United States Court of Appeals
For the First Circuit
No. 07-1996
NOFITA FEBRIYANA DATAU,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
*
Tashima, and Lipez, Circuit Judges.
Jeanette Kain, Jeremiah Friedman, and Kaplan, O'Sullivan &
Friedman for petitioner.
Kristin A. Moresi, Trial Attorney, U.S. Department of Justice,
Office of Immigration Litigation, Peter D. Keisler, Assistant
Attorney General, Civil Division, and Barry J. Pettinato, Assistant
Director, for respondent.
August 27, 2008
* Of the Ninth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Petitioner Nofita Febriyana Datau,
a native and citizen of Indonesia, sought asylum, withholding of
removal, and protection under the Convention Against Torture
("CAT"), claiming that she experienced persecution based on her
Christian beliefs and the incorrect perception that she is
ethnically Chinese. Both of these minority groups have repeatedly
been victims of violent attacks in Indonesia. An Immigration Judge
("IJ") denied Datau’s application for relief, expressing doubts
about her credibility, and holding that, even if credible, she had
proven neither past persecution nor a well-founded fear of future
persecution. The Board of Immigration Appeals ("BIA") adopted and
affirmed the IJ's decision, noting that "the discrimination
suffered by the respondent does not rise to the level of
persecution." Datau petitioned for review of the BIA order; we
deny the petition.
I.
Datau lawfully entered the United States in New York in
September 2001 as a non-immigrant visitor. She was authorized to
remain in the country through March 8, 2002, but overstayed her
visa. In her application for asylum and in later testimony before
the IJ, Datau claimed that she left Indonesia because of incidents
of harassment that caused her to feel threatened and unsafe there.
Datau is a lifelong Protestant Christian and has facial features
that make her appear to be ethnically Chinese, although she is not.
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She stated that the tensions in Indonesia between the Muslim
majority and the Christian and Chinese minorities, together with
the episodes of violence and harassment experienced by her family
and friends, led her to conclude that she would face persecution if
she returned to that country.
Datau reported that she was an active member of her
church, where her mother was a deacon and she served as a youth
leader. She testified that she experienced several incidents of
harassment due to her church membership and her faith in general.
In 1997, local Muslims played loud anti-Christian music during
worship, wrote obscene graffiti on the walls of the church, and
threw rocks through the windows during services. In 1999, after
her congregation had relocated, the Muslims set fire to the front
porch of the building that Datau’s church was sharing with another
congregation. When church members met in private homes, the
Muslims continued to play music, stoned the buildings, and knocked
on the door to order them to cease their worship. Datau claims
that the local authorities ignored reports of all these events.
She also testified that her mother had recently told her that
people continued to throw rocks at her church and hang around
outside the building.
Datau offered evidence of additional harassment that she
attributed to her religion, gender, and perceived ethnicity. On
one mission trip to help the homeless in their area, members of
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Datau’s church group were threatened with knives and told not to
return or they would be killed. Datau was not present when this
happened, but was in the vicinity. She also experienced unwanted
sexual advances from Muslim men, who "looked down on her" because
of her Chinese appearance. She reported that she was approached by
Muslim men several times on the bus; on one occasion, a Muslim male
took her by the hand, told her she was beautiful, and stated that
they should go for a walk together. Datau also feared that she
would be raped because her friend, who was ethnically Chinese, was
raped at her workplace after local riots in 1998. Finally, Datau
claimed that she and seven of her Christian friends who also
appeared ethnically Chinese consistently received failing grades at
her university, which, because they were all good students, she
speculated was part of a pattern of discrimination.
In September 2002, almost a year after arriving in the
United States and several months past the deadline on her visa,
Datau filed for asylum, withholding of removal, and protection
under the CAT. In a Notice to Appear dated December 9, 2003, the
Department of Homeland Security initiated removal proceedings.
After a hearing, the IJ denied Datau’s application for relief in an
oral decision, questioning Datau's credibility and finding that the
harassment she alleged "did not rise to the level of persecution."
The IJ also found that Datau was unable to prove that "the
government in Indonesia is unwilling or unable to protect those of
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Christian faith in Indonesia." The BIA affirmed this decision
without a separate opinion.
II.
When the BIA adopts the IJ’s decision, "we review the
relevant portion of the IJ’s opinion as though it were the decision
of the BIA." Guillaume v. Gonzales, 504 F.3d 68, 72 (1st Cir.
2007). The IJ’s factual determinations are reviewed only to
determine if they are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." Tum v.
Gonzales, 503 F.3d 159, 161 (1st Cir. 2007) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal quotation marks
omitted). This highly deferential standard requires findings of
fact to be upheld "unless any reasonable adjudicator would be
compelled to conclude to the contrary." Ortiz-Araniba v. Keisler,
505 F.3d 39, 42 (1st Cir. 2007)(internal quotation marks omitted);
8 U.S.C. § 1252(b)(4)(B).
Asylum is available to an alien who is "unable or
unwilling to return to . . . [her] 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). The alien seeking asylum
bears the burden of proving that she is eligible. Bocova v.
Gonzales, 412 F.3d 257, 262 (1st Cir. 2005). This burden can be
met by proving past persecution, which gives rise to a rebuttable
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presumption of future persecution, or by directly proving a well-
founded fear of persecution on one of the statutory grounds.
Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005); Guzman v.
INS, 327 F.3d 11, 16 (1st Cir. 2003). The latter showing includes
both subjective and objective components. Guzman, 327 F.3d at 16.
The petitioner can satisfy her burden by proving a genuine fear of
persecution against her personally, relying on credible and
specific evidence. Id. Future persecution can also be proven with
evidence that a pattern or practice of discrimination exists in the
petitioner's country of origin against a group of persons similarly
situated to her. 8 C.F.R. § 1208.13(b)(2)(iii). Additionally, the
petitioner must establish that the persecution stems from
government action or inaction. Ortiz-Araniba, 505 F.3d at 41.
