Sunarto Ang v. Holder , 723 F.3d 6 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1684
SUNARTO ANG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Wei Jia and Law Office of Wei Jia on brief for petitioner.
Janette L. Allen, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Principal Deputy Assistant Attorney General, Civil
Division, and Stephen J. Flynn, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
July 10, 2013
HOWARD, Circuit Judge. Sunarto Ang and his wife Tuti
Erlina, who are citizens of Indonesia, seek review of a final order
from the Board of Immigration Appeals (BIA). Because no record
evidence compels a different result than that espoused by the
Immigration Court and upheld by the BIA, the petition for review is
denied.
I. Background
Ang and Erlina entered the United States on March 29,
2007 as nonimmigrant visitors with authorization to remain in the
United States until September 28, 2007. They overstayed their
visas, and in late 2007 they applied to the Department of Homeland
Security (DHS) for asylum. In May 2008, DHS filed Notices to
Appear with the Immigration Court, charging Ang and Erlina with
removability under Section 237(a)(1)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(1)(B), for remaining in the
United States for longer than permitted. Ang and Erlina conceded
removability, renewed their application for asylum, and applied for
withholding of removal and protection under the Convention Against
Torture. They both testified before an Immigration Judge (IJ), who
found their testimony credible. We summarize this testimony below.
Ang was born in Indonesia to parents of Chinese
ethnicity, and he followed Buddhism until his adulthood. Ang's
father owned a store where indigenous Muslims would demand money.
If Ang's father did not pay them, they would rummage the store. In
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1982, these Muslims beat Ang's father. Because of this beating,
Ang's mother fell sick.1 Ang's father reported the incident to the
authorities, but "the police didn't come."
In 1988, Ang converted to Christianity. That same year
he met Erlina, and they were married in 1990. Because Erlina was
Muslim, Ang converted to Islam, but he was only "pretending" so
that he could marry her. During their marriage, Ang and Erlina
attended church together. Although they were not baptized at the
time, they considered themselves Christians. Since 1988, Ang has
traveled outside of Indonesia and returned at least three times,
following advice from friends that such travel would make it easier
to obtain a visa to enter the United States. Erlina joined Ang on
one of these trips, to Malaysia. Ang also traveled alone to
Australia, but he did not apply for asylum there because he "didn't
feel Australia was the right place for [him]." Ang and Erlina have
visas to enter South Korea as well, but they did not travel there.
In 1998, Ang and his father both owned stores that were
burned in an anti-Chinese riot in Jakarta. Ang tried to flee on a
motorcycle, but the mob stopped him. They took off his helmet and
said, "Hey, this is Chinese. Finish him. Finish him." Ang was
stabbed in the lower back and pretended to be unconscious. Later,
a man helped Ang to the hospital, where he received stitches. Ang
1
According to Ang's application for asylum, his mother died
a month later.
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notified the police, who gave him a written report and later told
him that they could not find the perpetrators. Ang's father was so
shocked by the riots that he died about seven months later. Since
1998, nothing has happened to Ang or his family. His family
remained in Indonesia after he left.
Erlina's family found out that she had converted to
Christianity. In December 2006, shortly after their discovery, her
family members beat, stepped on, and slapped Erlina, calling her an
"undevoted child." Erlina's Muslim neighbors saw the incident but
did nothing. Erlina did not call the police because she thought it
would be wasteful, given that the majority of Indonesia's
population is Muslim.
Ang and Erlina entered the United States in March 2007.
They initially settled in Philadelphia and eventually moved to New
Hampshire. Erlina's family calls her to threaten her into
returning to Islam, and they often say that they want to kill her.
Erlina feels that she will not get protection from the police if
she returns to Indonesia because the police are sometimes afraid of
Muslim groups. One of these groups, to which her family belongs,
is Mohammed Deif, which terrorizes Christians.
