[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 1, 2006
No. 05-12927 THOMAS K. KAHN
________________________ CLERK
Agency Nos. A79-494-655
A79-494-654
LIANA TAN,
I GUSTI NGURAH NESSY ELIARTA SUPRAJAPATA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 1, 2006)
Before DUBINA, MARCUS and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
The issue presented in this petition for review is whether the Immigration
Judge gave reasoned consideration to the application for withholding of removal of
Liana Tan, a native and citizen of Indonesia, who alleged that she had suffered past
persecution on account of her race. Tan credibly testified that she had been a
victim of a sexual assault by Muslim men who yelled racial slurs at her and
harassed other persons of Chinese descent, and Tan presented both a Country
Report prepared by the U.S. State Department and other evidence of persecution by
Muslims against persons of Chinese descent in Indonesia. Tan and her husband, I
Gusti Suprajapata, petition for review of a decision of the Board of Immigration
Appeals, which affirmed an order of an Immigration Judge who found Tan and her
husband removable because they failed to file timely applications for asylum and
establish past persecution or a well-founded fear of future persecution for
withholding of removal. Because we lack jurisdiction to review whether Tan
timely filed her application for asylum, we dismiss that portion of her petition.
Because the Immigration Judge, as affirmed by the Board of Immigration Appeals,
failed to give reasoned consideration to Tan’s petition and make adequate findings,
we grant her petition for review, vacate the decision of the Immigration Judge, and
remand for proceedings consistent with this opinion.
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I. BACKGROUND
Tan and her husband were admitted with F-1 student visas as non-immigrant
visitors to the United States on February 7, 2000. On August 8, 2001, Tan filed an
application for asylum and withholding of removal under the Immigration and
Naturalization Act and the Convention Against Torture. Tan, who is Christian and
of Chinese ethnicity, alleged that she and her family have been harassed by Muslim
Indonesians based on religion and race. Tan alleged that, during her childhood, she
lived in a Muslim neighborhood and was continually harrassed by Muslims who
called her “Chinese hooker” when she took the bus and yelled “Wipe them out!”
when she went to church.
In December 1998, Tan’s family and other Christians assembled at her
family home for Christmas services because Christian congregations often cannot
obtain building permits to build churches. During the service, a group of Muslim
vandals attacked the home with rocks, firecrackers, and human excrement. The
Muslim vandals left after Tan’s parents paid them money.
In November 1999, Tan was sexually assaulted and her friend was raped
after they left a movie theatre. Tan testified that, when she and her friend arrived
at the theatre in their car, they were approached by “Malay punks” who were
Muslim. Tan and her friend refused the demand of the Muslim men for money.
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The men also approached other Chinese patrons for money. According to Tan,
Muslim men often approached ethnic Chinese women to ask for money. Tan
testified that the men knew she was Christian because she was Chinese, and she
knew they were Muslim because of their clothing and facial features. She and her
friend moved the car before they went to see the movie.
After the movie, as the two women were leaving the parking lot in their car,
several Muslim men appeared and approached cars with Chinese occupants. The
two Muslim men who had approached Tan and her friend earlier in the evening
broke Tan’s car windows and entered her car. They threatened Tan with a knife
and ordered her to drive under a bridge. The Muslim men beat the women until
their lips were bleeding. The man who attacked Tan said, “This is payback time.
Sometimes I win, and this time you lose! We are going to have some fun with you,
Chinese whore!” One of the men twisted Tan’s arm and kicked her in the knee to
bring her to the ground. He then forced Tan to crawl as he fondled her buttocks
and thigh. Tan offered the man her car, but he continued to assault Tan by kicking
her in the stomach and sitting on her thighs to immobilize her. The man ripped off
Tan’s shirt and fondled her breasts. She screamed, but her attacker threatened that
“you better behave yourself or you [will] be killed, Chinese dog.” Tan managed to
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free herself by kicking her attacker in the groin. She fled to an inhabited area to
get help.
