Imelda v. U.S. Attorney Gen.

• Decision Date: 12 July 2010
• Docket Number: No. 09-11920.,09-11920.
• Citation: 611 F.3d 724
• Parties: Visca IMELDA, Petitioner,v.U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

611 F.3d 724

Visca IMELDA, Petitioner,v.U.S. ATTORNEY GENERAL, Respondent.

No. 09-11920.

United States Court of Appeals, Eleventh Circuit.

July 12, 2010.

Armin A. Skalmowski, Alhambra, CA, for Petitioner.

Yanal Harbi Yousef, Ernesto H. Molina, Jr., Andrew N. O'Malley, Dept. of Justice, Office of Immigration Lit, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before TJOFLAT, WILSON and EBEL,^* Circuit Judges:

WILSON, Circuit Judge:

Visca Imelda, an ethnic Chinese Christian and native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals's (“BIA”) order affirming the immigration judge's (“IJ”) decision denying her application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). After review of the parties' briefs and the record, and with the benefit of oral argument, we grant the petition for review, vacate the BIA's decision, and remand.

I. BACKGROUND

In August 2000, Imelda was admitted to the United States as a non-immigrant B2 visitor with authorization to remain until February 2001. In 2003, Imelda signed an asylum application, seeking asylum or withholding of removal on account of race and religion, and also seeking CAT relief. In December 2005, the Department of Homeland Security issued Imelda a notice to appear, charging her with removability pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the United States for a time longer than permitted. On June 8, 2006, Imelda conceded removability.

At an October 31, 2007 merits hearing before the IJ, Imelda provided evidence to support her claims for asylum, withholding of removal, and CAT relief. Imelda, a Protestant Chinese Indonesian from the Minahasa District of North Sulawesi, Indonesia, testified about three different incidents of persecution. First, in 1988, Imelda and her friend, Maria, were singing Christian worship songs when they were attacked by native Indonesians. The natives threw bottles at Maria and mocked the girls' Chinese ethnicity. As the natives pushed the girls, Imelda's teacher, also a Chinese Indonesian, attempted to help them and was stabbed in the shoulder. Another native asked Imelda, “Hey, Chinese, do you want to be raped[?]” A.R. 88. Police officers arrived and asked the natives to leave, but blamed Imelda for the incident and told the teachers to refrain from singing Christian songs in public. Id.

The second incident occurred in December 1995, when Imelda attended a church Christmas party. The house where the party was held was ransacked by a group of Muslim men calling themselves the “Jihad youth.” They accused Imelda and her friends of holding secret meetings and planning to build a church, and they prevented them from leaving the home. Imelda was taken to a separate room where she was stripped down to her underwear, tied up, and left for several hours. The individuals then brought two of Imelda's friends into the room, undressed them, and proceeded to touch the girls inappropriately. Before departing, the group's leader warned the Christians that Muslims would take over the Minahasa District and that “you Christian dogs ... all will die.” Id. at 91.

The third incident occurred in 1999. Imelda and her husband opened a grocery store, in which they held church services every Monday night. A police officer told Imelda that they could not hold such illegal services, and asked for a bribe to “safeguard” the store. Despite giving the officer money, the store was robbed in August 1999. An individual at an Islamic school called Imelda several times, and informed her that the robbery had occurred in response to the church services and that Imelda and her husband were breaking Muslim law. Subsequently, another Muslim offered to purchase the store. Imelda testified that she had to sell the store because her vendors refused to supply her with merchandise. Upon hearing Imelda's opening price, the man asked her if she wanted the store to be burned and destroyed. Ultimately, Imelda sold the store for much lower than her opening price.

