Eduard v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
Revised July 30, 2004
July 21, 2004
UNITED STATES COURT OF APPEALS
For the Fifth Circuit Charles R. Fulbruge III
Clerk

No. 03-60092

JOPIE EDUARD,

Petitioner,

VERSUS

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.
--------------------------------------------------------------
consolidated with

No. 03-60093

YULIANA PAKKUNG,

Petitioner,

VERSUS

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals

Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
DeMOSS, Circuit Judge:

Petitioners, citizens of Indonesia, were ordered removed by

the Immigration and Naturalization Service (“INS”). The

Immigration Judge (“IJ”) dismissed their applications for asylum

and withholding of removal. The Board of Immigration Appeals

(“BIA”) affirmed without opinion. Petitioners contend that the IJ

erred by denying their applications for asylum. They also assert

that the IJ erred by failing to address their claims for relief

under the Convention Against Torture (“CAT”). We hold that the IJ

committed legal error and therefore reverse and remand for further

proceedings not inconsistent with this opinion.

BACKGROUND

Petitioners Jopie Eduard (“Eduard”) and his wife, Yuliana

Pakkung (“Pakkung”), are natives and citizens of Indonesia.

Pakkung entered the United States in June 1989, as a nonimmigrant

visitor, with permission to remain for six months. Eduard entered

the United States in June 1991, as a nonimmigrant crewman, with

permission to remain for 29 days.

The INS initiated removal proceedings against Pakkung and

Eduard in November 2000. Pakkung and Eduard conceded removability,

and applied for asylum and withholding of removal.1

The IJ held a consolidated hearing on April 23, 2001. The IJ

1
Petitioners each filed an “Application for Asylum and/or
Withholding of Removal.” Both applications claimed, inter alia,
that they feared being subject to torture in Indonesia.

2
issued an oral decision denying Eduard’s and Pakkung’s applications

for asylum, and denying withholding of removal pursuant to INA

§ 241(b)(3)(B). 8 C.F.R. § 208.16(b) (2004). The IJ reasoned

that neither applicant had established past persecution or a well-

founded fear of future persecution. The IJ did not discuss whether

removal could be withheld under the CAT. Id. § 208.16(c).

A member of the BIA, acting for the board, affirmed the IJ’s

decision without opinion. Eduard and Pakkung timely filed this

appeal.

DISCUSSION

Because the BIA summarily affirmed the opinion of the IJ, we

review the factual findings and legal conclusions of the IJ. See

Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003) (providing

that the IJ’s decision is the final agency decision if the BIA

summarily affirms). We must uphold the IJ’s factual findings

unless we find that they are not supported by substantial evidence

in the record. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).

Substantial evidence is lacking only if the petitioner establishes

that the record evidence was “so compelling that no reasonable fact

finder could fail to find” the petitioner statutorily eligible for

asylum or withholding of removal. INS v. Elias-Zacarias, 502 U.S.

478, 483-84 (1992); Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th

Cir. 2001). We review conclusions of law de novo. Mikhael v.

INS, 115 F.3d 299, 305 (5th Cir. 1997); Carbajal-Gonzalez v. INS,

3
78 F.3d 194, 197 (5th Cir. 1996). Consequently, even though we are

required to review the factual findings of the IJ for substantial

evidence, we nevertheless may reverse an IJ’s decision if it was

decided on the basis of an erroneous application of the law.

Mikhael, 115 F.3d at 305.

Petitioners contend that the IJ erred by (1) denying their

applications for asylum2 and (2) failing to address their claims

for relief under the CAT.

I. Whether the IJ erred by denying Petitioners’ applications for
asylum.

Petitioners first contend that the IJ erred by denying their

applications for asylum. The Attorney General is authorized to

grant asylum to “refugees.” INA § 208(a), 8 U.S.C. § 1158(a)

(2004); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987);

Mikhael, 115 F.3d at 303. A refugee is:

[A]ny person who is outside any country of such person's
nationality or, in the case of a person having no
nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling
to return to, and is unable or unwilling to avail himself
or herself of the protection of, that 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 . . . .

2
Petitioners do not discuss the IJ’s denial of their applications
for withholding of removal under INA § 241(b)(3)(B). Withholding
of removal requires a higher standard of proof than asylum. INS v.
Stevic, 467 U.S. 407, 429-30 (1984); Faddoul v. INS, 37 F.3d 185,
188 (5th Cir. 1994). This “level of proof . . . is more stringent
than for asylum purposes.” Mikhael v. INS, 115 F.3d 299, 306 (5th
Cir. 1997). Thus, the IJ’s dismissal of Petitioners’ asylum claims
was dispositive of their withholding of removal claims.

4
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2004).3 Applicants

bear the burden of proving that they qualify for refugee status.

8 C.F.R. § 208.13(a) (2004); Faddoul, 37 F.3d at 188. Petitioners

assert that they were eligible for asylum because they (1) suffered

past persecution on account of their race and religion and

(2) possessed a well-founded fear of future persecution on account

of their race and religion.

A. Past Persecution.

Petitioners contend that the IJ erred by holding that they had

not suffered past persecution. In particular, they argue that

(1) the IJ’s factual findings are not supported by substantial

evidence and (2) the IJ applied erroneous law by not analyzing the

separate incidents of harm in the aggregate.

