Makatengkeng v. Gonzales

SCHILTZ, District Judge,

concurring in part and concurring in the judgment.

I reluctantly agree that the petition for review should be denied. I cannot, for the life of me, comprehend why the United States has chosen to devote its scarce prosecutorial resources to ensuring that a middle-aged, law-abiding, blind albino is sent back to Indonesia — where, because of the color of his skin, he is certain to be treated brutally and likely to face starvation. At the very least, the government’s decision “seems contrary to the traditions of this great Nation.” Pavlovich v. Gonzales, 476 F.3d 613, 619 (8th Cir.2007). But we have sworn to enforce the law as it is, not as we wish it to be. Congress has given the Executive Branch the authority to deport Makatengkeng, and, as long as the Executive Branch does not act unlaw*887fully in exercising that authority, we have no basis to interfere.

For the reasons given in the careful and well-reasoned majority opinion, I agree that the Executive Branch has not acted unlawfully in seeking to remove Makateng-keng. I join all of the majority opinion, with the exception of those portions of § 11(A)(3) in which the majority holds that Makatengkeng has not established a well-founded fear of future economic persecution.

I agree that, under Eighth Circuit precedent, economic discrimination (such as the refusal to give someone a job) does not rise to the level of economic persecution unless it poses “a threat to life or freedom.” Ahmed v. Ashcroft, 396 F.3d 1011, 1014 (8th Cir.2005). I hope that, in an appropriate case, the Eighth Circuit will revisit this standard, which appears harsher than the standard now applied by the Board, see In re T-Z-, 24 I. & N. Dec. 163, 173 (B.I.A.2007), and harsher than the standard applied in other circuits, see, e.g., Li v. Att’y Gen., 400 F.3d 157, 168 n. 7 (3d Cir.2005). But I believe that, even under the Eighth Circuit’s strict “threat-to-life” standard, Makatengkeng has established a well-founded fear of future economic persecution.

Makatengkeng has proven that, if he is returned to Indonesia, his life will be threatened by the economic discrimination that he will face. Nothing in the record contradicts Makatengkeng’s evidence that he will not be able to find employment because of his albinism. Likewise, nothing in the record contradicts Makatengkeng’s evidence that the consequence of this discrimination will be to leave Makatengkeng without any means to support himself. (Because of his blindness, Makatengkeng can no longer earn a living by working at home, as he did before he came to the United States.) I believe that Makateng-keng has thus established more than a well-founded fear of “economic hardship,” as in Ahmed, 396 F.3d at 1013, or “[m]ere economic detriment,” as in Minwalla v. INS, 706 F.2d 831, 835 (8th Cir.1983). I believe that Makatengkeng has established a well-founded fear of starvation, which meets the Eighth Circuit’s “threat-to-life” standard.

That said, Makatengkeng must prove more than that he will be persecuted; he must prove that the persecution that he will face will be inflicted by the government or by persons that the government is unable or unwilling to control. Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir.2005). Mere government inaction is not enough to meet this standard; instead, the persecution must in some way bear the “ ‘imprimatur’ ” of the government. Setiadi v. Gonzales, 437 F.3d 710, 713-14 (8th Cir.2006); Menjivar, 416 F.3d at 921 (quoting Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir.2001)). I agree with the majority that the economic persecution that Makatengkeng will face will not carry the imprimatur of the Indonesian government. Rather, that persecution will be entirely the result of individual decisions made by private citizens acting on their own prejudices against light-skinned Indonesians generally and albinos in particular. I therefore agree that the petition for review must be denied.