A-M

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 (BIA 2005)                                Interim Decision #3511




                             In re A-M-, Respondent
                                Decided May 9, 2005
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) Absent specific reasons for reducing the period of voluntary departure initially granted
   by the Immigration Judge at the conclusion of removal proceedings, the Board of
   Immigration Appeals will reinstate the same period of time for voluntary departure
   afforded to the alien by the Immigration Judge. Matter of Chouliaris, 

16 I&N Dec. 168

   (BIA 1977), modified.
(2) The respondent, whose asylum application was not filed within a year of his arrival in
   the United States, failed to demonstrate his eligibility for an exception to the filing
   deadline or for any other relief based on his claim of persecution in Indonesia, but the
   60-day period of voluntary departure granted to him by the Immigration Judge was
   reinstated.
FOR RESPONDENT: David Gruen, Esquire, Brooklyn, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Brian J. Kennedy, Assistant
Chief Counsel
BEFORE: Board Panel: HOLMES, Acting Vice Chairman; HURWITZ and MILLER,
        Board Members.
HOLMES, Acting Vice Chairman:

   In a decision dated July 7, 2003, an Immigration Judge denied the
respondent’s applications for asylum and for withholding of removal under
both section 241(b)(3) of the Immigration and Nationality Act, 

8 U.S.C. § 1231

(b)(3) (2000), and Article 3 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp.
No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,
1987; for the United States Apr. 18, 1988) (“Convention Against Torture” or
“Convention”). The Immigration Judge also granted the respondent 60 days
in which to voluntarily depart the United States, with an alternative order of
removal to Indonesia. The respondent has appealed the Immigration Judge’s
denial of his applications for asylum and withholding of removal and,
alternatively, requests that we reinstate the 60-day voluntary departure period.
The respondent’s appeal as to asylum and withholding of removal will be
dismissed, and the 60-day period for voluntary departure will be reinstated.

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         I. FACTUAL AND PROCEDURAL BACKGROUND
   The respondent is a native and citizen of Indonesia who entered the United
States on January 22, 2001, as a nonimmigrant visitor. The record reflects that
he filed an application for asylum on March 15, 2003. He was placed in
removal proceedings in April 2003 for remaining in the United States beyond
the time permitted. In his hearing before the Immigration Judge, the
respondent conceded that he was removable as charged, but again applied for
asylum and withholding of removal.

                                   II. ASYLUM
   An applicant for asylum who fails to file an asylum application within
1 year of arrival in the United States must demonstrate either “changed
circumstances which materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing an application.”
Section 208(a)(2)(D) of the Act, 

8 U.S.C. § 1158

(a)(2)(D) (2000); see also
section 208(a)(2)(B) of the Act; 

8 C.F.R. §§ 208.4

(a)(2), (4), (5),
1208.4(a)(2), (4), (5) (2004). There is no dispute that the respondent failed
to file his asylum application within 1 year of arrival in the United States. The
Immigration Judge found that he failed to demonstrate that he met either the
“changed circumstances” or the “extraordinary circumstances” exception to
the 1-year filing deadline. Section 208(a)(2)(D) of the Act. On appeal, the
respondent argues that the Immigration Judge erred in finding that he failed
to demonstrate changed country conditions justifying the late filing.1 See

8 C.F.R. § 1208.4

(a)(4)(i)(A) (including changes in conditions in the
applicant’s country within the meaning of “changed circumstances”).
   The respondent submits that the nightclub bombing in Bali, Indonesia, on
October 12, 2002, is a material change in country conditions that led to the
filing of his asylum application after the 1-year deadline. The Bali nightclub
bombing was undoubtedly a tragic event for nearly all Indonesians. The
respondent, however, has failed to demonstrate how this event materially
affected or advanced his asylum claim. See 

8 C.F.R. § 1208.4

(a)(4)(i)
(referring to “circumstances materially affecting the applicant’s eligibility for
asylum”).
   The respondent’s claim is based on his Chinese ethnicity and Christian
faith. He lived, and his family continues to live, in Surabaya on the island of
Java. The native population of the island of Bali is nearly 90% Hindu and
most of the victims of the Bali nightclub bombing were foreign tourists. See
1
  On appeal, the respondent has not raised the “extraordinary circumstances” exception to
the 1-year filing deadline. We agree with the Immigration Judge’s finding that the facts of
this case are not within the scope of the “extraordinary circumstances” exception. See

8 C.F.R. § 1208.4

(a)(5) (defining the term “extraordinary circumstances”).

