Lolong v. Gonzales

Citation: Not availableDocket: 03-72384

Court: Court of Appeals for the Ninth Circuit; March 16, 2005; Federal Appellate Court

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Marjorie Konda Lolong petitions for asylum after her initial relief granted by Immigration Judge Miriam Hayward was reversed by the Board of Immigration Appeals (BIA). The Ninth Circuit Court reviews the petition, finding compelling evidence that Lolong has a well-founded fear of persecution due to her Chinese ethnicity if returned to Indonesia. The court highlights the significant discrimination and violence faced by ethnic Chinese in Indonesia, noting a historical pattern of "waxing and waning violence" against this group, especially during times of social unrest. The decision references a similar case, Sael v. Ashcroft, which documented severe violence against ethnic Chinese-Indonesians, including the deaths of over a thousand during the May 1998 riots. 

Despite some governmental overtures, systemic anti-Chinese discrimination and violence persist. Current instability in Indonesia suggests that severe violence against ethnic Chinese could recur. The court emphasizes that ethnic Chinese women and Christians are particularly vulnerable, facing racial and sexual harassment even in calmer times, with historical evidence of systematic rape during past riots. Additionally, the rise of Islamic fundamentalism and inter-religious conflict exacerbates the threat to ethnic Chinese communities. Lolong's departure from Indonesia followed her high school graduation, influenced by university admission quotas for ethnic Chinese, and coincided with the peak of anti-Chinese riots in 1998.

Lolong applied for asylum in December 1998 after learning of her friend's rape and her uncle's severe beating. In November 2000, Judge Hayward deemed her credible and established that her fear of future persecution due to her ethnicity was reasonable. However, the Board of Immigration Appeals (BIA) later vacated her asylum application in a 2-1 decision. Lolong subsequently filed a timely petition for review, and jurisdiction was established under 8 U.S.C. § 1252(a). The BIA's decision is reviewed for substantial evidence, and Lolong's testimony is accepted as true unless an explicit adverse credibility finding is made.

To qualify for asylum, Lolong must demonstrate she is a refugee, unable or unwilling to return to Indonesia due to persecution or a well-founded fear of persecution based on specific criteria such as race or political opinion. The source of persecution must be the government or entities it cannot control. A well-founded fear requires both subjective genuineness and objective reasonableness; Lolong met the subjective requirement through credible testimony expressing her fear of harm in Indonesia.

For the objective component, an applicant can show past persecution or a good reason to fear future persecution. The fear must be reasonable but does not require certainty— even a minimal likelihood (e.g., a ten percent chance) can suffice. Asylum applicants may base their fear on individualized or group risks. If Lolong is part of a mistreated group, she may not need to show individualized targeting if there exists a "pattern or practice" of persecution against that group. In similar cases, such as Sael, it was determined that ethnic Chinese-Indonesians are considered a disfavored group due to historical discrimination and violence, which supports Lolong's asylum claim.

A finding of a 'pattern or practice of persecution' against ethnic Chinese-Indonesians was not established due to two key statements: the Indonesian government’s promotion of ethnic tolerance and a marked decrease in racially motivated attacks after 1999. However, these statements were deemed largely irrelevant to Sael’s asylum claim, given substantial evidence of ongoing official discrimination and a historical trend of anti-Chinese violence during societal upheaval. Evidence presented by Lolong indicated persistent discrimination, such as government-imposed university admission quotas for ethnic Chinese, exclusion of Chinese culture in education, and bureaucratic discrimination. Despite some leniency towards Chinese language media, discriminatory laws remain. Reports of anti-Chinese violence are increasing and spreading to previously unaffected regions. Expert testimony highlighted attacks on Chinese and Christian cemeteries and noted that violence against ethnic Chinese often escalates during general unrest. Notably, an incident during Lolong’s hearing involved an attack on a Chinese New Year celebration and the disappearance of a Chinese human rights activist, illustrating the risks faced by this community. Riots, even when not initially racially motivated, frequently result in violence against ethnic Chinese due to their status as scapegoats. The expert witness underscored that unstable socio-political conditions could lead to further outbreaks of violence against ethnic Chinese-Indonesians, who are perceived as responsible for the country's economic issues. In Sael, it was determined that ethnic Chinese-Indonesians are 'significantly disfavored,' allowing asylum applicants from this group to demonstrate a lower threshold of particularized risk.

Lolong's new evidence of ongoing discrimination and violence, along with expert testimony indicating a likely recurrence of large-scale violence, reduces the burden of proof required to substantiate her fear of future persecution. This evidence may even imply a 'pattern or practice' of persecution against ethnic Chinese in Indonesia under 8 C.F.R. § 208.13(b)(2)(iii), potentially exempting her from demonstrating additional particularized risk. However, it is unnecessary to determine if such a pattern exists, as Lolong has sufficiently established her particularized risk for an asylum claim.

