Budiono v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-2363

ESTER PAULINE BUDIONO,

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,
Boudin and Stahl, Circuit Judges.

William A. Hahn and Hahn & Matkov on brief for petitioner.
Kristina R. Sracic, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Gregory G. Katsas,
Assistant Attorney General, and Terri J. Scadron, Assistant
Director, on brief for respondent.

November 19, 2008
 LYNCH, Chief Judge. Ester Pauline Budiono, a young

Indonesian woman, petitions for review of the denial of her

application for asylum by the Board of Immigration Appeals ("BIA").

She is a Christian and ethnic Chinese and asserted persecution on

both grounds. We deny the petition.

Budiono arrived in the United States on December 17, 2003

on a tourist visa that authorized her to remain in the country

until June 14, 2004. She overstayed and on January 25, 2005, filed

an application for asylum with the Department of Homeland Security

("DHS"), asserting she had been and would be persecuted based on

her religion and ethnicity. DHS denied her application, and on

February 18, 2005, DHS served her with a Notice to Appear, charging

her as removable under § 237(a)(1)(B) of the Immigration and

Nationality Act for remaining in the United States longer than

permitted. Budiono conceded her removability and sought relief

through her application for asylum, withholding of removal, and

relief under the Convention Against Torture ("CAT").

I.

We summarize Budiono's testimony before the Immigration

Judge ("IJ").

Budiono testified she was persecuted in Indonesia on the

basis of her Christian Protestant religion and her Chinese

ethnicity. Between 1990 and 1996, she faced discrimination at her

elementary school in that teachers would ask more difficult

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questions of the Chinese students than of native Indonesians, that

people would bother her and the other Chinese students when she

walked outside, and that men would try to touch her. Her school

also received a telephone threat that it would be burned down in

1998.

In her written affidavit submitted to the IJ, but not in

her oral testimony, Budiono also described riots that occurred

during May 13-15, 1998. She witnessed these riots on television.

The rioters looted and set many stores on fire. Chinese women who

were storekeepers and owners of some stores were abused. After

these incidents, Budiono's parents decided not to allow her to

leave home except to attend school and church.

In 1998, when Budiono was thirteen years old, she was

going home from school in a pedicab when five Muslim males stopped

her in the middle of the road and started to touch her face.

Although the driver of the pedicab tried to defend her, the men

pushed him to the ground. The five Muslim men then left. She

claimed that the men targeted her because she was Chinese and

because she was Christian. The assailants knew she was Christian

because they had been sitting outside her Catholic school.

While attending Christmas services in 2000, Budiono heard

broken glass and screaming outside. She believed that Muslim men

were breaking the windows of cars outside the church. The incident

was reported to law enforcement, but no arrests were made.

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 Some of her strongest testimony concerned an incident, in

2003, of sexual assault on a friend. She was with her friend Sarah

and another friend when they were stopped by five men who asked

them for their money. One of them suddenly hugged Sarah. While

the men continued to try to touch Sarah, Budiono and her friend

were able to escape and find a security guard to help. When they

returned, they found Sarah naked and unconscious. They took her

back to their dorm at school. The next day the principal contacted

their parents to come and get them.

Budiono later attended college in Indonesia. During

college, people would bother her if she left school by touching her

or calling out to her saying, "Chinese, hey, you beautiful

Chinese." In 2003, her brother's motorcycle was stolen. Her

family reported it to the police, but the police did not respond.

The IJ rejected Budiono's application for asylum,

withholding of removal, and protection under the CAT in an oral

decision on March 31, 2006.1 The IJ found Budiono credible, but

concluded that she had failed to meet her burden of proof for

establishing either past persecution or a well-founded fear of

future persecution. With respect to past persecution, the IJ found

that "nothing ever happened to [Budiono]" and that "she led a

fairly quiet and peaceful life in Indonesia." These unfortunate

1
Budiono does not challenge the BIA's denial of her
application for withholding of removal or protection under the CAT.

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statements by the IJ form the centerpiece of Budiono's claims of

error.

The IJ found that the harassment described by Budiono did

not rise to the level of persecution on one of the statutorily

enumerated grounds. On the question of the identity of the alleged

persecutors, the harassment was committed by individuals, not the

government, and the IJ noted that Budiono did not seek help from

the police to stop the harassment. The IJ further found Budiono

did not establish that the government was unable or unwilling to

protect her. Indeed, the IJ stated that "the government is doing

what it can" to quell violence and promote inter-ethnic unity.