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Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State,
Indonesia Country Reports on Human Rights Practices - 2002 2 (Mar. 31,
2003), available at http://www.state.gov/g/drl/rls/hrrpt/2002/18245.htm
(“Country Reports”). When considered in the context of his asylum claim, the
respondent has failed to demonstrate that either the Bali incident or other
recent developments have materially affected his eligibility for asylum.
Moreover, when asked at the hearing why he waited over 2 years after his
arrival to apply for asylum, the respondent answered: “To . . . pay my debt in
Indonesia.” We therefore agree with the Immigration Judge’s conclusion that
the respondent has not demonstrated that he met the changed circumstances
exception to the 1-year filing deadline.2

      III. WITHHOLDING OF REMOVAL UNDER THE ACT
   Although the respondent is ineligible for asylum, he may qualify for
withholding of removal to Indonesia if he demonstrates that his “life or
freedom would be threatened in that country” on account of one of the
protected grounds under the Act. Section 241(b)(3)(A) of the Act. If an
applicant for withholding of removal is found to have suffered past
persecution in the proposed country of removal on account of a protected
ground, it is presumed that his life or freedom would be threatened in the
future in the country of removal on the basis of the original claim. 

8 C.F.R. § 1208.16

(b)(1) (2004). An applicant who has not suffered past persecution
may demonstrate that his life or freedom would be threatened in a country if
he can establish that it is more likely than not that he would be persecuted in
that country on account of a protected ground. 

8 C.F.R. § 1208.16

(b)(2).
   In regard to past persecution, the respondent testified that he was subjected
to harassment and discrimination based on his Chinese ethnicity and Christian
religion since he was a young child. He described harassment by “ethnic”
Indonesian children, including name-calling and extortion of money. He
explained that, as an adult, he was charged higher fees than were normal for
some applications and services. He also referred to a problem in 1996 when
persons he identified as “ethnic” Indonesians threw rocks that shattered glass
he was transporting on the street. The respondent did not indicate that he
suffered any physical injury in this incident. The most recent event occurred
in May 1998 when “ethnic” Indonesians looted the respondent’s store.
   The respondent’s testimony provided little detail regarding the May 1998
looting incident. He did not mention this incident during his direct
examination. When his own counsel probed as to whether there were
2
   Alternatively, the Immigration Judge found that the respondent failed to demonstrate
either past persecution or a well-founded fear of persecution, as required to qualify for
asylum. As we agree with the Immigration Judge that the respondent is ineligible to apply
for asylum under the 1-year filing requirement, we do not address the merits of the asylum
claim.

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additional incidents on which he based his claim, the respondent indicated that
once, in 1996, he was mocked by ethnic Indonesians who were demanding
money from him and that he was sometimes charged excessive fees for
documents. When respondent’s counsel asked why he stopped working at his
business in 1998, the respondent answered, “The economic situation, the
dollar value declined and the economic crisis.” Respondent’s counsel then
specifically asked: “[D]uring 1998, were there any problems which happened
at your business other than just a general economic slowdown,” to which the
respondent replied, “Nothing else.” During follow-up questioning by the
Immigration Judge, the respondent testified that he had once been
hospitalized for 2 days after a cut from broken glass that occurred in 1998
when his shop was looted. The respondent did not refer to any other physical
injuries he has suffered and did not explain the extent of the financial loss
resulting from this incident.
   We agree with the Immigration Judge that the respondent failed to
demonstrate that he met the threshold level of harm for past persecution.3 The
May 1998 store-looting incident and the other instances of harassment or
discrimination do not rise to the level of harm sufficient to demonstrate past
persecution. See, e.g., Hoxha v. Ashcroft, 

319 F.3d 1179

 (9th Cir. 2003)
(finding that harassment, threats, and one beating did not constitute
persecution). We therefore affirm the Immigration Judge’s ultimate finding
that the respondent failed to demonstrate past persecution.
   An applicant for withholding of removal who has not suffered past
persecution may nevertheless qualify for relief if he demonstrates that his life
or freedom would be threatened in the future in the country of removal.

