Mulyani v. Holder
| Decision Date | 14 November 2014 |
| Docket Number | No. 13–1653.,13–1653. |
| Citation | 771 F.3d 190 |
| Parties | Yani MULYANI; Didin Wahidin, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED:H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, Georgia, for Petitioners. Gregory Michael Kelch, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Assistant Attorney General, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.
Petition for review denied by published opinion. Judge THACKER wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.
Yani Mulyani (“Mulyani”) is a native of Indonesia. She petitions this court for review of a Board of Immigration Appeals (“BIA”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 Her petition for review raises three arguments. First, Mulyani asserts that the statutory time bar, 8 U.S.C. § 1158(a)(2)(B), does not preclude her application for asylum. Second, she disputes the BIA's determination that her claims for asylum and withholding of removal cannot proceed because she failed to show that the Indonesian government was unwilling or unable to protect her. Finally, Mulyani challenges the BIA's conclusion that CAT relief is unavailable because she has not shown that, upon removal, she would likely endure torture by or with the approval or acquiescence of the Indonesian government.
We do not reach Mulyani's first argument, as we lack jurisdiction to decide whether she qualifies for an exception to the statutory time bar. We reject her remaining arguments because substantial evidence supports the BIA's determinations. Therefore, Mulyani's petition is denied.
Mulyani grew up a Christian in Indonesia, a majority-Muslim country. Her parents were converts to the Christian faith and had her baptized when she was four years old. For years, the family attended church every Sunday. To this day, Mulyani's parents and siblings continue to live in Indonesia and remain practicing Christians.
Mulyani's husband and co-petitioner, Didin Wahidin, is a Muslim. He prays at home but does not attend a mosque. Since arriving in the United States, Mulyani has practiced her faith in a similar fashion, worshipping exclusively in the home.
Mulyani and Wahidin came to the United States on vacation in September 2000. Instead of returning to Indonesia when their vacation ended, they chose to remain in the United States indefinitely. Mulyani asserts that she would suffer religious persecution if forced to return to Indonesia, having endured several instances of religiously motivated violence there during her youth. Her application for relief from removal recounts four such incidents.
The first of those incidents occurred in 1991, when Mulyani was 16 years old. A group of about ten students attacked her at a bus stop. The students hit and kicked her, and one struck her with a metal rod. Mulyani suffered a broken left arm. Though she told her parents and her pastor about the beating, she did not report the incident to police, purportedly because she believed the police would not care about her because she was a Christian.
A few years later, when Mulyani was in college, she and a female companion were accosted on their way home from a prayer meeting at a friend's residence. Mulyani was carrying a bible at the time. The assailants, three men she did not know, chased the two young women and called them names like “nasty Christian” and “slutty Christian.” J.A. 140.2 The men grabbed Mulyani and held her hands behind her back. One man put his penis on her and tried to rape her. The assailants fled when someone across the street yelled “oy, oy.” Id. at 142. As before, Mulyani did not report the incident to the police.
Later, in 1998, Mulyani and two other people were walking through downtown Majalengka in search of a lunch spot when they encountered what she described as a large crowd of “radical” Muslims staging an anti-Christian protest. J.A. 152. One protestor pointed at Mulyani and said, “Christian, Christian, burn the Christian.” Id. at 153. Roughly 20 or 30 protestors attacked Mulyani. They hit and kicked her and stuffed a handkerchief in her mouth. One man snatched a hot skewer from a street vendor and pressed it to her stomach. A police siren prompted the assailants to release her and flee the scene. Once again, Mulyani did not report the incident to the police.
The final incident occurred shortly after the protest. According to Mulyani, a group of between four and eight “radical” Muslims gathered outside her parents' house at night. J.A. 156, 294. They banged on the door and windows and threatened to burn the house down if the occupants did not come out. Someone threw a Molotov cocktail through one of the windows, but the bomb did not explode. Mulyani says she believes the group targeted the house because her family is Christian.
Mulyani remained in Indonesia for approximately two years after the last of these incidents. In January 2000, she and Wahidin married. The couple traveled to the United States on September 3, 2000, to vacation in Los Angeles and Las Vegas. Mulyani had a tourist visa and was authorized to remain in the United States until March 2, 2001. After about two weeks of sightseeing, the couple headed east to visit a friend in Wisconsin. While there, Mulyani says, J.A. 162. For this reason, she says, she and her husband decided to stay in America.
In 2001, the couple responded to a magazine advertisement for an agency called the Chinese Indonesian American Society (“CIAS”), which was offering to help people obtain a green card or work permit. Hoping to acquire work permits, they agreed to send CIAS money and copies of certain personal records. “[T]hey sent us back blank pages telling us where to sign these papers,” Mulyani later recalled. “We did and sent them back, and then we received our working permits.” J.A. 295. Although she says she did not know what she was signing, one of the documents was, in fact, an application for asylum and withholding of removal. CIAS filed the application on Mulyani's behalf in June 2002.3
Mulyani says she did not then know what asylum was. She says she did not learn about this form of protection—nor that CIAS had already sought it for her—until late 2004 or early 2005, when she hired an attorney to renew her work permit. It was during the course of these discussions with the attorney, she says, that she realized she might qualify for asylum and decided she wanted to pursue it. She failed to take action, though, and in September 2008 the Department of Homeland Security initiated removal proceedings against Mulyani and Wahidin.
Both Mulyani and her husband conceded removability under section 237(a)(1)(B) of the Immigration and Nationality Act (“INA”), which provides that any alien unlawfully present in the United States is deportable. See8 U.S.C. § 1227(a)(1)(B). Mulyani sought relief in the form of asylum, withholding of removal, and withholding pursuant to the CAT. In support of her claims, she submitted a number of country reports and online articles indicating that the Indonesian government was indifferent, if not hostile, to the rights of Christians. The documents included a 2008 Department of State report observing that the Indonesian government sometimes “tolerated discrimination against and the abuse of religious groups by private actors and often failed to punish perpetrators.” J.A. 506. This same report, however, also says that the Indonesian government operates programs to replace damaged churches and ease religious tension, and that the government has successfully tried and convicted numerous terrorists believed to have committed acts of interreligious violence.
Following a hearing, an immigration judge (“IJ”) denied all requested relief. The IJ first determined that Mulyani's application for asylum was untimely under 8 U.S.C. § 1158(a)(2)(B) and therefore barred. With regard to the application for withholding of removal, the IJ found that the harm Mulyani experienced during her youth in Indonesia rose to the level of persecution. The IJ also acknowledged that the evidence permits a “reasonable inference” that this harm was on account of her Christian faith. J.A. 61. Nevertheless, the IJ denied the request for withholding of removal because Mulyani had not established that the Indonesian government was unable or unwilling to control her persecutors. The IJ also denied relief under the CAT, finding that Mulyani had failed to demonstrate that, if returned to Indonesia, she would likely “be tortured by, or at the instigation of, or with the consent or acquiescence of, a public official.” Id. at 65.
On appeal, the BIA took no position as to whether Mulyani's application for asylum was time-barred, but it concluded that her claims for asylum and withholding of removal fail regardless because she had not established that the Indonesian government was unwilling or unable to protect her. The agency also accepted the IJ's determination that Mulyani did not merit CAT relief because she “has not shown that it is more likely than not that she would be tortured by or with the approval or acquiescence of the government of Indonesia.” J.A. 4. Accordingly, the BIA dismissed the appeal.
Mulyani first challenges the IJ's determination that her asylum application was untimely and therefore statutorily barred.
To apply for asylum, an alien must demonstrate “by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's...
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