Panoto v. Holder, Jr. , 770 F.3d 43 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2269
MARLA PANOTO and ALAIN JUSOP WELLIAM RUNTUKAHU,
Petitioners,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Stahl and Barron, Circuit Judges.
Ilana Etkin Greenstein and Harvey Kaplan, on brief for
petitioners.
Jane T. Schaffner, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Blair T.
O'Connor, Assistant Director, Office of Immigration Litigation, and
Stuart F. Delery, Assistant Attorney General, Civil Division, on
brief for respondent.
October 22, 2014
STAHL, Circuit Judge. Petitioner Marla Panoto and her
husband,1 both Indonesian citizens, petition for review of an order
of the Board of Immigration Appeals ("BIA") affirming an order of
an Immigration Judge ("IJ") denying her request for asylum.
Because the BIA gave an insufficient explanation of why Panoto
failed to demonstrate that she suffered past persecution in
Indonesia, we grant her petition for review, vacate the BIA's order
of removal, and remand the case for further proceedings.
I. Facts & Background
Panoto is a Christian from Indonesia, a predominantly
Muslim country. According to the IJ's decision,2 Panoto testified
that she experienced persecution as an Indonesian Christian and
attributed the following incidents to her religious identity.
On Christmas Eve in 2000, a member of Panoto's
congregation found a black box outside their church. Police
officers determined that the item was a bomb and removed it before
1
Panoto's husband is a derivative applicant on her asylum
petition and thus also a petitioner here. 8 U.S.C.
§ 1158(b)(3)(A). His eligibility for asylum rises and falls on the
status of Panoto's application. Touch v. Holder, 568 F.3d 32, 36
n.1 (1st Cir. 2009).
2
Because this Court allowed petitioners' assented-to motion
for leave to waive filing an appendix, the record on appeal
consists of only the IJ's oral ruling and the BIA's written
decision. While the parties' versions of the facts incorporate
evidence purportedly from the full administrative record, our
summary of the pertinent facts comes from the two documents in the
limited record before us.
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it could detonate. Panoto testified that local authorities did not
investigate the event further.
Approximately six months later, in June 2001, Panoto was
riding on a ferry boat when it was hijacked by Muslim extremists.
Once aboard, the hijackers shouted for the Christian passengers to
come forward. Panoto witnessed the militants slit an elderly
Christian woman's throat, killing her. One extremist then yanked
Panoto by the hair and slapped her, commanding that she state her
faith. Panoto did not reply, and just as he was about to attack
her, another hijacker called him away.
Petitioners left Indonesia shortly after the ferry
hijacking, arriving in the United States at the end of September
2001. The Department of Homeland Security initiated removal
proceedings against them in 2007. Panoto submitted her application
for asylum in January 2011.
Both petitioners testified and submitted evidence at a
removal proceeding on September 18, 2012. In an oral decision
issued the same day, the IJ deemed Panoto statutorily ineligible
for asylum because she had failed to apply within one year of
arrival and had not demonstrated circumstances affecting her
ability to meet the filing deadline. See 8 U.S.C. § 1158(a)(2)(B),
(D). The IJ observed that Panoto "manifested a penchant for
misrepresent[ation] on asylum applications" by submitting an
application for asylum under a false name in 2003 and providing
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fraudulent documentation when she entered the United States in
2001. Assuming Panoto offered credible testimony about the bomb
outside her church and the ferry incident, the IJ concluded that
her account did not rise to the level of past persecution nor had
she demonstrated that she would be persecuted if she returned to
Indonesia. The IJ denied Panoto's application for asylum and
granted her request for voluntary departure.
Panoto appealed to the BIA. Bypassing the IJ's
timeliness and credibility determinations, the BIA presumed
statutory eligibility and reached the merits of Panoto's
application. The BIA agreed that Panoto's mistreatment, even if
credited, did not involve harm severe enough to potentially
constitute persecution and that she had failed to present probative
evidence establishing a well-founded fear of future persecution.
The Board affirmed the IJ's decision and dismissed Panoto's appeal.
This petition for review followed.
