NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 08 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FNU CHARLIE, No. 14-72462
Petitioner, Agency No. A099-963-300
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 10, 2017
Pasadena, California
Before: PREGERSON, REINHARDT, and WARDLAW, Circuit Judges.
Charlie, a native and citizen of Indonesia who is of Chinese ethnicity,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
denying his applications for asylum, withholding of removal, and protection under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8
U.S.C. § 1252, and we grant Charlie’s petition for review.
1. The BIA erred in determining that the past harm Charlie suffered did not
rise to the level of persecution. It is “well established” that physical violence,
including beatings, constitutes persecution. See Li v. Holder, 559 F.3d 1096, 1107
(9th Cir. 2009). On three occasions between 1992 and 2005, Charlie suffered
physical beatings, one of which he characterized as “barbaric,” two of which
required medical attention, and one of which resulted in head trauma so severe it
required eight stitches. The BIA’s finding that the “thefts and beatings [Charlie]
suffered as a result of incidents in which racial epithets were directed at him do not
aggregately rise to the level of persecution” directly contradicts our precedent. See
Hoxha v. Ashcroft, 319 F.3d 1179, 1182 n.5 (9th Cir. 2003) (“Physical violence
ordinarily meets the requirement of severity that characterizes persecution as
opposed to mere discrimination.”). Thus, the evidence compels the conclusion that
the harm Charlie suffered rose to the level of persecution, and the BIA erred in
finding otherwise. Because Charlie is entitled to a presumption of future
persecution that the government did not attempt to rebut, Charlie has demonstrated
that it is “more likely than not” that he would be persecuted if he returned to
Indonesia.
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2. The BIA erred in concluding that because each of Charlie’s attacks was
in public, and because several attacks followed traffic accidents and resulted in
theft, Charlie’s attacks were “random[]” and not motivated by his Chinese
ethnicity. Charlie, whose testimony was deemed credible by the agency, testified
that during each of his attacks his assailants shouted racial insults at him, and that
on at least one occasion he was the only ethnic Chinese person present. Therefore,
the unrefuted evidence in the record compels the conclusion that Charlie’s Chinese
ethnicity was one central reason for each attack. See Gafoor v. INS, 231 F.3d 645,
651–52 (9th Cir. 2000) (holding that Fijian soldiers’ statements to Gafoor to “go
back to India” were “unmistakable circumstantial evidence that [the attacks] were
motivated by his race and imputed political opinion”), superseded by statute on
other grounds as stated in Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th
Cir. 2009); Baballah v. Ashcroft, 367 F.3d 1067, 1077 (9th Cir. 2004) (noting that
an applicant’s “[u]ncontroverted and credible testimony is sufficient to establish
that [he] was persecuted on account of ethnicity”). That Charlie’s attacks
culminated in theft does not mean that his Chinese ethnicity was not “one central
reason” for his attacks. Indeed, “persecution may be caused by more than one
central reason, and an asylum applicant need not prove which reason was
dominant.” Parussimova, 555 F.3d at 741. Charlie sufficiently established that the
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persecution he suffered was “on account of” his Chinese ethnicity. Moreover,
because Charlie meets the more stringent “one central reason” requirement
governing asylum, he has necessarily met the “a reason” standard required for
entitlement to withholding. See Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th
Cir. 2017).
3. Charlie successfully established that the source of his persecution was the
government, or a force the government is unwilling or unable to control. See Siong
v. INS, 376 F.3d 1030, 1039 (9th Cir. 2004). Charlie credibly testified that on one
occasion, he was threatened and extorted by a native Indonesian police officer.
Moreover, Charlie credibly and repeatedly testified that it is well known that the
police in Indonesia turn a blind eye to harm perpetrated against the ethnic Chinese
minority by Indonesian natives. Charlie recounted several instances in which he
and his family sought help from the authorities but were turned away. The
evidence therefore compels the conclusion that the Indonesian government is
unwilling and unable to control persecution against the ethnic Chinese.
4. Substantial evidence supports the BIA’s determination that Charlie failed
to demonstrate eligibility for CAT protection. While the beatings, thefts, threats,
and harassment Charlie and his family suffered constituted persecution, our
precedent requires a more severe showing of suffering to compel a finding of past
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torture. See Kumar v. Gonzales, 444 F.3d 1043, 1055–56 (9th Cir. 2006);
Khudaverdyan v. Holder, 778 F.3d 1101, 1109 n.7 (9th Cir. 2015). Moreover,
based on the existing record, we cannot say that it is “more likely than not” that
Charlie wold be tortured upon his return to Indonesia. See 8 C.F.R. § 208.16(c)(2).
PETITION FOR REVIEW GRANTED AND REMANDED IN PART;
DENIED IN PART.
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