Nikijuluw v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1452

EDWARD DIRK NIKIJULUW,

Petitioner,

v.

ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Haian Lin on brief for petitioner.
Peter Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Robbin K. Blaya, Attorney, United States Department
of Justice, on brief for respondent.

October 26, 2005
 SELYA, Circuit Judge. In this immigration case, the

petitioner, Edward Dirk Nikijuluw, asserts that he is a religious

refugee from his native Indonesia. An Immigration Judge (IJ) found

that the petitioner's claim of religious persecution lacked

substance and ordered him removed. The Board of Immigration

Appeals (BIA) upheld the IJ's order. The petitioner now seeks

judicial review. After careful consideration, we deny the petition

for review.

I.

Background

The petitioner is a fifty-two year old citizen of

Indonesia who lawfully entered the United States on September 8,

2001 as a non-immigrant visitor for business purposes. By its

terms, his B-1 visa permitted him to remain in the United States

until October 7, 2001. See generally 22 C.F.R. § 41.31(a) (1998).

The petitioner overstayed his visa without securing the appropriate

authorization from the Immigration and Naturalization Service

(INS).1 Consequently, the INS charged him with remaining longer

than permitted, see 8 U.S.C. § 237(a)(1)(B), and instituted removal

proceedings. The petitioner conceded removability but cross-filed

for asylum, withholding of removal, and protection under the

1
The Homeland Security Act of 2002, Pub. L. 107-296, § 471,
116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)),
abolished the INS and transferred its duties to the Department of
Homeland Security. See Lattab v. Ashcroft, 384 F.3d 8, 13 n.2 (1st
Cir. 2004). For simplicity's sake, we refer throughout to the INS.

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Convention Against Torture (CAT). He claimed in substance that,

while in Indonesia, radical Muslims had persecuted him and his

family (at a bare minimum, the petitioner and his parents, wife,

and children subscribe to the Christian Protestant faith).2

The petitioner pointed to three specific incidents which,

in his view, established his claim of religious persecution.

First, he expressed his belief that Muslims were behind the

disappearance of his eldest daughter, whose whereabouts have been

unknown since 2001. Second, he alleged that Muslims set fire to

the church to which he belonged in November of 1999. Third, he

averred that because he sometimes held religious services in his

home, he received at least three anonymous threats and unknown

persons stoned the house.

An INS asylum officer interviewed the petitioner as part

of an investigation into his application and, finding that his

account of what had transpired in Indonesia lacked veracity,

referred his case to the immigration court. After an evidentiary

hearing, the IJ concluded that the petitioner had failed to carry

the burden of proof on any of his asserted claims, in part because

the petitioner's testimony regarding past incidents of alleged

persecution was not credible. The IJ provided specific and cogent

reasons to support this conclusion.

2
The petitioner also implied in his testimony (although the
record does not explicitly so state) that his siblings are
Christian Protestants.

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 To begin, the IJ found no evidence that the disappearance

of the petitioner's daughter had anything whatever to do with her

religious affiliation. In fact, the credible evidence indicated

that the daughter had become a Muslim and had attempted to persuade

her family to accept that religion.

In all events, the petitioner's testimony about this

incident was wildly inconsistent. For example, on his asylum

application he wrote that his daughter had been seduced by a

fanatic Muslim, but during his interview he claimed that she had

vanished during a series of riots that included attacks on his

church. Later still, he stated that he did not know why or how his

daughter had disappeared. There was also an intimation in the

record that the petitioner's daughter may simply have run away with

her boyfriend after she had begun performing as a night club

singer.

As to the second incident, it was clear that fire had

consumed the petitioner's church in November of 1999. The IJ

noted, however, that the church was in the process of being rebuilt

and that the church community continued openly to hold regular

worship services.

In the same vein, the IJ cited the Department of State

Country Report on Human Rights Practices for 2002 (the Country

Conditions Report) as evidence that the petitioner's claims of

religious persecution were overblown. The Country Conditions

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Report explained that the Indonesian constitution "provides for

every resident to adhere to their respective religion and to

perform their religious duties in accordance with their religion

and faith." It also vouchsafed that the Indonesian government

generally respected this constitutional provision and officially

acknowledged Protestantism as one of several recognized religions.

