Halim v. Holder

• Decision Date: 30 December 2009
• Docket Number: No. 04-74868.,04-74868.
• Citation: 590 F.3d 971
• Parties: Maikal Ali Iskandar HALIM, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

590 F.3d 971

Maikal Ali Iskandar HALIM, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 04-74868.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 14, 2009.

Filed December 30, 2009.

Sharon A. Healey, Law Office of Sharon A. Healey, Seattle, WA, for the petitioner.

Tony West, Assistant Attorney General, Janice K. Redfern, Thankful T. Vanderstar and Anna E. Nelson (argued) of Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A075-745-174.

Before: RICHARD D. CUDAHY,^* Senior Circuit Judge, JOHNNIE B. RAWLINSON and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge CALLAHAN; Concurrence by Judge CUDAHY.

CONSUELO CALLAHAN, Judge:

Maikal Ali Iskandar Halim ("Halim") seeks review of the denial of his claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") based on his fear of being persecuted due to his Chinese ethnicity should he return to Indonesia. We affirm the denial of relief because we conclude that Halim has not made a compelling showing that (1) the reported incidents of discrimination amount to persecution, (2) the incidents provide an objective basis for a well-founded fear of future persecution, or (3) he is a member of a disfavored group who has been individually targeted.

I

Halim alleges that he was born in 1975 in Indonesia. He is ethnically Chinese and was baptized in the Catholic Church. In support of his assertion that he has experienced harassment throughout his life in Indonesia because he is ethnically Chinese, he related the following incidents.

In 1988, his father enrolled him in a junior high in which he was one of only two non-Muslims. One day when it was raining heavily, some of the students stripped him naked and ordered him to run around the volleyball court. Although he begged for help, the students laughed at him and mocked him because of his race. After about five or ten minutes his clothing was returned to him. Halim claims that this incident was so humiliating that he never told anyone about it, not even his parents.

In 1991, he was enrolled in a Catholic high school which required that its students wear a distinctive uniform. Halim alleges that when he used public transportation wearing his school uniform, he was mistreated by students because of his religion and his race. One afternoon in 1992, when Halim and a friend were waiting for public transportation, a bus crowded with students passed by and one of the students spat in his face. A number of students then got off the bus and came toward Halim and his friend with the intent of beating them up. Halim and his friend ran back to the school where the principal tried to calm the pursuing students. Halim claims that there was a policeman standing not very far away who saw what happened but did not try to stop the students from attempting to beat up Halim.

Halim's mother claims that when Halim was 20 years old he had bad diarrhea and she took him to a government-owned clinic. She alleged that the clinic refused to treat him because he was Chinese and told her "you are Chinese and should have lots of money. Why don't you take your son to a private clinic or hospital?"

Halim represents that sometime in 1995 or 1996, when he was riding in a car in a park around midnight with a friend who is also ethnic Chinese, he was stopped by a team of police checking for drugs. They were forced to get out, were arrested, and placed in a police truck, which Halim claims contained other ethnic Chinese who had been arrested, but no Muslim Indonesians. At the police station, Halim was told that they had found drugs in the car, but no charges were ever filed. Halim was released after three days when his father came to the station and paid a bribe.

In 1998, riots broke out in Indonesia. Halim described what happened to him as follows:

I was attending university, on May 12, 1998, the university decided to stop all the activities on campus and let everyone went [sic] home. But, the natives started blocking the streets. I was on my motorcycle when the native mobs forced me to take off my helmet. As soon as they saw my face and knew that I was Chinese, they started beating me up. I was rescued when the army came to disperse the mobs. I was able to just make it home even with my horrible physical condition and damaged motorcycle. Because it was so dangerous for Chinese to be seen on the street, I did not see a doctor.

Halim's father died in September 1998 of a heart attack and in 1999 his mother and brother came to the United States. Halim continued to work and attend university. In May 2000, another riot broke out in Indonesia against the Chinese. Although he was not personally attacked, the riot convinced Halim that Indonesia was not a safe place. Around August 2000, Halim came to the United States.

