Decky v. Holder

United States Court of Appeals
For the First Circuit

No. 08-2118

DECKY (FNU), IRAWATI (FNU), and DOMINIQUE AUDREY,

Petitioners,

v.

ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella and Boudin, Circuit Judges,
and Saris,* District Judge.

William A. Hahn and Hahn & Matkov, on brief for petitioners.
Channah F. Farber, Attorney, Office of Immigration Litigation,
U.S. Department of Justice, Michael F. Hertz, Acting Assistant
Attorney General, and Jennifer L. Lightbody, Senior Litigation
Counsel, on brief for respondent.

November 25, 2009

*
Of the District of Massachusetts, sitting by designation.
 TORRUELLA, Circuit Judge. Decky FNU,1 together with his

wife and daughter as derivative beneficiaries (collectively,

"petitioners"), seek review of the decision of the Board of

Immigration Appeals ("BIA") affirming the denial of applications

for asylum under Section 208 of the Immigration and Nationality Act

(the "Act"), for withholding of removal under Section 241(b)(3) of

the Act, and for withholding of removal under the Convention

Against Torture ("CAT"). Decky contends that the BIA erred when it

determined that evidence of mistreatment experienced by petitioners

in their native Indonesia, considered as a whole and in the context

of relevant country conditions, failed to rise to the level of

persecution within the meaning of the immigration laws. After

careful consideration, we find that the BIA's decision was

supported by substantial evidence and therefore deny the petition

for review.

I. Background

A. Facts2

Decky and his wife, Irawati, are Indonesian citizens of

Chinese ethnicity and Christian faith. Both were born and raised

in the city of Surabaya on the island of Java. Decky was raised

1
"First name unknown." Decky and his wife testified that they
use only one name.
2
These facts are drawn from the petitioners' testimony before the
Immigration Judge ("IJ"), which the IJ deemed "generally credible."

-2-
Catholic but has followed the Protestant religion since marrying

Irawati, a life-long Protestant.

From elementary school through high school, Decky was

harassed on account of his ethnicity and faith. For example,

Muslim students would often taunt him, saying things like "hey

Chinese, give me your money." Decky acknowledges that he could

have gone to a Catholic high school where he would not have been

harassed; however, he chose not to do so because the Catholic

school was farther from his home. He also admits that he was never

deeply involved in Catholicism, although he attended Catholic

church in Surabaya and Jakarta for approximately 10 years. During

cross-examination, Decky was unable to describe the sacraments of

the Catholic church.

In 1996, Decky moved from his hometown of Surabaya to

Jakarta, where he worked as a supervisor in a tool factory. On

May 12, 1998, riots broke out across the city. While on his way to

work, Decky witnessed cars and stores being burned. He was stopped

by a group of individuals he recognized as Muslim and ordered off

his motorcycle. The group of men, while chanting "kill Chinese,"

poured gasoline on his motorcycle and set it on fire. They then

attacked and beat Decky, although he was rescued by a passerby and

taken to safety. Decky's face was swollen from the beating and his

body was bruised, but he did not go to the hospital. After the

assault, Decky remained at home for several days during which he

-3-
observed smoke from the riots all over the city. Nonetheless,

Decky continued to live in Jakarta for four years following this

incident in order to honor a commitment he had made to complete a

project at work.

In 2000, Decky married Irawati. Irawati was also shunned

as a child due to her Chinese ethnicity and faith. Around the age

of twelve, Irawati began to experience instances of sexual

harassment and abuse. On one occasion, she was taunted by

Indonesian boys who grabbed her breasts and called her a Chinese

"pig." At another point, someone slapped her face when she tried

to defend herself from being fondled. She experienced similar

incidents of sexual harassment through high school, although she

stated that, as an adult, she learned to avoid such situations.

In 2002, Decky and Irawati moved back to Surabaya. Decky

testified that, around this time, Christian churches were bombed in

various locations throughout Indonesia, including near Surabaya.

However, while Decky reports that he endured some insults in the

form of "hurtful words," neither he nor Irawati suffered any

physical harm following their return to Surabaya.