1. Whether substantial evidence supports the IJ’s
finding of no past persecution.

Petitioners argue that the IJ’s finding of no past persecution

is not supported by substantial evidence. Persecution has been

defined by this Court as:

The infliction of suffering or harm, under government
sanction, upon persons who differ in a way regarded as
offensive (e.g., race, religion, political opinion,
etc.), in a manner condemned by civilized governments.
The harm or suffering need not be physical, but may take

3
Being classified as a refugee, however, does not automatically
grant the alien asylum. Mikhael, 115 F.3d at 303 (recognizing this
definition to be “a provision stated in precatory language, i.e.,
it allows the Attorney General the discretion to grant asylum to
refugees”).

5
 other forms, such as the deliberate imposition of severe
economic disadvantage or the deprivation of liberty,
food, housing, employment or other essentials of life.

Abdel-Masieh v. INS, 73 F.3d 579, 583-84 (5th Cir. 1996) (citation

omitted).4

Eduard is a Christian of Manado ancestry; he asserts, however,

that Indonesians presume he is Chinese because of his skin tone and

the shape of his eyes. When Eduard lived in Indonesia, he was

struck in the head with a rock while walking to church. Although

Eduard was not able to identify the assailant, he nonetheless

presumed that the assailant was a Muslim because the assault

occurred just days after a large civil dispute between the

Government and the Muslims.5 Eduard sustained cuts on his head and

was given medication to stop the bleeding. Eduard also testified

that he was taunted as a “pork eater” by a Muslim while he sat on

a bus. Aside from the stone-throwing incident, Eduard was never

4
Persecution is an “extreme concept that does not include every
sort of treatment our society regards as offensive.” Nagoulko v.
INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (citation omitted); see
also Ouda v. INS, 324 F.3d 445, 450 (6th Cir. 2003)
(“[D]iscrimination does not ordinarily amount to persecution within
the meaning of the Act.”); Mikhailevitch v. INS, 146 F.3d 384, 390
(6th Cir. 1998) (stating that persecution “requires more than a few
isolated incidents of verbal harassment or intimidation,
unaccompanied by any physical punishment, infliction of harm, or
significant deprivation of liberty”).
5
Petitioners contend that the IJ mischaracterized “the Tanjung
Priok riots” as a “civil disturbance caused by certain Muslims
failing to obey police orders.” Petitioners, however, fail to
establish that the IJ’s characterization of the riots as a “civil
disturbance” was not supported by substantial evidence.

6
physically punished or harmed in Indonesia because of his Christian

faith or imputed Chinese ethnicity.

Pakkung is a Christian of Chinese ethnicity. She testified

that she was taunted in school by Muslim students and that the bus

of a fellow Christian was stoned in 1986. Pakkung, however, did

not actually witness the stoning. Pakkung also stated that her

grandparents tried to convert her to Islam when she was eight years

old. She claimed that they “hit [her] and beat [her] up” when she

refused to say Muslim prayers. Pakkung, however, did not testify

that she suffered any injuries or that she ever required medical

treatment.

The IJ found that “the taunting described by [Eduard] and the

general harassment does not rise to the level of a serious

punishment or harm that would justify a grant of asylum.” The IJ

also concluded that “there is no evidence that [Pakkung] was ever

targeted for any actual physical abuse in Indonesia.”

The IJ’s findings are supported by substantial evidence.

Neither Eduard nor Pakkung were interrogated, detained, arrested,

or convicted in Indonesia. The only violence suffered by either

party, on account of either religion or ethnicity, was the injury

to Eduard’s head allegedly caused by a purported Muslim. The rest

of the mistreatment recounted during the IJ hearing was composed of

mere denigration, harassment, and threats. Neither discrimination

nor harassment ordinarily amounts to persecution under the INA,

even if the conduct amounts to “morally reprehensible”

7
discrimination on the basis of race or religion. Fisher v. INS,

79 F.3d 955, 961 (9th Cir. 1996). Thus, substantial evidence

supports the IJ’s finding that Petitioners failed to establish past

persecution.

2. Whether the IJ applied erroneous law by not
analyzing the separate incidents of harm in the
aggregate.

Petitioners also contend that the IJ committed legal error by

not considering the incidents of harm in the aggregate. Matter of

O-Z- & I-Z-, 22 I & N Dec. 23, 26 (BIA 1998). Neither the

Petitioners’ briefs nor the IJ’s decision establishes that the IJ

analyzed each incident of harm in isolation. Because the burden of

proving that the IJ analyzed each incident independently falls on

Petitioners, and Petitioners have failed to carry that burden, we

do not agree with Petitioners and thus find no error.

B. Petitioners’ Well-Founded Fear of Persecution.

Despite an adverse finding on their claims of past

persecution, Petitioners can still establish their refugee status

by demonstrating well-founded fears of persecution. An applicant

has a well-founded fear of persecution if:

(A) The applicant has a fear of persecution in his or her
country of nationality . . . on account of race,
religion, nationality, membership in a particular social
group, or political opinion;

(B) There is a reasonable possibility of suffering such
persecution if he or she were to return to that country;
and

(C) He or she is unable or unwilling to return to, or

8
 avail himself or herself of the protection of, that
country because of such fear.

8 C.F.R. § 208.13(b)(2)(i). “To show a well-founded fear of

persecution, an alien must have a subjective fear of persecution,

and that fear must be objectively reasonable.” Lopez-Gomez,

263 F.3d at 445. The applicant must establish that “a reasonable

person in [his] circumstances would fear persecution” in his native

country. Faddoul, 37 F.3d at 188. Moreover, a finding of a well-

founded fear of persecution is negated if the applicant can avoid

persecution by relocating to another part of his home country.

