Frank Napitupulu v. Eric Holder, Jr. , 540 F. App'x 726 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 01 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRANK JULIVER NAPITUPULU, No. 09-71032
Petitioner, Agency No. A098-453-363
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 26, 2013
Pasadena, California
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.**
Frank Juliver Napitupulu, a native and citizen of Indonesia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his applications for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
withholding of removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review factual
determinations for substantial evidence, Mendoza-Pablo v. Holder, 667 F.3d
1308, 1312 (9th Cir. 2012), and we deny the petition for review.
To demonstrate eligibility for asylum on the basis of past persecution, an
applicant must establish that the persecution was “committed by the government or
forces the government is either unable or unwilling to control.” Navas v. I.N.S.,
217 F.3d 646, 655-56 (9th Cir. 2000).
Napitupulu recounted harm he suffered because he is a Seventh Day
Adventist Christian. Each incident involved private actors. He reported only one
incident to school authorities, he did not attempt to prosecute any incident, and he
otherwise did not avail himself of the protection of the police. Napitupulu stated
that reporting to the police would be futile and that bribes were often required, but
did not give additional evidence beyond his own perceptions in his testimony. The
record does not show what the Indonesian police would have done upon specific
reporting of the problems. The IJ and BIA appropriately consulted country reports
in the record that did not indicate that the religious and ethnic conflict in Indonesia
was due to forces the government was unwilling or unable to control. Substantial
evidence supports the BIA’s conclusion that Napitupulu did not show that the
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Indonesian government was unable or unwilling to protect him upon a proper
complaint.
To demonstrate eligibility for asylum on the basis of a well-founded fear of
future persecution, an applicant must show that such fear is subjectively genuine
and objectively reasonable. Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir.
2007) (en banc). The objectively reasonable prong requires “credible, direct, and
specific evidence” that petitioner faces “an individualized risk of persecution or
that there is a pattern or practice of persecution against similarly situated
individuals.” Id. (citations omitted).
While we have observed “evidence of widespread anti-Chinese and
anti-Christian discrimination that affects a very large number of individuals” in
Indonesia, and that “it is clear that a certain portion of those individuals suffer
treatment that rises to the level of persecution,” such discrimination and
persecution “does not establish that the situation in Indonesia is similar to the
patterns or practices of persecution described in our prior case law.” Wakkary v.
Holder, 558 F.3d 1049, 1061 (9th Cir. 2009); see Tampubolon v. Holder, 610 F.3d
1056, 1062 (9th Cir. 2010) (concluding that Christian Indonesians are a disfavored
group, but stating that “a petitioner’s membership in a disfavored group is not
sufficient by itself to meet her ultimate burden of proof; some evidence of
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individualized risk is necessary for the petitioner to succeed.”) (internal quotation
marks and citation omitted). We have required that petitioners support “pattern or
practice” allegations with evidence that the “government is unable or unwilling to
control those actors.” Lolong, 484 F.3d at 1180.
Substantial evidence supports the BIA’s conclusion that Napitupulu did not
establish an objectively reasonable fear where the record did not show that
Napitupulu faced any specific, individualized risk of harm, or that the government
was unwilling or unable to protect Christians in Indonesia. See id. at 1178-80.
Because the record evidence is not “so compelling that no reasonable
factfinder” could find that Napitupulu had not established eligibility for asylum,
substantial evidence supports the BIA’s dismissal of Napitupulu’s appeal. See Ali
v. Ashcroft, 394 F.3d 780, 784 (9th Cir. 2005). As such, Napitupulu did not meet
the more stringent standard for withholding of removal. See Zehatye v. Gonzales,
453 F.3d 1182, 1190 (9th Cir. 2006). Substantial evidence supports the denial of
CAT protection because Napitupulu did not show that it is more likely than not he
will be tortured by or with the consent or acquiescence of the Indonesian
government. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
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