When she returned, Tan discovered that her friend had been raped and was
unconscious. Tan took her friend to a hospital, and Tan was treated for scratches
and bruises. Tan reported the incident to the police, who took a description of the
attackers, but did not investigate the incident because Tan did not give them
money. Her friend avoided Tan after the incident. Tan suffered from nightmares
and emotional trauma as a result of the event.
When the Immigration Judge asked Tan why she was attacked, Tan
responded, “I don’t know, but what I know that they asked money to us [sic], and I
didn’t give . . . any money.” When the Immigration Judge later asked how the
Muslim men singled out which cars to harass, Tan responded, “I think the Chinese
people that’s [sic] being attacked, asked for money, in general the women” and
explained that Muslim men attack Chinese women because of racial and religious
differences.
In February 2000, Tan and her then-boyfriend, Suprajapata, obtained student
visas to study in the United States. Tan’s family remained in Indonesia, but their
business was looted and damaged in May 2001. They hoped to flee to Singapore.
Tan did not tell her boyfriend about the incident until Reverend Goesti Agung
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Wijoyo, her pastor in the United States, convinced her that the incident was not her
fault. Tan alleged that she did not initially file for asylum because of her shame
about the sexual assault, but her pastor convinced her eventually to apply. Tan and
Suprajapata married in the United States in 2001, and they then applied for asylum.
Suprajapata relies on Tan’s application.
Tan also included several documents about the ethnic and religious strife in
Indonesia in her application for asylum: the 2000 Country Report on Human
Rights Practices prepared by the U.S. State Department, family birth, marriage, and
travel documents, and a U.S. State travel warning that described church bombings
on Christmas Eve. She also submitted several articles that describe violence
against Christians and ethnic Chinese. These articles describe riots, rapes of
Chinese women, destruction of Christian churches, discriminatory practices against
ethnic Chinese and Christians, and murders of Christians.
The Country Report stated that 85 percent of the population in Indonesia
was Muslim. Although the Report stated that the new president, Abdurrahman
Wahid, advocated tolerance and mutual respect, the Report stated that local leaders
have been reluctant to protect minority rights. The Report stated that Muslims had
burned churches all over the country because of religious and economic tensions
between “poor Muslims and more affluent Sino-Indonesian Christians.” The
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Country Report also stated that Chinese are the largest minority, but Indonesia
prohibits the operation of Chinese schools, formation of exclusively Chinese
cultural groups or trade associations, public display of Chinese characters, and
importation of Chinese-language newspapers. The Report also stated that Chinese-
owned businesses have been attacked, and Chinese-Indonesians have been subject
to discrimination and harassment.
Tan also submitted affidavits and letters about the trauma she experienced
from the sexual assault. Letters from her siblings stated that Muslims often
demand money from Chinese and described other discriminatory practices that
target ethnic Chinese and Christians. A letter from Reverend Wijoyo of the
Bethany Indonesia Church of God of Georgia stated that Tan had confided in him
about the sexual assault.
The Immigration Judge denied Tan’s application for asylum, withholding of
removal, and relief under the Convention Against Torture. The Immigration Judge
first concluded that Tan’s application for asylum was untimely because it was filed
more than one year after her arrival and Tan failed to establish “extraordinary
circumstances.” The Immigration Judge stated that he was not convinced that
Tan’s trauma from the sexual assault prevented her from filing for asylum because
“she was able to get married during that period of time.”
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The Immigration Judge then considered whether Tan was entitled to
withholding of removal because she had suffered past persecution. The
Immigration Judge found Tan to be credible because Tan’s “testimony seems to be
consistent with her written application for asylum, what she told the interview
officer when she had her asylum interview, and I don’t see any material
inconsistencies in her testimony.” He stated, “Based on [my] observations of her, I
have no doubt that she was attacked and that there was an attempted rape.” The
Immigration Judge then considered Tan’s application for withholding of removal.
