Halim v. Holder

• Decision Date: 04 September 2014
• Docket Number: No. 14–1024.,14–1024.
• Citation: 755 F.3d 506
• Parties: Sugiarto HALIM, Petitioner, v. Eric H. HOLDER, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

755 F.3d 506

Sugiarto HALIM, Petitioner,

v.Eric H. HOLDER, Attorney General of the United States, Respondent.

No. 14–1024.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 2014.

Decided June 17, 2014.

Rehearing Denied Sept. 4, 2014.

Robert Conrad Milla, Attorney, Milla Law, Chicago, IL, for Petitioner.

OIL, Attorney, Annette M. Wietecha, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER and EASTERBROOK, Circuit Judges, and ST. EVE, District Judge.^*

BAUER, Circuit Judge.

Sugiarto Halim, an Indonesian citizen, came to the United States in 2000 and overstayed his temporary visa.He filed for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) stating that he feared he would be persecuted if he were sent back to Indonesia due to his status as a Chinese Christian.The Immigration Judge (“IJ”) denied Halim's application for asylum because he failed to apply within the one-year statutory limit, and denied Halim's other requests for relief because he failed to show past persecution or establish a well-founded fear of future persecution.Halim appealed to the Board of Immigration Appeals(“BIA”); it affirmed the IJ's decision and dismissed the appeal.Halim now petitions this court for review of his application for withholding of removal.We conclude that the orders of the IJ and BIA are supported by substantial evidence and deny Halim's petition.

I.BACKGROUND

Halim, a native and citizen of Indonesia, came to the United States on a visa in March 2000, and was authorized to stay for six months.After his visa expired, he stayed in the United States without applying for any type of legal residency.In 2005, the Department of Homeland Security detained Halim and initiated removal proceedings against him for overstaying his visa in violation of 8 U.S.C. § 1227(a)(1)(B).

Halim sought asylum, withholding of removal proceedings under § 241(b)(3) of the Immigration and Nationality Act, and protection under the CAT.Halim contended that if he was forced to return to Indonesia, he would be subject to persecution because of his Chinese ethnicity and Christian beliefs.

In his removal proceedings, Halim testified about discrimination he and his family faced in Indonesia due to their Chinese descent.Halim testified that because his sister was earlier denied enrollment in an Indonesian university, he speculated that he would be rejected as well.Therefore, he left his hometown of Medan in 1988 to attend university in Germany.

On a trip home to visit his family in 1994, Halim witnessed a riot fueled by ethnic and labor issues.The riot targeted Chinese-owned stores and was at a shopping mall where his sister owned a store.Halim and his sister were not injured and the rioters did not enter or damage his sister's store.

In 1998, violent racial riots targeting people of Chinese ethnicity broke out again throughout Indonesia.In Halim's hometown of Medan, rock-throwing rioters swarmed the streets in his family's neighborhood.Halim's family members were not targeted or injured in the riot.At the time, Halim was in Germany.

Additionally, Halim recounted several occasions when he thought that he was harassed because of his ethnicity.He claimed that when he traveled from Germany to Medan, Indonesian airport personnel took his passport, searched his luggage, and demanded money from him before they returned his possessions.Halim alleged that the airport personnel treated only ethnic Chinese in this manner.Halim said that he complained about the crooked practice one time to an office at the airport, but nothing came of his complaint.Halim also testified about a hostile incident he had with a taxi driver when he accidently stepped on the taxi driver's foot.The driver told Halim that if he had his friends with him, they would have killed Halim.

Halim returned home for a year after completing his master's degree in 1999.Halim testified that people came to his home and would “knock at the door, asking for money, throwing rocks and saying Chinese likes to eat pork.”Halim was never detained, arrested, prosecuted, or beaten because of his ethnicity during the year he lived in Indonesia.He flew to Los Angeles, California, in 2000.

Halim learned about Christianity when he lived and studied in Germany, but was not baptized until 2005.He fears returning to Indonesia as a practicing Christian because he read articles about churches being bombed in Indonesia and some were Christian churches.Halim, however, did not personally experience any discrimination on account of his Christian beliefs while he lived in Indonesia.

