Kusnanto v. Sessions

• Decision Date: 30 April 2018
• Docket Number: No. 11-73445,11-73445
• Parties: SERIJANTI KUSNANTO, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

SERIJANTI KUSNANTO, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent.

No. 11-73445

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: March 13, 2018

April 30, 2018

NOT FOR PUBLICATION

Agency No. A088-127-717

MEMORANDUM^*

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted March 13, 2018 San Francisco, California

Before: WALLACE, BERZON, and CALLAHAN, Circuit Judges.

Petitioner, Serijanti Kusnanto ("Kusnanto"), a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeal's ("BIA")'s order dismissing her appeal from an Immigration Judge's ("IJ")'s denial of asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We review adverse credibility determinations and the denial of asylum,withholding of removal, and protection under the CAT for substantial evidence. Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir. 2010) (adverse credibility determination); Baghdasaryan v. Holder, 592 F.3d 1018, 1022 (9th Cir. 2010) (asylum and withholding of removal); Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008) (Convention Against Torture). We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition for review.

1. Under the REAL ID Act, which applies to Kusnanto's application, "there is no presumption that an applicant for relief is credible." Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). The IJ's credibility determination is based on the "totality of the circumstances, and all relevant factors," including the applicant's "candor, or responsiveness," the "consistency between the applicant's . . . written and oral statements," and "the consistency of such statements with other evidence of record." 8 U.S.C. § 1158(b)(1)(B)(iii). "[A]ny inaccuracies, omissions of detail, or inconsistencies found by the IJ, regardless of whether they go to the 'heart' of a petitioner's claim, may support an adverse credibility finding." Tamang v. Holder, 598 F.3d 1083, 1093 (9th Cir. 2010).

Substantial evidence supports the IJ's adverse credibility determination based on two omissions from Kusnanto's original asylum application that were added later via amendment. The IJ concluded that Kusnanto failed to mention the two incidents that occurred in 2006 to the asylum officer, and that such anomission was suspicious, especially considering the two incidents are "the strongest evidence in support of an otherwise weak asylum claim." These two incidents tell a more compelling story of persecution than the events discussed in Kusnanto's original asylum application. Omissions that tell a "much different and more compelling story of persecution than [the] initial application" can properly form the basis for an adverse credibility finding. Silva-Pereira v. Lynch, 827 F.3d 1176, 1185-86 (9th Cir. 2016). Because the evidence does not compel a contrary conclusion, we decline to reverse the IJ's credibility determination. Zi Lin Chen v. Ashcroft, 362 F.3d 611, 617 (9th Cir. 2004) (holding adverse credibility determinations are reversed only if the evidence compels a contrary conclusion).

2. Even if Kusnanto were credible, substantial evidence supports the agency's determination that she failed to establish eligibility for asylum. An applicant bears the burden of establishing that she is eligible for asylum. 8 U.S.C. § 1158(b)(1)(B); 8 C.F.R. § 208.13(a). See also Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011). To qualify for asylum, an applicant must show that she is a refugee—one who is unable or unwilling to return to her home country because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). Persecution is "an extreme concept that does not include every sort of treatment our society regards asoffensive." Nagoulko v. INS, 333 F3d. 1012, 1016 (9th Cir. 2003).

Kusnanto failed to establish that she was the victim of past persecution. Kusnanto alleged a series of incidents in 1999 or before where she was harassed and pushed, and a single incident in 1999 involving a hit and run where she alleged she was almost killed. She then alleged, via amendment, two incidents that occurred seven years later in 2006, (1) where she was robbed at knifepoint by four Muslim men, and (2) where she was threatened by her neighbors because of her daughter's immigration to the United States. These incidents, though reprehensible, do not rise to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (holding that harassment, threats, and one beating unconnected with any particular threat did not compel a finding of past persecution). Kusnanto has failed to present substantial evidence that these incidents compel a finding of past persecution. See Fisher v. INS, 79 F.3d 955, 961-62 (9th Cir. 1996) (en banc) (persecution generally does not include mere discrimination, as offensive as it may be).

