568 F. App'x 96
3rd Cir.2014Background
- Tan, an ethnic Chinese Christian from Indonesia, entered the U.S. in 2003 as a nonimmigrant visitor and overstayed.
- In 2008 DHS filed a Notice to Appear alleging removal under INA 237(a)(1)(B).
- Tan sought statutory withholding of removal under INA 241(b)(3), claiming past persecution and future risk in Indonesia.
- He testified to past attacks on him and family in 1985, 1990, and 1995, plus a 2003 incident affecting his wife's uncle.
- Supportive materials included medical affidavits, church membership, newspaper articles, Winters’ expert affidavit, and 2009 State Department reports.
- The IJ denied withholding in 2010, finding credible past persecution but rebutted presumption of future harm; Board affirmed in 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the presumption of future harm was properly rebutted | Tan argues the record shows ongoing risk; presumption not sufficiently rebutted. | Board/Government contends 2009 State Dept. reports show no systemic threat and rebut the presumption. | Yes; substantial evidence supports rebuttal of the presumption. |
| Whether Winters’ expert opinion was properly weighed | Winter's affidavit shows ongoing danger to ethnic Chinese in Indonesia. | Board properly considered Winters but gave it lesser weight; record supports reasoning. | Yes; Winters’ affidavit properly considered but not controlling. |
| Whether Tan was individually singled out or facing a pattern of persecution | Tan faced targeted persecution as a Chinese Christian; past harms indicate future risk. | Record shows no individual targeting and no systemic pattern; conditions improved. | Yes; Tan did not show individual targeting or systemic pattern. |
Key Cases Cited
- Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992) (clear probability standard for withholding of removal)
- Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (U.S. 1984) (definition of 'clear probability' and burden of proof)
- Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005) (test for individual persecution vs. pattern or practice)
- Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) (State Department reports as reliable country condition evidence)
- Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004) (caution against relying on generalized country improvements)