Finally, Imelda testified that while the situation in Indonesia seemed to be getting better from the outside, attacks on Christians and other acts of violence still occurred. In addition to Imelda's testimony were several documentary exhibits. One exhibit, presented by the government, was the 2006 United States Department of State's Country Report for Indonesia (“2006 Country Report” or “Report”). See U.S. Dep't of State, Indonesia, 2006 Country Reports on Human Rights Practices (Mar. 6, 2007) available at http:// www. state. gov/ g/ drl/ rls/ hrrpt/ 2006/ 78774. htm. The other exhibits pre-dated the Country Report, ranging from 2001 to 2005. Imelda provided a 2002 letter from her parents stating that the current safety situation in Imelda's home province was getting worse after the arrival of terrorists, that a bomb was found in a church, that her parents' church had received bomb threats, and that a pastor from Imelda's home town had disappeared. Imelda also submitted newspaper articles reporting the 2005 attacks in Bali by Muslim suicide bombers. Other articles recounted the forceful closing of a number of churches by Muslim groups. Finally, articles from 2001 and 2002 reported that on the islands of Maluku and Sulawesi in eastern Indonesia, there was ongoing fighting between Christians and Muslims, exacerbated in 2000 by the arrival of Laskar Jihad, a radical Islamic militia.

After the hearing, the IJ denied Imelda's claims for asylum, withholding of removal, and CAT relief. Because Imelda did not raise her claims for asylum and CAT relief in her appellate brief, those issues are deemed abandoned, and we review only her withholding of removal claim.¹ See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005) (per curiam). As to the withholding of removal claim, the IJ found that Imelda had established neither past persecution nor that it would be more likely than not that she would suffer a future threat to her life or freedom on account of her religion or race. The IJ found that the events of which Imelda complained did not “rise to the level of persecution.”² A.R. 30.

The BIA's decision assumed past persecution and stated that even if Imelda “had established past persecution, ... [it] would find that the presumption of future persecution is rebutted” because of a “fundamental change in circumstances.” Id. at 3. On appeal, Imelda challenges the BIA's determination that there has been a fundamental change in country conditions sufficient to rebut her presumption that her life or freedom would be threatened upon return to Indonesia based on her religion and race. Imelda argues that the BIA erred in relying on the Country Report alone in making its determination, that it did not make an individualized finding in relation to Imelda's situation, and that the changed conditions described in the Country Report are not fundamental because persecution still exists for Christians and ethnic Chinese in Indonesia.

II. STANDARD OF REVIEW

We review only the BIA's decision because it did not expressly adopt the IJ's opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). We review a factual determination that an alien is statutorily ineligible for withholding of removal under the substantial evidence test, which requires affirmance if the BIA's decision “is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. at 1283-84 (internal quotations and citations omitted). The fact that evidence in the record may support a conclusion contrary to the administrative findings is not enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004) (en banc) (citation omitted). Under the substantial evidence standard, “we must find that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att'y Gen., 327 F.3d 1283, 1287 (11th Cir.2003) (citation omitted).

III. DISCUSSION

To seek withholding of removal, an alien must demonstrate that her “life or freedom would be threatened in that 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). An alien bears the burden of showing that she “more-likely-than-not would be persecuted or tortured upon [her] return to the country in question.” Mendoza, 327 F.3d at 1287.

If the alien demonstrates past persecution, there is a presumption that her “life or freedom would be threatened upon return to [her] country.” Id.; 8 C.F.R. § 208.16(b)(1)(i). However, this presumption can be rebutted if the government shows, by a preponderance of the evidence, that (1) “[t]here has been a fundamental change in circumstances such that the applicant's life or freedom would not be threatened on account of [race, religion, nationality, membership in a particular social group, or political opinion] upon the applicant's removal to that country;” or (2) “[t]he applicant could avoid a future threat to ... her life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.16(b)(1)(i)(ii).³

A. Standard Applied by the BIA

As an initial matter, it is unclear from the BIA's opinion whether it relied on the standard for asylum, rather than the more stringent standard for withholding of removal, in determining what presumption was at issue. The appropriate standard for withholding of removal is whether there are fundamental changes such that the applicant's “life or freedom would not be threatened.” 8 C.F.R. § 208.16(b)(1)(i)(A). At first, the BIA's opinion states that Imelda “no longer has a well-founded fear of...