In 2004, the couple left for the United States with their

daughter, Dominique Audrey. They arrived on non-immigrant visas,

which they overstayed. Decky timely filed a Form I-589 asylum

application within one year of his arrival, and named his wife and

daughter as derivative beneficiaries. See 8 U.S.C. § 1158(b)(3)(A)

-4-
("A spouse or child . . . of an alien who is granted asylum under

this subsection may, if not otherwise eligible for asylum under

this section, be granted the same status as the alien if

accompanying, or following to join, such alien."). He also filed

an application for withholding of removal under Section 241(b)(3),

for withholding of removal under the CAT, and for voluntary

departure.

Decky's mother and nine brothers and sisters continue to

live in Indonesia, although Decky maintains contact only with his

mother. According to Decky, his mother "never feels safe" and

believes that the situation in Indonesia is "not stable." In

approximately 2005, Decky reports that Muslims threw rocks at his

brother's house.

B. Procedural History

The petitioners testified before the IJ on June 13, 2006,

and, on November 16, 2007, the IJ issued an oral decision. The IJ

concluded that the evidence presented by petitioners failed to

demonstrate that they suffered persecution while in Indonesia.

With respect to Decky's 1998 assault, the IJ explained:

While [Decky] suffered physical violence
during the . . . incident, that took place
during a riot that swept across Jakarta and
other parts of Indonesia and amounted to a
general national unrest which was eventually
quelled by the government. As frightening and
painful and it was, it was not directed at
[Decky] in the form of persecution but was
rather an eruption of the lawlessness over a

-5-
 large area that was eventually brought under
control by the government.

The IJ also determined that petitioners had not established a well-

founded fear of future persecution, noting that Decky's large

family continued to reside in Indonesia but had not experienced

"one incident . . . where anyone suffered injury as a result of

persecution based on their religion or ethnicity." Accordingly,

the IJ denied the petitions and ordered removal to Indonesia.3

The petitioners appealed to the BIA, which issued a per

curiam opinion on July 31, 2008 affirming the IJ's decision. The

BIA explained that "the incidents described by [petitioners],

considered individually and cumulatively, do not amount to past

persecution." The BIA further held that the evidence presented by

petitioners regarding the treatment of ethnic Chinese and

Christians in Indonesia was insufficient to show that their fear of

persecution was well-founded, particularly where a large number of

family members continued to live in Indonesia "unharmed." This

appeal followed.

II. Legal Framework

A. Standard of Review

Our review of the BIA's "legal rulings is de novo but is

deferential as to findings of fact and the determination as to

3
The IJ determined that petitioners were ineligible for voluntary
departure because they were served with a Notice to Appear within
one year of their arrival in the United States. Petitioners do not
challenge this holding.

-6-
whether the facts support a claim of persecution." Jorgji v.

Mukasey, 514 F.3d 53, 57 (1st Cir. 2008); see Segran v. Mukasey,

511 F.3d 1, 5-6 (1st Cir. 2007) (explaining that deference is due

not only to findings of fact but also to agency determinations

about whether particular facts support a claim of persecution).

Thus, our review of the BIA's fact-based denial of an asylum claim

is limited to determining whether the agency's decision is

supported by "substantial evidence." Attia v. Gonzáles, 477 F.3d

21, 23 (1st Cir. 2007). Under this standard, we will uphold the

decision if it is supported "by reasonable, substantial, and

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

(internal quotation marks omitted). Reversal is warranted "only if

'any reasonable adjudicator would be compelled to conclude to the

contrary.'" Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.

2009)(quoting 8 U.S.C. § 1252(b)(4)(B)). "In other words, vacatur

requires that the evidence point unerringly in the opposite

direction." Bocova v. Gonzáles, 412 F.3d 257, 262 (1st Cir. 2005)

(internal quotation marks and alterations omitted).

Where, as here, "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."

Piedrahita v. Mukasey, 524 F.3d 142, 144 (1st Cir. 2008) (internal

quotation marks omitted).

