Frans Setiawan v. Eric Holder, Jr. , 434 F. App'x 523 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0669n.06
No. 09-4430 FILED
UNITED STATES COURT OF APPEALS Sep 14, 2011
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
FRANS SETIAWAN, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) OF A DECISION OF THE
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. ) OPINION
BEFORE: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Petitioner Frans Setiawan, a citizen of Indonesia, seeks
review of the denial of his application for asylum, withholding of removal, and protection under the
United Nations Convention Against Torture (“CAT”). An immigration judge found petitioner
“basically credible” but concluded that he had failed to meet his burden of showing that he had either
suffered past persecution or had a well-founded fear of future persecution. The immigration judge
also determined that petitioner had failed to establish that he would more likely than not be subject
to torture if repatriated to Indonesia. The Board of Immigration Appeals (“the Board”) agreed with
that reasoning and dismissed the appeal. Petitioner contends that those decisions were not supported
by substantial evidence.
I.
No. 09-4430
Setiawan v. Holder
Petitioner filed two applications for asylum. The second, which is before us on appeal,
includes a lengthy personal statement, the substance of which was reiterated during petitioner’s
hearing testimony. Because the immigration judge found petitioner’s testimony credible in most
respects, the following narrative is drawn from the personal statement and the hearing testimony.
Petitioner was born in Indonesia in 1972. He is the son of a retired army colonel and
attended Trisakti University from which he graduated in 1996. He is also ethnically Javanese.
He bases his claims of past persecution on these incidents:
1. University Rioting
In 1998, petitioner lost his job due to a monetary crisis. The adverse economic conditions
spawned protests against the regime of then-President Suharto. On May 13, 1998 a friend contacted
petitioner and told him that there would be a protest march on the university campus. Petitioner
attended the demonstration and made a brief speech in support of the protesters.
Thereafter, he joined a march to the parliament building. The police urged the demonstrators
to return to the campus; they refused. A large explosion caused the demonstrators to disperse.
Police then opened fire on them. Petitioner tried to flee and, as he was running away, a policeman
hit him with a long stick. He eventually made his way home. According to his statement, “I had
nasty bruises on my upper body, my arms, back and head.” Newspapers the following day reported
that five students had been killed.
2. Slipi Jaya Mall Firebombing
Two days later, petitioner went to a local mall to buy some clothes. Someone firebombed
the mall while petitioner was shopping. Petitioner was not injured.
-2-
No. 09-4430
Setiawan v. Holder
3. Neighborhood Attack
Petitioner’s family lived in a military residential enclave in Jakarta. Not long after the
university riot, one of petitioner’s acquaintances received a threat from a stranger who said that mobs
were massing to attack the neighborhood. The residents called the police and military for help to no
avail. Petitioner grabbed a wooden club and his father a sword. Along with other residents the pair
headed for the compound’s entrance. The protesters arrived and, according to petitioner, “ran at us
with their weapons, they thought they could scare us.” The residents resisted, however, and the
attackers ran away.
4. The Transmigration Department
In 1999, petitioner began working for the Transmigration and Forest Development Agency
(“TFDA”). The governmental agency’s mission was to relocate individuals from densely populated
parts of the country to less densely settled areas. Most of those who volunteered to be relocated were
poor and homeless individuals of the Madura ethnic group. According to petitioner, “[t]he
transmigrants . . . were given some land, a house, some livestock and means to farm with a few years
of supervised instruction, in areas inhabited by other uncooperative ethnic native groups.”
When he applied, petitioner thought that his position would be clerical sinecure in Jakarta.
Instead, he was told – after signing an employment contract – that he would be sent to Kalimantan
Selatan (the Indonesian portion of Borneo). He was shocked by the assignment – he had no jungle
skills or training that would prepare him for field work. However, he believed that he would be
jailed if he broke his contract.