8 C.F.R. § 208.13(b)(2)(ii). The well-founded fear standard,

however, does not require an applicant to demonstrate that he will

be persecuted in his native country; rather the applicant must

“establish, to a ‘reasonable degree’, that return to his country of

origin would be intolerable.” Mikhael, 115 F.3d at 305 (quoting

Cardoza-Fonseca, 480 U.S. at 439).

Petitioners contend that the IJ erred by holding that they did

not establish well-founded fears of persecution. In particular,

Petitioners argue that the IJ applied erroneous law to conclude

that: (1) their feared persecution was not on account of race or

religion; (2) their feared persecution was unreasonable; and

(3) they could relocate within Indonesia.

1. Whether the IJ applied erroneous law to conclude that
Petitioners’ feared persecution was not on account of
race or religion.

Petitioners contend that the IJ applied erroneous law to

9
conclude that Petitioners’ feared persecution was not based on race

or religion. The IJ concluded that Petitioners did not satisfy

8 C.F.R. § 208.13(b)(2)(i)(A), which requires that a fear of

persecution be “on account of” a protected belief or

characteristic. Although the IJ recognized that Petitioners’ fears

were partially due to their Christianity,6 the IJ held that such

fear was not “on account of” their religion because Indonesia is

rife with civil uprisings and violence which are not specific to

Christian or Chinese inhabitants.7

The IJ supported this legal conclusion by citing Matter of

Mogharrabi, 19 I & N Dec. 439, 447 (BIA 1987) abrogated on other

grounds by Pitchershaia v. INS, 118 F.3d 641, 647 (9th Cir. 1997).

Respondent cites Hallman v. INS, 879 F.2d 1244 (5th Cir. 1989), and

6
The IJ held that “a general climate of violence based, at least
in part, on differences between Islam and Christianity and socio-
economic tensions, as described by the United States State
Department, which are exacerbated by Chinese ethnicity, exists in
Indonesia.”
7
The IJ stated that “religious tensions in Indonesia between
Christians and Muslims have spawned violence and there is a risk of
violence in Indonesia, not only for [Petitioners], but for all
citizens who live in Indonesia.” The IJ found that “not all of the
[forced religious] conversions involve forced conversions of
Christians to Islam. There have also been reports of Muslims who
are forced to convert to Christianity.” The IJ emphasized that
“there have been closures and attacks not only on churches, but
also temples and mosques, in different parts of Indonesia.” The
IJ also noted that “both the Christian and the Muslim communities
blame each other for initiating and perpetuating violence.” The IJ
stated that “[a]lthough conditions are tense in parts of Indonesia,
it appears that [Petitioners] would not be at any greater risk than
any other citizen of Indonesia if they returned.”

10
Campos-Guardado v. INS, 809 F.2d 285 (5th Cir. 1987), to further

support the IJ’s conclusion. None of these cases, however, holds

that a fear of persecution based on a protected belief or

characteristic is negated simply because the applicant also fears

general civil violence and disorder.

Mogharrabi states:

[A]n alien who succeeds in establishing a well-founded
fear of persecution will not necessarily be granted
asylum. He must also show that the feared persecution
would be on account of his race, religion, nationality,
membership in a particular social group, or political
opinion. Thus, for example, aliens fearing retribution
over purely personal matters, or aliens fleeing general
conditions of violence and upheaval in their countries,
would not qualify for asylum. Such persons may have
well-founded fears, but such fears would not be on
account of their race, religion, nationality, membership
in a particular social group, or political opinion.

Mogharrabi, 19 I & N Dec. at 447 (emphasis added).

In Campos-Guardado, we found that an applicant’s fear of

persecution on account of her uncle’s political opinion did not

support a finding of a well-founded fear of persecution. 809 F.2d

at 288, 291. We stated that Congress, when it passed the statute

governing asylum applications, “did not intend to confer

eligibility for asylum on all persons who suffer harm from civil

disturbances–conditions that necessarily have political

implications.” Id. at 290.

In Hallman, we held that a bombing raid upon an applicant’s

village was not on account of the applicant’s political opinion,

but rather a battlefield tactic designed to eliminate a source of

11
security and support available to guerillas in a war zone.

879 F.2d at 1247. We concluded that “asylum is not available to

every victim of civil strife, but is restricted to those persecuted

for particular reasons.” Id.

These cases hold that an applicant’s fear of persecution

cannot be based solely on general violence and civil disorder.

None of these cases, however, supports the IJ’s proposition that

fear based on a protected belief or characteristic is negated

simply because of general violence and civil disorder. Congress no

doubt anticipated that citizens of countries rife with general

violence and civil disorder would seek asylum in the United States.

If it had intended to deny refugee status to applicants from such

countries, who also feared persecution based on one of the five

statutorily protected beliefs and characteristics, it would have

presumably stated so.

Upon review of the record, it is clear that Petitioners’ fears

of persecution were not based solely on the peripheries of civil

violence and disorder.8 For example, Pakkung submitted in her

application that she:

[I]s afraid to go back to Indonesia because Christians
are being persecuted there by the Moslems and the
Indonesian government cannot control them. Killings,
bloodshed, burnings, persecutions of Christians are
happening all over Indonesia in places like Jakarta,

8
It is less clear whether Petitioners established that they
feared persecution on account of their Chinese ethnicity (or
imputed ethnicity in Eduard’s case).