In the absence of past persecution, an applicant still may be eligible for asylum based on a well-founded fear of future persecution, 8 C.F.R. § 1208.13(b), which is subjectively genuine and objectively reasonable. See Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013). Kusnanto failed to establish that she has a well-founded fear of persecution if she were returned to Indonesia. Kusnanto focusesher argument on the IJ's disfavored group analysis. It is uncontested that ethnic Chinese and Christians in Indonesia are disfavored groups. Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004); see also Tampubolon v. Holder, 610 F.3d 1056, 1060-62. However, mere membership in a disfavored group does not demonstrate a well-founded fear of persecution. In determining whether an applicant has established a well-founded fear of persecution based on membership in a disfavored group, "this court will look to (1) the risk level of membership in the group ... and (2) the alien's individual risk level...." Mgoian v. INS, 184 F.3d 1029, 1035 n.4 (9th Cir. 1999). These two factors work in tandem—the more serious and widespread the threat to the group, the less individualized the threat of persecution needs to be. Sael, 386 F.3d at 925. Because the evidence of record indicates that ethnic Chinese Christians are not a severely disfavored group, Kusnanto must show some individualized threat of persecution. Halim v. Holder, 590 F.3d 971, 978 (9th Cir. 2009).

Kusnanto failed to present sufficient evidence of an individualized threat. The incidents that occurred in 1999, including the hit and run, as well as the robbery in 2006, are not enough to establish a fear of future persecution without additional evidence connecting them to Kusnanto's ethnicity and/or religion.¹Additionally, as noted previously, these incidents rise only to the level of harassment and discrimination. The threats by Kusnanto's neighbors in 2006, similarly fail to establish a fear of future persecution because, as the IJ noted, "no one has followed through on the threat or harmed anyone in the respondent's family relating to her daughter's request for asylum." Thus, substantial evidence supports the determination that the relative low individualized risk presented by Kusnanto, in combination with the general risk level of ethnic Chinese Christians as a group, was insufficient to establish a well-founded fear of persecution.

Finally, Kusnanto fails to establish that the persecution she suffered was committed by the government or by forces the government was either unable or unwilling to control. See Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000). Kusnanto offered three instances when the police were allegedly unwilling to control the alleged persecution—when she was robbed in 2006, when her daughter was sexually assaulted in 2004, and when she was hit by the motorcycles in 1999. However, the alleged robbery in 2006 is the only time when Kusnanto was directly asked for money in return for police services. The 2004 incident involved the police allegedly asking her daughter for money and in the 1999 hit and run incident, the record indicates that the police were notified but no prosecutionresulted—not because the police asked for money, but rather because there were no direct eyewitnesses. The record indicates that the other incidents simply were not reported to the police. These two incidents where the police requested payment are not sufficient to establish acquiescence on the part of the government.

3. To qualify for withholding of removal, an applicant must demonstrate a clear probability of future persecution on account of one of the statutorily enumerated grounds. Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014). An applicant who fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the more stringent standard for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Because substantial evidence supports the IJ's denial of Kusnanto's asylum application, it necessarily follows that she has not carried her burden to establish eligibility for withholding of removal.

4. To receive CAT protection, Kusnanto must prove that it is "more likely than not" that she would be tortured if removed to Indonesia. 8 C.F.R. § 1208.16(c)(2). There is no evidence in the record that Kusnanto will be subject to torture if she were returned to Indonesia. Additionally the country conditions evidence does not demonstrate that it would be more likely than not that Kusnanto would be tortured if she were removed to Indonesia. For that reason substantial evidence supports the finding that Kusnanto failed to show that it is more likelythan not that she will be tortured if returned to Indonesia.

PETITION DENIED.

Berzon, J., dissenting:

I would grant the petition for several, independently adequate reasons.

First, as to the adverse...