II. Analysis
Where the BIA affirms the IJ's ruling but adds its own
discussion, we review both decisions. Lin v. Gonzales, 503 F.3d 4,
6-7 (1st Cir. 2007). We defer to the IJ's findings of fact and the
agency's determination as to whether particular circumstances
support a claim of persecution. Decky v. Holder, 587 F.3d 104, 109
(1st Cir. 2009). We will uphold a decision so long as it is
"supported by reasonable, substantial, and probative evidence on
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the record considered as a whole." Thapaliya v. Holder, 750 F.3d
56, 59 (1st Cir. 2014) (internal quotation marks omitted). On the
other hand, we cannot conscientiously affirm the agency's
determination if "the evidence point[s] unerringly in the opposite
direction" such that a "reasonable adjudicator would be compelled
to conclude to the contrary." Decky, 587 F.3d at 109 (internal
quotation marks and citations omitted). Consequently, we must
remand the case where the agency fails to offer legally sufficient
bases for its determination. Sok v. Mukasey, 526 F.3d 48, 53 (1st
Cir. 2008).
An applicant for asylum bears the burden of establishing
past persecution or a well-founded fear of future persecution on
account of one of five statutory grounds: race, religion,
nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1101(a)(42)(A); Sunarto Ang v. Holder, 723
F.3d 6, 11–12 (1st Cir. 2013). The petitioner must establish a
causal link between the harm she suffered or expects to suffer and
her statutorily protected ground. 8 U.S.C. § 1158(b)(1)(B)(i). A
showing of past persecution creates a rebuttable presumption that
the applicant's fear of future persecution is well-founded. 8
C.F.R. § 208.13(b)(1); Sunarto Ang, 723 F.3d at 10.
No precise definition of "persecution" exists, and the
question of what constitutes persecution is resolved on a case-by-
case basis. Ruiz v. Mukasey, 526 F.3d 31, 36 (1st Cir. 2008). We
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have repeatedly held that persecution, "as the term is used in the
immigration law," involves a level of harm that "surpasses
'unpleasantness, harassment, and even basic suffering.'" Sombah v.
Mukasey, 529 F.3d 49, 51 (1st Cir. 2008) (quoting Nelson v. INS,
232 F.3d 258, 263 (1st Cir. 2000)). After showing that the harm
endured rises to that level, the applicant for asylum must further
establish that government action or acquiescence caused or resulted
in the mistreatment giving rise to her claim. Orelien v. Gonzales,
467 F.3d 67, 72 (1st Cir. 2006).
Neither the IJ nor the BIA addressed the government's
role, if any, in the two specific incidents of mistreatment that
Panoto suffered. Instead, the IJ and the BIA held that the
mistreatment Panoto endured, even if credited, did not involve harm
severe enough to constitute past persecution. Making the same
assumption of truthfulness as the IJ and BIA did, our question is
whether learning that a bomb was planted outside one's place of
worship and, six months later, experiencing a violent hijacking at
the hand of anti-Christian extremists could involve harm acute
enough to establish past persecution. We conclude that these
incidents are sufficiently extreme, close in time, and particularly
targeted at Christians to clear the threshold.
We have held that bona fide threats of death can involve
harm severe enough to constitute persecution. Un v. Gonzáles, 415
F.3d 205, 209-10 (1st Cir. 2005) (remanding to agency for
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reconsideration of past persecution finding where petitioner
presented evidence of one "explicit death threat with perhaps one
or more implicit ones"); cf. Amouri v. Holder, 572 F.3d 29, 33 (1st
Cir. 2009) (observing that "threats of murder easily qualify as
sufficiently severe harm" for purposes of persecution analysis).
This is especially so when, as here, "the assailant threatens the
petitioner with death, in person, and with a weapon." Sok, 526
F.3d at 54. Panoto presented testimony regarding two life-
threatening events. Neither can be dismissed as a "hollow
threat[]," Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005), or
merely "ugly, discriminatory, and regrettable," Susanto v.
Gonzales, 439 F.3d 57, 60 (1st Cir. 2006). The Christmas Eve bomb
planted at Panoto's church was a serious attempt to murder and
inflict terror on parishioners. While Panoto ultimately suffered
only minor physical injuries during the highjacking, she also
witnessed the murder of a fellow Christian passenger in graphic
fashion immediately before a militant seized Panoto and demanded to
know her religion. Panoto reasonably understood that the militants
intended to murder her next if she also identified as Christian.
