Sompotan v. Mukasey

United States Court of Appeals
For the First Circuit
____________________

No. 07-1635

PETRA B. SOMPOTAN and JANSEN A. KOLOAY,

Petitioners,

v.

MICHAEL B. MUKASEY,
Attorney General of the United States,

Respondent.
____________________

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OR IMMIGRATION APPEALS
____________________

Before

Torruella, Circuit Judge,
Cudahy,* Senior Circuit Judge,
and Lipez, Circuit Judge.
____________________

William A. Hahn on brief for the petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Terri
J. Scadron and Anthony Wray Norwood on brief for the respondent.
____________________

July 16, 2008
____________________

*
Of the Seventh Circuit, sitting by designation.
 CUDAHY, Senior Circuit Judge. Petitioners Petra B. Sompotan

and Jansen A. Koloay, natives and citizens of Indonesia, appeal

from a final order of the Board of Immigration Appeals (the Board)

denying their applications for asylum, withholding of removal and

protection under the Convention Against Torture (the Convention).

The immigration judge (IJ) found that the petitioners had failed to

establish that the mistreatment they suffered was “on account of”

their race or religion; the IJ also found that much of the

mistreatment did not amount to “persecution.” In a brief order,

the Board affirmed. The petitioners then filed this petition for

review, claiming that the IJ and the Board committed a legal error

in failing to conduct a “mixed motives analysis.” As we shall

explain, this argument is without merit.

I.

Sompotan and Koloay are, as we have said, natives of

Indonesia. They are both Christians, and Sompotan is also ethnic

Chinese. Sompotan and Koloay entered the United States at St.

Paul, Minnesota on September 18, 2001 as non-immigrant tourists

with authorization to remain within the country for one month.

Sompotan applied for asylum on February 3, 2003, listing Koloay as

a beneficiary.1 The Department of Homeland Security issued them

1
As Sompotan’s spouse, Koloay would be eligible for asylum or
withholding of removal if Sompotan qualified. See 8 U.S.C. §
1158(b)(3)(A).

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both a Notice to Appear on June 26, 2003, charging them with

overstaying their non-immigrant visas.

The removal hearing was held on April 4, 2005; both Sompotan

and Koloay testified. In December 1997, they operated a restaurant

in Jakarta. One day, Sompotan saw men approaching the restaurant.

The men approached her husband and demanded cigarettes and money.

When Koloay refused, they hit him over the head with a stick.

Sompotan fled the restaurant and waited by the corner, but the men

approached her, knocked her to the ground, and took her necklace

and watch, while saying “crazy Christian” and “Chinese bastard.”

Petitioners testified that during the time they lived in

Jakarta, they held weekly prayer groups in which about twenty-three

people would sing, albeit softly. Petitioners claim that the

meetings were disrupted by loud music, motorcycle noises, and

shouts of “Allah Huakvar” (“God is Great”) from the streets. When

they looked outside to see who was causing the commotion, they saw

a group of youths who wore red bandanas.

In May 1998, the petitioners were caught in the now-infamous

Jakarta riots. Rioters began looting and burning a supermarket

next to their restaurant, and quickly moved to their restaurant.

Koloay testified that they heard the people approaching the

restaurant saying “he is Chinese, he is also Chinese.” Sompotan

and Koloay were able to flee to safety but their restaurant was

badly damaged and they never returned to it.

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 After the riots, the petitioners returned to the town of

Tatelu Menado, where they opened a convenience store. Their Muslim

neighbors, with whom they were on good terms, asked them for a

loan. When the neighbors did not repay the loan, Sompotan went to

the neighbors and told them that if they did not repay the loan,

she would report them to the police. The neighbors soon gave

Sompotan three fresh fish, which she cooked and consumed. After

eating the fish, she passed out. The doctors at the hospital told

her that she had been poisoned. The incident was reported to the

police, who questioned the neighbors but did not arrest them.

The IJ found that Sompotan and Koloay were removable and

denied their applications for asylum, withholding of removal and

protection under the Convention. The IJ concluded that their

application for asylum was untimely as it was not filed within one

year of their entry into the United States, and that they had

failed to establish that “extraordinary circumstances” excused the

delay. In the alternative, the IJ concluded that their claims for

asylum were without merit because they did not establish that they

had suffered persecution “on account of” their race or religion.

He also noted that many of the incidents described by the

petitioners did not amount to persecution. Because they failed to

satisfy the requirements for asylum, the IJ determined that they

could not satisfy the more stringent standards for withholding of

removal and relief under the Convention. The IJ did, however,

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grant them voluntary departure. The petitioners appealed to the

Board, which affirmed the IJ’s decision. They then filed a

petition for review in this court.

II.

