Eduard v. Ashcroft

• Decision Date: 21 July 2004
• Docket Number: No. 03-60093.,No. 03-60092.,03-60092.,03-60093.
• Citation: 379 F.3d 182
• Parties: Jopie EDUARD, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent. Yuliana Pakkung, Petitioner, v. John Ashcroft, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.3d 182

Jopie EDUARD, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.

Yuliana Pakkung, Petitioner, v. John Ashcroft, U.S. Attorney General, Respondent.

No. 03-60092.

No. 03-60093.

United States Court of Appeals, Fifth Circuit.

July 21, 2004.

COPYRIGHT MATERIAL OMITTED

Martha E. Garza, Thomas Perkinson (argued), Bellaire, TX, for Petitioner.

Jamie Marie Dowd (argued), M. Jocelyn Lopez Wright, U.S. Dept. of Justice, OIL, Dept. of Homeland Sec., Thomas Ward Hussey, Director, James E. Grimes, U.S. Dept. of Justice, Civ. Div., Imm. Lit., Washington, DC, Hipolito Acosta, U.S. INS, Houston, TX, Caryl G. Thompson, U.S. INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before EMILIO M. GARZA, DeMOSS and CLEMENT, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioners, citizens of Indonesia, were ordered removed by the Immigration and Naturalization Service ("INS"). The Immigration Judge ("IJ") dismissed their applications for asylum and withholding of removal. The Board of Immigration Appeals ("BIA") affirmed without opinion. Petitioners contend that the IJ erred by denying their applications for asylum. They also assert that the IJ erred by failing to address their claims for relief under the Convention Against Torture ("CAT"). We hold that the IJ committed legal error and therefore reverse and remand for further proceedings not inconsistent with this opinion.

BACKGROUND

Petitioners Jopie Eduard ("Eduard") and his wife, Yuliana Pakkung ("Pakkung"), are natives and citizens of Indonesia. Pakkung entered the United States in June 1989, as a nonimmigrant visitor, with permission to remain for six months. Eduard entered the United States in June 1991, as a nonimmigrant crewman, with permission to remain for 29 days.

The INS initiated removal proceedings against Pakkung and Eduard in November 2000. Pakkung and Eduard conceded removability, and applied for asylum and withholding of removal.¹

The IJ held a consolidated hearing on April 23, 2001. The IJ issued an oral decision denying Eduard's and Pakkung's applications for asylum, and denying withholding of removal pursuant to INA § 241(b)(3)(B). 8 C.F.R. § 208.16(b) (2004). The IJ reasoned that neither applicant had established past persecution or a well-founded fear of future persecution. The IJ did not discuss whether removal could be withheld under the CAT. Id. § 208.16(c).

A member of the BIA, acting for the board, affirmed the IJ's decision without opinion. Eduard and Pakkung timely filed this appeal.

DISCUSSION

Because the BIA summarily affirmed the opinion of the IJ, we review the factual findings and legal conclusions of the IJ. See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.2003) (providing that the IJ's decision is the final agency decision if the BIA summarily affirms). We must uphold the IJ's factual findings unless we find that they are not supported by substantial evidence in the record. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.1994). Substantial evidence is lacking only if the petitioner establishes that the record evidence was "so compelling that no reasonable fact finder could fail to find" the petitioner statutorily eligible for asylum or withholding of removal. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.2001). We review conclusions of law de novo. Mikhael v. INS, 115 F.3d 299, 305 (5th Cir.1997); Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996). Consequently, even though we are required to review the factual findings of the IJ for substantial evidence, we nevertheless may reverse an IJ's decision if it was decided on the basis of an erroneous application of the law. Mikhael, 115 F.3d at 305.

Petitioners contend that the IJ erred by (1) denying their applications for asylum² and (2) failing to address their claims for relief under the CAT.

I. Whether the IJ erred by denying Petitioners' applications for asylum.

Petitioners first contend that the IJ erred by denying their applications for asylum. The Attorney General is authorized to grant asylum to "refugees." INA § 208(a), 8 U.S.C. § 1158(a) (2004); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987);Mikhael, 115 F.3d at 303. A refugee is:

[A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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....