In determining whether an act or acts involve harm potentially
rising to the level of persecution, the IJ and BIA must take a
realistic and mindful look at what transpired.
These events occurred close in time to one another and
shortly before the petitioners left Indonesia, in contrast to other
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scenarios considered by this Court. For example, in Sunarto Ang,
this Court affirmed the BIA's determination that an ethnically
Chinese petitioner from Indonesia failed to show harm severe enough
to establish past persecution where the petitioner testified that
a group of Muslims beat his father in 1982 and a mob stabbed the
petitioner during the 1998 Jakarta riots. 723 F.3d at 9. The two
events, sixteen years removed from one another, were too isolated
and sporadic to establish persecution, particularly where the
petitioner suffered no further mistreatment in the nine years that
he remained in Indonesia after the 1998 riots. Id. at 11; see also
Thapaliya, 750 F.3d at 59 (holding that petitioner failed to
establish past persecution based on a single attack which occurred
one year before he left for the United States and noting, "isolated
beatings have been commonly rejected as grounds for persecution");
Kho v. Keisler, 505 F.3d 50, 58 (1st Cir. 2007) (observing that
petitioner's most recent proffer of anti-Christian conduct occurred
three years before he left Indonesia). Here, the bomb threat and
ferry seizure occurred within a six-month period, and Panoto fled
to the United States approximately two months after the hijacking,
so there is nothing in the record to suggest that these were mere
isolated events as in Sunarto Ang.
Finally, assuming she is found credible on remand, Panoto
sufficiently established a nexus between the incidents and her
Christian faith. The timing and circumstances of these events are
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particularly telling. The bomb was planted outside her particular
place of worship on a Christian holiday and Muslim extremists
specifically threatened Christians when they hijacked the ferry
boat, killing a fellow Christian in Panoto's presence. Compare
Sugiarto v. Holder, 586 F.3d 90, 95-96 (1st Cir. 2009) (petitioner
failed to show that purported incidents of past persecution, a
robbery and a bomb threat at a mall, were motivated by anti-
Christian sentiment where her own conjecture provided the "sole
basis for concluding that the perpetrators of the attack were
Islamic terrorists, rather than common thieves"), with Sompotan v.
Mukasey, 533 F.3d 63, 70-71 (1st Cir. 2008) (evidence supported
conclusion that Jakarta rioters targeted petitioners' restaurant
because it was located in a predominantly ethnic Chinese shopping
district).
In sum, the past events endured by Panoto, if deemed
credible,3 surpass garden-variety unpleasantness and harassment
such that she could meet the standard for past persecution,
provided Panoto also demonstrates on remand that state action or
inaction caused or resulted in her alleged harm. Because both the
IJ and BIA erroneously concluded that Panoto did not experience
3
The IJ raised serious concerns about Panoto's credibility
based on various falsehoods underlying her 2001 visa and 2003
asylum application. Because both the IJ and BIA assumed that
Panoto presented truthful testimony about the bomb and ferry
incidents, we take no position on the reliabiilty of her account or
her veracity in general.
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harm severe enough to potentially rise to the level of past
persecution, the agency did not afford her the benefit of the
regulatory presumption of a well-founded fear of future
prosecution. See 8 C.F.R. § 208.13(b)(1). Since the agency may
find on remand that Panoto is entitled to such a presumption, we
will not address this portion of the IJ's or BIA's decisions.
III. Conclusion
We conclude that the IJ's and BIA's legal conclusions are
not supported by substantial evidence in the record and remand to
the agency to make a well-reasoned determination as to Panoto's
eligibility for asylum. In doing so, the agency may choose to take
additional evidence and argument from the parties. Sok, 526 F.3d
at 58. The BIA, on remand, also may rest its decision on alternate
grounds, such as the IJ's assessment of Panoto's credibility or the
timeliness of her application. The petition for review is GRANTED,
the order of removal is VACATED, and the case is REMANDED for
further proceedings consistent with this opinion.
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