Pulisir v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-1356

AGUST H. PULISIR,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.

William A. Hahn and Hahn & Matkov on brief for petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Kristina R. Sracic, Attorney, Office of
Immigration Litigation, on brief for respondent.

April 29, 2008
 SELYA, Senior Circuit Judge. The petitioner, Agust H.

Pulisir, is an Indonesian national. He seeks judicial review of a

final order of the Board of Immigration Appeals (BIA) approving the

denial of his request for withholding of removal. Discerning no

basis for overturning that order, we deny the petition.

The facts are straightforward (although reasonable minds

can draw differing inferences from them). The petitioner entered

the United States in 1994 and remained illegally for some nine

years before the Department of Homeland Security instituted removal

proceedings. See 8 U.S.C. § 1227(a)(1)(B). Before the immigration

judge (IJ), the petitioner conceded removability but cross-applied

for asylum, withholding of removal, and protection under the United

Nations Convention Against Torture (CAT).

The petitioner's basic claim was that, as a Protestant

Christian living in a predominantly Muslim nation, he had suffered

persecution on account of his religion. Of the various events to

which he testified in support of this claim, the three most salient

involved alleged acts of persecution transpiring while he was in

Indonesia. We chronicle them briefly.

In two instances, both occurring in 1987, vandals threw

rocks at the church that the petitioner attended. When asked how

he knew that the rock-throwers were Muslims, he explained that he

assumed as much because ninety-seven percent of the people who

lived near the church were of the Muslim faith.

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 The third incident occurred in 1988, when the

petitioner's family was hosting a women's prayer meeting at the

family's home. The meeting took place at the same time that the

local mosque was playing Islamic prayers over a loudspeaker.

Several uninvited individuals intruded and scolded the worshipers.

The intruders stated that if a party was going to occur, the hosts

needed to secure permission from the head of the neighborhood. The

petitioner's mother told the men that the gathering was not a

party. A fight broke out and the petitioner lost a front tooth.

Police eventually arrived but no arrests were made.

The petitioner, who claimed that he knew every Protestant

in the neighborhood, could not identify the intruders.

Consequently, he inferred that they were Muslims. Moreover, he

expressed a disdainful belief that the police had treated the

intruders with kid gloves.

The petitioner left Indonesia in 1990. Nevertheless,

relying on anecdotal accounts he testified that, during 1991, his

mother and four of her friends had been walking to church when a

young man blocked their passage. Seeing that they held bibles in

their hands, the man told them that they could not pass. When the

petitioner's mother tried to assert herself, she was roughed up and

ultimately required medical attention.

The petitioner testified on cross-examination to a

checkered travel history over the years 1990-1994. During that

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period, he worked for Carnival Cruise Lines and regularly returned

to Indonesia for roughly two months at a stretch, typically at six

to ten month intervals (either between assignments or on vacation).

The petitioner made four such pilgrimages in all. He described no

specific acts of harassment that occurred during any of these

trips, although he made a vague allusion that there was "always a

problem."

For the most part, the petitioner's testimony proceeded

without incident. At one point, however, he attempted to testify

concerning current conditions in Indonesia. The IJ cut off that

line of inquiry when the petitioner tried to recount developments

that had taken place in Indonesia from 1994 forward.1 The IJ

reasoned that the petitioner was incompetent to testify to recent

country conditions in light of his eleven-year absence from the

country. Relatedly, the IJ noted that substantial evidence about

that subject already was in the record, mainly in the form of State

Department Country Reports.

When the hearing concluded, the IJ denied all three of

the requested forms of relief in a bench decision. Two of these

initiatives were quickly dispatched: the IJ dismissed the asylum

1
The petitioner last visited Indonesia in 1994. He entered
the United States later that year and never left. He did not
return in 2003 to attend his father's funeral because he was
illegally in the United States and feared that he would be unable
to reenter. As an aside, he also mentioned that the journey would
have been costly.