12
 Bandung, Solo, Situbondo, Surabaya, Lombok, Bali, West
Kalimantan, Ujung Pandang, Poso, Maluku Island and even
in Irian Jaya . . . . When the Government catches the
Moslem culprits, they pardon and release them.

She also testified that she feared being persecuted by the Laskar

Jihad, a group which pressures Christians to convert to Islam.

Eduard testified that the Muslim majority presents a risk to

Christians everywhere in Indonesia under present conditions.

Eduard’s siblings, who live in Indonesia, are afraid to attend

church due to the violence. Another witness, Gideon Tandirerung,

confirmed that Christians are pressured to convert to Islam and

that churches are routinely burned. He also described the

widespread influence of the Laskar Jihad, who are responsible for

forced conversions and other physical violence against Christians.

A review of the record indicates that Petitioners’ fears of

persecution were based on their Christian faith in particular, and

Indonesian civil strife in general. The IJ committed legal error

by analyzing whether Petitioners’ fear of persecution was “on

account of” their race or religion using a standard not supported

by case law or the regulations.

2. Whether the IJ applied erroneous law to conclude that the
Petitioners’ fear of persecution was unreasonable.

Petitioners also contend that the IJ applied erroneous law to

conclude that their fears of persecution were unreasonable. See

generally Mikhael, 115 F.3d at 304 (holding that a well-founded

fear of persecution must be reasonable). To demonstrate the

13
reasonableness of a well-founded fear of persecution, an asylum

applicant must show that: (1) he possesses a belief or

characteristic a persecutor seeks to overcome by means of

punishment of some sort; (2) the persecutor is already aware, or

could become aware, that the alien possesses this belief or

characteristic; (3) the persecutor has the capability of punishing

the alien; and, (4) the persecutor has the inclination to punish

the alien. Mogharrabi, 19 I & N Dec. at 446.

The IJ misstated the legal standard to establish a

“reasonable” fear of persecution. The IJ stated:

A reasonable fear of persecution is not only a subjective
fear. In addition an applicant must establish that:
(1) the applicant possesses a belief or characteristic
connected to one of the five statutory grounds for
asylum; (2) the applicant has been targeted for
punishment or harm based on that belief or
characteristic; (3) the persecutor is aware, or becomes
aware, that the applicant possesses that belief or
characteristic; (4) the persecutor has the capability to
punish or harm the applicant; (5) the persecutor has the
inclination to punish or harm the applicant; and (6) the
threat of persecution is country wide.

(Citing Matter of Acosta, 19 I & N Dec. 211, 231 (BIA 1985)

(emphasis added)). It is unclear why the IJ cites Acosta as

authority for the above statement of law, where that case fails to

discuss either the second or sixth element mentioned by the IJ and

outlines the third element differently than the IJ’s opinion. See

id. at 231. Respondent concedes that the IJ “slightly misstated”

the analysis. Petitioners argue that the IJ erred by (1) requiring

them to prove that they had been targeted, (2) requiring them to

14
prove that the persecutor is aware of their beliefs, and

(3) improperly considering the safety of Petitioners’ family

members in Indonesia.9

a. Whether the IJ erred by requiring Petitioners
to prove that they had been targeted.

Petitioners contend that the IJ erred by requiring them to

prove that they “ha[d] been targeted for punishment or harm based

on [a protected] belief or characteristic.” The IJ held that

Petitioners failed to meet this element: “Although a general

climate of violence based, at least in part, on differences between

Islam and Christianity and socio-economic tensions, as described by

the United States State Department, which are exacerbated by

Chinese ethnicity, exists in Indonesia, [Petitioners] have not been

targeted for any of these reasons in the past in Indonesia.”

The asylum regulations provide that:

In evaluating whether the applicant has sustained the
burden of proving that he or she has a well-founded fear
of persecution, the asylum officer or immigration judge
shall not require the applicant to provide evidence that
there is a reasonable possibility he or she would be
singled out individually for persecution if:

(A) The applicant establishes that there is a
pattern or practice in his or her country of .

9
Element six, although not analyzed in this part of the opinion,
is also not a factor to determine the “reasonableness” of the
applicant’s fear. Rather, an IJ should conduct a “relocation”
analysis upon finding that the fear of future persecution is
reasonable. 8 C.F.R. § 208.13(b)(ii) (2004) (“An applicant does
not have a well-founded fear of persecution if the applicant could
avoid persecution by relocating to another part of the applicant’s
country of nationality . . . .”).

15
 . . persecution of a group of persons
similarly situated to the applicant on account
of race, religion, nationality, membership in
a particular social group, or political
opinion; and

(B) The applicant establishes his or her own
inclusion in, and identification with, such
group of persons such that his or her fear of
persecution upon return is reasonable.