-3-
No. 09-4430
Setiawan v. Holder
Much of Borneo is inhabited by the Dayak people who are traditional hunter gatherers, not
farmers, and have a reputation for being fierce fighters. When he arrived in Borneo, he was assigned
to work for a Transmigration Settlement Unit. As part of his duties, he and a co-worker were
instructed to visit a settlement in Galam Rabah. The trip into the jungle was arduous. When they
arrived, they discovered many of the houses unoccupied. These residences were essentially shelters
built on stilts to keep out “orangutans, biawak huge Komodo-like lizards, and snakes.”
Fortunately for petitioner, before he left for Borneo his father gave him a ring that he had
received from a fellow soldier who happened to be a Dayak. After his arrival in Galam Rabah,
petitioner encountered an older Dayak who took note of the ring and was sympathetic. The pair
returned to the settlement where petitioner realized that his supervisor had fled out of fear of the
Dayak. Worse yet, the co-worker who had accompanied petitioner to Galam Rabah had also left,
leaving him stranded. He stayed overnight in the office. During the night Dayak men arrived and
threatened to kill him. They all carried the mandau, a traditional curved sword. They charged the
office and petitioner ran away. On the run he encountered the older Dayak whom he had met the
previous afternoon. The elder calmed his countrymen by pointing to the Dayak ring.
Petitioner describes a dysfunctional settlement program. The Dayaks resented the
introduction of a foreign ethnic group into their territory, as well as the taking of the jungle land for
farming. They rejected the government’s invitation to participate in the program.
After several miserable days in the settlement, which included finding an orangutan inside
his office, petitioner made his way back to Banjarmasin, the regional capital where he was
-4-
No. 09-4430
Setiawan v. Holder
permanently stationed. Other than the one threat by the Dayaks, which resulted in no injury to
petitioner, he was unharmed.
After his return to Banjarmasin, petitioner received several assignments that involved travel
to other settlements. At one point he was attacked at a bus stop by two Dayaks because he was
wearing a TFDA uniform. He escaped though he suffered a cut hand that required “a couple stitch
on my finger cause they tried to attack me with a knife.” While these assignments had some
hardships, they did not otherwise result in significant physical harm. Petitioner’s personal statement
dwells on the dysfunction of the program as a whole rather than his own “persecution.” To highlight
the state of the program, petitioner recounts that in February 2001 a “Dayak-Madura slaughter
occurred in transmigration [settlements] neighboring my assigned area.” He was not directly
affected, however.
5. Manpower Ministry
In 2000, the Transmigration and Manpower (Labor) Ministries merged. Petitioner was
transferred to the latter. He was assigned to the Training and Productivity Department. His job
included checking out new businesses to assess their eligibility for a government permit to open.
In the course of this job, he realized the program was riddled with corruption. When he reported this
state of affairs to his superior, he was told that there was nothing to be done.
In September 2001, petitioner was working when protestors broke into the office looking for
the departmental chief. When they failed to find him, they ransacked the offices. Petitioner hid
under his desk and eventually escaped.
-5-
No. 09-4430
Setiawan v. Holder
He finally resigned from the Manpower Ministry in February 2002. He returned to his
father’s home where he learned that “strangers” from Borneo had been to the house looking for him.
He described his situation in these terms:
When I came back to Jakarta, I knew I couldn’t stay long for my safety. I felt like a
prison guard in a political prison who quits. Those that I guarded hated me and tried
to kill me because I tore them away from their old homes and sent them into exile in
the wild jungles to survive in primitive conditions, the Madura. Those that I was
trying to protect from [sic] hated me and tried to kill me because I brought outsiders
who stole their land and brought them “Javanesation,” the Dayak. And those that I
worked for placed me without protection where I could get killed, the Java
government, because I was a Trisakti graduate from an older military family.
(A.R. 222).
According to petitioner, even after he came to the United States, Dayaks continued to go to
his father’s neighborhood in search of him.
II.
Petitioner entered the United States on a tourist visa on February 25, 2002. Thereafter,
petitioner filed his first asylum application. On August 2, 2003, he was served with a Notice to
Appear (“NTA”), which charged him with being a removable non-immigrant.