In their petition, Sompotan and Koloay abandon their claims

for asylum and protection under the Convention. The only issue

before us is the Board’s denial of their claims for withholding of

removal. Because the Board’s decision largely affirmed and adopted

the decision of the IJ, we review both decisions. See Settenda v.

Ashcroft, 377 F.3d 89, 92-93 (1st Cir. 2004).

Withholding of removal is available if “the alien’s life or

freedom would be threatened in [the destination] country because of

the alien’s race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). A

“threat to life or freedom” in a withholding case is analyzed in

the same way “persecution” is analyzed in asylum cases. Attia v.

Gonzáles, 477 F.3d 21, 23 (1st Cir. 2007). A petitioner’s burden

in a withholding case is, however, more stringent; petitioners must

show a “clear probability” that they were or will be persecuted.

See INS v. Stevic, 467 U.S. 407, 424 (1984). Persecution “is

mistreatment that . . . extend[s] beyond harassment,

unpleasantness, and basic suffering.” Id. Further, as in asylum

cases, it is “critical” that the petitioners show a “nexus” between

the alleged persecution and one of the statutorily protected

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grounds. See INS v. Elias-Zacarias, 502 U.S. 478, 483, S. Ct. 812,

117 L. Ed. 2d 38 (1992). To establish the nexus, the petitioner

must present “evidence from which it is reasonable to believe that

the harm was motivated by a protected ground.” See In re S-P-, 21

I. & N. Dec. 486, 490 (BIA 1996). The end result is that, to

qualify for withholding of removal, the petitioners must

“demonstrate either that [they have] suffered past persecution on

account of a protected ground . . . or that it is more likely than

not that [they] will be persecuted on account of a protected ground

if sent to the destination country.” Heng v. Gonzáles, 493 F.3d

46, 48 (1st Cir. 2007) (emphasis added). These two methods are, of

course, commonly referred to as past and future persecution.

Sompotan and Koloay’s applications hinged almost entirely on

evidence of past persecution. Specifically, they emphasized four

events: (1) their restaurant was robbed by a group of Muslims, who

beat Koloay over the head with a stick and pushed Sompotan to the

ground; (2) their restaurant was burned during the Jakarta riots of

May 1998; (3) their prayer group meetings were disturbed when their

Muslim neighbors deliberately made loud noises outside; and (4)

Sompotan was poisoned by her Muslim neighbors after reporting them

to the police for not repaying a loan. The IJ discussed each of

these incidents and concluded both that the mistreatment did not

amount to persecution and that the petitioners had failed to

establish that the mistreatment was motivated by ethnic or

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religious animosity. The Board affirmed.

Whether the persecution experienced by a petitioner amounted

to persecution and whether the persecution was inflicted “on

account of” a protected ground are generally questions of fact.

See López de Hincapie v. Gonzáles, 494 F.3d 213, 218 (1st Cir.

2007). We owe these determinations deference. See 8 U.S.C. §

1252(b)(4)(B) (specifying that “administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary”). Accordingly, “our review is aimed at

determining whether the decision is supported by substantial

evidence in the record.” Halo v. Gonzáles, 419 F.3d 15, 18 (1st

Cir.2005). “That the record supports a conclusion contrary to that

reached by the [Board] is not enough to warrant upsetting the

[Board]’s view of the matter; for that to occur, the record must

compel the contrary conclusion.” López de Hincapie, 494 F.3d at

218 (emphasis in original).

The petitioners argue, however, that we should review the

decisions of the IJ and the Board de novo because they committed a

legal error in failing to employ “a mixed motive analysis.” See

Petitioners’ Br. 8-9 (citing In re S-P-, 21 I. & N. Dec. 486, 490

(BIA 1996)). We note, at the outset, that the petitioners are not

very clear in explaining what they believe this “mixed motive

analysis” to be. Of course, the Board’s decision in In re S-P-

laid out a five-factor test to be used in examining cases of “mixed

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motive,” where an ostensibly legitimate government motive is

actually a pretext for impermissible motivations. In re S-P-, 21

I. & N. at 494. But one look at the test makes clear that it does

not apply here.1 Further, the cases that purport to use a “mixed-

motive analysis” have generally involved investigations into the

motives underlying government prosecution or punishment. See,

e.g., Menghesha v. Gonzáles, 450 F.3d 142 (4th Cir. 2006)

(government security agent threatened for warning students of an

impending arrest); Vumi v. Gonzáles, 502 F.3d 150 (2d Cir. 2007)

(Congolese woman arrested, interrogated and mistreated by the

military). Those cases are of little relevance here.

