Chayadipurnama Ciptanagara v. U.S. Atty. Gen. , 330 F. App'x 840 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15388 ELEVENTH CIRCUIT
MAY 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A095-246-717
A095-247-446
CHAYADIPURNAMA CIPTANAGARA,
SUSAN RAHARDJA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 29, 2009)
Before BLACK, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Chayadipurnama Ciptanagara and his wife, Susan Rahardja, natives and
citizens of Indonesia, seek review of the Board of Immigration Appeals’ (BIA’s)
decision affirming the Immigration Judge’s (IJ’s) denial of their applications for
withholding of removal.1 They assert the IJ and BIA erred in denying their
applications for withholding of removal because they suffered past persecution in
Indonesia on account of their Chinese ethnicity and Christian religion. Further,
they contend their testimony describing past threats, intimidation, and damage to
his business, along with country reports, demonstrated a clear probability of future
persecution in Indonesia.
We review only the BIA’s decision when the BIA issues a separate decision,
“except to the extent that it expressly adopts the IJ’s opinion.” Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the
IJ’s reasoning, we will review the IJ’s decision as well.” Id. Because the BIA
issued its own decision but adopted the IJ’s reasoning with respect to
Ciptanagara’s and Rahardja’s withholding of removal claims, we review both
decisions.
1
On appeal, Ciptanagara and Rahardja concede they did not file timely asylum
applications and do not meet the requirements for the exceptions to the one-year filing deadline.
See 8 U.S.C. § 1158(a)(2)(D). Thus, they do not appeal the denial of their asylum applications.
Further, Ciptanagara and Rahardja do not challenge the denial of relief under the United
Nations Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or
Punishment (CAT), 8 C.F.R. § 208.16(c). Accordingly, they have abandoned the claim by
failing to raise it in their brief. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005).
2
We review the BIA’s legal conclusions de novo, and the BIA’s and IJ’s
factual findings under the substantial evidence test. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1286 (11th Cir. 2005); Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27
(11th Cir. 2004) (en banc); Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir.
2001). Under the substantial evidence test, we “affirm the . . . decision if it is
‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Al Najjar, 257 F.3d at 1283-84 (citation omitted). The
substantial evidence test is “deferential” and does not allow “re-weigh[ing] the
evidence from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th
Cir. 2001). “To reverse . . . fact findings, we must find that the record not only
supports reversal, but compels it.” Mendoza, 327 F.3d 1283, 1287 (11th Cir.
2003). “[T]he mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Adefemi, 386 F.3d at
1027.
To obtain withholding of removal, an alien must establish that his “life or
freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is
‘more likely than not’ [he] will be persecuted or tortured upon being returned to
[his] country.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006)
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(quoting Sepulveda, 401 F.3d at 1232). “[P]ersecution is an extreme concept
requiring more than a few isolated incidents of verbal harassment or
intimidation . . . [m]ere harassment is not persecution.” Ruiz v. Gonzales, 479 F.3d
762, 766 (11th Cir. 2007) (quotations omitted). Withholding of removal protects
against persecution by government forces and non-governmental groups that the
government cannot control. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th
Cir. 2004). However, general civil strife does not create eligibility for relief, even
if the applicant’s life is clearly threatened, unless the applicant proves the
relationship between his fear of harm and a statutorily enumerated ground.
Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1297-99
(11th Cir. 1990). The standard for withholding of removal “is more stringent than
the ‘well-founded fear of future persecution’ required for asylum.” Tan, 446 F.3d
at 1375.
An alien may satisfy his burden of proof for withholding of removal in two
ways. First, an alien may establish past persecution based on a protected ground.
Id. Past persecution creates a rebuttable presumption that he has a well-founded
fear of future persecution and shifts the burden to the Department of Homeland
Security to show changed conditions in the country or the ability to avoid a future
threat through relocation. Id. Second, an alien may establish that it is more likely
than not that he would be persecuted upon removal due to race, religion, or
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nationality. Id. “‘An alien cannot demonstrate that [he] more-likely-than-not
would be persecuted on a protected ground if the [BIA] finds that the alien could
avoid a future threat by relocating to another part of [his] country.’” Id. (quoting
Mendoza, 327 F.3d at 1287). Evidence that an alien’s family continues to reside
unharmed in a country supports a conclusion that a threat may be avoided by
relocation. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006).
Substantial evidence supports the IJ’s and BIA’s decision affirming the
denial of Ciptanagara’s and Rahardja’s applications for withholding of removal.
First, although Ciptanagara and Rahardja briefly mention on appeal that they
suffered past persecution and generally argue the IJ erred in finding they were not
eligible for withholding of removal, they do not challenge the IJ’s finding the
incidents described by them did not constitute past persecution. By not offering an
argument on this issue, Ciptanagara and Rahardja have waived it on appeal. See
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
(holding a passing reference to an issue in a brief is insufficient to properly raise
that issue). Even assuming Ciptanagara and Rahardja properly preserved this
issue, the incidents described by them, including damage to the furniture store in
1998, robberies, harassment, and police intimidation, do not compel a finding that
they suffered past persecution. Compare Ruiz, 479 F.3d at 766 (holding beatings,
kidnaping, and threatening phone calls constituted persecution) and
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Perlera-Escobar, 894 F.2d at 1297-99 (requiring examination of the motivation of
groups threatening an alien in the context of civil wars where general conditions of
violence exist).
Second, substantial evidence supports the IJ’s conclusion that Ciptanagara
and Rahardja did not establish they would more likely than not suffer future
persecution on account of their ethnicity or religion. Ciptanagara testified that
after the May 1998 riots he traveled to Singapore, but did not seek protection from
the government in Singapore and even returned to Indonesia. He did not come to
the United States until April 1999, almost one year after the riots. The evidence
also supports the IJ’s finding Ciptanagara likely came to the United States as an
economic refugee, because he started working within one month of his arrival and
did not apply for asylum until almost four years after his arrival.
Likewise, the record does not compel reversal of the BIA’s determination
that, if a threat of persecution existed at all, Ciptanagara and Rahardja failed to
demonstrate the threat was throughout Indonesia. The 2006 Country Report and
2002 Immigration Report both acknowledged that conditions for ethnic Chinese
have continued to improve since 1998. The 2002 Immigration Report indicated
that ethnic Chinese had not been targeted in eastern Indonesia. Also, the 2006
Country Report indicated that Catholicism was an officially recognized religion in
6
Indonesia. Additionally, Ciptanagara’s and Rahardja’s families continue to reside
in Indonesia, and the last reported incident occurred in 2002.
Accordingly, we deny Ciptanagara’s and Rahardja’s petition with respect to
their withholding of removal claims.
PETITION DENIED.
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