After hearing this testimony, the IJ rejected Ang and
Erlina's application for asylum, stating that the 1982 beating of
Ang's father and the 1998 riot did not amount to persecution and
did not involve government officials. The IJ said that the riot
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was not a "persecutory incident targeting [Ang]" because he
"happened to get caught up in the riot." The IJ also held that
Erlina's single beating by her family did not rise to the level of
persecution. The IJ held that Ang does not have a well-founded
fear of future persecution, given his multiple trips to and from
Indonesia, and that death threats from Erlina's family do not give
Erlina a well-founded fear of future persecution either. The IJ's
ruling relied in part on the State Department's Country Conditions
Report and International Religious Freedom Report, which indicate
that Christians are not subject to a pattern or practice of
persecution in Indonesia, and that the Indonesian government
generally respects religious freedom.
On appeal, the BIA issued an order agreeing with the IJ's
conclusions, although it implied that the IJ's decision was
erroneous to the extent that it implied that Ang's religion or
ethnicity was not a reason for his attack in the 1998 riot. The
BIA concluded, however, that this error would have been harmless
because the attack did not constitute persecution. Finding no past
persecution or well-founded fear of future persecution, the BIA
dismissed the appeal. Ang and Erlina petitioned for review of the
BIA's order.
II. Analysis
Because the BIA's decision affirmed the IJ's decision and
added its own analysis, we review both. Cabas v. Holder, 695 F.3d
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169, 173 (1st Cir. 2012). We review the BIA's and IJ's factual
conclusions under the deferential "substantial evidence" standard,
reversing only if a "reasonable adjudicator would be compelled to
conclude to the contrary." Khan v. Mukasey, 549 F.3d 573, 576 (1st
Cir. 2008) (internal quotation marks omitted). Under this
standard, we uphold the agency action so long as it is "supported
by reasonable, substantial, and probative evidence on the record
considered as a whole." Wu v. Holder, 705 F.3d 1, 3-4 (1st Cir.
2013) (internal quotation marks omitted).
To establish eligibility for asylum, an alien must prove
either past persecution, which gives rise to an inference of future
persecution, or establish a well-founded fear of future persecution
on account of his race, religion, nationality, membership in a
social group, or political opinion. Sugiarto v. Holder, 586 F.3d
90, 94 (1st Cir. 2009); see 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b).
If an applicant establishes past persecution, there is a
presumption of a well-founded fear of future persecution, and the
burden shifts to the Government to rebut this presumption. 8
C.F.R. § 1208.13(b)(1); Sugiarto, 586 F.3d at 94. But even if the
applicant cannot establish past persecution, he can nevertheless
establish eligibility for asylum due to a well-founded fear of
future persecution based on a protected ground. 8 C.F.R.
§ 1208.13(b). An applicant has a well-founded fear of persecution
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in his country if he can establish that his fear is both
subjectively genuine and objectively reasonable, meaning that a
reasonable person in the applicant's circumstances would fear
persecution. Sugiarto, 586 F.3d at 94; see 8 C.F.R.
§ 1208.13(b)(2). The regulations further provide that:
[i]n evaluating whether the applicant has
sustained the burden of proving that he or she
has a well-founded fear of persecution, the
. . . [IJ] shall not require the applicant to
provide evidence that there is a reasonable
possibility he or she would be singled out
individually for persecution if . . . [t]he
applicant establishes 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; and . . . [t]he applicant
establishes his or her own inclusion in, and
identification with, such group of persons
such that his or her fear of persecution upon
return is reasonable.
8 C.F.R. § 1208.13(b)(2)(iii).2
A. Past Persecution
"Establishing persecution requires evidence of
experiences surpassing 'unpleasantness, harassment, and even basic
suffering.'" Kho v. Keisler, 505 F.3d 50, 57 (1st Cir. 2007)
(quoting Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000)). One
factor in determining whether persecution has occurred is the
2
On petition for review, Ang and Erlina appear to have
abandoned their claim that they are entitled to protection under
the Convention Against Torture.