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application as untimely and rejected the CAT claim for failure to

show a threat of torture at the hands of governmental actors.

Neither of those claims are pursued in this court, so we make no

further mention of them.

As to the request for withholding of removal, the IJ

discounted the petitioner's testimony regarding the alleged events

of 1987, 1988, and 1991. The IJ noted the conspicuous lack of

specificity, detail, and corroboration, and gave significant weight

to the pacific nature of the petitioner's trips to Indonesia during

the 1991-1994 time frame.

Turning to the likelihood of future persecution, the IJ

determined that while discrimination against Christians existed in

Indonesia, it was neither widespread nor in most instances severe.

Furthermore, the Indonesian government was committed to the

principle of religious diversity and actively discouraged

discrimination against non-Muslims.

When all was said and done, the IJ concluded that the

petitioner had failed to carry his burden of proving that, more

likely than not, he would be persecuted if remitted to his

homeland. Accordingly, he refused the request for withholding of

removal.

On appeal, the BIA upheld the IJ's ukase. As to

withholding of removal, it rested its decision on somewhat broader

grounds, concluding that the record left unclear whether religious

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animus had sparked the incidents of which the petitioner complained

(and, thus, that the petitioner had failed to carry his burden in

this regard). The BIA also took special note of the fact that,

since 1991, the petitioner's family has lived tranquilly in

Indonesia. It then cited cases such as Susanto v. Gonzales, 439

F.3d 57 (1st Cir. 2006), in which withholding of removal had been

denied due to a failure to prove acts severe enough to constitute

persecution. See id. at 59-60.

The BIA also addressed the petitioner's claim that the

IJ's truncation of his testimony abridged his due process rights.

It rejected this claim, observing that the petitioner had not

identified any relevant evidence that otherwise could have been

presented to the trier.

This timely petition for judicial review followed. In

it, the petitioner calumnizes the denial of his request for

withholding of removal on a variety of grounds and characterizes

the hearing before the immigration court as violative of due

process.

As to the petitioner's main group of arguments, our

standard of review is familiar. When assessing findings of fact in

immigration proceedings, we must respect those findings as long as

they are supported by substantial evidence on the record as a

whole. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir. 2007). Under

this deferential standard, an IJ's factual determination will be

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upheld unless the record is such as to compel a reasonable

factfinder to reach a contrary determination. Laurent v. Ashcroft,

359 F.3d 59, 64 (1st Cir. 2004). Abstract legal points are

reviewed de novo, but with some deference to the agency's

reasonable interpretation of statutes and regulations that fall

within its purview. Pan, 489 F.3d at 85; see Chevron U.S.A., Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

In immigration matters, judicial review normally focuses

on the decision of the BIA as opposed to that of the IJ. Stroni v.

Gonzales, 454 F.3d 82, 86 (1st Cir. 2006). That approach obtains

wherever the BIA has conducted an independent evaluation of the

record and rested its affirmance of the IJ's decision on a self-

generated rationale. See Acevedo-Aguilar v. Mukasey, 517 F.3d 8,

9 (1st Cir. 2008). This is such a case.

Turning to the substantive law, an applicant for

withholding of removal has the burden of proving that, more likely

than not, he would be subject to persecution on account of a

statutorily protected ground should he be repatriated.2 See 8

U.S.C. § 1231(b)(3)(C); 8 C.F.R. § 1208.16(b)(2); Romilus v.

Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004). The alien may, of course,

carry this burden by proving future persecution simpliciter. He

also may carry it by proving past persecution. See 8 C.F.R. §

2
Religion is one such protected ground. See 8 U.S.C. §
1231(b)(3).

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1208.16(b)(1). If past persecution is established, a rebuttable

presumption arises that the alien would be subject to future

prosecution as well. Id. The government may then overcome the

presumption in one of two ways: either by proof that circumstances

in the country of removal have changed for the better (thus

dissipating the threat of persecution) or by proof that the alien

may avoid the discerned threat by relocating elsewhere within his

homeland. See id. § 1208.16(b)(1)(i). On both of these theories,

the devoir of persuasion rests with the government. See id. §

1208.16(b)(1)(ii).