Thus, the petitioners must be arguing that the IJ and the

Board violated the principle, expressed in In re S-P- and

1
The factors to be considered are as follows:

“1. Indications in the particular case that abuse was
directed toward modifying or punishing opinion rather
than conduct (e.g., statements or actions by the
perpetrators or abuse out of proportion to nonpolitical
ends);
2. Treatment of others in the population who might be
confronted by government agents in similar circumstances;
3. Conformity to procedures for criminal prosecution or
military law including developing international norms
regarding the law of war;
4. The extent to which antiterrorism laws are defined and
applied to suppress political opinion as well as illegal
conduct (e.g., an act may broadly prohibit “disruptive”
activities to permit application to peaceful as well as
violent expressions of views);
5. The extent to which suspected political opponents are
subjected to arbitrary arrest, detention, and abuse.”

In re S-P-, 21 I. & N. Dec. at 494.

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elsewhere, that a petitioner is not required to show that the

impermissible motivation was the sole motivation for the

persecution. See In re S-P-, 21 I. & N. Dec. at 490. Petitioners

seldom know the “exact motivation[s]” of their persecutors and, of

course, persecutors may often have more than one motivation. Id.

Thus, a petitioner must only show that the persecution was based,

“at least in part,” on an impermissible motivation.2 Sánchez

Jiménez v. U.S. Attorney General, 492 F.3d 1223, 1232-33 (11th Cir.

2007). A petitioner is never precluded from proving a

impermissible motive simply because some other motive has already

been established. But this is not a “mode of analysis”; it is

simply the proper legal standard. Compare Menghesha, 450 F.3d at

148 n.3 (“In asking us to assess his claim under a mixed-motive

standard, [the petitioner] is not alleging a distinct legal claim.

Rather, he is merely elucidating the proper legal standard . . .”)

with id. at 150 (Williams, J., dissenting) (“[T]here is ‘no other

kind of case’ than a mixed motive case.”).

There is no reason to believe that the IJ and the Board

misunderstood this legal principle. The IJ never stated that the

petitioners were required to show that ethnic or religious

2
The REAL ID Act of 2005 amended the INA to require that an
applicant show that a protected ground was a “central reason” for
the persecution. 8 U.S.C. § 1158(b)(1)(B)(I). See REAL ID Act of
2005, Pub. L. No. 109-13, Div. B., 119 Stat. 231 (May 11, 2005).
This requirement is only applicable to applications filed on or
after May 11, 2005.

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animosity was the sole motivation for the alleged persecution; nor

did the IJ prematurely terminate the analysis upon the finding of

another motive. The IJ simply found that the sole motivations for

the alleged persecution were motivations that are not impermissible

under the statute. The fact that an actor may have multiple

motives does not alter the petitioner’s burden to “provide

sufficient evidence to forge an actual connection between the harm

and some statutorily protected ground.” See López de Hincapie, 494

F.3d at 218. The IJ properly found that this connection had not

been forged on this evidence.

III.

Now that we have clarified the petitioners’ burden in this

case, we turn to the central issue: whether the IJ’s finding that

the petitioners’ had not forged an actual connection between the

mistreatment they suffered and a statutorily protected ground is

supported by substantial evidence. To establish the nexus, the

petitioner must present “evidence from which it is reasonable to

believe that the harm was motivated [in part] by a protected

ground.” In re S-P-, 21 I. & N. Dec. at 490. Sompotan argues that

there was “ample” evidence supporting the fact that the harm they

suffered was “on account of” their religious affiliation and

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ethnicity.3

We begin with the robbery of the petitioners’ restaurant. The

IJ characterized the incident at the restaurant as a robbery and

concluded that there did not appear to be any other motivation

behind the crime. A.R. 60. Indeed, almost all of the evidence

points in this direction. The hooligans entered the restaurant

asking for cigarettes; they quickly demanded money and, when their

demands were not met, they beat Koloay with a stick. On their way

out, they pushed Sompotan to the ground, snatching her necklace and

watch. The only evidence that the petitioners offered to show that

they had been targeted because of their race or religion was that

the assailants yelled, “Chinese bastard, crazy Christian, crazy

Chinese.” A.R. 112. But the fact that the assailants made racial

slurs while committing a crimes does not, on this record, prove

that ethnic or religious hostility was the motivation for the

attacks. See Ming Ming Wijono v. Gonzáles, 439 F.3d 868, 873 (8th

Cir. 2006); Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005). The

fact that hooligans would stoop to the level of using racial slurs

is, unfortunately, not surprising.

We turn to the Jakarta riots and, here, we must express

partial disagreement with the IJ. The IJ found that the

3
In their brief, the petitioners suggest that, because they
were found to be credible witnesses, the IJ was obligated to accept
their conclusion that the persecution was “on account of” ethnic or
religious hostility. The petitioners, however, must present facts
from which this inference can be drawn.

