United States Court of Appeals
For the First Circuit
No. 04-2683
INGE SUSANTO,
Petitioner,
v.
ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Wei Jia, and Law Office of Wei Jia, on brief for petitioner.
Michael J. Sullivan, United States Attorney, and Jennifer C.
Boal, Assistant United States Attorney, on brief for respondent.
March 9, 2006
CYR, Senior Circuit Judge. Inge Susanto and her husband
Yudi Supriady are natives and citizens of Indonesia, where they
belonged to two minority groups: ethnic Chinese and Christian.1 In
2002, the Immigration and Naturalization Service (INS) charged
petitioners with removability, which they acknowledge. Petitioners
applied for asylum, however, asserting that they suffered
persecution in Indonesia on account of their ethnicity and
religion.
At their hearing before an immigration judge (IJ),
petitioners adduced as evidence of persecution, inter alia, the
violent riots by Indonesia’s Muslim majority in 1998 against the
Chinese minority, which resulted in many deaths, rapes, and serious
injuries, and which prompted Susanto and her mother to wear face
veils in public, so as to disguise their ethnicity, and Susanto’s
family to relocate from Jakarta to another part of the country for
two months; the vandalization of the family home during their two-
month absence from the capital, and the discovery upon their return
that one of their Chinese neighbor’s daughters had been raped; an
incident in 1998 during which two men confronted Susanto (then age
14) outside her school, called her a “Chinese snob,” and tried (but
failed) to grope her; an incident during which Susanto and her
1
Susanto is designated as the lead respondent in the case,
since Supriady simply claims as a derivative spousal beneficiary of
the asylum application submitted by Susanto. See 8 U.S.C. §
1158(b)(3).
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mother were mugged at knifepoint on a city bus, and the mugger
stated: “You Chinese, you die”; the discovery of an undetonated
bomb at Susanto’s church, and a subsequent bombing of the same
church; and incidents in 1999 during which Muslim crowds threatened
and threw stones at Susanto and her fellow worshipers.
The IJ denied petitioners’ asylum application, for
failure to establish past persecution or a well-founded fear of
future persecution in the event they were repatriated to Indonesia.
See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b). Specifically,
the IJ found that the alleged past incidents were not severe enough
to constitute persecution, and that the prospect of future
persecution was “small.” On appeal, the Board of Immigration
Appeals (BIA) affirmed without separate opinion, and petitioners
now appeal. See Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir.
2005) (noting that, on appeal from BIA’s summary affirmance, court
of appeals directly reviews IJ decision).
We review the IJ decision only to determine whether its
findings of fact that petitioners did not suffer from cognizable
past “persecution” and did not confront a well-founded fear of
future persecution are supported by “substantial evidence” in the
administrative record. See Silva v. Ashcroft, 394 F.3d 1, 4 (1st
Cir. 2005).
Petitioners first assert that the IJ’s decision is
unsupported because it fails to take into account the very serious
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incidents of ethnicity and religion-based persecution described by
Susanto. Petitioners must bear the burden of proof as to their
eligibility for asylum, see INS v. Cardoza-Fonseca, 480 U.S. 421,
423 (1987), and we repeatedly have observed that harassment of the
quality and degree experienced by petitioners simply does not
compel a finding of persecution. See, e.g., Nelson v. INS, 232
F.3d 258, 263-64 (1st Cir. 2002) (affirming IJ finding of no
persecution even where petitioner was placed in solitary
confinement and physically abused); see also Bocova v. Gonzales,
412 F.3d 257, 263-64 (1st Cir. 2005) (same, two police beatings
during a two-year period). The baseline rule is that past
persecution requires “more than mere discomfiture, unpleasantness,
harassment, or unfair treatment.” Nikijuluw v. Gonzales, 427 F.3d
115, 120 (1st Cir. 2005). Although the harassment experienced by
these petitioners certainly was ugly, discriminatory, and
regrettable, they experienced no physical confinement and no
serious physical injuries resulted.