The Immigration Judge concluded that Tan had failed to establish that she
suffered past persecution on a protected ground. The Immigration Judge stated
that the attack was not based on Tan’s race or religion because “almost 88 percent
of Indonesians are Moslems. Therefore, the chances are about 8 in 10 or 9 in 10
that an attacker would be a Moslem. So that does not lead to the conclusion that
the attack was based on any of the five protected grounds.” He also based his
conclusion on the fact that “her family, to include [sic] two sisters, continues to
live in Indonesia without problem leads credence to the fact that this was more an
incident of criminal violence as opposed to persecution.”
The Immigration Judge also concluded that Tan failed to establish a well-
founded fear of future persecution because of the ethnic demographics of
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Indonesia. The Immigration Judge stated, “somewhere in excess of 20 million
people in Indonesia are Christians, and a great deal of them are ethnic Chinese.
Therefore, based on the evidence that I have, I don’t believe she would be singled
out simply because she is Christian and of ethnic Chinese origin if she were to
return to Indonesia.” The Immigration Judge also found that Tan failed to
establish relief under the Convention Against Torture.
Tan appealed the decision of the Immigration Judge to the Board of
Immigration Appeals, and the Board of Immigration Appeals affirmed the decision
of the Immigration Judge without opinion.
II. STANDARD OF REVIEW
When the BIA adopts the decision of the Immigration Judge without
opinion, we review the decision of the Immigration Judge. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). We review subject matter jurisdiction de
novo. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). We also review
legal issues de novo, Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001), and “affirm the Board of Immigration Appeals’ decision if it is supported
by reasonable, substantial, and probative evidence on the record considered as a
whole,” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert.
denied, 544 U.S. __, 125 S. Ct. 2245 (2005). We “view the record evidence in the
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light most favorable to the agency’s decision and draw all reasonable inferences in
favor of that decision.” Id. “[F]indings of fact made by . . . the [Immigration
Judge] may be reversed by this [C]ourt only when the record compels a reversal;
the mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.” Id.
“[T]he [Immigration Judge] must . . . consider all evidence introduced by the
applicant.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)
(emphasis removed); see 8 C.F.R. § 1240.1(c) (“The immigration judge shall
receive and consider material and relevant evidence . . . .”). “Where . . . the
[Immigration Judge] has given reasoned consideration to the petition, and made
adequate findings, we will not require that it address specifically each claim the
petitioner made or each piece of evidence the petitioner presented.” Morales v.
INS, 208 F.3d 323, 328 (1st Cir. 2000). The Immigration Judge must “consider the
issues raised and announce its decision in terms sufficient to enable a reviewing
court to perceive that it has heard and thought and not merely reacted.” Vergara-
Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992) (quoting Becerra-Jimenez v.
INS, 829 F.2d 996, 1000 (10th Cir. 1987)).
III. DISCUSSION
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Tan presents two arguments in her petition for review. First, Tan argues that
the Immigration Judge erroneously concluded that Tan failed to establish
“extraordinary circumstances” for her untimely application for asylum. Second,
Tan argues that the Immigration Judge erroneously found that she failed to
establish past persecution on a statutorily protected ground or a well-founded fear
of future persecution for withholding of removal. We address each argument in
turn.
A. We Lack Jurisdiction to Review Tan’s Application for Asylum.
Tan argues that the Immigration Judge erroneously concluded that she failed
to establish “extraordinary circumstances” to excuse her untimely application for
asylum. The government contends that we lack jurisdiction to consider Tan’s
petition. We agree with the government.
Section 1158(a)(2)(B) provides that an alien may apply for asylum if “the
alien demonstrates by clear and convincing evidence that the application has been
filed within 1 year after the date of the alien’s arrival in the United States.” 8
U.S.C. § 1158(a)(2)(B). An alien may apply for asylum after one year of arrival if
the alien “demonstrates . . . either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application.” Id. § 1158(a)(2)(D).