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petitioners were simply in the path of a “huge, spontaneous act of

violence,” where violence became a cause in itself. A.R. 58. We

think this conclusion flies in the face of both the petitioners’

testimony and the many documentary materials presented to the IJ.

It is well known that rioters had targeted this area of shops

because it was owned by ethnic Chinese. That the petitioners’

restaurant was burned in a fire started in the supermarket next

store is irrelevant: the whole area of shops had been targeted.

The IJ’s conclusion that the restaurant burning was not motivated

on protected grounds is not supported by substantial evidence.

This error, however, was harmless. The IJ also noted that neither

Sompotan or Koloay were physically harmed at the time. While this

factual finding is not determinative, see, e.g., Sok v. Mukasey,

526 F.3d 48, 54-55 (1st Cir. 2008), “the presence or absence of

physical harm (and, indeed, the degree of harm inflicted) remains

a relevant factor in determining whether mistreatment rises to the

level of persecution.” Ruiz v. Mukasey, 526 F.3d 31, 37 (1st Cir.

2008). Given the isolated nature of the arson, the petitioners’

experiences do not rise to the level of persecution. See, e.g.,

Kho v. Keisler, 505 F.3d 50, 57-58 (1st Cir. 2007).

We turn to the last incident in Jakarta, which involves the

disturbance of the prayer group meetings. Here again, the IJ found

nexus problems. Sompotan testified that the neighbors who made the

noise were Muslims because they chanted “Allah Huakvar.” But this

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sheds little light on their motivations. The prayer groups did

consist of twenty-three people singing, and the neighbors could

have been annoyed by the sounds. The way they responded – by

shouting, turning up their music, and revving motorcycles —

suggests that this may have been the case. We cannot say on this

record that the IJ’s finding was not supported by substantial

evidence. See Ming Ming Wijono, 439 F.3d at 873; Lie, 396 F.3d at

535. Further, the IJ also noted that the prayer group had

continued to meet despite the interruptions. This strongly

suggests that the disturbances did not rise to the level of

persecution in any case. See Bocova v. Gonzáles, 412 F.3d 257, 263

(1st Cir. 2005).

Finally, we come to the incident in which Sompotan was

poisoned. All of the evidence points to the conclusion that this

unfortunate incident was the result of a personal grudge. Indeed,

the petitioners’ own testimony bears this out. Sompotan herself

testified that they originally got along with the neighbors.

Indeed, Sompotan stated that the loan was the root cause of the

problems.4 Sompotan testified at the removal hearing that she

4
Sompotan testified as follows: “In the beginning everything
[in Tatelu Menado] went really smoothly. In fact, a family near
our store was very, very kind to us. We were friends. Then one
day they borrowed money from me.” A.R. 140. On her I-589 form,
Sompotan explained: “My husband did not agree with me on lending
them some money, for fear that it might turn out to be a reason for
hatred when she is unable to repay us. It really changed from
assumption to a reality. They refuse to repay me and to make the
worse thing worst they became bitter enemy of mine . . ..” A.R.

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believed that the neighbors had poisoned her because they were

angry that she had turned them in to the police.5 Events that stem

from personal disputes are generally not enough to show the

required nexus. Romilus v. Ashcroft, 385 F.3d 1, 6 (1st Cir.

2004); DaSilva v. Ashcroft, 394 F.3d 1, 6-7 (1st Cir. 2005). The

only real evidence Sompotan has that the poisoning was ethnically

motivated was the fact that the neighbors’ children cursed them as

“bad Chinese.” A.R. 118, 454. But the children’s taunts are not

probative of the parents’ intentions. Again, the racial slur must

suggest a prohibited motivation. See Ming Ming Wijono, 439 F.3d at

873; Lie, 396 F.3d at 535.

The IJ’s conclusion that the poisoning and the prayer group

disturbances were the result of personal disputes or grudges is

437.
5
This was Sompotan’s own explanation for the event:

Q: [Y]ou stated that he tried to poison you because you
reported him to the police because he didn’t want to return
the money that he had borrowed from you, isn’t that correct?
A: Yes.
Q: Okay. So, his motivation for allegedly trying to poison
you, you believed to be because he was angry with you for
reporting to the police, correct?
A: Yes.

A.R. 140. Koloay’s testimony was very similar:

Q: [D]o you have any idea why the neighbor would try to poison
your wife?
A: Because they did not want to return the money that, our
money, did not want to return our money.

A.R. 165.

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supported by substantial evidence. So, too, is the conclusion that

the robbery was motivated only by criminal intent. The

petitioners’ experiences in the riots, while motivated by protected

grounds, are not enough to sustain a finding of persecution. Their

claim for withholding must therefore fail. We have considered the

petitioner’s other arguments and they are without merit.

IV.

For the foregoing reasons, the petition of review is DENIED.

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