Ingmantoro v. Mukasey

• Citation: 550 F.3d 646
• Decision Date: 18 December 2008
• Docket Number: No. 07-2730.,07-2730.
• Parties: Fransisca INGMANTORO, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

550 F.3d 646

Fransisca INGMANTORO, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-2730.

United States Court of Appeals, Seventh Circuit.

Argued September 10, 2008.

Decided December 18, 2008.

Oleh R. Tustaniwsky (argued), Hualian Law Offices, New York, NY, for Petitioner.

Blair T. O'Connor, Joseph Hardy (argued), Department of Justice, Washington, DC, for Respondent.

Before COFFEY, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Fransisca Ingmantoro, a citizen of Indonesia, entered the United States as a temporary visitor and overstayed her visa. She filed an application for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). The immigration judge ("IJ") denied Ms. Ingmantoro's application, finding that she could show neither past persecution based on her status as a Christian of Chinese descent nor a well-founded fear of future persecution. She appealed to the Board of Immigration Appeals ("BIA"), and the BIA affirmed. Ms. Ingmantoro then petitioned this court for review. Because the rulings of the BIA and the IJ are supported by substantial evidence, we deny the petition for review.

I BACKGROUND

Although Ms. Ingmantoro was born in Indonesia, she is of Chinese descent. Ms Ingmantoro is a Christian; while in Indonesia, she attended a Pentecostal church and Catholic schools. Her family lived in a predominantly Chinese area in Probolinggo, but her father owned a store in an ethnically mixed part of the city. At the hearing on the merits of her requests, Ms. Ingmantoro testified that native Indonesian Muslims often visited the store and demanded protection payments. She testified that her father reported these demands to the authorities. In addition, she testified that police visited the store, but did nothing further.

Ms. Ingmantoro also testified that, in 1999, she left Probolinggo to attend college in Surabaya. Because Surabaya was about three hours away by car, she often would return home on the weekends. She became involved in Christian charity work through the college, and, during school vacations, she participated in similar charity work with her family's church in Probolinggo. She further testified that, in response to her work with Christian charities, some ethnic Indonesian Muslims began making threatening calls to her parents and visiting her father's store to ask for her. She testified to her belief that these men objected to her charity work because they thought it involved proselytizing. She stated that, because of the threatening calls and visits, she stayed in Surabaya during the first half of 2003 and did not return home on weekends. When she eventually returned home in August 2003, the men who had been looking for her returned to her father's store. She heard the men shouting her name and fled through the store's back door. After she left, the men burned down the store. Ms. Ingmantoro, her father and store employees all reported the incident to the police. Although the police report stated that Ms. Ingmantoro had been bruised, she testified that she suffered no physical harm in the incident.

Ms. Ingmantoro further testified that, after the store burned down, her family left Probolinggo for Surabaya and then went to Malang, where Ms. Ingmantoro's grandmother lived. After a month in Malang, Ms. Ingmantoro's family moved to Denpaser, on the island of Bali, where they were living at the time of the hearing before the IJ.¹ Ms. Ingmantoro testified that, at the time of the hearing, her parents still were receiving threatening phone calls from anonymous individuals asking if they were Chinese and if they were Christian. Although they were considering moving to other parts of Indonesia, they believed that they would suffer the same types of harassment no matter where they moved. Ms. Ingmantoro testified that, if she returned to any part of Indonesia, the men who had been looking for her might find her and kill her.

Ms. Ingmantoro entered the United States in October 2003 as a nonimmigrant temporary visitor for pleasure. Although her visa expired on April 22, 2004, she remained in the United States. In September 2004, Ms. Ingmantoro applied for asylum and withholding of removal based on her race and her religion. Her application was denied. She then appeared before an IJ, conceded her removability and renewed her application for asylum, withholding of removal and relief under the CAT.

