UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1211
EVELYNE; NICKY JANTO,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: January 26, 2011 Decided: March 29, 2011
Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit
Judges.
Petition for review denied by unpublished opinion. Judge
Niemeyer wrote the opinion, in which Chief Judge Traxler and
Judge Agee joined.
ARGUED: Arnedo Silvano Valera, LAW OFFICES OF VALERA &
ASSOCIATES, Fairfax, Virginia, for Petitioners. Terri Jane
Scadron, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Tony West, Assistant Attorney
General, Civil Division, Anthony Wray Norwood, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:
Evelyne (Soehardjo) * filed an application for asylum and
related relief based on past persecution in Indonesia. Her
husband, Nicky Janto, filed a similar application as a
derivative beneficiary of Evelyne. Both Evelyne and Janto are
citizens of Indonesia, ethnic Chinese, and practicing
Christians.
Finding fundamentally changed country conditions in
Indonesia, the Board of Immigration Appeals (“BIA”) denied their
applications, and Evelyne and Janto filed this petition for
review.
Because we cannot conclude from the record that the
evidence would compel us to conclude otherwise, see INS v.
Elias-Zacarias, 502 U.S. 478, 483-84 (1992), we affirm the BIA
and deny the petition for review.
*
Evelyne used her first name as her only name on her
Indonesian passport. She also used only Evelyne in her
application for asylum, even though she signed her name,
“Jantoevelyne.” The record shows, however, that earlier she
included her father’s surname Soehardjo, as appears on her
certificate of baptism in 1998 and her certificate of marriage
in 2000. We will, however, follow the practice of the
Department of Homeland Security in using only the name
“Evelyne.”
2
I
Evelyne and Nicky Janto are natives and citizens of
Indonesia, who married in 2000. They are ethnic Chinese and
practicing Catholics.
The parties agree that Evelyne suffered past persecution
based on her religion and ethnicity in 1998 and again in 2001.
Specifically, on May 14, 1998, Evelyne was driving her car in
Jakarta when she was approached by a large group of people.
About 10 of the group began banging on her car with sticks and
stones and calling her derogatory terms used to describe Chinese
girls and non-Muslims. Eventually the attackers broke her car
window, opened her car door, and dragged her into the street.
She was stripped naked, beaten, and groped, and her purse and
other belongings were stolen. Evelyne saw a police officer on
the street, but he did not hear her screams for help. Evelyne
eventually fainted. When she regained consciousness, she found
herself in a hospital, where she remained for 10 days. After
this incident, Evelyne resigned as a manager at a securities
firm, because she was afraid to leave the house, and began
working informally in her mother’s store, which was located near
her home.
In January 2001, after Evelyne and Janto were married, they
hosted a Bible study in their home, which three other couples
attended. During the Bible study, a group of Muslims broke into
3
the house, beat the four men present with sticks, and dragged
the women to the back of the house. Evelyne’s shirt was torn
off and her breasts grabbed. One of the other women was close
to being raped. The intruders also destroyed the furniture and
stomped on the Bibles. Their activities were halted only when a
Muslim cleric entered the house and told the intruders to stop.
After they did so, the cleric told the couples that this was a
“warning” and “if you still do something like this again, if you
do this gathering again, I cannot guarantee your safety.”
Evelyne had called the police during the intrusion, and two
policemen eventually arrived and questioned everyone, but wrote
nothing down. They said they would send someone back to the
house to prepare a formal report, but no one came. When
Evelyne’s family later asked the police about the report, they
were told there was no record of the incident.
Following the January 2001 incident, Evelyne and Janto
decided to leave Indonesia. They applied for tourist visas to
come to the United States, fearing that their visa applications
would be denied if they disclosed their intent not to return to
Indonesia. They were admitted to the United States on May 13,
2001, on non-immigrant visas, which authorized a six-month stay.
In May 2002, Evelyne filed an asylum application with the
Immigration and Naturalization Service, listing Janto as a
derivative beneficiary, and Janto filed a derivative
4
application. The Immigration and Naturalization Service denied
both applications and referred Evelyne and Janto to the
Immigration Court for removal proceedings. The Department of
Homeland Security, which succeeded the Immigration and
Naturalization Service, served Evelyne and Janto with notices
to appear, charging them with removability under 8 U.S.C. §
1227(a)(1)(B), as persons overstaying their non-immigrant visas.
