring that
persecution be “on account of” a petitioner’s religion or ethnicity); see also Lie v.
Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005). Finally, although the incidents Ngo describes
were indeed unfortunate, they are not the type of harm recognized as constituting
persecution under our precedent. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)
(defining persecution as “threats to life, confinement, torture, and economic restrictions
so severe that they constitute a threat to life or freedom.”).
The Board’s rejection of Ngo’s claim to withholding of removal based on
fear of future persecution is supported by substantial evidence because he had not
presented evidence of his own persecution, or a pattern or practice of persecution of
ethnic Chinese or Christians in Indonesia. See Wong v. Att’y Gen., 539 F.3d 225, 232
(3d Cir. 2008). In order to show a well-founded fear of future persecution the applicant
must show a well founded subjective fear, “supported by objective evidence that
persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.
1997). The objective prong is satisfied either by showing that the applicant would be

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Ngo relies on Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), for the proposition that4
“the more serious and widespread the threat to the group in general, the less
individualized the threat of persecution needs to be.” Sael, 386 F.3d at 925 (internal
quotation marks and citations omitted). This reasoning is part of the Ninth Circuit’s
“disfavored group” rationale which we have declined to follow. See Lie v. Ashcroft, 396
F.3d 530, 538 n.4 (3d Cir. 2005).
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individually singled out for persecution, or that “ ‘there is a pattern or practice in his or
her country of nationality . . . of persecution of a group of persons similarly situated to the
applicant on account of race, religion, nationality, membership in a particular social
group, or political opinion.’ ” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006)
(quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)). Ngo provides no evidence to refute the finding
that the record reflects steps by the Indonesian government to control and diffuse violence
against Christians like Ngo. (A.R. at 51-53.). Thus, Ngo has failed to establish either4
past or a clear probability of future persecution based on one of the protected grounds.
See INS v. Stevic, 467 U.S. 407, 430 (1984); see also 8 C.F.R. § 1208.16(b).
The Board’s rejection of Ngo’s CAT claim also finds substantial support.
Ngo has not presented any evidence that upon his return to Indonesia he would be
tortured by the government or that the government would acquiesce in any torture of him
by third parties. Thus, Ngo is not eligible for protection under the CAT. Pierre v. Att’y
Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc).
For the foregoing reasons, we will deny Ngo’s petition.

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