Liana Tan v. U.S. Attorney General

[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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