Appearing before an immigration judge in December 2003,
Evelyne and Janto conceded their removability but renewed their
request for asylum. They also requested withholding of removal
and relief under the Convention Against Torture. The
immigration judge found the application for asylum timely;
determined that Evelyne was a credible witness; and concluded
that Evelyne established a “viable claim of past persecution on
account of religion in Indonesia.” To rebut the presumption of
a well-founded fear of future persecution that attaches in that
circumstance, the Department of Homeland Security provided the
immigration judge with documentary evidence of country
conditions in Indonesia, which included the U.S. Department of
State 2006 Country Report on Human Rights Practices for
Indonesia, and the 2006 International Religious Freedom Report
for Indonesia. The Religious Freedom Report stated that
although the government sometimes tolerated religious
discrimination and the abuse of religious groups by private
5
actors during the reporting period, government officials also
worked with Muslim and Christian community leaders to diffuse
tensions in conflict areas. The government also prosecuted more
than 52 terrorists and religious extremists during the course of
that year. Both the Country Conditions Report and the Religious
Freedom Report referred to sporadic incidents of religiously
motivated violence in Indonesia, but neither report described
any incidents in the Jakarta area, where Evelyne and Janto had
lived. The reports gave a mixed picture of abuses against
Christians in Indonesia as a whole, suggesting that the
situation had improved from prior years but indicating that some
abuse, especially by private actors, had continued.
Relying on this evidence, the immigration judge found that
the Department of Homeland Security had proved fundamentally
changed country conditions in Indonesia, such that Evelyne
lacked a well-founded fear of future persecution. The judge
also found that Evelyne had not introduced other evidence that
would support a well-founded fear of future persecution.
Therefore, the judge denied the application for asylum, the
request for withholding of removal, and relief under the
Convention Against Torture.
The BIA affirmed, concluding, on the basis of its own
analysis, that Evelyne lacked a well-founded fear of future
persecution due to fundamentally changed country conditions. In
6
analyzing the evidence of country conditions in Indonesia, the
BIA found evidence of ongoing discrimination against Indonesians
of Chinese ethnicity but concluded that such discrimination did
not rise to the level of persecution. It noted that the 2006
State Department Country Reports indicated “improvements in the
relations between religions.” The BIA also concluded that many
of the documents that had been presented by Evelyne did not
describe current conditions and that the more recent evidence
did “not establish that there [was] ongoing widespread harm to
ethnic Chinese Christians in Indonesia.” The BIA also found no
“pattern or practice” of persecution of ethnic Chinese in
Indonesia, especially because “the government does not condone
or support persecution of its ethnic Chinese citizens.”
In addition, the BIA denied discretionary humanitarian
relief, stating that the acts perpetrated against Evelyne were
“not so severe as to warrant a grant of asylum in the exercise
of discretion.”
Finally, because Evelyne had not established eligibility
for asylum, the BIA held that Evelyne had not satisfied the
higher “clear probability” standard for withholding of removal
or the “more likely than not” standard for relief under the
Convention Against Torture.
Evelyne and Janto filed this petition for review of the
BIA’s decision.
7
II
The Attorney General may grant asylum to a person unwilling
or unable to return to her native country “because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8
U.S.C. § 1158(b); see also Naizgi v. Gonzales, 455 F.3d 484, 486
(4th Cir. 2006). If an applicant for asylum shows past
persecution, she receives the benefit of a presumption of a
well-founded fear of future persecution. This presumption,
however, can be rebutted if the Department of Homeland Security
proves a fundamental change in conditions such that the fear is
no longer well-founded. See 8 C.F.R. § 1208.13(b)(1); Naizgi,
455 F.3d at 488.
We review a BIA decision based on a factual determination
for substantial evidence. Dankam v. Gonzales, 495 F.3d 113, 119
(4th Cir. 2007). Under this standard, the BIA’s factual
determinations “are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B). Accordingly, we “must affirm a determination of
statutory ineligibility by the BIA unless the ‘evidence
presented was so compelling that no reasonable factfinder could
fail to find’ eligibility for asylum.” Dankam, 495 F.3d at 119
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).
8
Evelyne and Janto argue that the BIA decision was not
supported by substantial evidence because “[n]o evidence ha[d]
been introduced . . . to categorically show that such simmering
and pervasive anti-Chinese Christian sentiment has dissipated
and the persecution and violence perpetrated against them will
no longer recur.” They argue that the State Department reports
are “at most ambivalent,” observing that although the reports
show that “the Indonesian government has adopted some measures
to address the problem” of interreligious violence, they also
indicate that “violence is still being perpetrated against
Chinese Christians,” and that the government is powerless to
prevent it.