A. Credibility
Datau argues that the BIA’s decision lacks support
because it is based, in part, on the IJ’s unclear credibility
judgments. The IJ found fault with Datau’s testimony because
"material points of her story," including the death threats to her
companions on the mission trip and the rocks thrown through the
church windows, were not included in either her original
application materials or in her direct testimony. Instead, these
facts were mentioned only during her redirect examination. The IJ
also found that Datau was, "at times, evasive, vague, and non-
responsive" in her answers.
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Here, however, we need not dwell on the IJ’s credibility
assessment. The IJ did not expressly find the petitioner to lack
credibility, noting only that the judge had "concerns" about
Datau’s truthfulness. In fact, the IJ specifically noted that the
decision "ultimately d[id] not turn on" Datau's credibility,
instead ruling that, even accepting all of her testimony, the
events she described fell short of proving either past persecution
or a well-founded fear of future persecution. Accordingly, we turn
to the persecution finding.
B. Persecution
Datau argues that she presented substantial evidence of
both past persecution and the likelihood that she would be subject
to future persecution if forced to return to Indonesia. We cannot
agree. Her allegations of past persecution are in material
respects equivalent to those in Susanto v. Gonzales, 439 F.3d 57,
59-60 (1st Cir. 2006), which we found inadequate to establish the
requisite level of harsh treatment. In Susanto, an ethnic Chinese
Christian from Indonesia claimed that she had been harassed and
threatened by Muslims as she tried to worship, that she was mugged
at knifepoint and told "You Chinese, you die" on a bus, and that
she was groped and insulted by Muslim men. Id. at 59. She further
pointed to riots and injuries of other Christians, as well as the
rape of a neighbor’s daughter. Id. We concluded that harassment
of this quality and degree "simply does not compel a finding of
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persecution," relying on multiple decisions reaching the same
outcome in cases involving similar hardships. Id. In light of our
conclusion in Susanto, we cannot conclude that the IJ in this case
was compelled to find that Datau's experiences in Indonesia
amounted to persecution.
Datau's inability to demonstrate that the harassment she
suffered in Indonesia amounted to persecution also dooms her effort
to show a well-founded fear of future persecution. To make such a
showing, a person must "not only harbor a genuine fear of future
persecution, but also must establish an objectively reasonable
basis for that fear." Laurent v. Ashcroft, 359 F.3d 59, 65 (1st
Cir. 2004). However, Datau offers no evidence of likely harassment
upon her return to Indonesia that would be more oppressive than the
incidents she encountered in the past. We already have upheld the
IJ's determination that such experiences do not constitute
persecution, and we have repeatedly held that "discrimination in
Indonesia does not, without more, qualify a Christian Indonesian
national for asylum." Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir.
2008); see also Pulisir v. Mukasey, 524 F.3d 302, 308-09 (1st Cir.
2008); Kho v. Keisler, 505 F.3d 50, 58 (1st Cir. 2007).
Moreover, findings in the U.S. Department of State's
International Religious Freedom Report for 2005, which were cited
by the IJ, affirm that advances in inter-religious tolerance and
cooperation have resulted from efforts by the Indonesian government
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to encourage collaboration between Muslim and Christian community
leaders. This evidence indicates that some improvement has
occurred in conditions for the Christian minority, and Datau offers
no evidence refuting the accuracy of the Report's findings. Nor
does she offer evidence that her Chinese appearance on its own
places her in particular jeopardy. Thus, the record suggests that
Indonesia is now a more hospitable place for petitioner than it was
when she left the country.
Indeed, Datau’s assertion that she fears future
persecution is also weakened by the fact that her family continues
to live in her home area. "The fact that close relatives continue
to live peacefully in the alien’s homeland undercuts the alien’s
claim that persecution awaits [her] return." Ly, 524 F.3d at 133
(quoting Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999)).
Datau’s father, mother, and brother all continue to live in
Indonesia. Although family members have reported that rocks are
still thrown at their church, no members of her family have been
subject to any treatment that approaches the severity of
persecution.
In addition, to establish persecution Datau would need
to show that it was the "direct result of government action or
government-supported action, or there must be some showing that the
persecution is due to the government’s unwillingness or inability
to control the conduct of private actors." Jorgji v. Mukasey, 514
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F.3d 53, 57 (1st Cir. 2008). Datau does not contend that the
government was involved in the harassment against her. Rather, she
argues that when her church was stoned and later burned, the
authorities ignored the congregation's reports of the attacks. She
claims that the government's unwillingness to respond and its
inability to protect her provides support for her fear of future
persecution.
This argument fails for two reasons. First, the State
Department Report indicates an increased willingness on the part of
the Indonesian government to address the problems of the Christian
minority. Second, even if the government were not fully effective
in its response to complaints such as those made by Datau, her
claim of persecution would be unavailing because – as we have
explained – the incidents to which she points were not so severe
that the IJ was compelled to characterize them as persecution.
We therefore uphold the BIA's denial of petitioner's
asylum claim.
III.
Datau also seeks withholding of removal and protection
under the CAT. The standard of proof for these additional claims
is more stringent than for asylum. Withholding of removal requires
a showing that an alien is "more likely than not" to face
persecution, while protection under the CAT requires a showing that
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it is "more likely than not" that the alien would be tortured if
removed. Zheng v. Gonzales, 416 F.3d 97, 101 n.3 (1st Cir. 2005).
Because Datau fails to establish her eligibility for asylum, her
claim for withholding of removal and protection under the CAT
necessarily fail as well.
Petition denied.
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