The IJ denied the application. He accepted Ms. Ingmantoro's testimony as true but held that the events she described were not sufficiently severe to constitute past persecution. As the IJ understood the evidence, Ms. Ingmantoro had "little difficulty growing up" and "suffered no real harm at all because of her ethnic Chinese background and her religion." A.R. at 27-28. The IJ found that Ms. Ingmantoro suffered no harm in the incident at her father's store and that the harm suffered by her father was not very great; her father was able to relocate to another city in Indonesia and is considering starting a new business. The IJ also questioned Ms. Ingmantoro's explanation as to why the men were looking for her in the first place and held that she had not demonstrated that she would be harmed if she returned to Indonesia.

In addition, the IJ held that Ms. Ingmantoro had failed to show that the Indonesian government was unwilling or unable to prevent the threats and violence against her. The IJ concluded that, given the general conditions in Indonesia, Ms. Ingmantoro had not demonstrated a well-founded fear of future persecution. Finally, the IJ denied her requests for withholding of removal and CAT relief.

Ms. Ingmantoro appealed to the BIA, which affirmed on all grounds. In addition, the BIA concluded that, even if Ms. Ingmantoro had demonstrated a threat of persecution, she had failed to show that the threat existed in all parts of Indonesia.

II DISCUSSION

Ms. Ingmantoro submits that the BIA erred in denying her application for asylum and that she has met her burden for establishing both a claim for withholding of removal and a claim for CAT relief. We review the IJ's decision, as supplemented by the BIA's opinion. See Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir.2008).² We shall uphold the denial of relief if it 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). In other words, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812; Chatta v. Mukasey, 523 F.3d 748, 752 (7th Cir.2008).

An asylum applicant who proves past persecution is entitled to a rebuttable presumption that she has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); see also Haxhiu v. Mukasey, 519 F.3d 685, 690 (7th Cir.2008). Ms. Ingmantoro first submits that her testimony, which the IJ credited, and the evidence she presented establish past persecution. She contends that she was the real target of the men who burned down her father's store. We have defined persecution as the "`punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.'" Zeqiri v. Mukasey, 529 F.3d 364, 370 (7th Cir.2008) (quoting DeSouza v. INS, 999 F.2d 1156, 1158 (7th Cir.1993)).

The IJ rejected Ms. Ingmantoro's past-persecution claim because she did not suffer any harm in the incident at her father's store and because she could not claim derivative persecution from the harm suffered by her father. At the outset, we have significant reservations as to whether this claim can be characterized as "derivative." In a derivative claim, the petitioner typically is seeking relief because she has shared in the harm leveled at a family member who is the target of persecution.³ By contrast, the men who burned down her father's store did so in the course of looking for Ms. Ingmantoro. Ms. Ingmantoro's evidence goes beyond simply showing that she shared the harm of persecution leveled against a family member. She claims that she was the target. We nevertheless cannot say, on this record, that the harm suffered by Ms. Ingmantoro rose to the level of persecution. We also agree with the IJ that Ms. Ingmantoro presented a very thin case that the men who were looking for her were doing so because of her Christian charity work, much of which was done in a town three hours away by car. Cf. Aid v. Mukasey, 535 F.3d 743, 748 (7th Cir.2008) (holding that applicant had failed to show that his harassers were motivated by his political opinion because he presented no evidence that his attackers were politically motivated). The record does not contain substantial evidence of the requisite causal connection.

Even if Ms. Ingmantoro could overcome those obstacles, she cannot overcome the rule that "[t]he acts of private citizens do not constitute persecution unless the government is complicit in those acts or is unable or unwilling to take steps to prevent them." Chakir v. Gonzales, 466 F.3d 563, 570 (7th Cir.2006). Ms. Ingmantoro presented no evidence connecting her attackers to the government. See Chatta, 523 F.3d at 753 (concluding that the petitioner, a Sunni Muslim, had not demonstrated that the government had perpetrated or condoned the alleged religious persecution, in part because the majority of the country's population was Sunni); Garcia v. Gonzales, 500 F.3d 615, 618 (7th Cir.2007) (denying the petition because the petitioner lacked a well-founded belief that the Colombian government would be unwilling or unable to protect him from future private persecution, when the government had protected him in the past and there was no indication it could not do so in the future). Far from testifying that the men...