Against this backdrop, the petitioner's first claim of

error is that neither the BIA nor the IJ made an express finding

about past persecution. This claim need not occupy us for long: it

overlooks the well-settled tenet that an implicit finding of past

persecution will suffice to undergird a decree. See Rotinsulu v.

Mukasey, 515 F.3d 68, 72-73 (1st Cir. 2008) ("Although we expect an

immigration judge to make findings on all grounds that are

necessary to support his decision, those findings can be either

explicit or implicit."). That tenet controls here.

To be sure, the decisions below may be slightly

elliptical, but findings regarding past persecution are easily

inferable. For example, both the BIA and the IJ discussed the

alleged acts of persecution and found that those rather bland

incidents failed to justify the relief requested. That reasoning

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necessarily subsumes and decides the question of past persecution.3

See id. at 72.

The petitioner's challenge to the definitions of

"persecution" and "discrimination" used by the agency is more

nuanced. He appears to acknowledge that, under prevailing case law

in this circuit, the incidents that he described could plausibly be

found to lack the requisite level of severity. See, e.g., Awad v.

Gonzales, 463 F.3d 73, 76 (1st Cir. 2006); Susanto, 439 F.3d at 57;

Bocova v. Gonzales, 412 F.3d 257, 263-64 (1st Cir. 2005); Nelson v.

INS, 232 F.3d 258, 263-64 (1st Cir. 2002). He nonetheless argues

that more general conditions should have "significantly affected"

the factfinding calculus. For that proposition, he relies on Singh

v. INS, 94 F.3d 1353 (9th Cir. 1996), which states that "[t]he more

the group to which an applicant belongs is discriminated against,

harassed, or subjected to violence, the less the individualized

showing an applicant must make to establish eligibility for

asylum." Id. at 1359.

This case does not require us either to lay down a

bright-line rule or to decide whether the Ninth Circuit's "sliding

scale" approach is compatible with our precedents. Common sense

suggests that larger social, cultural, and political forces can

lend valuable context to particular incidents and, thus, can

3
The BIA's citation to the line of authority headed by
Susanto, 439 F.3d at 59-60, is a further confirmation of this
reality.

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influence the weight that a factfinder may assign to those

incidents. See Vatulev v. Ashcroft, 354 F.3d 1207, 1210-11 (10th

Cir. 2003). But contextual considerations, standing alone, do not

convert disagreeable events into acts of persecution, nor do they

justify a finding of persecution where persecution has not been

proven. See Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.

2007); Mohamed v. Ashcroft, 396 F.3d 999, 1003 (8th Cir. 2005).

The line between persecution and discrimination is often

tenebrous, see Bucur v. INS, 109 F.3d 399, 403 (7th Cir. 1997), and

absent an error of law, a reviewing court must in large measure

defer to the on-the-ground judgments of the trier. So it is here.

The petitioner is unable to point to anything that

suggests that the agency misconceived the conceptual nature of

either "persecution" or "discrimination." Nor is any other error

of law apparent. Indeed, for aught that appears, the decisions of

both the BIA and the IJ reflect that, when assessing the net effect

of the incidents of which the petitioner complained, they were well

aware of general conditions in Indonesia. The mere fact that those

decisionmakers weighed the constituent parts differently and

reached a conclusion not to the petitioner's liking does not

constitute a valid reason for overturning the agency's judgment.

If more is needed — and we doubt that it is — the

petitioner's "general conditions" argument puts the cart before the

horse. The BIA found explicitly that the petitioner had

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inadequately demonstrated any nexus between the incidents in

question and his religion. Such a nexus is a necessary element of

any claim for withholding of removal. See 8 U.S.C. §

1231(b)(3)(A); Hincapie, 494 F.3d at 217. Because that fact-

specific determination is supported by substantial evidence in the

record,4 it is binding here. Consequently, the petitioner's claim

of error fails.