Halim also submitted documentation to the IJ about the turmoil that existed in Indonesia after his departure.The United States Department of State's 2010 Human Rights Report for Indonesia (“2010 Human Rights Report”) indicated that the Indonesian government officially promoted racial and ethnic tolerance; yet, a number of laws, regulations, and decrees still had discriminatory effects on ethnic Chinese citizens.The United States Department of State's 2010 Religious Freedom Report for Indonesia (“2010 Religious Freedom Report”) described the religious, legal, and political framework of the country and documented several of the religious abuses which occurred between 2008 and 2010.Various internet articles detailed religious attacks on Christians and the continued discrimination against ethnic Chinese throughout Indonesia.

At the time of Halim's removal proceedings, his father and four of his five siblings still lived in Medan.His four siblings owned their own businesses in Indonesia.

The IJ denied Halim's requests and ordered his deportation.First, the IJ determined that Halim's asylum application was untimely because he filed it more than one year after his arrival in the United States.Next, the IJ determined that Halim did not qualify for withholding of removal, finding that the evidence did not demonstrate that Halim had personally suffered past persecution or that he would face a clear probability of future persecution if he returned to Indonesia.The IJ also found that the evidence did not support Halim's claim that a pattern or practice of persecutionagainst Chinese Christians as a group existed in Indonesia.Finally, the IJ determined that Halim did not qualify for protection under the CAT.

On appeal to the BIA, Halim challenged the IJ's denial of withholding of removal and protection under the CAT.Halim did not contest the IJ's finding that his application for asylum was untimely.The BIA agreed with the IJ that Halim failed to meet his burden of showing past persecution or a clear probability of future persecution in order to qualify for withholding of removal.The BIA also concluded that Halim failed to establish that he faced a clear probability of torture, a requirement for CAT protection.The BIA upheld the IJ's order and dismissed the appeal.

II.DISCUSSION

On appeal, Halim now argues only that he is entitled to withholding of removal.He does not contest the BIA's denial of his application for asylum or protections under the CAT in his brief and he has waived his right to review of these issues.Asere v. Gonzales,439 F.3d 378, 381(7th Cir.2006).Halim focuses his appeal on the legal standards required for withholding of removal that this Circuit discussed in Salim v. Holder,728 F.3d 718(7th Cir.2013).Halim contends that he has a well-founded fear of future persecution based on the “pattern and practice” of persecution in Indonesia against groups of similarly-situated ethnic Chinese and/or Christians.As an alternative, Halim contends that he met his burden of proof and showed that he faces an individualized risk of persecution if he is forced to return to Indonesia.Halim does not argue that he experienced past persecution, which under 8 C.F.R. § 208.16(b)(1)(i) would entitle him to a presumption that he would face future persecution upon his return to Indonesia.

When the BIA adopts and affirms the IJ's decision and adds its own analysis, as it did here, we review both decisions.SeeBathula v. Holder,723 F.3d 889, 897(7th Cir.2013);Familia Rosario v. Holder,655 F.3d 739, 743(7th Cir.2011).We apply the principles of Chevron deference to the BIA's interpretation of the immigration laws.Scialabba v. Cuellar de Osorio,No. 12–930, ––– U.S. ––––, 134 S.Ct. 2191, 189 L.Ed.2d 98, 2014 WL 2560467(U.S.June 9, 2014), Slip. Op. 13(plurality opinion);seeChevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 842–844, 104 S.Ct. 2778, 81 L.Ed.2d 694(1984).Thus, we apply a statute's plain meaning if the statute is clear, or we defer to the BIA's reasonable interpretation if the statute is unclear.Id.When the issue requires a review of the BIA's factual findings, as is the case here, we review the BIA's decision for substantial evidence.SeeBathula,723 F.3d at 897–98;Vahora v. Holder,626 F.3d 907, 912(7th Cir.2010).We will affirm the BIA's determination to deny eligibility for withholding of removal if its determination “is supported by reasonable, substantial, and probative evidence on the record considered as a whole.”INS v. Elias–Zacarias,502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38(1992);Vahora,626 F.3d at 912.We reverse only if the record “is so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”Elias–Zacarias,502 U.S. at 483–84, 112 S.Ct. 812.

To be eligible for withholding of removal, an applicant must prove a past or future “threat to life or freedom.”8 C.F.R. § 208.16(b)(1)-(2);Yi Xian Chen v. Holder,705 F.3d 624, 628(7th Cir.2013).A threat to life or freedom is synonymous with persecution, which this Circuit defines as “detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscationof property, surveillance, beatings, torture, behavior...