8 C.F.R. § 1208.16

(b)(2). The threat to life or freedom requirement may be
met by showing either (1) that he would likely be singled out individually for
persecution on account of a protected ground if returned to the country of
removal, or (2) that there is a pattern or practice of persecution of a group of
persons similarly situated to him on account of a protected ground and that he
is included in, or identified with, the persecuted group such that it is more
likely than not that his life or freedom would be threatened if he returned. 

Id.

   In assessing the likelihood of future threats to the respondent, we find it
significant that he remained in Indonesia for over 2 years after his store was
looted in 1998, and he described no additional incidents in which he was
harassed or persecuted during that time. In addition, the respondent’s spouse,
also of Chinese ethnicity and Christian religion, and their three teenage
children have remained in Surabaya, Indonesia, during the respondent’s stay
in the United States without any reported incidents of persecution.4 See Lie
3
  In evaluating the question of threshold level of harm for past persecution, we accept the
credibility of the respondent’s testimony concerning his experiences in Indonesia.
4
  The respondent testified that his wife and one of his children were victims of attempted
                                                                            (continued...)

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v. Ashcroft, 

396 F.3d 530, 537

 (3d Cir. 2005) (finding that a claim to fear of
future persecution in Indonesia based on Chinese ethnicity and Christian
religion was diminished when family members remained behind and did not
experience persecution). Although the respondent has experienced
harassment and discrimination based on ethnicity and religion, and such
problems continue to exist in Indonesia, he has not demonstrated that he
would likely be singled out individually for persecution were he to be returned
to Indonesia.
   The respondent asserts that there is a pattern or practice of persecution in
Indonesia against Chinese Christians and that he would be identified with this
group. We do not find, however, on the record before us, that the threat of
harm to Chinese Christians in Indonesia by the Government, or by forces that
the Government is unable or unwilling to control, is so systemic or pervasive
as to amount to a pattern or practice of persecution. See Lie v. Ashcroft,
supra, at 537 (stating that “‘pattern or practice’” means persecution of a group
that is “‘systemic, pervasive, or organized’” (quoting Ngure v. Ashcroft,

367 F.3d 975, 991

 (8th Cir. 2004))).5
   At his hearing the respondent submitted a number of articles that report on
incidents of religious and ethnic clashes in Indonesia over the last several
years. The most recent country conditions evidence, however, as reflected in
the 2002 State Department Country Report, indicates that incidents of harm
related to religious or ethnic strife generally involved fellow citizens rather
than the Government or Government agents, and that Government
acquiescence is not the norm. See Country Reports, supra, sec. 2.c, at 14,
(stating that “[p]olice and soldiers occasionally tolerated illegal actions against
religious groups by private parties,” but otherwise indicating governmental
support for religious freedom and tolerance); see also Lie v. Ashcroft, supra,
at 537 (noting that in order to be considered persecution, harm must be
“‘committed by the government or forces the government is either “unable or
unwilling” to control’” (quoting Abdulrahman v. Ashcroft, 

330 F.3d 587, 592

(3d Cir. 2003))).
   The same report states that the Indonesian Government “officially promotes
racial and ethnic tolerance.” Country Reports, supra, sec. 5.c, at 24.
Although the 2002 report refers to “instances of discrimination and
harassment” against ethnic Chinese, it does not describe persecution so
systemic or pervasive as to amount to a pattern or practice of persecution. See

4
    (...continued)
robberies, but he provided insufficient detail or supporting evidence from which it could be
inferred that these incidents were motivated by a protected ground under the Act.
5
  In Sael v. Ashcroft, 

386 F.3d 922, 929

 (9th Cir. 2004), the United States Court of Appeals
for the Ninth Circuit found no evidence of a “pattern or practice” of persecution of Chinese
Christians in Indonesia, but applied a lower level of individualized fear of persecution based
on a finding that Chinese Christians were a “disfavored group.”

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also Lie v. Ashcroft, supra, at 537 (relying on the 1999 Country Reports to
find that violence against Chinese Christians in Indonesia declined after 1998
and was not so widespread as to amount to a pattern or practice of
persecution). For these reasons we find that the respondent has not
demonstrated that he would likely be persecuted based on a pattern or practice
of persecution of Chinese Christians in Indonesia. We therefore agree with
the Immigration Judge’s finding that the respondent failed to demonstrate that
he meets the requirements for withholding of removal under section 241(b)(3)
of the Act.