8 C.F.R. 208.13(b)(2)(iii) (emphasis added).

It is clear from the record, and the IJ’s findings, that there

was a pattern of persecution of Christians in Indonesia.10 Thus,

Petitioners were not required to show that they would be singled

out for persecution upon return to Indonesia. Id. Moreover,

requiring an applicant to prove past targeting to establish a well-

founded fear would effectively replicate the past persecution

inquiry. Thus, the IJ committed legal error by requiring that

Petitioners prove they had been targeted in the past.

b. Whether the IJ erred by requiring Petitioners

10
The IJ noted that the United States State Department has
reported that in Indonesia there were “122 religiously motivated
attacks on Christian churches and other Christian facilities during
2000. . . . These attacks resulted in 3,000 deaths, the
displacement of nearly 500,000 people, and damage to at least 81
churches and dozens of mosques.” Pakkung claimed that “[k]illings,
bloodshed, burnings, persecutions of Christians are happening all
over Indonesia in places like Jakarta, Bandung, Solo, Situbondo,
Surabaya, Lombok, Bali, West Kalimantan, Ujung Pandang, Poso,
Maluku Island and even in Irian Jaya.” Gideon Tandirerung
confirmed that Christians are pressured to convert to Islam and
churches are routinely burned. Gideon Tandirerung testified that
the Laskar Jihad is widely influential throughout Indonesia. He
specified that the Laskar Jihad, in its efforts to convert
Christians to Islam, routinely burns churches and commits physical
acts of violence against Christians.

16
 to prove that persecutors had actual awareness
of Petitioners’ religion and ethnicity.

Petitioners also contend that the IJ erred by requiring them

to prove that “the persecutor is aware, or becomes aware, that the

applicant possesses that belief or characteristic.” It is well-

settled that asylum applicants must only demonstrate that a feared

persecutor “could easily become aware” of an applicant’s protected

beliefs or characteristics. Mogharrabi, 19 I & N Dec. at 446. Due

to the ambiguity of the IJ’s decision, it is unclear whether the IJ

actually required Petitioners to prove that persecutors were

already aware of their race or religion. Requiring such proof is

legal error and is significant because Petitioners’ ethnicity and

Christian faith are easily discoverable by potential persecutors in

Indonesia. Thus, the IJ erred by requiring Petitioners to prove

that the persecutors were aware of Petitioners’ race or religion.

c. Whether the IJ erred by improperly considering
the safety of Petitioners’ family members in
Indonesia.

The IJ emphasized that the reasonableness of Petitioners’

fears was diminished because their family members in Indonesia had

not been persecuted.11 Petitioners contend that the IJ “applied an

incorrect legal standard to determine the significance of family

11
Eduard’s siblings have not been harmed as a result of either
their imputed Chinese ethnicity or Christian faith. Although
Pakkung’s mother is afraid to go to church because of the recent
church burnings, she has not been harmed because of her Chinese
ethnicity or Christianity. Pakkung’s brother, however, was beaten
at an Indonesian school when he was eight years old.

17
members residing in Indonesia to the question of whether [they]

have a well-founded fear of persecution there.”

In Matter of A-E-M-, 21 I & N Dec. 1157, 1160 (BIA 1998), the

BIA held that the reasonableness of an alien’s fear of persecution

is reduced when his family remains in his native country unharmed

for a long period of time after his departure. Petitioners attempt

to distinguish A-E-M-, where persecutors existed in only limited

areas, from cases, such as theirs, where the feared persecutors

operate throughout the whole country. Such a distinction is not

valid.

The holding of A-E-M- is not limited to cases where the

persecutor operates regionally. Id. at 1159-61. The opinion

merely sets out several factors to be considered, and applies those

factors to the facts of the case, which happened to involve

persecutors with a mere regional influence. Id. There is no

logical reason to distinguish between those cases with a regional

persecutor and those cases involving a national persecutor; in

fact, ongoing family safety seems to be an even stronger indicator

of “unreasonable” fear when the feared persecutor has a national

influence. Thus, it was not legal error for the IJ to consider the

fact that Petitioners’ families remain in Indonesia unharmed.12

12
Respondent does not cite any authority establishing that the
safety of family members is enough, by itself, to render a fear of
persecution unreasonable. Thus, it appears that it is merely one
factor which courts should consider.

18
 In summary, although the IJ was not precluded from considering

the safety of Petitioners’ family members in Indonesia, the IJ’s

holding that Petitioners’ fear of persecution was unreasonable was

nonetheless based on erroneous law. In particular, the IJ erred by

requiring Petitioners to prove that they had been targeted for

punishment in the past. The IJ also erred in its analysis

regarding whether persecutors were required to be aware of

Petitioners’ protected beliefs and characteristics.

3. Whether the IJ applied erroneous law to conclude
that Petitioners could relocate within Indonesia.

Although the IJ applied improper legal analyses to determine

whether Petitioners’ fears of persecution were “reasonable,” such

errors are harmless if Petitioners could safely relocate within

Indonesia.

An applicant does not have a well-founded fear of
persecution if the applicant could avoid persecution by
relocating to another part of the applicant’s country of
nationality . . . if under all the circumstances it would
be reasonable to expect the applicant to do so.

8 C.F.R. § 208.13(b)(2)(ii). The regulations direct the IJ to

consider:

[W]hether the applicant would face other serious harm in
the place of suggested relocation; any ongoing civil
strife within the country; administrative, economic, or
judicial infrastructure; geographical limitations; and
social and cultural constraints, such as age, gender,
health, and social and family ties. Those factors may,
or may not, be relevant, depending on all the
circumstances of the case, and are not necessarily
determinative of whether it would be reasonable for the
applicant to relocate.

19
Id. § 208.13(b)(3).

Because there was no showing of past persecution, Petitioners

had the burden to establish that their relocation was unreasonable.

Id. § 208.13(b)(3)(i) (“In cases in which the applicant has not

established past persecution, the applicant shall bear the burden

of establishing that it would not be reasonable for him or her to

relocate, unless the persecution is by a government or is

government-sponsored.”).