As to future persecution, the IJ stressed that Budiono's

family members have continued live unharmed in Indonesia. The IJ

found that Budiono failed to establish a well-founded fear of

future persecution on the basis of the evidence of country

conditions and her family's relative safety in Indonesia. The IJ

granted Budiono voluntary departure.

Budiono appealed the denial to the BIA, which affirmed

in a per curiam opinion issued August 7, 2007 and dismissed the

appeal. The BIA independently reviewed the record, and it adopted

and affirmed the decision of the IJ, "except for her finding that

[Budiono] has 'led a fairly quiet and peaceful life in Indonesia.'"

In so holding, the BIA may have implicitly rejected as well the

IJ's statements that "nothing ever happened" to Budiono.

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 The BIA considered the evidence of country conditions and

concluded that the 1998 riots and articles discussing more recent

violence in Indonesia were not sufficient to disturb the IJ's

finding that Budiono did not show a well-founded fear of future

persecution on account of religion or ethnicity. The BIA also

examined the State Department country condition report for

Indonesia for 2005, which showed "a decrease in discrimination and

harassment of ethnic Chinese, and that recent reforms increased

religious and cultural freedoms." The 2005 reports examined by the

BIA also included information about violence against women,

including the treatment of rape. The BIA reinstated the IJ's grant

of voluntary departure but reduced the period granted from about

ninety days to sixty days.

II.

Budiono raises three primary challenges in her petition:

first, that the BIA erred in affirming the IJ's decision but

striking particular findings; second, that the IJ's conclusion that

"nothing happened" demonstrates the IJ's failure to evaluate

properly Budiono's claims of past persecution or a well-founded

fear of future prosecution; and third, that the IJ and BIA did not

properly consider the evidence of country conditions in Indonesia

for Christians and ethnic Chinese.

Budiono's opening argument is that the BIA erred because

it adopted almost the entirety of the IJ's decision while striking

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one of the IJ's conclusions and adding additional commentary. She

contends that such a "hybrid" opinion is impermissible. This

argument lacks merit. The law is clear that the BIA can adopt part

of the IJ's decision and add its own analysis, and that the court

can review "those portions of the IJ's opinion that the BIA has

adopted." Ouk v. Keisler, 505 F.3d 63, 67 (1st Cir. 2007) (quoting

Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004)) (internal

quotation marks omitted).

She next attacks the factual findings, which we review

under the deferential substantial evidence standard. Kechichian v.

Mukasey, 535 F.3d 15, 20 (1st Cir. 2008). "When the BIA adopts the

IJ's opinion and discusses some of the bases for the IJ's decision,

we have authority to review both the IJ's and the BIA's opinions."

Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006). We uphold the

BIA's findings if they are "supported by reasonable, substantial,

and probative evidence on the record considered as a whole."

Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir. 2005) (quoting INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal quotation

marks omitted). We reverse only if "any reasonable adjudicator

would be compelled to conclude to the contrary." 8 U.S.C.

§ 1252(b)(4)(B); see also, e.g., Chikkeur v. Mukasey, 514 F.3d

1381, 1382-83 (1st Cir. 2008).

To qualify for asylum, Budiono bears the burden of

proving that she has suffered past persecution or has a well-

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founded fear of future persecution based on her religion or ethnic

Chinese origins. See Chikkeur, 514 F.3d at 1382; see also 8 U.S.C.

§ 1101(a)(42)(A) (defining "refugee" as one who suffers persecution

on the basis of "race, religion, nationality, membership in a

particular social group, or political opinion"). To qualify as

persecution, the harm to the petitioner must exceed

"unpleasantness, harassment, and even basic suffering." Nelson v.

INS, 232 F.3d 258, 263 (1st Cir. 2000). Moreover, the alleged

persecution must be "the direct result of government action,

government-supported action, or government's unwillingness or

inability to control private conduct." Nikijuluw v. Gonzales, 427

F.3d 115, 121 (1st Cir. 2005).

We agree with the BIA that the record does not support

the IJ's statement that Budiono has led a fairly quiet and peaceful

life in Indonesia. Nor does the record support the IJ's repeated

statement that "nothing happened" to Budiono. Perhaps the IJ meant

only that Budiono, unlike her friend, had not been sexually

assaulted. The record does show that Budiono -- whom the IJ found

credible -- witnessed the onset of a sexual assault of a close

friend, that she narrowly escaped that fate, and, in addition to

that experience, that she genuinely feared the men who harassed her

outside her school. These effects were not "nothing," and the IJ's

characterizations of Budiono's experiences were ill-chosen and

insensitive.

