Kiem Tjoa v. Eric H. Holder Jr. , 496 F. App'x 736 ( 2012 )

FILED
NOT FOR PUBLICATION OCT 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KIEM HWA TJOA, No. 08-72166
Petitioner, Agency No. A097-351-514
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 11, 2012 **
Pasadena, California
Before: PREGERSON and W. FLETCHER, Circuit Judges, and PIERSOL,
Senior District Judge.***
Kiem Hwa Tjoa, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lawrence L. Piersol, Senior United States District
Judge for the District of South Dakota, sitting by designation.
decision denying her application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252. We review for substantial evidence. Wakkary v. Holder,
558 F.3d 1049, 1056 (9th Cir. 2009). We grant the petition for review, reverse the
BIA’s denial of asylum, and remand so that the Attorney General may exercise his
discretion whether to grant relief.
Substantial evidence supports the BIA’s determination that Tjoa did not
experience harm that rises to the level of past persecution. Furthermore,
substantial evidence supports the BIA’s determination that Tjoa was not entitled to
withholding of removal or relief under the Convention Against Torture. But
substantial evidence does not support the BIA’s determination that Tjoa failed to
establish a well-founded fear of future persecution in Indonesia.
A well-founded fear of future persecution must be both subjectively genuine
and objectively reasonable. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.
2007). The subjective prong is satisfied by the applicant’s credible testimony that
she genuinely fears harm, while the objective prong is satisfied by the applicant’s
credible testimony that her fear of harm is reasonable. Id.; Ladha v. INS, 215 F.3d
889, 897 (9th Cir. 2000). With regards to the objective prong, “even a ten percent
chance of persecution may establish a well-founded fear.” Al-Harbi v. INS, 242
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F.3d 882, 888 (9th Cir. 2001). One way to satisfy the objective prong is to show
well-founded fear based on membership in a disfavored group. To determine
whether an applicant has a well-founded fear on this basis, “this court will look to
(1) the risk level of membership in the group . . . and (2) the alien’s individual risk
level.” Mgoian v. INS, 184 F.3d 1029, 1035 n.4 (9th Cir. 1999). “The relationship
between these two factors is correlational; that is to say, the more serious and
widespread the threat of persecution to the group, the less individualized the threat
of persecution needs to be.” Id.
In Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), this court held that
Indonesia’s ethnic Chinese minority is a “significantly disfavored” group, given
Indonesia’s “history of anti-Chinese violence dating as far back as 1740” and
“continued tensions, resentment and violence.” Id. at 925-27 (emphasis added).
Thus, the court held that, as a member of this group, Sael need only show a
“‘comparatively low’ level of individualized risk in order to prove that she has a
well-founded fear of future persecution.” Id. at 927.
The court found Sael met this burden by “testif[ying] credibly at her asylum
hearing about various incidents of discrimination, harassment and threats to her
safety.” Id. These incidents included discrimination by her classmates in school
when she was a young girl; having to flee from angry rioters who identified her as
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Chinese on the street; vandalism of her car combined with a threat that she “better
be careful”; and the throwing of rocks against the boarding house where she and
another ethnic Chinese woman lived. Id. at 927-28. The Sael court thus held that
“Sael’s compelling evidence establishes her eligibility for asylum” and remanded
so that the Attorney General could use his discretion in granting relief. Id. at 930.
Tjoa meets the subjective prong of well-founded fear of future persecution
because she has credibly alleged that she fears she would be harmed if she went
back to Indonesia. Tjoa also meets the objective prong of well-founded fear by
credibly testifying to multiple instances of anti-Chinese threats and discrimination.
On at least four different occasions, Tjoa was stopped on the street by native
Indonesians who identified her as Chinese based on her appearance and proceeded
to harass and threaten her. Further, while Sael experienced only verbal
harassment, vandalism, and threats, Tjoa was robbed and physically assaulted in
Indonesia as well. The physical harm and monetary loss Tjoa experienced
“establish[es] a sufficient personal connection to the general persecution directed
against ethnic Chinese in Indonesia” to warrant the conclusion that Tjoa has a well-
founded fear of persecution. Id. at 929. Substantial evidence does not support the
BIA’s contrary determination.
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For the foregoing reasons, we grant the petition for review and hold that
Tjoa’s credible and compelling evidence establishes her eligibility for asylum. We
REVERSE the BIA’s denial of asylum and REMAND so that the Attorney
General may exercise his discretion as to whether to grant relief.
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