Petitioners were required to show that relocation in Indonesia

was “not reasonable.” The IJ held that “although there are

differences in Indonesia with regard to the diverse populations,

that [Petitioners] could, if necessary, relocate within Indonesia

to avoid problems.” (Emphasis added). The IJ’s finding that

Petitioners could relocate “if necessary” in no way indicates that

the IJ applied the requisite standard of proof that relocation be

“not reasonable.”

Moreover, the tone of the IJ’s decision reveals the IJ did not

analyze whether Petitioners’ relocation would be “not reasonable.”

For instance, the IJ recognized many of the hardships of relocating

within Indonesia. The IJ recounted Eduard’s testimony that

“Indonesia has many diverse groups, and it would be difficult to

relocate within Indonesia in an inconspicuous way, and always the

Muslim majority would present a risk under present conditions.”

The IJ also recognized that the Laskar Jihad has infiltrated the

20
Christian settlements within Indonesia.13 The IJ applied an

erroneous heightened standard of proof by requiring that

Petitioners establish they would be unable to relocate even “if

necessary.”

In conclusion, the IJ correctly held that Petitioners did not

suffer past persecution. The IJ committed legal error, however, in

holding that Petitioners did not have a well-founded fear of

persecution. In particular, the IJ applied erroneous law in

concluding that: (1) Petitioners’ fear was not based on race or

religion, (2) Petitioners’ fear was unreasonable, and

(3) Petitioners could relocate within Indonesia.

Petitioners’ applications for withholding removal under INA

§ 241(b)(3)(B) were summarily denied based on the IJ’s denial of

their applications for asylum. Thus, the IJ’s denials of

Petitioners’ applications for asylum and withholding of removal

under INA § 241(b)(3)(B) are reversed and remanded for a

determination under the proper legal standards.

II. Whether the IJ erred by failing to address Petitioners’ claims
for relief under the CAT.

The IJ did not address whether Petitioners’ removal may be

withheld under the CAT. Respondent explains that Petitioners

13
Petitioners presented substantial evidence emphasizing the
severe barriers to relocation in the Indonesian archipelago: the
one million Indonesians currently displaced; the various ethnic
upheavals throughout the country; and the diversity of languages
and customs.

21
failed to raise sufficient claims for relief under the CAT.14

Petitioners, however, contend that their applications for asylum

and withholding of removal under INA § 241(b)(3)(B) constituted

sufficient claims for CAT relief.15

Petitioners argue that, as a matter of law, CAT claims are

raised every time an applicant files for asylum or withholding of

removal under INA § 241(b)(3)(B). We do not agree. A claim under

the CAT is a separate claim from withholding of removal under the

INA. Efe v. Ashcroft, 293 F.3d 899, 906-07 (5th Cir. 2002).

Moreover, regulatory language indicates that applicants must

demonstrate some specific intent to raise a claim for CAT relief.

Title 8, C.F.R. § 208.18(b) states that “[a]n alien who is in

exclusion, deportation, or removal proceedings on or after March

22, 1999 may apply for withholding of removal under [the CAT].”

14
It is irrelevant that Petitioners raised claims for CAT relief
before the BIA. See generally Matter of Jimenez-Santillano, 21 I.
& N. Dec. 567, 570 n.2 (BIA 1996) (stating that BIA need not
consider an issue raised for the first time on appeal); Matter of
Edwards, 20 I & N Dec. 191, 196 n.4 (BIA 1990) (same).
15
Petitioners first contend that the BIA should not have
summarily affirmed the decision of the IJ as a matter of law
because it contained “substantial factual and legal issues.” We do
not agree with Petitioners as such review would be “unnecessary and
duplicative” because courts review the actual merits of the claim
when addressing the IJ’s decision. Carriche v. INS, 335 F.3d 1009,
1018 (9th Cir. 2002), amended and superseded by 350 F.3d 845 (9th
Cir. 2003). That is, “[t]he decision to streamline becomes
indistinguishable from the merits” of the case. Id. If the IJ’s
decision is incorrect, the Board “is saddled with any errors the IJ
makes and with the risk of reversal on grounds that do not reflect
the BIA’s actual reasons.” Id.

22
(Emphasis added). In addition Title 8, C.F.R. § 208.16(c)(4)

states: “In considering an application for withholding of removal

under the Convention Against Torture, the immigration judge shall

first determine whether the alien is more likely than not to be

tortured in the country of removal.” (Emphasis added). Thus, a

claim for CAT relief is not raised, as a matter of law, by simply

filing an application for asylum or withholding of removal under

INA § 241(b)(3)(B).

Petitioners next contend that their responses to their

“Application for Asylum and/or Withholding of Removal” constituted,

as a matter of fact, a claim for CAT relief. Their asylum

applications expressly stated that they feared being subjected to

torture in Indonesia. Question 5 of the application asked: “Do you

fear being subjected to torture (severe physical or mental pain or

suffering, including rape or other sexual abuse) in your home

country or any other country if you return?” Both Petitioners

marked the box stating “Yes,” and described their fears of future

torture related to their religion and ethnicity. For example,

Pakkung stated on her application that “[k]illings, bloodshed,

burnings, persecutions of Christians are happening all over

Indonesia” and “[a] lot of bodies have been thrown in the forest

and become food for wild pigs.” Eduard stated on his application

that he is “afraid [he] will be beaten or killed for practicing

[his] religion.”

