Kho v. Keisler

• Decision Date: 16 October 2007
• Docket Number: No. 06-2306.,06-2306.
• Parties: Wan Chien KHO, Petitioner, v. Peter D. KEISLER, Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

505 F.3d 50

Wan Chien KHO, Petitioner, v. Peter D. KEISLER, Acting Attorney General of the United States, Respondent.

No. 06-2306.

United States Court of Appeals, First Circuit.

Submitted September 6, 2007.

Decided October 16, 2007.

William A. Hahn, on brief, for petitioner.

Jason Xavier Hamilton, Attorney, Office of Immigration Litigation, Peter D. Keisler, Acting Attorney General, and James A. Hunolt, Senior Litigation Counsel, Office of Immigration Litigation, on brief, for respondent.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and SCHWARZER,^* District Judge.

LYNCH, Circuit Judge.

Wan Chien Kho petitions for review from the denial of his application for withholding of removal. His claims were based on his experience as an ethnic Chinese Christian in Indonesia, including his testimony about four incidents of discrimination and harassment.

The Board of Immigration Appeals ("BIA") held that the incidents Kho described did not rise to the level of persecution and that Kho had not shown that the incidents were due to government action, government-supported action, or the government's unwillingness or inability to control private conduct. The BIA held he had not met his burden to establish past persecution or a clear probability of future persecution on account of his race or religious faith.

On petition for review, Kho makes two categories of arguments. The BIA, he argues, erred as a matter of law when, having found Kho did not establish a "pattern or practice" of persecution against Chinese and/or Christians in Indonesia, 8 C.F.R. § 208.16(b)(2)(i), it did not apply a "disfavored group" analysis as crafted by panels in the Ninth Circuit. He supplements this with an argument that since the Immigration Judge ("IJ") made no credibility findings, this court must deem him to be credible. The argument appears to be that if both of these rules are applied, a court would be compelled to find Kho was entitled to withholding of removal. We reject as contrary to law both the "disfavored group" doctrine and the presumed credibility doctrine on petition for review.

Kho then makes more conventional arguments: that the BIA did not properly assess the country condition reports and that substantial evidence did not support the BIA's conclusions.

We reject his arguments and deny the petition for review.

I.

We recite only so much as is necessary of Kho's evidence and the reasons the BIA rejected his claim. Kho, who was born in Indonesia in 1943, entered the United States on a tourist visa on April 28, 2001. In April of 2003, Kho applied for asylum and for withholding of removal. He later added a claim for relief under the Convention Against Torture ("CAT").¹

An IJ heard Kho's testimony on April 19, 2005. Kho testified to having experienced anti-Chinese and anti-Christian discrimination in Indonesia. School officials unsuccessfully tried to block his registration to public elementary school; he eventually obtained a high school education. In 1992, shortly after converting to Christianity, Kho was heckled by fellow riders on a public bus for carrying a Bible. In 1996, a group of men that Kho identified as Muslim robbed him on a side street in Jakarta; Kho believes they targeted him because of his ethnicity.

In May 1998, violent anti-Chinese rioting took place in Jakarta. A mob targeted a largely Chinese-owned shopping center where Kho operated an electronics store. Rioters broke shop windows and looted goods from Kho's store; one looter hit Kho in the face. While fleeing the scene, Kho fell and hurt his hip. A local clinic gave him antibiotics and a painkiller, then released him within ten minutes. That 1998 episode was the last time Kho personally experienced threats or violence due to anti-Chinese or anti-Christian sentiments in Indonesia.

During the 1998 riots, a church Kho attended was destroyed when rioters set fire to it. In 1999, a second church Kho attended was burned down during a violent confrontation between local Muslim residents and a group of Ambonese men guarding an amusement center located next to the church.

The IJ denied Kho's application in an oral decision delivered on April 25, 2005. After dismissing Kho's asylum claim as time-barred, the IJ addressed the withholding claim. The IJ found that Kho had not shown it was more likely than not or clearly probable that Kho "would be subjected to persecution on account of either his Christian faith or his Chinese ethnicity" upon his return to Indonesia. The IJ pointed out that Kho lived in Indonesia from 1998 to 2001 without incident, and that he did not mention anything about fears for his safety to the United States consul when applying for his visa.

