United States Court of Appeals
For the First Circuit
No. 06-2389
MAC ARTHUR PAKASI, ET AL,
Petitioner,
v.
ERIC J. HOLDER,* Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Selya and Howard,
Circuit Judges.
William A. Hahn and Hahn & Matkov on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Richard M. Evans, Assistant Director, and Paul Fiorino, Trial
Attorney, Office of Immigration Litigation, Civil Division, United
States Department of Justice, on brief for respondent.
August 18, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric J.
Holder has been substituted for former Attorney General Michael B.
Mukasey.
HOWARD, Circuit Judge. Mac Arthur Pakasi (Mac Arthur)1
and his son, Hiskiah, hailing from Sulawesi Island in Indonesia,
are ethnic Manadonese and Christians seeking review of a final
order from the Board of Immigration Appeals (BIA). Because no
record evidence compels a different result than that espoused by
the Immigration Court and upheld by the BIA, and because no
procedural violations or errors of law were made, the petition for
review is denied.
I. History
Mac Arthur Pakasi entered the United States in March 1992
as a non-immigrant visitor. Hiskiah followed in July 1994, with
the same status and authorization to remain in the country until
January 1995. After remaining in the United States years longer
than permitted, they both were charged with being subject to
removal pursuant to 8 U.S.C. § 1227(a)(1)(B). The petitioners
conceded removability, but on December 19, 2003 -- eleven years
after Mac Arthur's arrival in the United States -- they sought
asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). Both petitioners testified in support of
their applications before an Immigration Judge (IJ), as did Mac
Arthur's spouse and Hiskiah's mother Ethmy Pakasi.
1
Petitioner Mac Arthur Pakisi's name appears variously as
"MacArthur" and "Mac Arthur." We adopt the spelling as it appears
in the decisions of the Immigration Judge and Board of Immigration
Appeals.
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Collectively, the petitioners and Ethmy Pakasi testified
that in 1990 Mac Arthur was beaten because of is involvement with
a Christian church building committee, and that Mac Arthur informed
the police of the beating. A construction permit sought by the
building committee was denied, Mac Arthur believed, because the
government did not want to inflame the local Muslim community.
Additionally, the Pakasi family's home was stoned on several
occasions. These experiences resulted in Mac Arthur abandoning the
family home in favor of a different residence in Jakarta, and later
fleeing to the United States.
On one occasion, Ethmy was accosted by two Muslims. As
one brandished a knife, the other burned Ethmy on her hand with a
cigarette, allegedly because she was wearing a cross.
For his part, Hiskiah was treated differently from other
children due to his religion and appearance. Hiskiah also
testified that since his arrival in the United States, conditions
were getting worse in Indonesia and that "he heard of church
burnings and the killing of Christians."
Mac Arthur ultimately left Indonesia in 1992. His wife
and child remained at the family home in Indonesia for two years,
attending weekly church services.
The IJ denied the applications, and the BIA subsequently
dismissed the petitioners' timely appeal in an August 31, 2006
order that affirmed and adopted the IJ's decision. The BIA agreed
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with the IJ that the petitioners' asylum claims were time-barred,
having been filed many years beyond the one-year deadlines, and
that the petitioners had failed to establish changed circumstances
such as would excuse the late filings. The BIA also concluded that
the petitioners had "failed to meet the burdens of proof" relevant
to their claims of persecution and torture.
In its order, the BIA noted that it declined to rely on
descriptions of recent violence included in six newspaper articles
that the petitioners had submitted, and also held that the newly
submitted information did not warrant a remand for consideration by
the IJ. See Matter of S-H, 23 I&N Dec. 462 (BIA 2002).
II. Discussion
The petitioners do not seek review of the determination
that their asylum claims are time-barred, nor do they make any
argument under the CAT. Those claims are thus abandoned. As for
their challenge to the denial of withholding of removal, the
petitioners advance a spate of arguments, most prominently
emphasizing that the IJ and BIA failed adequately to take into
account country conditions as outlined in State Department reports
and erroneously concluded that conditions were improving in 2000 -
2002; that the IJ did not take into account evidence that the
Indonesian government discourages the construction of Christian
churches; and that the IJ and BIA failed to consider the "totality"
of the petitioners' circumstances in light of country conditions.
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According to the petitioners, these alleged derelictions resulted
in the petitioners' cases not being evaluated under the correct
legal standards and require remand for further proceedings.
The petitioners' main arguments are related in that they
assert that the IJ and BIA did not fairly assess the record and
explain the results. In support, the petitioners invoke Gomes v.
Gonzales, 473 F.3d 746 (7th Cir. 2007). This case, however, bears
little resemblance to Gomes; the IJ here did not selectively read
the record, as the Seventh Circuit concluded had occurred in Gomes.
Rather, the IJ viewed the record as a whole - taking into account
both the State Department country conditions reports and other
record evidence. See Waweau v. Gonzales, 437 f.3d 199, 202, n.1
(lst Cir. 2006) (the decision maker is to consider both country
conditions reports and record evidence contradicting those
reports).