Finally, the Country Conditions Report indicated that, by 2002,

incidents targeting churches were "much less frequent than in

previous years."

The IJ also considered, and rejected, the petitioner's

testimony regarding the anonymous threats and the stoning of his

home. He observed that the petitioner had failed to mention these

incidents to the asylum officer. While the statement attached to

his asylum application recounted threats of stone-throwing, it did

not mention that such an event had actually occurred. On the basis

of these omissions, the IJ found that the petitioner had failed to

establish by credible testimony that the stone-throwing incident

had taken place.

Overall, the IJ evaluated the petitioner's assertions as

"general, meager and weak" and concluded that the petitioner had

not carried his burden of establishing religious persecution. To

buttress this conclusion, the IJ noted that the petitioner had

lived, worked, and raised a family in Indonesia, for the most part

without incurring any religious hostility. The IJ further noted

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that the petitioner's family, including his wife, children,

parents, and siblings, remained in Indonesia and that there was no

evidence that any family member had been a victim of religious

persecution at any time after the petitioner's entry into the

United States. Finally, the IJ noted that the petitioner had never

been arrested, detained, threatened, or put in harm's way by the

Indonesian government or any of its agents on account of his

religious beliefs.

Consistent with these findings, the IJ denied the cross-

application for asylum, withholding of removal, and protection

under CAT; ordered the petitioner removed; and designated Indonesia

as the country of removal. The BIA upheld the IJ's decision,

concluding that the petitioner had failed to establish past

persecution, a well-founded fear of future persecution, or a

sufficient likelihood that he would be subjected to torture upon

his return to Indonesia. This timely petition for judicial review

followed.

II.

Discussion

We start — and end — with the denial of the petitioner's

application for asylum.3 In reviewing the BIA's denial of an

3
It is well established that "issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990); accord Makhoul v. Ashcroft, 387 F.3d
75, 79 (1st Cir. 2004) (enunciating the same principle in the

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asylum application, we examine its findings of fact, including its

credibility determinations, to ascertain whether those findings are

supported by substantial evidence in the record. See Bocova v.

Gonzales, 412 F.3d 257, 262 (1st Cir. 2005); Da Silva v. Ashcroft,

394 F.3d 1, 4 (1st Cir. 2005). Under this highly deferential

standard, we must accept the BIA's findings so long as they are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992). Absent an error of law, we can overrule the BIA's

ensuing decision only if the evidence "points unerringly in the

opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st

Cir. 2004).

The petitioner bears the burden of establishing that he

qualifies for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); see also

Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004). To qualify

as a refugee within the meaning of the Immigration and Nationality

Act, an asylum seeker must show that he cannot return to his home

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." 8 U.S.C. §

1101(a)(42)(A). Upon a satisfactory showing of past persecution,

immigration context). Here, the petitioner has devoted his
appellate brief exclusively to his asylum claim and has failed to
develop any argument supporting either his claim for withholding of
removal or his claim for protection under CAT. Consequently, we
deem those claims abandoned.

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a rebuttable presumption arises that a petitioner's fear of future

persecution is well-founded. Makhoul, 387 F.3d at 79.

The Immigration and Nationality Act provides no precise

definition of "persecution." The case law, however, is more

informative. We have held that past persecution requires that the

totality of a petitioner's experiences add up to more than mere

discomfiture, unpleasantness, harassment, or unfair treatment.

See, e.g., Bocova, 412 F.3d at 263; Nelson v. INS, 232 F.3d 258,

263 (1st Cir. 2000). Moreover, persecution "always implies some

connection to government action or inaction." Harutyunyan v.

Gonzales, 421 F.3d 64, 68 (1st Cir. 2005). Thus, an applicant

qualifies for asylum only when he suffers persecution that is the

direct result of government action, government-supported action, or

government's unwillingness or inability to control private conduct.

Id.