23
 Neither the regulations nor the briefs nor arguments in this

case elaborate on what constitutes a sufficient claim for CAT

relief. Nonetheless, applicants who file for general withholding

of removal under INA § 241(b)(3)(B), and express on such

application their fear of torture, probably believe that they have

raised a claim for CAT relief. For instance, CAT relief is

described in the same Federal Regulation that outlines the

withholding of removal under INA § 241(b)(3)(B). See 8 C.F.R.

§ 208.16(c). Likewise there is no separate form that an applicant

must file to claim relief under the CAT. Moreover, withholding of

removal under INA § 241(b)(3)(B) does not require that an applicant

have a fear of torture; therefore, the very existence of a question

regarding torture on the application for general withholding of

removal might lead an applicant to believe he has raised a claim

for CAT relief. Because there is no separate and distinct procedure

for seeking CAT relief, then Petitioners’ application responses,

which clearly evinced their fears of torture, constitute claims for

relief under the CAT.

Respondent, however, argues that Petitioners did not expressly

mention the CAT during their hearing before the IJ. Nonetheless,

Respondent cites no authority to establish that an applicant need

restate legal claims which had been previously claimed in a written

application.

Petitioners raised claims for withholding of removal under the

24
CAT but the claims were ignored. Therefore, we find that the CAT

claims were raised before the IJ, and Respondent concedes that a

remand of this issue is required if the CAT claims were raised.

See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (holding that the

courts of appeals may not review the administrative records to

consider matters that must have been determined by the agency in

the first instance).

CONCLUSION

Having carefully reviewed the record of this case, the

parties’ respective briefing and arguments, for the reasons set

forth above we hold the following. The IJ did not err by finding

that Petitioners failed to establish past persecution. The IJ

nonetheless erred by holding that Petitioners did not have a well-

founded fear of persecution. In particular, the IJ applied

erroneous law in concluding that: (1) Petitioners’ fear was not

based on race or religion, (2) Petitioners’ fear was unreasonable,

and (3) Petitioners could relocate within Indonesia. Petitioners

also raised CAT claims before the IJ that were not addressed.

Thus, the IJ’s denial of Petitioners’ applications for asylum,

withholding of removal under INA § 241(b)(3)(B), and withholding of

removal under the CAT is reversed and remanded for further

proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

EMILIO M. GARZA, Circuit Judge, dissenting.

25
 The majority opinion is not properly deferential to the immigration judge’s (“IJ”) finding that

Eduard and Pakkung could reasonably relocate to parts of Indonesia where they would not be subject

to future persecution. It cites no evidence in the record that “compels a contrary conclusion,” see

8 U.S.C. § 1252(b)(4)(B); I.N.S. v. Elias-Zacharias, 502 U.S. 478, 481 & n.1 (1992), and ignores

the “substantial evidence” cited by the IJ demonstrating that such a relocation would be reasonable,

see Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Further, the majority opinion

incorrectly concludes that Eduard and Pakkung raised their Convention Against Torture (“CAT”)

claims in their asylum applications. Eduard and Pakkung neither requested relief under the CAT, nor

did they articulate a factual basis to support such a claim in either their asylum applications or in their

hearing before the IJ. Thus neither the IJ nor the Board of Immigration Appeals (“BIA”) erred by

not considering the claims. Because I believe there is no evidence in the record compelling reversal

of the IJ’s refusal to grant the petitioners asylum petitions, I respectfully dissent.

“An applicant does not have a well-founded fear of persecution if the applicant could avoid

persecution by relocating to another part of the applicant’s country of nationality . . . if under the

circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(2)(ii).

“[T]he applicant shall bear the burden of establishing that it would not be reasonable for him or her

to relocate . . . .” 8 C.F.R.§ 208.13(b)(3). Based on a country report from the State Department

which concluded that most of the attacks against Christians in Indonesia “occurred in north Maluku

and central Sulawesi provinces,” the IJ determined that “the more serious incidents of violence and

forced conversions . . . have been localized.” It then concluded, taking into account “differences in

Indonesia with regard to the diverse populations, that the respondents could, if necessary, relocate

within Indonesia” to avoid the areas where the religious persecutions are most acute.

26
 The majority opinion concludes that the IJ applied a “heightened standard of proof by

requiring Petitioners establish they would be unable to relocate even ‘if necessary.’” The IJ did not

apply a fictional “if necessary” standard to the petitioners’ claims. Rather, it simply noted that upon

returning to Indonesia the petitioners could reasonably relocate to parts of the country where violence

against Christians is significantly less prevalent, if necessary. If Eduard and Pakkung, however, found

that their fear of persecution in their home region was unwarranted, then such a relocation would be

unnecessary. Admit tedly, the IJ never used the magical word “reasonable” in concluding that the

petitioners could relocate to safer parts of Indonesia upon their return home. However, such a

conclusion is implicit in the IJ’s finding that the petitioners co uld relocate “if necessary,” and its

ultimate denial of both petitions for asylum for failure to establish a well-founded fear of persecution.

Further, the majority opinion points to no evidence in the record compelling a contrary

conclusion. See 8 U.S.C. § 1252(b)(4)(B) (“The administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.”); Elias-Zacharias, 502

U.S. at 481 & n.1; Ontunez-Turcios v. Ashcroft, 303 F.3d 341, 351 (5th Cir. 2002) (Petitioner “must

set forth evidence so compelling that no reasonable factfinder could fail to find” a well-founded fear

of persecution.). The majority opinion cites to testimony from Eduard that he believes that it would

be difficult to relocate within Indonesia and to the IJ’s finding that Laskar Jihad has infiltrated

Christian settlements within Indonesia to support its reversal of the IJ’s ruling.

