NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 04 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
ALLAN LESTER PELLE; et al., No. 05-77337
Petitioners, Agency Nos. A096-361-945
A096-361-946
v.
ERIC H. HOLDER JR., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted February 4, 2010
Pasadena, California
Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.
Allan Lester Pelle (“Pelle”), a 49-year old Christian, and his wife, Youla
Lontoh (“Lontoh”) are natives and citizens of Indonesia.1 Pelle petitions for
review of the Board of Immigration Appeals (“BIA”) decision affirming the
immigration judge’s (“IJ”) denial of his applications for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Lontoh is a derivative beneficiary of Pelle’s asylum application.
removal, and relief under the Convention Against Torture (“CAT”). The parties
are familiar with the facts of this case, which we repeat here only as necessary to
explain our decision. We have jurisdiction under 8 U.S.C. § 1252. We deny the
petition with respect to the asylum application, grant the petition with respect to the
applications for withholding of removal and relief under CAT, and remand to the
BIA.
I. STANDARD OF REVIEW
Because the BIA, citing Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.
1994), did not express disagreement with any part of the IJ’s decision, we review
the IJ’s decision as if it were the BIA’s decision. See Cinapian v. Holder, 567 F.3d
1067, 1073 (9th Cir. 2009). We review denials of asylum, withholding of removal,
and relief under CAT for substantial evidence. See, e.g., Shrestha v. Holder, 590
F.3d 1034, 1039 (9th Cir. 2010); Zehatye v. Gonzales, 453 F.3d 1182, 1184-85
(9th Cir. 2006).
II. ASYLUM
The IJ denied Pelle’s asylum application as untimely, concluding that no
change in country conditions or other circumstances justified Pelle’s late filing.
Because there are no changes in U.S. law or country conditions that would
materially affect Pelle’s eligibility for asylum, and no other circumstances that
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justify Pelle’s late filing, we deny the petition with respect to the asylum
application. 8 C.F.R. § 208.4(a).
III. WITHHOLDING OF REMOVAL
The IJ denied Pelle’s application for withholding based on his finding that
Pelle had not experienced past persecution or established a clear probability of
future persecution. We agree that the mistreatment Pelle experienced on account
of his Christian faith does not rise to the level of past persecution, but conclude
that the BIA erred in failing to apply disfavored group analysis to Pelle’s claim of
future persecution.
A. Past Persecution
While he lived in Indonesia, Pelle experienced two incidents of personal
mistreatment on account of his Christian faith. First, several men accosted Pelle in
public, ripped off his leather cross necklace, and threatened him. Second, Pelle’s
church was attacked by a group carrying weapons who screamed at the
congregants in Arabic, and threw rocks and bottles at the church. Although
frightening and disturbing, these incidents do not compel a finding of past
persecution under our existing precedent. See, e.g., Halim v. Holder, 590 F.3d
971, 975-76 (9th Cir. 2009) (holding that a Chinese Christian Indonesian had not
suffered past persecution, even though he was stripped naked, spat upon, and
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threatened by students at his school; refused service by a public health clinic;
arrested by the police on false drug allegations; and beaten during the 1998 riots
against ethnic Chinese Indonesians).
B. Future Persecution
In the absence of past persecution, Pelle may still be entitled to withholding
if he demonstrates that he will face a clear probability of future persecution if
removed to Indonesia. 8 C.F.R. § 1208.13(b)(2). The IJ denied Pelle’s application
for withholding without applying disfavored group analysis. In our companion
case, Tampubolon v. Holder (No. 06-70811), we held that Christians who are not
ethnic Chinese are a disfavored group in Indonesia. Because Pelle is a non-
Chinese Christian, the BIA erred in failing to apply disfavored group analysis.
As a member of a disfavored group, Pelle may establish a clear probability
of future persecution by presenting a comparatively lower proportion of evidence
that he will be individually singled out for persecution. See Wakkary v. Holder,
558 F.3d 1049, 1064 (9th Cir. 2009). Here, Pelle presented evidence that he
personally experienced harassment and violence in Indonesia on account of his
Christian faith. Moreover, he testified that he and his family will be singled out for
persecution because they are Westernized and have a U.S. citizen child. We
remand to the BIA for a determination in the first instance whether the
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combination of Pelle’s membership in a disfavored group plus his evidence of
individualized risk is sufficient to establish a clear probability of future
persecution. Id. at 1067.
IV. CAT
The IJ denied Pelle’s application for withholding of removal under CAT
because “[t]here is no evidence that if [Pelle and his family] returned to Indonesia
. . . the government of Indonesia would acquiesce in their being tortured by
Muslims in Indonesia.” The IJ’s finding is not supported by substantial evidence.
Government acquiescence does not require actual knowledge or willful
acceptance of the torture; rather, awareness gained either through actual knowledge
or willful blindness is sufficient. Zheng v. Ashcroft, 332 F.3d 1186, 1194-95 (9th
Cir. 2003). Here, there is ample record evidence that the Indonesian government is
aware, and possibly complicit, in torture inflicted on Christians by Muslim
extremists. For example, according to the 2002 U.S. Department of State
International Religious Freedom Report on Indonesia (“Religious Freedom
Report”), the government failed to prevent the activities of Laskar Jihad, a
paramilitary group engaged in a crusade against Christians. Furthermore, military
personnel stood by, and even participated, in the torture or execution of Christians
who refused to convert to Islam. The Religious Freedom Report states, “Religious
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violence and the lack of an effective government response to punish perpetrators
and prevent further attacks continued to lead to allegations that officials were
complicit in some of the violence, or at a minimum, allowed it to occur with
impunity.”
Because the IJ failed to consider the considerable evidence of government
acquiescence in torture against Christians in Indonesia, we remand for the BIA to
do so, applying the correct “awareness or willful blindness” standard for
government acquiescence.
V.
In summary, we affirm the denial of Pelle’s application for asylum as
untimely. We grant the petition with respect to Pelle’s applications for
withholding of removal and relief under CAT. We remand for the BIA to apply
disfavored group analysis to Pelle’s withholding claim, and to consider the
considerable evidence of government acquiescence in the torture of Christians.
Costs on appeal awarded to petitioners.
PETITION GRANTED IN PART, DENIED IN PART, AND
REMANDED.
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