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frequency of the alleged harm. Topalli v. Gonzales, 417 F.3d 128,
133 (1st Cir. 2005); see also Decky v. Holder, 587 F.3d 104, 111
(1st Cir. 2009) (holding that a beating suffered in the 1998
Indonesian riots was an "isolated" incident). Moreover, the
applicant must show that the government participated in, or at
least acquiesced in, the alleged harm. Decky, 587 F.3d at 110. To
establish governmental acquiescence, "there must be some showing
that the persecution is due to the government's unwillingness or
inability to control the conduct of private actors." Jorgji v.
Mukasey, 514 F.3d 53, 57 (1st Cir. 2008).
Substantial evidence supported the BIA's and IJ's
conclusion that Ang did not establish past persecution. We
acknowledge that Ang's stabbing must have been horrifying, and we
will assume for the sake of argument that the beating of Ang's
father was severe as well. But these two events occurred sixteen
years apart, with Ang's stabbing occurring nine years before he
sought asylum in the United States. These two incidents over the
course of twenty-five years are too "isolated" to constitute
persecution. See Decky, 587 F.3d at 111.3 Moreover, substantial
evidence supported the BIA's conclusion that "there was no
government involvement [in the 1998 riots] to constitute
persecution." Ang did not establish that during the 1998 riots,
3
Although Ang testified that Muslims frequently harassed his
father for money, an applicant for asylum must establish more than
harassment. Kho v. Keisler, 505 F.3d 50, 57 (1st Cir. 2007).
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"police or other officials failed to protect him because of his
ethnicity or religion." Kho, 505 F.3d at 58.
Erlina's beating by her family also does not constitute
persecution. Again, while the beating itself must have been
frightening and painful, it does not rise to the level of harm that
amounts to persecution. And there was no evidence of government
involvement or acquiescence in the beating by family members.
Erlina's decision not to call the police based on her speculation
that they would not protect her is not enough to show that the
Indonesian government acquiesced in her mistreatment. See Barsoum
v. Holder, 617 F.3d 73, 79 (1st Cir. 2010) (decision not to report
beating to police supported conclusion that the beating did not
constitute persecution).
B. Well-Founded Fear of Future Persecution
Because they have not established past persecution, Ang
and Erlina are eligible for asylum only if they can show that their
fear of future persecution is both subjectively genuine and
objectively reasonable.
The IJ and BIA concluded that Ang's fear of remaining in
Indonesia was not subjectively genuine because he left Indonesia
and returned three times before coming to the United States. See
Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 2009) (departure from
and return to Indonesia undermined petitioner's claim of fear of
persecution). Nothing in the record compels a contrary conclusion.
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The decisions of the IJ and BIA say little about Erlina's
subjective fear of persecution, but even if we assume for the sake
of argument that Erlina does have a genuine subjective fear of
future persecution, that fear is not objectively reasonable.
Erlina failed to establish that the Indonesian authorities cannot
or will not protect her from her family. As to Ang and Erlina's
more general allegations of the threat of future persecution, the
IJ noted that "the [State Department's] Country Conditions Reports
do not bear out that Christians are being subjected to a pattern or
practice of persecution in Indonesia. The most recent
International Religious Freedom Report indicates . . . that the
government generally respected religious freedom . . . ." The BIA
cited these reports as well. "We have repeatedly affirmed the
BIA's determinations . . . that there is no ongoing pattern or
practice of persecution against ethnic Chinese or Christians in
Indonesia." Kho, 505 F.3d at 54. Ang and Erlina did file several
articles and reports with the Immigration Court discussing the
condition of ethnic Chinese and Christians in Indonesia, but the
record as a whole does not compel a conclusion contrary to that of
the BIA and IJ.
Because substantial evidence supports the IJ's and BIA's
conclusion that Ang and Erlina lack a well-founded fear of future
persecution, they cannot prove that they are eligible for asylum.
For the same reason, they cannot meet the higher burden of proving
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eligibility for withholding of removal. Touch v. Holder, 568 F.3d
32, 41 (1st Cir. 2009).
III. Conclusion
For the reasons given above, substantial evidence
supported the conclusion of the IJ and the BIA that Ang and Erlina
were not entitled to asylum. The petition for review is denied.
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