The majority opinion’s reliance on this evidence is unwarranted. The IJ specifically found

that the Laskar Jihad’s activities were limited to particular regions of Indonesia))giving the

petitioners the opportunity to relocate to other parts of the country. Further, Eduard’s conclusory

27
testimony that he believes that it would be too difficult to relocate in Indonesia does not by itself

make the IJ’s conclusion to the contrary unreasonable. The IJ relied on a State Department report

to conclude that the threat of persecution was limited to certain regions of the country, and

considered the ethnic and cultural differences between regions of Indo nesia in concluding that

relocation was reasonable. Eduard’s testimony, though informative, does not negate the veracity of

the State Department report, the reasonableness of the IJ’s reliance on it, or the IJ’s ultimate

conclusion that the petitioners could reasonably relocate.

The majority opinion points to no evidence in the record that suggests that the IJ’s conclusion

that religious persecution of Christians is limited to certain regions of Indonesia is unreasonable, or

even incorrect . Further it points to no evidence that establishes that moving to a different part of

Indonesia would demonstrate a unique hardship to the petitioners, or that they would be targeted for

religious persecution in parts of Indonesia not identified by the State Department’s report or the IJ’s

opinion. The majority’s decision to reverse the IJ’s ruling seems to be due to its uncomfortableness

with “the tone of the IJ’s decision.” Improper tone is not a legitimate reason to reverse an IJ’s ruling.

This is especially the case here because the IJ’s decision is supported by substantial evidence and

there is no evidence in the record compelling a contrary ruling.

The majority opinion finds that the IJ and the BIA erred in not considering Eduard and

Pakkung’s CAT claims, first raised in their appeal to the BIA, because the petitioners might have

believed that they raised their CAT claims as part of their application for withholding of removal. The

majority opinion concedes that neither Eduard nor Pakkung explicitly requested relief under CAT in

their asylum applications or during their hearing before the IJ. But it concludes that because the

petitioners checked the YES box under the question “Do you fear being subjected to torture. . . if you

28
return?” on their asylum applications the IJ should have assumed they were seeking relief under CAT

and considered their unarticulated claims. I cannot agree.

As the majority notes, an applicant must demonstrate specific intent to raises a claim for CAT

relief. See C.F.R. § 208.18(b) (requiring alien to “apply for withholding of removal under [the

CAT]”). There is no doubt that neither Eduard nor Pakkung specifically requested relief under CAT.

While I am comfortable with the majority opinion’s conclusion that an alien may articulate a claim

under CAT without specifically referring to the convention, under certain circumstances, I do not

believe that the petitioners articulated such a claim. Indeed, both Eduard and Pakkung checked the

YES box under the question “Do you fear being subjected to torture . . . if you return?”; however,

neither articulated a factual claim of fear of torture.

The regulations implementing the CAT define torture:

as any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or
her or a third person information or a confession, punishing him or her for an
act he or she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.
8 C.F.R. 208.18(a)(1) (emphasis added).

In his asylum application Eduard simply states that he fears that he will be beaten or killed

because of his religion. He never claims that he would be tortured by “a public official or other

person acting in an official capacity,” as is required by the regulations. In fact, his fear of being killed

or beaten is based, he claims, on “the long history of violence between Muslims and Christians in

Indonesia,” not on any belief on his part that the Indonesian government would target him for torture.

29
 Pakkung’s asylum application is similarly devoid of a claim of fear of torture. While in her

affidavit she does articulate a grim scene in Indonesia where “killings, bloodshed, [and] burnings” are

occurring in parts of the country, she does not claim that either she or anyone she knows has either

been tortured or is targeted for torture. Pakkung neither uses the term torture in her affidavit, nor

does she describe any factual situation where a public official has inflicted or intends to inflict severe

physical or mental pain on her or anyone similarly situated to her.

While I can understand that an alien may be confused as to the process for applying for relief

under CAT, I do not believe that a person intending to seek relief under the convention would be at

all confused about the need to articulate a factual claim of fear of torture. Neither Eduard nor

Pakkung claimed in their asylum applications and affidavits or during their hearing before the IJ that

they believed that they would be tortured if they returned to Indonesia, much less that they would be

tortured by a public official.

An IJ cannot consider and rule on a claim for relief under CAT if he does not know that a

claim has been made. The IJ cannot possibly know that such a claim has been made if the alien does

not specifically request relief under the convention or at least articulate a factual claim of fear of

torture that would be cognizable under the regulations implementing CAT. Cf. Portis v. Nat. Bank

of New Albany, Mississippi, 34 F.3d 325, 331 (5th Cir. 1993) (“The raising party must present the

issue so that it places the opposing party and the court on notice that a new issue is being raised.”).

Because Eduard and Pakkung never articulated to the IJ that they either feared being tortured if they

returned to Indonesia or that they desired to seek relief under CAT, I do not believe they raised their

CAT claims to the IJ. Neither the IJ nor the BIA erred by not ruling on these claims.

I believe there is substantial evidence supporting the IJ’s refusal to grant Eduard and Pakkung

30
applications for asylum, and the IJ and BIA did not err by not considering the petitioners claims under

the CAT. I would affirm its decision, and thus respectfully dissent.

31