-7-
 B. Applicable Law

When a petitioner brings claims both for withholding of

removal and asylum, "[w]e focus on the petitioner's asylum claim

because a claim for withholding of removal places a more stringent

burden of proof on an alien than does a counterpart claim for

asylum." Bocova, 412 F.3d at 262 (internal quotation marks

omitted). Thus, if the asylum claim fails, so too does the claim

for withholding of removal. Id.

In a claim for asylum, "the petitioner carries the burden

of proving that he qualifies as a refugee by showing either that he

has suffered past persecution or has a well-founded fear of future

persecution on the basis of 'race, religion, nationality,

membership in a particular social group, or political opinion.'"

Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007) (quoting 8

U.S.C. § 1101(a)(42)). "To qualify as persecution, a person's

experience must rise above unpleasantness, harassment, and even

basic suffering." Jorgji, 514 F.3d at 57 (internal quotation marks

omitted); see also Kho v. Keisler, 505 F.3d 50, 58 (1st Cir. 2007)

("Persecution, within the context of the immigration statutes, does

not include all treatment that our society regards as unfair,

unjust, or even unlawful or unconstitutional." (internal quotation

marks omitted)). "This threshold is not easily crossed." Orelien

v. Gonzáles, 467 F.3d 67, 71 (1st Cir. 2006).

Further, the state must be the source of or at
least acquiesce in the persecution;

-8-
 specifically, the persecution must either be
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, 514 F.3d at 57.

If the petitioner establishes past persecution, he is

entitled to a presumption that his fear of future persecution is

well-founded; the burden then shifts to the government to show a

change in country conditions in order to rebut that presumption.

See 8 C.F.R. § 208.13(b)(1); Jorgji, 514 F.3d at 57. However, if

the petitioner is unable to demonstrate past persecution, he may

still qualify for asylum by establishing a well-founded fear of

future persecution through "specific proof" that his "fear is both

subjectively genuine and objectively reasonable." Castillo-Díaz v.

Holder, 562 F.3d 23, 26 (1st Cir. 2009) (internal quotation marks

omitted). "Demonstrating objectively reasonable fear requires

showing that a reasonable person in her circumstances would fear

persecution on account of a statutorily protected ground."

Castillo-Díaz, 562 F.3d at 27 (internal quotation marks and

alterations omitted).

III. Discussion

A. Past Persecution

Decky argues that the BIA erred when it concluded that

the evidence presented by petitioners did not demonstrate past

persecution. Specifically, he contends that under Sompotan v.

-9-
Mukasey, 533 F.3d 63 (1st Cir. 2008), the BIA should have

recognized that the assault he experienced in the 1998 riots was

motivated on protected grounds and was not, as the IJ concluded, a

product of "general national unrest." Decky asserts that, with

this experience properly factored into the analysis, the totality

of evidence compels the conclusion that he suffered past

persecution within the meaning of the immigration laws.4

In Sompotan, we determined that an arson committed

against an ethnic Chinese petitioner during the May 1998 Jakarta

riots was motivated on protected grounds, finding that the violence

which precipitated the arson specifically targeted an ethnic

Chinese neighborhood. Id. at 70-71. However, we denied Sompotan's

petition for withholding of removal, concluding that the IJ's prior

characterization of the 1998 riots as a "huge, spontaneous act of

violence," though incorrect, was harmless. Id. at 70. In so

doing, we emphasized "the isolated nature of the arson" and the

"absence of physical harm" to the petitioners. Id. at 71.

Nonetheless, in this appeal, Decky invokes Sompotan and contends

that because he was physically harmed during the riots, the 1998

4
Decky attempts to characterize the BIA's reliance on Sompotan as
an error of law triggering de novo review. However, whether
mistreatment constitutes persecution and whether persecution was
inflicted "on account of" a protected ground are generally
questions of fact. Sompotan, 533 F.3d at 68; see Singh v. Mukasey,
543 F.3d 1, 4 (1st Cir. 2008) (same). We thus review the BIA's
decision for substantial evidence.

