United States Court of Appeals
For the First Circuit
No. 08-1586
TAMARA TASYA; MARKUS SUBROTO,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General
Respondent.
ON PETITION FOR REVIEW OF ORDERS AND DECISIONS
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lipez and Howard, Circuit Judges,
and Woodcock,* District Judge.
William A. Hahn and Hahn & Matkov for petitioners.
Michael F. Hertz, Acting Assistant Attorney General, Civil
Division, Cindy S. Ferrier, Senior Litigation Counsel and Sunah
Lee, Trial Attorney, Office of Immigration Litigation, United
States Department of Justice, on brief for respondent.
July 23, 2009
*
Of the District of Maine, sitting by designation.
HOWARD, Circuit Judge. The petitioners, Tamara Tasya
("Tasya") and her husband Markus Subroto ("Subroto"), natives and
citizens of Indonesia, seek review of a final order of the Board of
Immigration Appeals ("BIA"). The BIA upheld the Immigration
Judge's ("IJ") denial of Tasya's request for asylum, withholding of
removal, and protection under the Convention Against Torture
("CAT"). The petitioners contest the adequacy of the BIA's
decision, arguing that it was insufficiently reasoned. We deny the
petition.
I. Facts
Tasya and Subroto entered the United States in March 2001
as nonimmigrant visitors. Both overstayed their visas. Before
being placed in removal proceedings, Tasya applied for asylum and
withholding of removal, listing Subroto as a beneficiary in her
application. An asylum officer concluded that she had failed to
establish past persecution or a well-founded fear of future
persecution. Tasya and Subroto were subsequently placed in removal
proceedings and again requested asylum and withholding of removal,
as well as CAT protection.
In support of these requests, the petitioners claimed
that they suffered persecution in Indonesia because they are
Chinese Christians. Before the IJ, they testified to incidents
occurring over the course of several years; each incident involved
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Tasya and one also involved Subroto. Their testimony may be
briefly summarized.
Tasya's elementary schoolmates in Indonesia were
primarily Muslims of Indonesian ethnicity. Despite outperforming
those students, she received lower grades because she was Chinese
and Christian. Later, during junior high school, two ethnic
Indonesians mugged her, pulling a gold necklace off of her neck.
Also during this time, an operator ordered her off of public
transportation, forcing her to turn over all her money in the
process.
Years later in 1998, while she was traveling on a
motorbike, Tasya was chased by four ethnic Indonesians who were
also on motorbikes. She eventually fell off her motorbike and
suffered an injury to her left leg. The assailants taunted her,
saying "you Chinese, I wish you were dead, I wish you [would]
disappear." The injury left scars on her leg. Tasya testified
that ethnic Chinese were being persecuted in Indonesia during that
time period. Specifically, houses, buildings, and shops belonging
to Chinese were burned and Chinese women were raped.
In 2001, Tasya and Subroto were confronted by a group of
Muslims while the couple were returning home from church.
Subroto's wallet, watch and ring were taken, and perhaps Tasya's
necklace as well. When Subroto tried to defend himself and his
wife, one of the assailants punched him in the face; as a result,
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his jaw does not function normally. Tasya was carrying a Bible
during the attack, and both testified that they were attacked
because they were Chinese Christians. When they reported this
incident to the police, the police asked for money and otherwise
refused to act.
Tasya and Subroto asserted that they each held a fear of
future persecution, based both on alleged past persecution and on
the generally unfavorable climate toward Chinese Christians in
Indonesia.
The IJ denied their claims for asylum, withholding of
removal, and protection under the CAT. The IJ determined that the
petitioners lacked credibility with respect to some of their
testimony, and also ruled that, in any event, the abuse described
by them did not amount to persecution. In particular, the IJ noted
that the early incidents described by Tasya constituted harassment
but not persecution, and that the two incidents of physical abuse
-- the motorbike incident and the confrontation after church -- did
not rise to the level of persecution, either. Additionally, the IJ
found that the petitioners had failed to sufficiently show that the
claimed persecution was connected to their ethnicity or religion.
Finally, the IJ ruled that the petitioners had failed to establish
that their asserted fear of future persecution was well-founded.
The IJ observed that Tasya's parents and children remained
uneventfully in Indonesia, and found that the evidence of country
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conditions did not indicate that the Indonesian government
officially promoted racial or ethnic intolerance.
