Saturday, August 23, 2008

Wong: Circuit Court Won't Overturn BIA Ruling On Pattern and Practice of Persecution of Chinese Indonesians in 2004

Wong v. Mukasey
No. 06-3539
Aug. 20, 2008

Judges Fuentes, Chagares, Aldisert.  Opinion by Judge Chagares.

One of the issues in this case is an issue that affects a large number of people -- whether there has been a pattern and practice of persecution against ethnic Chinese people in Indonesia.  The way this case came to the Third Circuit is that Immigration Judge Charles M. Honeyman and the BIA concluded that the evidence proves there is no pattern and practice of persecution.  The difficult legal standard on appeal is for Ms. Wong to prove that the BIA's analysis is not supported by substantial evidence.  Therefore, just because Ms. Wong lost this appeal does not mean that someone else can't win before an immigration judge in a new case.  Ms. Wong had to prove that under no circumstances could a judge conclude that there is no pattern and practice of persecution.

In this appeal, to prove a pattern or practice of persecution, the persecution must be systemic, pervasive, or organized.  Also, the harm must either be committed by the government or by forces the government is unable or unwilling to control.

To the degree that you try to rely on the 2003 and 2004 State Department reports on country conditions, those reports are not so overwhelmingly clear that it would always be improper for a court to conclude there is no pattern and practice.  The Third Circuit pointed out that the 2004 report said the level of harassment declined, that the government is trying to promote tolerance, and are primary done by private parties.

Some possible lessons are: (a) try to convince the judge and BIA in your case based on the evidence you can find because it will be hard for you or the government to overturn the BIA on appeal and (b) try to introduce evidence that is more convincing than the State Department reports.  (They tried in the Wong case, but the BIA did not find them convincing enough.)

For the petitioner was Joseph C. Hohenstein of Orlow, Kaplan & Hohenstein in Philadelphia, PA.  For the government were David V. Bernal, Lance L. Jolley, Ernesto H. Molina, and Jonathan Potter of OIL.


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