                IV. CONVENTION AGAINST TORTURE
   In order to qualify for withholding of removal under the Convention
Against Torture, the respondent must demonstrate that if returned to
Indonesia, he would likely be subjected to harm amounting to torture within
the meaning of the Convention and that such harm would 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) (2004).
The respondent did not establish that he would likely be subjected to harm
amounting to torture under the Convention. Nor did his notice of appeal or
appellate brief identify any factual or legal error in the Immigration Judge’s
denial of withholding of removal. We therefore agree with the Immigration
Judge’s conclusion that the respondent failed to demonstrate that he meets the
requirements for withholding of removal under the Convention Against
Torture.

                       V. VOLUNTARY DEPARTURE
   At the conclusion of removal proceedings, the Immigration Judge granted
the respondent 60 days in which to voluntarily depart the United States, i.e.,
until September 5, 2003.6 The respondent requests that we reinstate the
Immigration Judge’s grant of 60 days in which to voluntarily depart in the
event that we dismiss his appeal. We requested supplemental briefing from
the parties on the appropriate period of voluntary departure.7
   Our long-standing rule, since Matter of Chouliaris, 

16 I&N Dec. 168

 (BIA
1977), has been to limit our grant of voluntary departure to 30 days when the
Immigration Judge initially grants a longer period of time. When we decided
6
  The Immigration Judge’s order of July 7, 2003, states that voluntary departure is granted
until August 6, 2003. Given the clear statement in the transcript and in the Immigration
Judge’s decision that voluntary departure would be granted until September 5, 2003, we
attribute the reference to August 6, 2003, to a clerical error.
7
    We acknowledge with appreciation both the supplemental brief provided by the
Department of Homeland Security (“DHS”) on this issue and the brief filed by the
respondent on the issues presented in this appeal.

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Chouliaris, however, there was no statutory or regulatory limit on the time for
voluntary departure. Consequently, Immigration Judges sometimes granted
lengthy periods of time in which to voluntarily depart. In Chouliaris, for
example, the Immigration Judge granted the respondent 5 months in which to
voluntarily depart because he had married a lawful permanent resident and
was awaiting approval of a pending visa petition that would have made him
potentially eligible for adjustment of status. Id. at 169. While his appeal was
pending before us, however, the visa petition was withdrawn. There was
therefore no longer any reason to reinstate the initial period of voluntary
departure afforded by the Immigration Judge. As we recognized in
Chouliaris, “The particular purpose for a lengthy grant may be fulfilled while
the case is before us on appeal, or it may no longer exist.” Id. at 170. We
therefore modified our earlier practice, which had been to reinstate the same
period of voluntary departure granted by the Immigration Judge, and replaced
it with the rule that we would limit our grant of voluntary departure to
30 days.
   The statutory framework for voluntary departure has significantly changed
since our decision in Matter of Chouliaris. In 1996, the Immigration and
Nationality Act was amended to limit the grant of voluntary departure
afforded at the conclusion of removal proceedings to 60 days. See Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C
of 

Pub. L. No. 104-208, § 304

(a)(3), 

110 Stat. 3009

-546, 3009-597; see also
section 240B(b)(2) of the Act, 8 U.S.C. § 1229c(b)(2) (2000). The concern
expressed in Matter of Chouliaris regarding prolonged periods of voluntary
departure has been largely resolved by this statutory ceiling on the period for
voluntary departure. We will therefore address the question of the appropriate
period of voluntary departure to be granted by the Board of Immigration
Appeals in removal proceedings when the Immigration Judge has granted a
specified period in which to voluntarily depart.
   We begin by emphasizing that the recent statutory and regulatory changes
have not altered the basic principle established in Matter of Chouliaris, supra,
that the timely filing of an appeal with the Board stays the execution of the
decision of the Immigration Judge during the pendency of the appeal and tolls
the running of the time authorized by the Immigration Judge for voluntary
departure.      See section 101(a)(47)(B)(i) of the Act, 

8 U.S.C. § 1101

(a)(47)(B)(i) (2000) (stating that an order of deportation becomes
“final” upon a determination of the Board affirming such order); section
240B(b)(1) of the Act (authorizing voluntary departure at the conclusion of
a removal proceeding). The implementing regulation confirms that in the
event the respondent files a timely appeal with the Board, “the order [of the
Immigration Judge] shall become final upon an order of removal by the Board
or the Attorney General, or upon overstay of any voluntary departure period
granted or reinstated by the Board or the Attorney General.” 8 C.F.R.