In affirming, the BIA agreed that the petitioners had not
proved past persecution or established a well-founded fear of
future persecution. In its decision, the BIA included a terse
assessment of the testimony, discussed the U.S. Department of
State's Country Reports for Indonesia for 2005 and cited the U.S.
Department of State's International Religious Freedom Report for
Indonesia for 2005. It closed by expressing that it had considered
all of the record evidence in reaching its decision.
II. Discussion
The petitioners' challenge is limited to the denial of
asylum, and they claim only that the BIA's decision does not
provide an adequate basis for appellate review of the asylum
denial. They request a remand for another hearing "in conformance
with the applicable standards." See Halo v. Gonzales, 419 F.3d 15,
18 (1st Cir. 2005) ("We may remand . . . if the BIA's opinion fails
to 'state with sufficient particularity and clarity the reasons for
denial of asylum.'" (quoting Gailius v. INS, 147 F.3d 34, 46 (1st
Cir. 1998))).
To obtain asylum, an alien must demonstrate a well-
founded fear of future persecution based on race, religion,
nationality, membership in a particular social group or political
opinion. See 8 U.S.C. § 1101(a)(42)(A); Zarouite v. Gonzales, 424
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F.3d 60, 63 (1st Cir. 2005). "An alien who demonstrates past
persecution is presumed, subject to rebuttal, to have a well-
founded fear of future persecution."1 Castillo-Diaz v. Holder, 562
F.3d 23, 26 (1st Cir. 2009) (citing 8 C.F.R. § 1208.13(b). Even
without proving past persecution, an alien may still qualify for
asylum by establishing a fear of future persecution that is
subjectively genuine and objectively reasonable. Santosa v.
Mukasey, 528 F.3d 88, 93 (1st Cir. 2008) (citation omitted).
The petitioners argue that the BIA's treatment of their
past persecution claims was overly summary, and they focus on the
BIA's purported failure to discuss the physical injuries they
suffered. In its sparse discussion of the alleged past
persecution, the BIA stated that:
The incidents described by the respondents -
including incidents of harassment in school,
the female respondent being knocked off of her
motorcycle and injured, and the respondents
being stopped and robbed while riding a
motorcycle together - are insufficient to
constitute past persecution.
1
The petitioners' reply brief points out that the government
identifies an applicant's burden in proving past persecution as
providing "conclusive evidence." See Romilus v. Ashcroft, 385 F.3d
1, 6 (1st Cir. 2004) (citing Albathani v. INS, 318 F.3d 365, 373
(1st Cir. 2003)). Any loose language in Romilus notwithstanding,
Romilus and Albathani were concerned not with the burden of proof
before an IJ but rather with a petitioner's burden on judicial
review, accurately stated as "the [BIA's] decision can be reversed
only if the evidence presented by [the petitioner] was so
conclusive that any reasonable adjudicator would be compelled to
conclude the contrary." Velasquez v. Ashcroft, 342 F.3d 55, 58
(1st Cir. 2003) (emphasis in original); see also 8 U.S.C. §
1252(b)(4)(B) (2000).
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This conclusion echoed that reached by the IJ. "As the BIA
affirmed the basis of the IJ's decision, we review both the IJ and
the BIA's decisions." Jamal v. Mukasey, 531 F.3d 60, 66 (1st Cir.
2008) (citation omitted); see also Enwonwu v. Gonzales, 438 F.3d
22, 35 (1st Cir. 2006).
The petitioners contend, however, that this is not an
appropriate case in which to look to the IJ's decision, because the
IJ's analysis was tainted by his conclusion that the petitioners
were not credible witnesses. On the contrary, the IJ explicitly
held that, even crediting the petitioners' testimony, the events
they testified about did not amount to persecution. Such
alternative analyses are acceptable, see Li Hua Zheng v. Gonzales,
416 F.3d 97, 100 (1st Cir. 2005), and the petitioners do not cite
any authority suggesting otherwise. Beyond stating that the IJ's
opinion was infected by his adverse credibility determination, the
petitioners do not seriously challenge his conclusion that the
incidents did not rise to the level of persecution. The BIA's
brevis treatment of the petitioners' claims of past persecution,
when read in conjunction with the IJ's decision, is adequate.
The petitioners also argue that the BIA's decision
reflects an inadequate consideration of the country conditions
evidence. They assert that the BIA failed to consider their
claims, especially their claims of past persecution, in the context
of the country condition reports. Moreover, they argue, the BIA
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ignored portions of the country reports that were favorable to
them.