The petitioner next alleges that the IJ (and, by

implication, the BIA) read the State Department Country Reports so

selectively as to run afoul of the rule in Gomes v. Gonzales, 473

F.3d 746 (7th Cir. 2007). There, the Seventh Circuit vacated a

denial of asylum because the agency had insufficiently explained

its rationale. See id. at 756-57. The court faulted the agency

for relying almost exclusively on the Country Reports, cherry-

picking positive tidbits from that source, and turning a blind eye

to conflicting evidence in the record. See id. at 755-56.

Gomes is not a fair congener. The record in this case,

read objectively, does not support the claim of selectivity. The

4
The petitioner testified that he was attacked by persons he
thought were Muslims, but did not specifically identify his
attackers. Moreover, he put forth only speculation to support the
claim that those people attacked him (or, in one instance, his
mother) on account of religious animus. The BIA was not bound
either to accept that conjecture or to credit the petitioner's
self-serving conclusions. See Hincapie, 494 F.3d at 217-18
(explaining that an alien must do more than merely express a belief
that incidents were due to a statutorily protected ground in order
to establish a proper nexus).

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adverse finding regarding future persecution was made only after

confronting and fully considering the petitioner's direct

testimony. Unlike in Gomes, the agency did not sidestep

conflicting evidence but, rather, considered the record as a whole

and reasonably concluded that it failed to show a nexus between the

petitioner's misadventures and his religion. On the same basis,

the agency found that what the petitioner had experienced did not

sink to the level of persecution and that his family's relatively

serene existence for many years in Indonesia strongly suggested

that he himself would not suffer persecution upon repatriation.

These findings are impervious to the petitioner's attack.

State Department Country Reports, though not normally conclusive,

are generally deemed authoritative for purposes of immigration

proceedings. See Waweru v. Gonzales, 437 F.3d 199, 202 n.1 (1st

Cir. 2006) (explaining that the BIA "is entitled to rely on the

State Department's country reports as proof of country conditions

described therein, although it must also consider evidence in the

record that contradicts the State Department's descriptions and

conclusions"); Zarouite v. Gonzales, 424 F.3d 60, 63 (1st Cir.

2005) (similar). In certain circumstances, the IJ and the BIA may,

therefore, give the contents of such reports appreciable — even

determinative — weight. See Gao v. Gonzales, 467 F.3d 33, 37 (1st

Cir. 2006); see also Negeya v. Gonzales, 417 F.3d 78, 84 (1st Cir.

2005) ("Generally, State Department reports are a highly probative

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source of evidence in cases that turn on the objective

reasonableness of an asserted fear of future persecution."). That

discretion was not exceeded here; the Country Reports were largely

unimpeached and, at any rate, were used mainly as a means of

buttressing the conclusions that the IJ and the BIA drew from the

petitioner's testimony and the other evidence in the record.

Nor does it matter that the BIA and the IJ did not

dissect every scrap of proof. The law is pellucid that "each piece

of evidence need not be discussed in a decision." Morales v. INS,

208 F.3d 323, 328 (1st Cir. 2000).

The petitioner's challenge to the finding that, should he

be repatriated, he would be able to improve his lot by relocating

within Indonesia requires little comment. The issue of relocation

typically becomes relevant only after a presumption of future

persecution arises. See, e.g., Singh v. BIA, 435 F.3d 216, 219 (2d

Cir. 2006); Un v. Gonzales, 415 F.3d 205, 208-09 (1st Cir. 2005);

Qu v. Gonzales, 399 F.3d 1195, 1198 (9th Cir. 2005). Since there

was no finding of past persecution, no presumption of future

persecution pertains here. The agency's discussion of relocation

was, therefore, either dictum or at most an alternate holding.

In all events, even were we to reach the issue, the

challenge would fail on the merits. As framed, it depends on the

notion that the trier misallocated the burden of proof on this

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issue (which, in the petitioner's view, should have rested with the

government). That notion is incorrect.