The Attorney General argues that the BIA’s decision was
supported by the substantial evidence of the State Department’s
2006 County Report and Religious Freedom Report for Indonesia,
which demonstrate a markedly different condition in Indonesia
from the time when Evelyne and Janto departed from the country
in 2001. The Attorney General notes, “the report indicates that
‘[g]overnment officials worked with Muslim and Christian
community leaders to diffuse tensions in conflict areas’” and
that although the government sometimes tolerated religious
discrimination and abuse by private actors, it also vigorously
prosecuted religious terrorists. In addition, the Attorney
General points out that the incidents of religiously motivated
9
violence were confined to specific regions in Indonesia that
were geographically removed from Jakarta, which is where Evelyne
and Janto lived. He concludes that “although the State
Department evidence does not portray perfect conditions in
Indonesia, it is sufficient to permit a reasonable factfinder to
conclude that conditions, especially in the Jakarta area, have
changed fundamentally since the 1998 riots, and since the
January 2001 assault during [the] bible study session.”
We agree with Evelyne and Janto that the record evidence
presented a picture of imperfect conditions in Indonesia, but we
also conclude that this weakness is not “so ‘compelling that no
reasonable factfinder could fail to find’ eligibility for
asylum.” Dankam, 495 F.3d at 119 (quoting Elias-Zacarias, 502
U.S. at 484); but see Imelda v. U.S. Attorney General, 611 F.3d
724 (11th Cir. 2010). We emphasize that we are not considering
the evidence in the first instance, but rather are reviewing the
BIA decision under a highly deferential standard, and under this
standard we are persuaded that the evidence would not compel any
reasonable factfinder to conclude that Evelyne and Janto were
eligible for asylum.
We note particularly that the State Department Reports
provided no descriptions of religiously-motivated violence in
the Jakarta area and scant evidence of other problematic but
nonviolent religiously-motivated misconduct. Because the State
10
Department reports are required by law to be “a full and
complete report” of human rights abuses, we can assume that they
provided an accurate depiction of the presence or absence of
such abuses. See 22 U.S.C. § 2151n(d) (stating that State
Department country reports shall provide “a full and complete
report” of “the status of internationally recognized human
rights” and, “wherever applicable, violations of religious
freedom”). The absence of documented religiously-motivated
violence in the Jakarta area is substantial evidence that such
violence no longer exists there, or at least is significantly
reduced from prior levels, and this evidence was sufficient to
support the BIA’s determination of fundamentally changed country
conditions. We therefore affirm the BIA’s denial of the asylum
applications.
III
Evelyne and Janto also provide other bases by which to
challenge the order of removal. First, they argue they should
be eligible for asylum based on a pattern or practice of
persecution against Chinese Christians in Indonesia. The
Country Conditions Report, however, as noted above, supports the
BIA’s finding of no pattern or practice of persecution, and
therefore we affirm that finding, again under the deferential
standard of review.
11
Evelyne and Janto also argue that they should have been
granted asylum on humanitarian grounds. See 8 C.F.R. §
1208.13(b)(1)(i); Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir.
1988). But discretionary humanitarian relief is available only
in the “rare case where past persecution is so severe that it
would be inhumane to return the alien even in the absence of any
risk of future persecution.” Naizgi, 455 F.3d at 487 (internal
quotation marks omitted). Such discretionary relief is
“designed for the case of the German Jews, the victims of the
Chinese ‘Cultural Revolution,’ survivors of the Cambodian
genocide, and a few other such extreme cases.” Bucur v. INS,
109 F.3d 399 (7th Cir. 1997); see also Ngarurih v. Ashcroft, 371
F.3d 182, 190 (4th Cir. 2004). The persecution suffered by
Evelyne and Janto, while serious, did not involve the extreme
abuse for which discretionary humanitarian relief was designed.
Accordingly, we also affirm the BIA’s denial of humanitarian
relief.
Third, Evelyne and Janto contend that they should be
eligible for withholding of removal under 8 U.S.C. § 1231(b)(3).
See also 8 C.F.R. § 1208.16(b). Withholding of removal is only
available to refugees who “more likely than not” would face
future persecution, which is a higher standard than the “well-
founded fear” standard for asylum. See Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004). Because we affirm the BIA’s
12
conclusion that Evelyne and Janto lack a well-founded fear of
future persecution, it follows that their proof fails under the
higher “more likely than not” standard applicable for
withholding of removal.
Finally, Evelyne and Janto contend that they should be
eligible for relief under the Convention Against Torture. See 8
C.F.R. § 1208.16(c). This relief, however, is yet more
difficult to obtain, because it requires (1) a “more likely than
not” probability (2) of torture, rather than persecution (3) by,
or with the acquiescence of, government officials. See id.; 8
C.F.R. § 1208.18(a). Because Evelyne and Janto have not
satisfied these heightened requirements, we affirm the BIA’s
denial of relief under the Convention Against Torture.
For the reasons given, we affirm the BIA’s ruling denying
Evelyne and Janto’s applications for asylum and other relief
from its removal order and deny their petition for review.
PETITION FOR REVIEW DENIED
13