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“No court shall have jurisdiction to review any determination” that an application
was untimely or failed to establish changed or extraordinary circumstances to
excuse the delay. Id. § 1158(a)(3). Because we lack jurisdiction to consider
whether the Immigration Judge erroneously concluded that Tan failed to establish
“extraordinary circumstances,” we dismiss her petition for the review of the denial
of her application for asylum.
B. The Immigration Judge Failed to Make Adequate Findings About
Whether Tan Is Entitled to Withholding of Removal.
To obtain withholding of removal, an applicant must establish that her “life
or freedom would be threatened in that country because of [her] race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is
‘more likely than not’ she will be persecuted or tortured upon being returned to her
country.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005)
(quoting Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)). This
standard is more stringent than the “well-founded fear of future persecution”
required for asylum. Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1324 n.2
(11th Cir. 2001).
An applicant for withholding of removal may satisfy her burden of proof in
either of two ways. First, an alien may establish “past persecution in [her] country
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based on a protected ground.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287
(11th Cir. 2003). If the applicant can show that the persecution was, at least in
part, motivated by a protected ground, then the applicant can establish eligibility
for withholding of removal. Borja v. INS, 175 F.3d 732, 735–36 (9th Cir. 1999)
(en banc); see Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994) (stating that
persecution “does not mean persecution solely on account of” a statutorily
protected ground); see also Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th
Cir. 2004) (citing Grava v. INS, 205 F.3d 1177, 1181 n.3d (9th Cir. 2000), with
approval for the proposition that “mixed-motive persecution may qualify” as
persecution based on a protected ground). If an alien establishes “past
persecution,” a rebuttable presumption arises that she has a “well-founded fear of
future persecution,” and the burden then shifts to the Department of Homeland
Security to show that the conditions in the country have changed or the alien could
avoid a future threat through relocation. Mendoza, 327 F.3d at 1287. Second, an
alien is entitled to withholding of removal if she establishes “that it is more likely
than not that [] she would be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion upon removal to that
country.” 8 C.F.R. § 208.16(b)(2). “An alien cannot demonstrate that [she]
more-likely-than-not would be persecuted on a protected ground if the
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[Immigration Judge] finds that the alien could avoid a future threat by relocating to
another part of [her] country.” Mendoza, 327 F.3d at 1287.
Tan argues that the Immigration Judge erroneously concluded that she is not
entitled to withholding of removal. Tan first argues that she established past
persecution “through her detailed testimony describing the racial and religious
insults used by her attackers.” Tan argues alternatively that she established a well-
founded fear of future persecution because “in the context of current day
Indonesia, any reasonable person in [Tan’s] situation, as a Christian and an ethnic
Chinese, would fear persecution . . . .”
The Immigration Judge did not give “reasoned consideration” to Tan’s
application or make “adequate findings” for at least three reasons. Morales, 208
F.3d at 328. First, the Immigration Judge misstated the contents of the record. The
Immigration Judge stated, “Evidence in this case consists of seven exhibits and the
testimony of the lead Respondent [Tan],” but failed to include the Country Reports
and the newspaper articles that attest to the widespread violence against Chinese
and Christians. The Immigration Judge also erroneously stated that Tan’s family
“continues to live in Indonesia without problem[s],” although Tan stated in her
application that her family business “had been totally looted and damaged during
[a] recent riot.” Because both statements by the Immigration Judge are
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unsupported by the record, they undermine the conclusion that the Immigration
Judge considered all the evidence. Although the Immigration Judge is not required
to discuss every piece of evidence presented before him, see Morales, 208 F.3d at
328, the Immigration Judge is required to consider all the evidence submitted by
the applicant. See Forgue, 401 F.3d at 1287.
