United States Court of Appeals
For the First Circuit
No. 07-1837
FRANKIE SELA,
Petitioner,
v.
MICHAEL B. MUKASEY,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Tashima,** Senior Circuit Judge,
and Lipez, Circuit Judge.
Yan Wang on brief for petitioner.
Elizabeth A. Greczek, Office of Immigration Litigation, Peter
D. Keisler, Assistant Attorney General, and Barry J. Pettinato,
Assistant Director, on brief for respondent.
March 13, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzales.
**
Of the Ninth Circuit, sitting by designation.
LYNCH, Circuit Judge. Frankie Sela, a native and citizen
of Indonesia, seeks review of the denial of his application for
asylum, withholding of removal, and protection under the Convention
Against Torture ("CAT"). We deny the petition for review.
Sela entered the United States in October 2000 on a
visitor visa, which expired in April 2001. Sela remained in the
United States and was served with a Notice to Appear in April 2003.
In a hearing before an Immigration Judge ("IJ") on May 3, 2005,
Sela conceded removability but applied for asylum, withholding of
removal, and CAT protection, claiming persecution on account of his
Christian religion.
In support of this application, Sela testified before
another IJ on January 20, 2006. He recounted rioting against
Christians in Jakarta in May 1998, which frightened him and his
family and might have resulted in some damage to his house. That
June, Sela and his family moved to a safer area, but they
encountered rioting there as well. They escaped harm on one
occasion by hiding on the roof of their house. They moved again in
June 1999, and during the five-day boat trip to their new domicile,
a group boarded the vessel and harassed Christians onboard. Sela
testified that two passengers identified as Christians were
tortured and that one was thrown overboard. Between June 1999 and
Sela's departure from Indonesia in October 2000, no further
incidents occurred.
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In an oral opinion issued the same day as the hearing,
the IJ denied Sela's application for asylum and withholding of
removal. He found the asylum petition time-barred, and while he
deemed Sela's testimony credible, he faulted Sela for failing to
provide sufficient corroboration. The IJ concluded that Sela
failed to demonstrate any past or likely future persecution,
pointing to the absence of presumably attainable corroboration and
the lack of harm to him during these incidents. The IJ quickly
disposed of the CAT claim because Sela had not asserted anything
indicative of torture.
The Board of Immigration Appeals ("BIA") upheld the IJ's
decision in a May 18, 2007 opinion. It affirmed the IJ's finding
that the asylum application was time-barred, a determination that
we lack jurisdiction to review. See 8 U.S.C. § 1158(a)(3). It
noted that the incidents described by Sela did not rise to the
level of persecution and were more indicative of general civil
unrest in the country. The BIA summarily affirmed the IJ's ruling
on the CAT claim.
Sela petitioned this court for review of the BIA's
affirmance. Petitioner's arguments are not very clear, but even
given a liberal reading, they do not present any grounds for
review.
"When the BIA adopts the IJ's opinion and discusses some
of the bases for the IJ's decision, we have authority to review
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both the IJ's and the BIA's opinions." Ouk v. Gonzales, 464 F.3d
108, 110 (1st Cir. 2006); see also Ferdinandus v. Gonzales, 504
F.3d 61, 63 (1st Cir. 2007). We must accept the IJ's and BIA's
findings of fact "unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
With respect to his claim for withholding of removal,
Sela bears the burden of proving that his "life or freedom would be
threatened in [Indonesia] on account of . . . [his] religion." 8
C.F.R. § 208.16(b). This requires demonstrating that it is "more
likely than not" that he will be persecuted in the future based on
his religion. Id. § 208.16(b)(2). A showing of past persecution
creates a rebuttable presumption of future persecution. Id.
§ 208.16(b)(1)(i). In this case, the IJ and BIA reasonably found
that petitioner had failed to establish past persecution or a clear
probability of future persecution.
First, "isolated incident[s] without violence or
detention" do not constitute persecution under the regulations.
Ferdinandus, 504 F.3d at 63; see also Pieterson v. Ashcroft, 364
F.3d 38, 45 (1st Cir. 2004) (petitioner who was "never physically
harmed, detained, or arrested" did not allege facts amounting to
persecution). While petitioner and his family might have feared
for their safety, no one was physically mistreated and any damage
to their property was minimal. "[P]ast persecution requires that
the totality of a petitioner's experiences add up to more than mere
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discomfiture, unpleasantness, harassment, or unfair treatment."
Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005).
Second, the IJ and BIA reasonably concluded that
petitioner had not demonstrated a likelihood of future persecution.
At best, Sela has alleged general, sporadic violence toward
Christians in Indonesia. This court has held that it is not
enough to point to "general reports that some members of a certain
group are persecuted in a country" to establish that petitioner
himself is more likely than not to suffer such persecution upon his
return. Melhem v. Gonzales, 500 F.3d 78, 82 (1st Cir. 2007); see
also Awad v. Gonzales, 463 F.3d 73, 77 (1st Cir. 2006); Pieterson,
364 F.3d at 44. Members of Sela's family have also remained in
Indonesia without incident. See, e.g., Ferdindandus, 504 F.3d at
63; Melhem, 500 F.3d at 82; Ouk, 464 F.3d at 111; Chahid Hayek v.
Gonzales, 445 F.3d 501, 509 (1st Cir. 2006).
As for petitioner's CAT claim, he did not raise the issue
on appeal to the BIA and has thus not exhausted his administrative
remedies, precluding our review. Ouk, 464 F.3d at 111.
The petition for review is denied with respect to Sela's
claim for withholding of removal and is dismissed for lack of
jurisdiction with respect to his asylum and CAT claims.
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