The BIA affirmed the IJ's decision by per curiam order on August 10, 2006. The BIA adopted the IJ's factual findings, adding that consideration of the second church burning, which the IJ did not mention, would not change the outcome of Kho's case.

The BIA held that Kho did not suffer past persecution because Kho's experiences of harassment did not rise to the level of persecution, and that Kho had not established a connection between his maltreatment and action or inaction by the Indonesian government.

In addition, the BIA held that Kho had not shown a "pattern or practice of government sponsored persecution of male Chinese Christians in Indonesia." The BIA noted that the U.S. State Department country reports cited by Kho described a trend of increasing tolerance of ethnic Chinese Indonesians in recent years. Those same reports, the Board acknowledged, referred to "sectarian violence due to political and economic tensions between Christians and Muslims," but also indicated that such violence occurred in "certain eastern provinces of Indonesia" removed from the central portion of the archipelago where Jakarta — Kho's residence — is located. As a result, Kho "failed to establish past persecution or a clear probability of future persecution on account of his race or religious faith."

Kho timely petitioned to this court for review of the BIA's decision.²

II.

We review the BIA's decision in addition to those portions of the IJ's decision adopted by the Board. Chahid Hayek v. Gonzales, 445 F.3d 501, 506 (1st Cir.2006). Our review is deferential, as the BIA's determinations "must be upheld if 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) (internal quotation omitted). The agency's 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). We review legal issues de novo, granting appropriate deference to the agency's interpretation of the statutes they are charged with enforcing. Albathani v. INS, 318 F.3d 365, 372 (1st Cir.2003).

An asylum applicant may not be removed to his home country if his "life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). It is the applicant's burden to establish his eligibility for withholding of removal by demonstrating it is "more likely than not" that he would suffer persecution on account of his race or religion upon returning to his home country. 8 C.F.R. § 208.16(b)(2). An applicant for withholding may, however, create a rebuttable presumption that his life or liberty would be threatened upon return to his home country by proving that he suffered past persecution there. 8 C.F.R. § 208.16(b)(1). The statute has not defined persecution, Manzoor v. U.S. Dept. of Justice, 254 F.3d 342, 346 (1st Cir.2001), but the BIA has filled in the regulatory gap.

Proving a future threat to life or freedom generally requires individualized evidence that the applicant will be "singled out" for persecution upon return to his home country. 8 C.F.R. § 208.16(b)(2); Pieterson v. Ashcroft, 364 F.3d 38, 43 (1st Cir.2004); see also Guzman v. INS, 327 F.3d 11, 15-16 (1st Cir.2003). The agency has, by regulation, altered the individualized showing requirement under one set of circumstances. For the relief of withholding of removal, the regulations state that

the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for [future] persecution if:

(i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and

(ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that it is more likely than not that his or her life or freedom would be threatened upon return to that country.

8 C.F.R. § 208.16(b)(2) (emphasis added).³

The BIA supportably found there was no such "pattern or practice" here and thus required Kho to produce evidence he would be singled out individually for persecution. This court has held that in order to establish a pattern or practice, an applicant must present evidence of "systematic persecution" of a group. Meguenine v. INS, 139 F.3d 25, 28 (1st Cir.1998). In addition, an alien in removal proceedings must prove that persecutors target the group specifically on account of one of the five statutory grounds. Pieterson, 364 F.3d at 44. That a group suffers due to violent civil conflict or "general insecurity" in the home country does not suffice to establish a pattern or practice. Meguenine, 139 F.3d at 28; see also Pieterson, 364 F.3d at 44. We have repeatedly affirmed the BIA's determinations, made on the evidence submitted in various cases, that there is no ongoing pattern or practice of persecution against ethnic Chinese or Christians in Indonesia. See, e.g., Sipayung v. Gonzales, 491 F.3d 18, 21...