On December 23, 2003, petitioner appeared before an immigration judge and conceded
removability. Another hearing was held on August 8, 2005. Petitioner had new counsel and
informed the immigration judge that his original asylum application was untrue. It had been
prepared by the Chinese Indonesian American Society, a group under criminal investigation for filing
false asylum applications. According to counsel, petitioner had trusted these individuals and did not
speak English at the time.
-6-
No. 09-4430
Setiawan v. Holder
Petitioner was allowed to file a new asylum application. He did so on June 28, 2007. That
application contains the allegations, later reiterated at the asylum hearing, recounted above.
The immigration judge rendered an oral decision on July 10, 2007. With respect to
credibility, the immigration judge concluded: “Although the respondent did submit a false
application under oath and did testify under oath falsely to the officer, it is the opinion of the Court
that his testimony today in Court is basically credible.” (A.R. 8). However, he included one caveat:
“The only portions of his testimony that I would find to be not credible was his testimony that his
parents, even after he came to the United States, received threats from Madura or Diac [sic] ethnic
individuals, as he was also vague with respect to the threats that he stated he received after he arrived
in Jakarta.” Id.
Despite the favorable credibility determination, the immigration judge found that petitioner
failed to establish past persecution or that he had a well-founded fear of future persecution. After
recounting portions of the testimony, the immigration judge went on to state:
Certainly the attacks by the Diacs [sic] and even by Maduras would not
amount to persecution under the law. They were not part of the Indonesian
government. And it is the opinion of the Court that although it was a very dangerous
situation there, that there is no evidence presented that the Indonesian government
would not have aided the respondent who was a member of an agency of that
government.
With respect to the other incidents, the May 13, 1998 incident where he was
in a demonstration that was broken up by police, it is the opinion of the Court that
that would not have amounted to persecution[:] he was hit with a stick on the back,
there were no injuries to the respondent, and that would not have amounted to past
persecution and there is no evidence of any fear from the Indonesian government,
which is a new government at this time, because he participated with Trisakti protests
that he would suffer any future persecution.
-7-
No. 09-4430
Setiawan v. Holder
The incident in which the bomb exploded, which just amounted to a criminal
act and general harm, and he was not targeted in that bomb attack, so that would not
amount to persecution under the law.
Also, the respondent did not leave Indonesia until February 25, 2002. He
received no harm from either Madurans or Diac [sic] indiviuduals prior to that time,
and the phone calls would not have amounted to persecution, even if they did occur
....
With respect to the issue that the respondent could not resign from his job at
the Transmigration Enforced Development Agency, it is the opinion of the Court that
he has not met his burden of proof that he could not resign from that agency because
when that agency did merge with the Labor Department and it became part of the
Manpower Agency . . . he was able to resign from that agency. . . .
....
With respect to relief under the provisions of Article 3, the United Nations
Convention Against Torture, there has been no evidence presented that members of
the Indonesian government would be seeking the respondent out to torture him if he
is returned to Indonesia . . . .
(A.R. 11-13).
The Board dismissed petitioner’s appeal in a two-page decision. It agreed that petitioner had
failed to establish past persecution: “The alleged physical encounters and threats experienced by the
petitioner do not rise to the level of past persecution and were not motivated by a protected ground.”
(A.R. 4). Nor, in the Board’s view, does “[t]he record . . . contain sufficient evidence to show that
the persons who mistreated the petitioner continue to have a present interest in harming him today
for any reason.” Id.
III.
1. Petitioner’s Asylum Claim
-8-
No. 09-4430
Setiawan v. Holder
Asylum is limited to those individuals who are refugees, which is defined by the INA as “any
person who is outside any country of such person’s nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail himself or herself of the protection of, that country
because of persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. . . .” 8 U.S.C. § 1101(a)(42)(A)
(emphasis added). In this case, the immigration judge looked to a Board decision, Matter of Fuentes,
19 I. & N. Dec. 658 (1988), and concluded that petitioner’s employment with the Transmigration
and Forest Development Agency qualified as “membership in a particular social group” for purposes
of establishing refugee status.1
As we have recently observed, “the ‘on account of’ language in § 1101(a)(42)(A) requires
a link between the acts of persecution and the petitioner’s protected-group identity.” Stserba v.