The petitioners' view of the BIA's decision is overly
narrow. After analyzing the petitioners' asylum claims, the BIA
stated that it had considered all of the record evidence in
reaching its decision. Moreover, the BIA's decision specifically
explicated the country conditions evidence in commenting on whether
either petitioner held a well-founded fear of future persecution.
In context, the fact that the BIA did not engage in a repetitive
recounting of country conditions is hardly suggestive that the
Board was either unaware of or ignored the acknowledged country
conditions information when considering the petitioners' past
persecution claims.2
2
The petitioners have sought to file a supplemental brief
addressing a recent case from another circuit, Wakkary v. Holder,
558 F.3d 1049, 1064 (9th Cir. 2009). The proper course would have
been to bring that authority to the attention of the court through
a submission compliant with Fed. R. App. P. 28(j). Treating the
filing as a Rule 28(j) letter, we note that Wakkary deals with the
role of "disfavored group" analysis in assessing persecution
claims, an issue on which the binding precedent in this circuit is
Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007). The petitioners'
opening brief makes no mention of Kho, and we decline to consider
their newly minted argument. We also observe in passing that, to
the extent that Wakkary's disfavored group analysis counsels a
contextual approach in assessing persecution claims, we have
repeatedly said that such claims are to be examined in the context
of the country condition reports. Budiono v. Mukasey, 548 F.3d 44,
49 (1st Cir. 2008); see also El Moraghy v. Ashcroft, 331 F.3d 195,
205 (1st Cir. 2003); Cordero-Trejo v. INS, 40 F.3d 482, 491 (1st
Cir. 1994).
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Finally, the petitioners also claim that the BIA ignored
parts of the country reports that were favorable to them. That
claim is belied by the record. In reaching its decision, the BIA
acknowledged that the U.S. Department of State's Country Reports
for 2005 "indicate that some religious violence continues" and
"that there is ongoing harassment and discrimination against ethnic
Chinese in Indonesia."3 Accordingly, the claim that the BIA turned
a blind eye to certain portions of the country reports without any
explanation is simply inaccurate. Balanced against this evidence,
however, the BIA noted "that incidents of [religious] violence are
sporadic and limited to specific parts of Indonesia" and that the
Country Reports do "not support a finding that there is violence
perpetrated against [Chinese] individuals." The BIA's ultimate
evaluation of the country conditions evidence was reasonable. See
Pan v. Gonzales, 489 F.3d 80, 87 (1st Cir. 2007) (noting, in
rejecting the petitioner's complaint about the IJ's reliance on an
unfavorable passage in a Country Report, that "we defer to the
factfinder's reasonable choices from conflicting evidence"); see
also Budiono, 548 F.3d at 49; Sinurat v. Mukasey, 537 F.3d 59, 62
(1st Cir. 2008).
As we have noted, the petitioners assert only that the
BIA's decision was insufficiently reasoned; they do not
3
The BIA also noted that the petitioners' "own evidence
identifies generalized violence [and] harassment of Christians."
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specifically argue that substantial evidence failed to support the
BIA's denial of their asylum claim. The abuse alleged by each
petitioner, although unfortunate and unpleasant, was not frequent
enough to compel a finding of past persecution. Subroto was
physically assaulted on one occasion. See Journal v. Keisler, 507
F.3d 9, 12 (1st Cir. 2007) (affirming BIA's ruling that the alien
did not suffer past persecution where he "alleged only one incident
of violence in which he was struck on the head and arms"). And
although Tasya suffered discrimination and harassment on a few
occasions, one of which caused her to fall off a motorcycle and
seriously injure herself, the incidents she describes were
separated by many years. Touch v. Holder, No. 08-1217, 2009 U.S.
App. LEXIS 12297, at *9-10 (1st Cir. June 4, 2009) ("An important
factor in determining whether [mistreatment amounts to persecution]
is whether the mistreatment can be said to be systematic rather
than reflective of a series of isolated incidents." (internal
quotation omitted)). Finally, Tasya's family continues to live
tranquilly in Indonesia. Rashad v. Mukasey, 554 F.3d 1, 6 (1st
Cir. 2009); Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999)
(finding that "the fact that close relatives continue to live
peacefully in the alien's homeland undercuts the alien's claim that
persecution awaits his return"). Given the lack of past
persecution, the continued uneventful presence in Indonesia of
close family members, and the country conditions evidence, the BIA
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was not compelled to find that the petitioners' claimed fear of
future persecution was well-founded.
III. Conclusion
For the reasons discussed above, the petition is denied.
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