-10-
assault, together with the totality of evidence regarding his past

experience in Indonesia, requires a finding of past persecution.

Considering the record as a whole, we find that the BIA's

conclusion that Decky failed to demonstrate past persecution is

supported by substantial evidence. Thus, any error by the IJ in

attributing the 1998 assault to "general national unrest" was

harmless. See Sompotan, 533 F.3d at 70. First, we note that a

petitioner's experience of physical harm is relevant, but it is

only one consideration. See, e.g., Ruiz v. Mukasey, 526 F.3d 31,

37 (1st Cir. 2008) ("[T]he presence or absence of physical harm

(and, indeed, the degree of harm inflicted) remains a relevant

factor in determining whether mistreatment rises to the level of

persecution."); see also Sompotan, 533 F.3d at 71 (absence of

physical harm "not determinative"); Un v. Gonzáles, 415 F.3d 205,

210 (1st Cir. 2005) (explaining that physical harm is not a

prerequisite for a finding of persecution; in appropriate

circumstances, threats alone may suffice).

In this case, Decky suffered facial swelling and bruises

on his body as a result of the assault. To minimize the degree of

physical harm, the respondent points out that Decky's injuries did

not compel him to go to the hospital for care. However, the

evidence demonstrates that he was saved by a passerby, and that he

was in the middle of a widespread riot against people of Chinese

descent. As such, the failure to go to a hospital in this

-11-
situation does not support a reasonable inference that the injuries

were not serious. While it would be impermissible to make the

presence or absence of injury requiring medical attention into a

sort of "acid test" for persecution, see Topalli v. Gonzáles, 417

F.3d 128, 132-33 (1st Cir. 2005) (citing Begzatowski v. INS, 278

F.3d 665, 670 (7th Cir. 2002)), here there is no indication that

the IJ gave this factor overblown significance when he concluded

that Decky's beating did not rise to the level of persecution

contemplated by the law. See id. at 133 ("The BIA is certainly

allowed to take into account the severity, duration, and frequency

of physical abuse to determine whether the abuse extends beyond

'unpleasantness, harassment, and even basic suffering' to rise to

the level of persecution.").

The critical factor driving our determination that

substantial evidence supports a finding of no persecution in this

case is the absence of evidence of systematic mistreatment of

comparable severity to the beating he suffered in the 1998 riots.

Decky remained in Jakarta for approximately four years following

the assault, and in Indonesia for another two years, without

further incident. Accordingly, the evidence supports the

conclusion that the beating was an "isolated" event. Sompotan, 533

F.3d at 71; see, e.g., Bocova, 412 F.3d at 263 ("[M]istreatment

ordinarily must entail more than sporadic abuse in order to

constitute persecution . . . . An important factor . . . is

-12-
whether the mistreatment can be said to be systematic rather than

reflective of a series of isolated incidents.").

As additional cumulative evidence of past persecution,

Decky points to the harassment and discrimination he faced while

growing up, the sexual harassment and abuse experienced by Irawati,

and the general conditions of life for ethnic Chinese and

Christians living in Indonesia, as reflected in petitioners'

testimony and the documentary materials submitted. However,

considering the totality of evidence before us, our cases compel

the conclusion that mistreatment of the severity and duration

suffered by petitioners does not rise to the level of persecution

necessary to sustain a claim for asylum. See, e.g., Datau v.

Mukasey, 540 F.3d 37, 39-40 (1st Cir. 2008) (no persecution where

Indonesian of Christian faith, who appeared ethnically Chinese,

experienced unwanted sexual advances and harassment from Muslim

men, members of her church were threatened with death, her church

was vandalized and set on fire, and her friend was raped in 1998

riots); Kho, 505 F.3d at 52-53 (no persecution where ethnic Chinese

Indonesian of Christian faith was discriminated against by school

administration, robbed by group of Muslims, and physically

assaulted in the 1998 riots when a group of individuals looted his

business); Susanto v. Gonzáles, 439 F.3d 57, 59 (1st Cir. 2006) (no

persecution where ethnic Chinese Indonesian of Christian faith

experienced forced relocation to another city for two months during

-13-
1998 riots, her home was vandalized, Church bombed, neighbor raped,

she escaped an attempt by two men to sexually assault her at the

age of 14 while calling her a "Chinese snob," and she was mugged at

knifepoint and threatened).