Second, after the Immigration Judge found Tan’s account of the sexual
assault credible, the Immigration Judge failed to explain why he found that the
attack was not based, at least in part, on Tan’s race. The Immigration Judge stated
that Tan’s testimony “seems to be consistent with her application for asylum, what
she told the interview officer when she had her asylum interview, and I don’t see
any material inconsistencies in her testimony.” The Immigration Judge considered
Tan’s “demeanor while testifying, . . . the rationality, internal consistency, and
inherent persuasiveness of her testimony,” and the Immigration Judge found that
he had “no reason to doubt [Tan’s] credibility.” The Immigration Judge stated, “I
have no doubt that she was attacked and that there was an attempted rape.” The
Immigration Judge then found, without logical explanation, that the attack of Tan
was not based on her race even though that finding was at odds with Tan’s credible
testimony.
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Tan’s testimony, “if credible, may be sufficient to sustain the burden of
proof” for asylum or withholding of removal “without corroboration.” 8 C.F.R. §§
208.13(a), 208.16(b). Tan testified that her attackers were Muslim men, and
Muslim men often harass Chinese women. She testified that on the night of the
attack the Muslim men singled out only Chinese patrons at the theatre. She also
stated, in her application, that the Muslim men called her a “Chinese dog” and
“Chinese whore” during the attack. Tan testified that Tan offered to give her car to
her attackers, but they ignored her offer. The Immigration Judge neglected to
reconcile his positive credibility finding and Tan’s detailed testimony with the
finding that Tan had not been persecuted, at least in part, based on her race.
Third, the reasons provided by the Immigration Judge for his findings are
“unreasonable.” Adefemi, 386 F.3d at 1029. The Immigration Judge stated that
“the chances are about 8 in 10 or 9 in 10 that an attacker would be a Moslem,” and
explained, “the fact that her attackers were Moslem does not necessarily lead to the
conclusion that she was singled out because of her ethnicity.” This reasoning was
unresponsive to any argument reflected in the record. Tan did not contend that the
sexual assault was based on her race solely because her attackers were Muslim.
The Government reads the findings of the Immigration Judge to mean that
the attack on Tan was a random criminal act, but the Immigration Judge did not
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articulate that finding based on anything in the record. The closest the Immigration
Judge came to making that finding was the following statement: “I am not
convinced that she was attacked based on any of the five protected grounds as
opposed to being attached [sic] because she happened to be out at night in a car with
another woman.” The racial slurs her attackers used, the ethnicity of the other
patrons that the Muslim men harassed, and the undisputed documentary and
testimonial evidence of discrimination against Chinese and other non-Muslims in
Indonesia suggests that Tan was targeted, at least in part, based on her race, but the
Immigration Judge provided no response to that inference.
The Immigration Judge failed to render a reasoned decision in consideration
of Tan’s credible testimony and other evidence she submitted. Because the findings
of the Immigration Judge are inadequate, we are unable to review the denial of
Tan’s petition for withholding of removal. It is also unclear whether the
Department of Homeland Security could establish that the conditions in Indonesia
have changed or Tan could avoid a future threat through relocation, and the
Immigration Judge did not address those issues. See Mendoza, 327 F.3d at 1287.
We grant Tan’s petition for review, vacate the decision of the Immigration Judge,
and remand for further proceedings consistent with this opinion.
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Because we conclude that the Immigration Judge failed to render a reasoned
decision as to whether Tan suffered past persecution on a statutorily protected
ground, we do not reach Tan’s argument that the Immigration Judge, as affirmed by
the BIA, erred when he concluded that Tan failed to establish a well-founded fear of
future persecution.
IV. CONCLUSION
Tan’s petition for review of the denial of her application for asylum is
DISMISSED for lack of jurisdiction. As to Tan’s petition for review of the denial
of her application for withholding of removal, the Immigration Judge failed to give
“reasoned consideration” or make “adequate findings.” Morales, 208 F.3d at 328.
We GRANT Tan’s petition for withholding of removal, VACATE the decision of
the Immigration Judge, and REMAND for proceedings consistent with this
opinion.
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