The IJ adequately addressed the country conditions,
noting that conditions were "tense" with ongoing incidents of
"religious violence." Further, the IJ indicated clearly that
country conditions "did, in fact deteriorate in approximately late
1997 and 1998" and "that there were spikes in violence between 1998
and 2000." The IJ also noted, however, that Mac Arthur did not
file his application for protection from persecution during these
troubled times.
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Additionally, the IJ considered the 2002 State Department
report on country conditions that, while acknowledging sectarian
violence, also states that in 2001 the Indonesian government sent
thousands of elite soldiers and police officers to Sulawasi to stem
the violence. This direct action, according to the report, greatly
reduced the violence that had been ongoing since 1998.
Petitioners emphasize the restrictions on construction
and expansion of houses of worship, but these policies applied to
all religious groups and they did not prevent either petitioner or
many Christians in Indonesia from practicing their religion.
Moreover, according to their own testimony, the petitioners were
able to practice their religion regularly and freely. Ethmy
testified that she attended church every Sunday even after her
reported attacks. No testimony was given that the government of
Indonesia banned the petitioners' practices.
In Gomes, relied on by the petitioners, the court held
that the IJ had leaned too heavily on country conditions reports,
to the exclusion of other evidence, including specific evidence of
possible persecution against the petitioners in that case. 473
F.3d at 756. Here, the petitioners have not presented evidence
that would compel a finding of past persecution. Although Hiskiah
testified that he was treated differently than others, he remained
in Indonesia after his father's departure and attended Catholic
school. No evidence came before the IJ indicating Hiskiah was
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beaten, arrested, detained or suffered torture in any manner at any
time. To establish past persecution, the petitioners must prove
something more than "harassment or annoyance," Aguilar-Solis v.
INS, 168 F.3d 565, 570 (lst Cir. 1999), and we have held that
"discrimination in Indonesia does not, without more, qualify a
Christian Indonesian national for [relief]." Sombah v. Mukasey,
529 F.3d 49, 51 (1st Cir. 2008).
Ethmy's lone experience, involving a cigarette burn to
her hand and a brandished knife, does not rise to the level of
persecution. "To qualify as persecution, a person's experience
must rise above unpleasantness, harassment or even basic
suffering." Nelson v. INS, 232 F. 3d 258, 263 (lst Cir. 2000).
Mac Arthur presents a history of episodic incidents. He
was beaten, his house was stoned, and his church building permit
was denied. But "mistreatment must ordinarily entail more than
sporadic abuse in order to constitute persecution." Bocova v.
Gonzales, 412 F.3d 257, 263 (1st Cir. 2005).
As the petitioners have not shown past persecution, they
do not benefit from a presumption that they are susceptible to
future persecution, and thus they must demonstrate that it is
nevertheless more likely than not that their lives or freedom will
be threatened if they return to Indonesia. Sharari v. Gonzales,
407 F.3d. 467, 474 (1st Cir. 2005). On this score, in addition to
the country conditions reports relied on by the IJ, the record
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reflects that Mac Arthur's wife and child remained in Indonesia for
two years, without harm, after his departure. Mac Arthur himself
had traveled to Singapore for a number of days and voluntarily
returned to Indonesia. These facts undermine claims of a clear
probability of persecution or a fear of persecution. Jean v.
Gonzales, 461 F.3d. 87, 91 (lst Cir. 2006); Aguilar-Solis, 168 F.3d
at 573. Moreover, although the petitioners assert that there is a
pattern or practice of persecuting Christians in Indonesia, we
"have repeatedly affirmed the BIA's determinations...that there is
no ongoing pattern or practice of persecution against...Christians
in Indonesia," Kho v. Keisler, 505 F.3d 50, 54 (lst Cir. 2007),
and the IJ and BIA were not required to conclude differently on
this record.
The petitioners also urge us to reverse the BIA's ruling
because the administrative tribunal declined to remand in light of
new country conditions evidence. We review the BIA's decision on
a motion to remand for abuse of discretion. Zhang v. Ashcroft, 348
F.3d 289, 293 (1st Cir. 2003) (citing Nascimento v. INS, 274 F.3d
26, 28 (1st Cir. 2001)). Abuse of discretion exists only where the
denial was made “without a ‘rational explanation, inexplicably
departed from the established policies, or rested on an
impermissible basis.’" Id. (quoting Nascimento, 274 F.3d at 28).
The news articles submitted by the petitioners to the
BIA, which post-date the last hearing before the IJ, do not
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demonstrate that the BIA abused its discretion in declining to
remand. The BIA did consider the evidence and concluded that it
failed to establish a substantial likelihood of a different result
upon remand. The BIA did not abuse its discretion in concluding
that the news articles were insufficiently related to the
petitioners' claims such that the outcome would be altered on
remand. See Bhanot v. Chertoff, 474 F.3d 71, 74 (2d Cir. 2007).
See also Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007).
Finally, the petitioners argue that the IJ and BIA failed
to take into account the totality of the record evidence and the
petitioners' circumstances. As evidenced by the above discussion,
the record belies that claim. While the IJ may not have
specifically discussed each piece of evidence, she clearly did
consider the country conditions reports and the testimony of each
witness. There is no requirement that every single piece of
evidence be discussed in an IJ's decision. Morales v. INS, 208
F.3d 323, 328 (1st Cir. 2000).
The petition for review is denied.
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