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 Budiono argues that the IJ's ruling that "nothing

happened" so infects the IJ's reasoning that it is clear the IJ did

not correctly analyze the testimony. From this, she argues that we

should conclude the infection is fatal, that the BIA's independent

review of the record should be disregarded, and that the case must

be remanded. None of those conclusions is warranted.

Those unfortunate remarks were not the backbone of the

IJ's rejection of Budiono's asylum claim, and substantial evidence

nonetheless supports the determination that the harms Budiono

suffered in Indonesia did not constitute persecution. The IJ

recognized that although the incidents of harassment in school were

"naturally uncomfortable to a young female," they did not rise to

the level of persecution.2

We are not compelled to conclude that she "was subjected

to systematic maltreatment rising to the level of persecution, as

opposed to a series of isolated incidents." Topalli v. Gonzales,

417 F.3d 128, 132 (1st Cir. 2005). Our case law supports the

findings of the BIA and IJ here.

2
Budiono relies on In re Y-C-, 23 I. & N. Dec. 286 (BIA
2002)(considering petitioner's age to excuse failure to file asylum
application within one year of arrival), to argue that the IJ
needed to "take . . . into account" the fact that the
"incidents . . . occurred during [Budiono's] formative years" and
therefore deserve special consideration. Even taking those effects
as having an impact on Budiono, the evidence still does not compel
a finding of persecution.

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 In Susanto v. Gonzales, 439 F.3d 57, 59 (1st Cir. 2006),

this court concluded that materially similar (indeed, arguably

stronger) allegations of past persecution did not require a finding

of persecution. In Susanto, the petitioner, an Indonesian ethnic

Chinese Christian, testified that she had been threatened and

harassed by Muslims while she worshiped, that she was mugged at

knifepoint and told "You Chinese, you die," that she was groped and

insulted by Muslim men, and that a Christian neighbor's daughter

had been raped. Id. This court held that the record in Susanto

"simply does not compel a finding of persecution." Id.

In Datau v. Mukasey, 540 F.3d 37 (1st Cir. 2008), this

court also rejected the petition of a Christian Indonesian woman

whose features made her appear Chinese. Datau held that unwanted

advances from Muslim men, the rape of a friend, and alleged

discriminatory grading at a university did not compel a finding of

past persecution. Id. at 41. Datau had also not established a

well-founded fear of future persecution in light of improved

country conditions in Indonesia and the fact that her family

continued to live unharmed in Indonesia. Id. at 42.

Budiono also attacks the IJ's finding that Budiono had

not shown that the Indonesian government actively discriminates

against and persecutes Chinese Christians. Budiono correctly notes

that the IJ should look at an individual's claim in the context of

country condition reports. El Moraghy v. Ashcroft, 331 F.3d 195,

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204 (1st Cir. 2003). The IJ examined the country conditions in

Indonesia, and the BIA explicitly relied on the 2005 State

Department country report for Indonesia. Those reports do show

there is a problem with violence against women, but also that the

government is trying to stop such violence. The IJ reasonably

found that "while there is some sporadic violence, when viewed in

the aggregate the Indonesian government is attempting to quell

these kinds of incidences."

That finding too is consistent with precedent in this

circuit. See Sinurat v. Mukasey, 537 F.3d 59, 62 (1st Cir. 2008)

("The IJ, and ultimately the BIA, reasonably found no connection

between the Indonesian government's treatment of Christians

generally and the isolated attack on Sinurat."); Kho v. Keisler,

505 F.3d 50, 54 (1st Cir. 2007) ("We have repeatedly affirmed the

BIA's determinations . . . that there is no ongoing pattern or

practice of persecution against . . . Christians in Indonesia.");

Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir. 2008) ("Discrimination

in Indonesia does not, without more, qualify a Christian Indonesian

national for asylum.").

Finally, substantial evidence supports the IJ's and BIA's

determination that Budiono failed to establish a well-founded fear

of future persecution in light of the fact that her family

continues to live in relative safety in Indonesia. "The fact that

close relatives continue to live peacefully in the alien's homeland

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undercuts the alien's claim that persecution awaits [her] return."

Ly v. Mukasey, 524 F.3d 126, 133 (1st Cir. 2008) (quoting Ouk, 464

F.3d at 111).

III.

We deny the petition for review.

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