Next, petitioners contend that the IJ erred in
determining that they failed to establish a well-founded fear of
future persecution because the IJ inappropriately confined his
inquiry to whether the petitioners would be murdered or raped if
they were to return, and required that petitioners prove more than
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a 10% risk of such future persecution.2 The latter argument
advanced by petitioners is premised on INS v. Cardoza-Fonseca, 480
U.S. 421 (1987), where the Supreme Court noted that even as little
as a 10% risk of occurrence might support a well-founded fear of
future persecution. Id. at 431. They contend that, contrary to
the IJ’s interpretation of Cardoza-Fonseca, the Court did not
suggest that the courts should utilize this 10% figure as an
artificial benchmark. These arguments are unpersuasive as well.
The context of the IJ’s decision makes it clear that he
did not mean to suggest that murder and rape were the only
cognizable forms of future persecution. Rather, in juxtaposition
to the alleged incidents of past persecution in this case, the IJ
mentioned murder and rape simply as examples of the types of harm
severe enough to constitute cognizable forms of future persecution.
The IJ did not imply that only murder and rape rise to the
requisite level of persecution.
Likewise, the IJ’s reference to Cardoza-Fonseca and the
10% formulation, read in context, does not provide a basis for
reversal. While Susanto is correct that she is not required to
show that her likelihood of suffering persecution is, as a
mathematical matter, at least 10%, we do not take the IJ’s use of
2
As petitioners failed to establish past persecution, no
rebuttable presumption of future persecution was triggered, and
petitioners bore the burden to prove a well-founded fear of future
persecution. See 8 C.F.R. § 208.13(b)(1).
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this formulation to require such a showing. The IJ’s mention of
the formulation followed his statistical observation that Indonesia
has “millions” of ethnic Chinese, whereas the casualties of the
1998 riots were in the “thousands” or “tens of thousands.” In this
context, it is clear that the IJ simply intended to point out that
the prospect of past and future persecution against these
petitioners had been and would remain a “small one,” viz.,
considerably less than the 10% risk considered sufficient in
Cardoza-Fonseca. The IJ never attempted to quantify the precise
level of this “small” risk, nor does Cardoza-Fonseca require such
precision. See Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir.
1999) (citing Cardoza-Fonseca for its general holding that
requisite risk is “somewhat less than the classic ‘more likely than
not’ formulation,” and noting that “[b]eyond a tentative suggestion
that a ‘reasonable probability’ of persecution may capture the
essence of the legal standard, the Court has not been markedly more
precise”).
These two challenged findings were supported by
“substantial evidence” in the administrative record. The State
Department Reports adduced by the government assert that the worst
of the 1998 anti-Chinese violence occurred in the eastern parts of
Indonesia (whereas Susanto lived in Jakarta, in the central region
of the country), and that Indonesia, in response to intense
international condemnation of the 1998 anti-Chinese riots, has
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taken serious remedial measures to reduce the risks of any
recurrence. Indeed, Susanto herself testified that security
officers are now posted at her church. Thus, it was entirely
rational for the IJ to conclude that there presently exists but a
small chance that petitioners would suffer serious harm were they
to return to Indonesia. Moreover, the IJ reasonably concluded
that, were petitioners threatened with such harm, they reasonably
might relocate to a safer part of Indonesia, such as the areas with
a Christian majority. Indeed, Susanto herself testified that the
family fled to her uncle’s house in just such a safer region during
the 1998 riots. See El Moraghy v. Ashcroft, 331 F.3d 195, 199 (1st
Cir. 2003) (noting that evidence of viable relocation option may
undercut well-founded fear of future persecution); see also 8
C.F.R. § 208.13(b)(1)(i)(B).
Finally, petitioners now argue, for the first time, that
the IJ erred because he assessed the seriousness of the 1998
incidents experienced by Susanto as if she had been an adult,
whereas a 14-year-old child may perceive an experience as
persecutory, where an adult would not. She cites various
guidelines for assessing the asylum claims of children. We do not
address this issue, however, as these arguments were never raised
before the BIA, thus are deemed waived on appeal, for failure to
exhaust administrative remedies. See Opere v. INS, 267 F.3d 10, 14
(1st Cir. 2001).
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The petition for review is DENIED.
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