The burden of proving that relocation is not a feasible

alternative normally rests with the alien and shifts to the

government only if the alien adequately establishes either past

persecution or a likely basis for fearing future government-

sponsored persecution. See 8 C.F.R. §§ 1208.16(b)(1)(i)(B),

(b)(1)(ii), (b)(3). As we already have explained, neither of those

conditions was satisfied here.

This leaves the petitioner's swan song: his claim that

the IJ violated due process by excluding his testimony concerning

general conditions in Indonesia long after his 1994 departure from

that country. This ruling, the petitioner asserts, was prejudicial

because conditions in his homeland deteriorated greatly from 1997

until the time of the hearing, and his testimony would have

enlightened the trier about the gravity of the situation.

We review de novo a claim that an immigration judge's

conduct violated an alien's due process rights. Teng v. Mukasey,

516 F.3d 12, 17 (1st Cir. 2008); Laurent, 359 F.3d at 62. We start

with the rock-solid proposition that an alien is entitled to a fair

hearing, not necessarily a perfect one. Aguilar-Solís v. INS, 168

F.3d 565, 569 (1st Cir. 1999). Even if a shortfall is shown,

prejudice is an essential element of a viable due process claim in

this context. López-Reyes v. Gonzales, 496 F.3d 20, 23 (1st Cir.

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2007). A court will find such prejudice only when it is shown that

an abridgement of due process is likely to have affected the

outcome of the proceedings. Shmyhelskyy v. Gonzales, 477 F.3d 474,

482 (7th Cir. 2007).

When a due process challenge is aimed at a trial-

management ruling, a reviewing court must keep in mind the tension

that exists between a trial judge's right to regulate the course of

a hearing and an alien's right to present evidence to his own

behoof. Compare 8 C.F.R. § 1240.1(c) with 8 U.S.C. §

1229a(b)(4)(B). Balancing these rights, we see no hint of a due

process transgression here.

In this instance, the IJ afforded the petitioner

considerable latitude, inviting testimony about specific events in

Indonesia involving the petitioner's family and friends even if the

petitioner himself lacked first-hand knowledge of those events.

The IJ drew the line, however, when the petitioner attempted to

testify about general country conditions from 1994 forward. By the

time of the hearing, the petitioner had been away from Indonesia

for eleven years and had no special qualifications to speak to

general conditions there.

It is true, of course, that evidentiary standards are

applied more loosely in administrative hearings than in court

cases. See 8 C.F.R. § 1240.7; see also Niam v. Ashcroft, 354 F.3d

652, 659 (9th Cir. 2004) ("[A]dministrative agencies are not bound

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by the hearsay rule or any other of the conventional rules of

evidence, but only by the looser standard of due process of law.");

Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003) (similar).

Still, the trial judge must be accorded some flexibility in his

efforts to ensure that speculation and surmise do not become

proxies for probative evidence. In the circumstances of this case,

we discern no error — much less a due process violation — in the

IJ's decision to curtail the petitioner's second-hand account of

current conditions in a land that he had not visited for over a

decade.5

Nor were the petitioner's rights offended in any related

way. The record shows no indication that the IJ denied him the

opportunity to introduce competent evidence of current country

conditions (say, by expert testimony or reports from recognized

authorities). By the same token, the IJ did not prevent the

petitioner from testifying as to any matter within his ken (whether

or not he had first-hand knowledge thereof). Given this overall

picture, the petitioner cannot be heard to complain that his right

to due process was infringed.

We need go no further. To the extent that the petitioner

has alluded to other arguments, they are patently meritless,

insufficiently developed, or both. It suffices to say that, for

5
This conclusion renders it unnecessary for us to review the
BIA's holding that, even if a violation occurred, no cognizable
prejudice flowed from it.

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the reasons elucidated above, the petition for judicial review must

be denied.

So Ordered.

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