II

In January 2001, Halim applied for asylum, withholding of removal and protection under CAT. An asylum officer issued an order finding that Halim had not established eligibility for asylum and referred the matter to an immigration judge ("IJ"). Removal proceedings were commenced, and following a hearing, the IJ issued an oral decision finding Halim removable. The IJ denied him asylum, withholding of removal, and relief under the CAT.

The IJ noted that Halim had "testified to a general pattern of acts of harassment taken against him" because of his Chinese ethnicity, but commented that there were only "two significant events that require discussion." These were the 1988 incident in junior high school when Halim was stripped naked and the May 1998 incident when he was beaten by a mob of rioters. The IJ noted that after the 1998 incident, Halim went back to the university and worked to earn money until he was able to obtain a visa to come to the United States in August 2000. The IJ stated that he did not condone these acts of harassment and physical assault, but implicitly held that such acts did not amount to persecution.¹

The IJ noted, but discounted, Halim's claim that "he was greatly traumatized by the pattern of harassment and discrimination that he sustained in Indonesia." The IJ found that the testimony had been embellished and was not credible.² He noted that despite Halim's claim of trauma, he had been able to continue to study in Indonesia and had been working in the United States since 2001 with computers and graphic designs. The IJ opined that this was "a demanding field" and "would certainly be inconsistent with the generalized claim that the trauma he sustained from growing up in Indonesia has had such a devastating impact on him." In addition, the IJ noted that Halim has a sibling who has remained in Indonesia, attends church, has a "significant job." There was no indication of any particular incidents against the sibling. Finally, the IJ observed that Halim claimed that he was not involved in political activity and had no problems obtaining a passport and leaving the country.

The IJ denied Halim relief, but granted him the privilege of voluntary departure. Halim appealed to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's decision without an opinion. Halim then filed a timely petition for review of the BIA's order by this court.³

III

Where, as here, the BIA affirms an IJ's decision without an opinion, we review the IJ's decision as if it were the BIA's decision. De Mercado v. Mukasey, 566 F.3d 810, 814 n. 1 (9th Cir.2009) (citing Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003)); see also Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081 (9th Cir.2008) (noting that "where the BIA summarily affirms the holding of the IJ without opinion, we review the IJ's decision as the final agency determination"). Legal determinations are reviewed de novo. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126-27 (9th Cir.2007). The substantial evidence standard governs adverse credibility findings and all other factual findings. See Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). "Under the substantial evidence standard, `administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Zehatye, 453 F.3d at 1185 (quoting 8 U.S.C. § 1252(b)(4)(B)). "[W]e must uphold the IJ's determination if it is supported by reasonable, substantial, and probative evidence in the record." Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

IV

On appeal, Halim essentially raises three issues: (1) whether the IJ's conclusion that Halim's reported incidents of harassment do not constitute persecution is supported by substantial evidence; (2) whether the IJ's conclusion that Halim does not have a well-founded fear of future persecution is supported by substantial evidence; and (3) whether Halim is entitled to relief or a remand on the basis of his disfavored group claim.

A. Halim's evidence, even if credited, does not compel a finding of past persecution.

An applicant bears the burden of establishing that he or she is eligible for asylum. 8 C.F.R. § 208.13(a); see also Zhu v. Mukasey, 537 F.3d 1034, 1038 (9th Cir.2008). Although the term "persecution" is not defined by the Immigration and Nationality Act, "[o]ur caselaw characterizes persecution as an extreme concept, marked by the infliction of suffering or harm ... in a way regarded as offensive." Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc) (citation and internal quotation marks omitted). In Wakkary v. Holder, 558 F.3d 1049 (9th Cir.2009), we noted that "[p]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive ... mere discrimination, by itself, is not the same as persecution." Id. at 1059 (citations and internal quotation marks omitted).

Here, even taking Halim at his word, he has...