It is transparently clear that in order to establish

refugee status, an alien must support his claim of persecution

through credible testimony. Credible testimony, standing alone,

may be adequate to sustain the alien's burden of proof. See

Settenda v. Ashcroft, 377 F.3d 89, 92 (1st Cir. 2004). But if the

proffered testimony is not credible, it may be either disregarded

or sharply discounted, depending on the circumstances. See, e.g.,

Laurent, 359 F.3d at 64; see also Aguilar-Solis v. INS, 168 F.3d

565, 570-71 (1st Cir. 1999).

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 Commensurate with the importance of credibility

determinations in immigration cases, an IJ must offer a specific

and cogent rationale for disbelieving the alien. El Moraghy v.

Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003); Gailius v. INS, 147

F.3d 34, 47 (1st Cir. 1998). In this instance, the IJ's findings

easily pass through that screen. Since the adverse credibility

determination is supported by substantial evidence, the

petitioner's testimony cannot carry the day — and the record

contains little of substance, apart from the petitioner's

testimony, that might serve to corroborate his story or otherwise

to shore up his asylum application.

Even if we were to leave to one side the IJ's

determination that the petitioner's tales were not worthy of

credence and accept the petitioner's testimony as true, he still

would not have offered sufficient evidence to establish persecution

within the meaning of our precedents. At most, the petitioner has

suffered sporadic private discrimination — and there is no evidence

that such discrimination (if, indeed, it occurred) was sponsored,

supported, or condoned by the government. We explain briefly.

The evidence related to the disappearance of the

petitioner's daughter was extremely sketchy. There is nothing in

the record — other than the petitioner's unfounded suspicions — to

suggest that the daughter's disappearance stemmed from some sort of

religious jihad, much less that the Indonesian government conspired

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in, or condoned her disappearance. The other evidence is no more

compelling; even assuming that radical Muslims burned down the

church and stoned the petitioner's house in retaliation for the

holding of weekday worship services, there is no proof connecting

these isolated acts of private discrimination with the Indonesian

authorities. Moreover, the other undisputed facts — e.g., that the

church is being rebuilt, that the congregation continues to

function openly, and that the petitioner's Christian relatives have

been able to live tranquilly in Indonesia — comprise strong

evidence that the government was not involved in whatever

discrimination the petitioner may have experienced. Consequently,

we find no basis for disturbing the BIA's conclusion that the

petitioner failed to show past persecution.

The only remaining issue is whether, independent of any

presumption arising out of past persecution, the petitioner has

shown a well-founded fear of future persecution. The IJ and the

BIA answered this question in the negative. The record does not

allow us to quarrel with that answer.

In order to show a well-founded fear of future

persecution, a petitioner must satisfy both subjective and

objective components. He must "not only harbor a genuine fear of

future persecution, but also must establish an objectively

reasonable basis for that fear." Laurent, 359 F.3d at 65.

Credibility aside, the petitioner's testimony that he fears harm

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should he return to Indonesia arguably satisfies the subjective

component. Thus, we focus the lens of our inquiry on the objective

component.

An objectively reasonable fear of future persecution

exists if a reasonable person in the petitioner's circumstances

would fear persecution based on a statutorily protected ground.

Aguilar-Solis, 168 F.3d at 572. In a highly analogous case, this

court determined that a petitioner could not establish a well-

founded fear of future persecution when her family lived safely in

the country of deportation and there was neither record evidence

nor significant support in State Department reports for the

petitioner's claim of likely future persecution. Zheng v.

Gonzales, 416 F.3d 97, 101 (1st Cir. 2005). Here, as in Zheng, the

petitioner's family members (most of whom share his religious

affiliation) continue to live peaceably in his native land and

there is no probative evidence that the petitioner will be harmed

should he return. The Country Conditions Report states that

incidents of violence against Christians in Indonesia are in

significant decline. To cinch matters, the petitioner's Indonesian

church community is rebuilding the destroyed house of worship and

continues to hold regular services. While a reasonable person in

the petitioner's position might fear encountering some private

hostility in a majority Muslim country on account of his Christian

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Protestant beliefs, the record does not make manifest any objective

basis for a fear of future persecution.

III.

Conclusion

We need go no further. Because the petitioner failed to

adduce credible and probative evidence showing either past

persecution or a well-founded fear of future persecution, the BIA's

rejection of his application for relief stands on solid ground.

Accordingly, the petition for judicial review is denied.

So Ordered.

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