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2004).³ Applicants bear the burden of proving that they qualify for refugee status. 8 C.F.R. § 208.13(a) (2004); Faddoul, 37 F.3d at 188. Petitioners assert that they were eligible for asylum because they (1) suffered past persecution on account of their race and religion and (2) possessed a well-founded fear of future persecution on account of their race and religion.

A. Past Persecution.

Petitioners contend that the IJ erred by holding that they had not suffered past persecution. In particular, they argue that (1) the IJ's factual findings are not supported by substantial evidence and (2) the IJ applied erroneous law by not analyzing the separate incidents of harm in the aggregate.

1. Whether substantial evidence supports the IJ's finding of no past persecution.

Petitioners argue that the IJ's finding of no past persecution is not supported by substantial evidence. Persecution has been defined by this Court as:

The infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.

Abdel-Masieh v. INS, 73 F.3d 579, 583-84 (5th Cir.1996) (citation omitted).⁴

Eduard is a Christian of Manado ancestry; he asserts, however, that Indonesians presume he is Chinese because of his skin tone and the shape of his eyes. When Eduard lived in Indonesia, he was struck in the head with a rock while walking to church. Although Eduard was not able to identify the assailant, he nonetheless presumed that the assailant was a Muslim because the assault occurred just days after a large civil dispute between the Government and the Muslims.⁵ Eduard sustained cuts on his head and was given medication to stop the bleeding. Eduard also testified that he was taunted as a "pork eater" by a Muslim while he sat on a bus. Aside from the stone-throwing incident, Eduard was never physically punished or harmed in Indonesia because of his Christian faith or imputed Chinese ethnicity.

Pakkung is a Christian of Chinese ethnicity. She testified that she was taunted in school by Muslim students and that the bus of a fellow Christian was stoned in 1986. Pakkung, however, did not actually witness the stoning. Pakkung also stated that her grandparents tried to convert her to Islam when she was eight years old. She claimed that they "hit [her] and beat [her] up" when she refused to say Muslim prayers. Pakkung, however, did not testify that she suffered any injuries or that she ever required medical treatment.

The IJ found that "the taunting described by [Eduard] and the general harassment does not rise to the level of a serious punishment or harm that would justify a grant of asylum." The IJ also concluded that "there is no evidence that [Pakkung] was ever targeted for any actual physical abuse in Indonesia."

The IJ's findings are supported by substantial evidence. Neither Eduard nor Pakkung were interrogated, detained, arrested, or convicted in Indonesia. The only violence suffered by either party, on account of either religion or ethnicity, was the injury to Eduard's head allegedly caused by a purported Muslim. The rest of the mistreatment recounted during the IJ hearing was composed of mere denigration, harassment, and threats. Neither discrimination nor harassment ordinarily amounts to persecution under the INA, even if the conduct amounts to "morally reprehensible" discrimination on the basis of race or religion. Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996). Thus, substantial evidence supports the IJ's finding that Petitioners failed to establish past persecution.

2. Whether the IJ applied erroneous law by not analyzing the separate incidents of harm in the aggregate.

Petitioners also contend that the IJ committed legal error by not considering the incidents of harm in the aggregate. Matter of O-Z- & I-Z-, 22 I & N Dec. 23, 26, 1998 WL 177674 (BIA 1998). Neither the Petitioners' briefs nor the IJ's decision establishes that the IJ analyzed each incident of harm in isolation. Because the burden of proving that the IJ analyzed each incident independently falls on Petitioners, and Petitioners have failed to carry that burden, we do not agree with Petitioners and thus find no error.

B. Petitioners' Well-Founded Fear of Persecution.

Despite an adverse finding on their claims of past persecution, Petitioners can still establish their refugee status by demonstrating well-founded fears of persecution. An applicant has a well-founded fear of persecution if:

(A) The applicant has a fear of persecution in his or her country of nationality ... on account of race, religion, nationality, membership in a particular social group, or political opinion;

(B) There is a reasonable possibility of suffering such persecution if he or she were...