Accordingly, while we do not wish to minimize the

hardships petitioners experienced in Indonesia, the evidence does

not compel a finding of past persecution. Therefore, we must

affirm the BIA's determination. See 8 U.S.C. § 1252(b)(4)(B).5

B. A Well-Founded Fear of Future Persecution

Because petitioners are unable to establish past

persecution, we turn to whether they have demonstrated a well-

founded fear of future persecution. The IJ determined that

petitioners had established a genuine, subjective fear of returning

to Indonesia; therefore, we focus on the objective component of

this inquiry. A petitioner satisfies this objective component by

producing "credible, direct, and specific evidence" supporting a

fear of individualized persecution in the future, Guzmán v. INS,

327 F.3d 11, 16 (1st Cir. 2003) (internal quotation marks omitted),

or by demonstrating "a pattern or practice in his or her country of

nationality . . . of persecution of a group of persons similarly

5
Decky claims various other errors which he characterizes as
"legal" in nature, such as the IJ's alleged failure to adequately
take into account Dominique Audrey's age in its persecution
analysis. However, these alleged errors all turn on whether the
denial of Decky's petition was supported by substantial evidence.
Because we find that it was, we decline to address these arguments.

-14-
situated to the applicant on account of" a protected ground. 8

C.F.R. § 1208.13(b)(2)(iii)(A).

Here, the evidence in the record does not compel the

conclusion that petitioners will suffer individualized persecution

if they return to Indonesia. We have observed that "[t]he fact

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

homeland undercuts the alien's claim that persecution awaits her

return." Budiono v. Mukasey, 548 F.3d 44, 50 (1st Cir. 2008)

(internal quotation marks and alterations omitted); see, e.g.,

Sipayung v. Gonzáles, 491 F.3d 18, 21 (1st Cir. 2007) (evidence

that petitioner's "other relatives continued to practice

[Christianity in Indonesia], and none of them had ever been

harmed," is "a rational bas[i]s on which to find that [petitioner]

failed to show that he would more likely than not face future

persecution"). Here, the BIA's determination that petitioners will

not suffer individualized persecution is reasonably supported by

the fact that Decky's nine brothers and sisters have remained in

Indonesia without significant mistreatment, aside from one incident

where Muslims threw stones at Decky brother's house.

Finally, Decky has not established a pattern or practice

of persecution sufficient to qualify for asylum. Indeed, "[w]e

have repeatedly affirmed the BIA's determinations . . . that there

is no ongoing pattern or practice of persecution against ethnic

Chinese or Christians in Indonesia." Kho, 505 F.3d at 54; see,

-15-
e.g., Budiono, 548 F.3d at 50. The evidence in the record does not

compel a conclusion to the contrary in this case. Among other

things, the 2005 State Department Report for Indonesia, the most

recent in the record, states that "instances of discrimination and

harassment of ethnic Chinese declined compared with previous

years." While the documentary materials acknowledge that ethnic

Chinese and Christians continue to face difficulties not

encountered by the Muslim majority, this evidence does not compel

a finding of pattern or practice of persecution.

Accordingly, we conclude that the agency's determination

that petitioners failed to establish a well-founded fear of future

persecution was supported by substantial evidence and therefore

affirm. Because we conclude that petitioners are ineligible for

asylum, we also affirm the agency's determination that they fail to

qualify for withholding of removal. See, e.g., Bocova, 412 F.3d at

262.6

IV. Conclusion

Because the BIA's holding is supported by substantial

evidence in the record, we deny the petition for review.

Denied.

6
Decky advances no argument with respect to his CAT claim. Thus,
this claim is waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).

-16-