Holder, __ F.3d __, 2011 WL 1901546 at *5 (6th Cir. May 20, 2011). Petitioner must have been
persecuted because of a statutorily protected ground – here, membership in a particular social group
– and not merely have been the victim of “indiscriminate mistreatment” or a “random crime.” Id.(quoting Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005)). Where an alien can show past
persecution, he is accorded a rebuttable presumption of a well-founded fear of future persecution.
8 C.F.R. § 208.13(b)(1). Moreover, the alien’s testimony, if credible, may be sufficient to sustain
the burden of proof. 8 C.F.R. § 208.13(a). Where, as here, the immigration judge deemed petitioner
1
While we do not read Matter of Fuentes as broadly as did the immigration judge, we will
assume that petitioner established his membership in a particular social group because we base
our holding on his failure to show past persecution or a well-founded fear of future persecution.
-9-
No. 09-4430
Setiawan v. Holder
to be largely credible, we must accept the representations made by the petitioner as true. Stserba,
2011 WL 1901546 at *4.
We have established that physical harm is not required to establish past persecution:
It is well established . . . that physical harm is not an essential feature of persecution.
[Haider v. Holder, 595 F.3d 276, 286 (6th Cir. 2010).] Nonphysical persecution can
take various forms, including “‘the deliberate imposition of severe economic
disadvantage or the deprivation of liberty, food, housing, employment[,] or other
essentials of life.’” In re T–Z–, 24 I. & N. Dec. 163, 171 (B.I.A. 2007) (quoting
H.R.Rep. No. 95–1452). Persecution requires “more than a few isolated incidents
of verbal harassment or intimidation, unaccompanied by any physical punishment,
infliction of harm, or significant deprivation of liberty.” Ouda v. INS, 324 F.3d 445,
452 (6th Cir. 2003) (internal quotation marks omitted). “Typically, . . . the types of
actions that might cross the line from harassment to persecution include: detention,
arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of
property, surveillance, beatings, or torture.” Haider, 595 F.3d at 286–87 (internal
quotation marks and alteration marks omitted). Although persecution is an “extreme
concept,” persecution does not require “a total deprivation of livelihood or a total
withdrawal of all economic opportunity.” In re T–Z–, 24 I. & N. at 172–73. “The
IJ (and this court) must evaluate [evidence of] past persecution . . . in the aggregate,
as a collection of harmful events” because, “even though [the events] may not qualify
individually as persecution,” they may qualify as persecution when “taken together.”
Haider, 595 F.3d at 287 (internal quotation marks omitted).
Stserba, 2011 WL 1901546 at *4. However, even if we consider petitioner’s hardships through this
less demanding lens, his effort to establish past persecution still comes up short of those hallmarks
of persecution listed in Stserba: he was never detained, arrested, interrogated, beaten, denied food,
housing, or employment. The instances petitioner relies upon to establish past persecution even in
the aggregate, are not compelling: he was hit by a stick at the student demonstration of 1998; he
was placed in danger during the course of his employment with TEDA; he was attacked by two
Dayak men at a bus stop; and, according to him, he had to live in “deplorable” conditions.
- 10 -
No. 09-4430
Setiawan v. Holder
Simply put, even though we credit petitioner’s testimony, he has failed to show that he either
suffered past persecution or has a well-founded fear of future persecution.
2. Withholding of Removal
Because an applicant seeking withholding of removal faces a more stringent burden than an
applicant for asylum, this claim fails. See Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir. 2005).
3. Relief under the CAT
To establish relief, petitioner must establish that “it is more likely than not that he or she
would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). We
have denied relief under the CAT to individuals who have suffered far greater indignities than
petitioner. See Haider, 595 F.3d at 289 (ruling that police did not torture individual when they
detained him several times, spit in his face, sexually assaulted him with a firearm, punched him in
the head, and subjected him to invasive searches).
We agree with the conclusion of the immigration judge that petitioner has failed to come
forward with any evidence that he would be subject to torture by members of the Indonesian
government if he is repatriated.
IV.
For the reasons outlined above, the petition for review is denied.
- 11 -