An asylum applicant can meet the particularized risk requirement by showing past experiences that connect her to the general persecution of her disfavored group, or by proving membership in a sub-group facing heightened risk. Membership in a disfavored group inherently poses some risk, which can be exacerbated by individual actions or by belonging to a sub-group at greater risk. The severity and prevalence of threats against the group lessen the need for individualized evidence of persecution.

Lolong qualifies as a member of a significantly disfavored group and two sub-groups at increased risk: she is an ethnic Chinese Christian woman. The rise of a militant Islamic movement in Indonesia has incited violence against ethnic Chinese Christians, fueled by deep-seated anti-Chinese prejudice. While the May 1998 anti-Chinese riots received considerable attention, the State Department noted earlier outbreaks of anti-Christian and anti-Chinese violence. Subsequent riots in September and November resulted in deaths, injuries, and destruction in ethnic Chinese communities. Lolong presented expert testimony and documentation of a militant Islamic movement that incites violence against Christians. Increasingly frequent attacks on ethnic Chinese Christians and their places of worship, alongside demonstrations threatening violence, have contributed to a pervasive climate of fear, leading Lolong's parents to reduce their church attendance due to threats made during protests.

The expert witness indicated that ethnic Chinese-Indonesians face an increased risk of persecution amid rising anti-Christian sentiment and violence, driven in part by a movement aimed at 'Islamisizing business' to exclude Chinese influence. A State Department report corroborated that the violence against Christians and Chinese is interconnected, citing underlying socioeconomic and political tensions between impoverished Muslims and relatively affluent ethnic Chinese Christians. 

The testimony highlighted a specific risk for ethnic Chinese Christian women, particularly during episodes of ethnic and religious violence, as evidenced by systematic attacks during the May 1998 riots, where numerous women were raped. Reports verified at least 85 cases of violence against women, including 66 rapes, during this period, with additional data suggesting the number of victims could be significantly higher due to underreporting. 

The violence against Chinese women during the 1998 riots reflects a broader pattern of abuse against Chinese and Christian women, with subsequent riots in May 2000 also resulting in similar assaults. Rape has been used as a tool of oppression with little prosecution, and even in quieter times, ethnic Chinese and Christian women remain at high risk for harassment and abuse. 

The government's argument against Lolong's fear of future persecution is challenged by the experiences of her friends, who were attacked and raped, reflecting a credible basis for Lolong's asylum claim as they are similarly situated to her.

Lolong is the only woman in her age group within her family, which helps explain why other family members have not faced similar attacks. Contrary to government claims, many of her relatives have experienced harm due to their ethnicity or religion. Lolong’s father was arrested and beaten during anti-Chinese purges in the 1960s, while her uncle suffered severe injuries from a robbery attempt, requiring facial surgery. Lolong’s parents' church has received bomb threats, infringing on their religious freedom. Although Lolong’s mother has not been physically harmed, her limited mobility and need for accompaniment suggest a loss of personal freedom, constituting a form of harm. The Board of Immigration Appeals (BIA) dismisses Lolong’s well-founded fear of future persecution despite acknowledging ongoing discrimination and violence against ethnic Chinese and Christians, arguing there is no evidence of the Indonesian government’s inability to control perpetrators. This conclusion lacks substantial support. Evidence of systemic discrimination and violence suggests the government is indeed unable to prevent such acts. Expert testimony indicates that the government’s authority is weak and its commitment to religious and ethnic tolerance is undermined by lower-level officials’ reluctance to protect religious minorities. Reports indicate that minority places of worship are often targeted, with government complicity or negligence in response to these attacks. There are also allegations of rogue military elements supporting militias that perpetrate ethnic and religious violence. The State Department has documented abuses by security forces, including shootings and sexual violence. During the hearings, Lolong’s claims were overshadowed by President Wahid’s public commitments to ethnic tolerance, despite his acknowledgment of the government's failure to maintain order and rule of law in a 2000 speech.

The Indonesian Minister of Defense acknowledged a lack of control over various army factions, and no legal action has been taken regarding the numerous rape crimes linked to the 1998 riots, despite confirmation from a government inquiry and human rights groups. Victims faced intimidation, with a notable case where a witness was murdered. The State Department reported the government’s failure to adequately investigate attacks on religious sites during the riots and noted that a fact-finding team had indicated military involvement in the violence, yet the government has not implemented its recommendations. Instead, a resolution was passed absolving the army of responsibility for pre-1999 crimes, and certain military officials implicated in the violence are regaining influence. Although some Indonesian officials have publicly committed to promoting ethnic equality, this does not counter the evidence of the government's inability to control those perpetrating ethnic and religious violence. The inability, regardless of financial factors, indicates a failure to protect vulnerable groups. Lolong has demonstrated she belongs to a significantly disfavored group with a particularized risk of future persecution, leading to the conclusion that her fear is well-founded. Consequently, the petition for review is granted, and the case is remanded for the Attorney General to consider granting asylum, without addressing other claims.