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§ 1241.1(f) (2004). The filing of an appeal with the Board automatically stays
execution of the Immigration Judge’s order. 

8 C.F.R. § 1003.6

(a) (2004).
These provisions assure that the respondent’s decision whether to appeal an
Immigration Judge’s decision will not be adversely affected by the potential
loss of the opportunity to voluntarily depart in the event of an unsuccessful
appeal.8
   When the Immigration Judge grants voluntary departure and specifies a
departure period such as 30 days, we lack jurisdiction to consider an appeal
of the length of voluntary departure granted by an Immigration Judge.

8 C.F.R. §1003.1

(b)(3) (2004). Conversely, we find no requirement or
convincing reason, under the current statutory and regulatory provisions, for
a blanket rule reducing the time period for voluntary departure to 30 days
when an Immigration Judge has granted 60 days in which to voluntarily
depart. Rather, unless there are reasons in a particular case for reducing the
period of voluntary departure initially granted in removal proceedings, we will
reinstate the same period of voluntary departure, within the 60-day statutory
limit, as initially granted by the Immigration Judge.9 We will therefore
reinstate the 60 days of voluntary departure afforded by the Immigration
Judge.
   ORDER: The respondent’s appeal of the denial of his applications for
asylum and withholding of removal is dismissed.


8
  The posting of a voluntary departure bond is a statutory condition precedent to ensure that
an alien departs within the time afforded. See section 240B(b)(3) of the Act. The
implementing regulation directs the filing of a minimum bond of $500 within 5 days of the
Immigration Judge’s order granting voluntary departure and specifies that failure to timely
post a voluntary departure bond results in the automatic vacation of the grant of voluntary
departure. 

8 C.F.R. § 1240.26

(c)(3) (2004). As the statutorily required bond must be posted
within 5 days of the Immigration Judge’s order, this condition is not tolled by the filing of
a notice of appeal with the Board.
   The DHS acknowledges that the respondent has posted the mandatory voluntary
departure bond and has complied with all other conditions set by the Immigration Judge as
a condition of voluntary departure. As the issue is not before us in this case, we do not
address the suggestion by the DHS in its brief that respondents should be required to submit
evidence on appeal showing that the voluntary departure bond was posted and that other
conditions of voluntary departure have been met before the Board orders reinstatement of
the period of voluntary departure afforded by an Immigration Judge.
9
  The DHS suggests in its brief that we should rely on Matter of Villegas Aguirre, 

13 I&N Dec. 139

 (BIA 1969), to hold that, assuming a properly filed appeal in removal proceedings,
the voluntary departure period granted by the Immigration Judge is tolled (i.e., does not
begin to run) until issuance of the Board’s decision resolving the alien’s appeal. As
discussed above, when we exercise our authority in removal proceedings to reinstate
voluntary departure granted by an Immigration Judge, we will reinstate the same period of
voluntary departure, within the 60-day statutory ceiling, as afforded by the Immigration
Judge.

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   FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart from
the United States, without expense to the Government, within 60 days from
the date of this order or any extension beyond that time as may be granted by
the district director. See section 240B(b) of the Immigration and Nationality
Act; 

8 C.F.R. §§ 1240.26

(c), (f) (2004). In the event the respondent fails to
so depart, the respondent shall be removed as provided in the Immigration
Judge’s order.
   NOTICE: If the respondent fails to depart the United States within the
time period specified, or any extensions granted by the district director, the
respondent shall be subject to a civil penalty of not less than $1,000 and not
more than $5,000, and shall be ineligible for a period of 10 years for any
further relief under section 240B and sections 240A, 245, 248, and 249 of the
Act, 8 U.S.C. §§ 1229b, 1255, 1258, 1259 (2000). See section 240B(d) of the
Act.




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