United States Court of Appeals
For the First Circuit
No. 08-1381
FRANCINE PANGEMANAN,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.
William A. Hahn with whom Hahn & Matkov was on brief for
petitioner.
Anthony Wray Norwood, Senior Litigation Counsel, Office of
Immigration Litigation, U.S. Department of Justice, with whom
Gregory G. Katsas, Assistant Attorney General, was on brief for
respondent.
June 10, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael Mukasey as the respondent.
LYNCH, Chief Judge. The sole question presented by this
petition for review by Francine Pangemanan, of Indonesia, is
whether the Board of Immigration Appeals ("BIA") erred in affirming
the finding of an immigration judge ("IJ") that Pangemanan had not
established her claim for withholding of removal after she
overstayed in this country. Because there was substantial evidence
to support the determination that she had not shown past
persecution or a well-founded fear of future persecution, we deny
the petition.
I.
Pangemanan entered the United States on March 26, 2000 as
a non-immigrant visitor with authorization to remain no longer than
six months. Her husband had come to the United States in 1997.
She overstayed. On February 3, 2003, the Immigration and
Naturalization Service1 served Pangemanan with a Notice to Appear,
charging her as removable under 8 U.S.C. § 1227(a)(1)(B).
Pangemanan filed an application for asylum, withholding of removal,
and protection under the United Nations Convention Against Torture
("CAT") on September 23, 2004.
Pangemanan's testimony before the IJ was that she is a
Christian. She actively participated in her church in Indonesia
1
On March 1, 2003, the INS ceased existing as an
independent agency, and many of its duties were transferred to U.S.
Citizenship and Immigration Services, a subdivision of the
Department of Homeland Security. Sharari v. Gonzales, 407 F.3d
467, 469 n.2 (1st Cir. 2005).
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from 1972 until she came to the United States in 2000. She and her
husband were never mistreated in Indonesia on account of their
religion. Pangemanan's expressed fear of returning to Indonesia
was instead based upon the experiences of several family members.
Specifically, Pangemanan claimed that her father was
denied promotions within the military because he was a Christian.
Her father died in 1990, and Pangemanan attributed his death, in
part, to the stress he felt as an Indonesian Christian.
Pangemanan's mother had some difficulty obtaining her
husband’s pension following his death. However, she continued to
live in Indonesia without incident until her death in 2006.
Pangemanan's brother was stabbed near a mosque in 1998 by
a Muslim youth. Yet he continues to live in Indonesia and has not
subsequently experienced any mistreatment on account of his
religion.
In 1999, a Christian school near the home of Pangemanan's
sister burned down, causing her sister to move to another town in
Indonesia. She also still lives in Indonesia and has experienced
no further problems.
Pangemanan has two daughters. Her daughters attended a
Christian school in Indonesia. Although neither of her daughters
was harmed while living in Indonesia, Pangemanan testified that
Christian students were the victims of violence in Indonesia.
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Moreover, the father of her younger daughter's friend was beheaded
in 2000.
Pangemanan's husband testified that a Christian school
founded by his grandfather was burned in 2000. His brother,
however, continues to work as a police officer in the same town.
On July 20, 2006, the IJ rejected Pangemanan's asylum
application as untimely, and found the delay was not excused by
"changed conditions" or "extraordinary circumstances." See 8
U.S.C. § 1158(a)(2)(B), (D). But even assuming that Pangemanan's
asylum application was not time-barred, the IJ found that
Pangemanan had failed to establish a well-founded fear of future
persecution should she be returned to Indonesia. See Scatambuli v.
Holder, 558 F.3d 53, 58 (1st Cir. 2009); see also 8 U.S.C.
§ 1101(a)(42)(A). Having failed to make the required showing for
asylum relief, Pangemanan's request for withholding of removal was
also rejected. The IJ also denied Pangemanan relief under the CAT,
finding no evidence that Pangemanan would be tortured by or with
the acquiescence of the Indonesian government upon her return.
On February 29, 2008, the BIA affirmed in an opinion that
largely tracked the IJ's reasoning. This timely petition for
review followed, raising only the question of denial of withholding
of removal.2
2
Pangemanan has not made any arguments to us regarding her
CAT claim, which we deem waived. See Scatambuli, 558 F.3d at 61;
Sinurat v. Mukasey, 537 F.3d 59, 62 (1st Cir. 2008).
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II.
This court lacks jurisdiction to review Pangemanan's
asylum claim, which the IJ found time-barred. See 8 U.S.C.
§ 1158(a)(3). We address only Pangemanan's claim for withholding
of removal. Her argument is that the IJ erred in finding any fear
petitioner had of returning to Indonesia was not objectively
reasonable because the IJ did not account for numerous incidents
which were geographically close to where she lived even if they
involved other persons. She also argues that the IJ and BIA failed
to account for an overlay of government laws, policies, and
practices which penalize the Christian minority. In sum, the
argument is that the totality of the evidence was not considered.
Our review of the BIA's factual findings is under the
deferential substantial evidence standard. Sinurat, 537 F.3d at
61. "We uphold the BIA's findings if they are 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.'" Id. (quoting Sharari, 407 F.3d at 473).
The BIA's factual findings are "conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B).
To qualify for withholding of removal under 8 U.S.C.
§ 1231(b)(3), an applicant must demonstrate that it is more likely
than not that she will face persecution in the country of removal.
See Scatambuli, 558 F.3d at 58; see also 8 C.F.R. § 1208.16(b). We
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have described this showing as requiring a "clear probability" of
future persecution. See, e.g., Oroh v. Holder, 561 F.3d 62, 67
(1st Cir. 2009).
We conclude that substantial evidence supports the
conclusion that Pangemanan did not meet her burden of demonstrating
a clear probability of future persecution. Pangemanan, her
husband, and daughters never themselves were mistreated in
Indonesia on account of their Christian faith. At most, Pangemanan
has alleged a series of isolated incidents involving others, which
fall well short of the sort of systemic mistreatment indicative of
past persecution or a clear probability of future persecution for
her. See Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005);
see also Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir. 2008) ("To
qualify as persecution, the harm to the petitioner must exceed
'unpleasantness, harassment, and even basic suffering.'" (quoting
Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000))); Susanto v.
Gonzales, 439 F.3d 57, 60-61 (1st Cir. 2006) ("[P]ersecution
requires 'more than mere discomfiture, unpleasantness, harassment,
or unfair treatment.'" (quoting Nikijuluw v. Gonzales, 427 F.3d
115, 120 (1st Cir. 2005))); see generally 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."). Moreover, the fact that Pangemanan’s family continues
to live safely in Indonesia undermines her claim that she faces a
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clear probability of future persecution. See, e.g., Ouk v.
Gonzales, 464 F.3d 108, 111 (1st Cir. 2006).
Finally, contrary to Pangemanan’s assertions, the BIA and
IJ fully considered all of the testimonial and documentary evidence
submitted in support of her claim for relief. The BIA also
correctly noted that petitioner relied on riots in 1988 and country
reports from 2002 and 2003. We agree that these references were
not current and did not advance petitioner's cause.
The petition for review is denied.
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