Nikijuluw v. Gonzales

• Citation: 427 F.3d 115
• Decision Date: 26 October 2005
• Docket Number: No. 05-1452.,05-1452.
• Parties: Edward Dirk NIKIJULUW, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

427 F.3d 115

Edward Dirk NIKIJULUW, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 05-1452.

United States Court of Appeals, First Circuit.

Submitted September 22, 2005.

Decided October 26, 2005.

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Haian Lin on brief for petitioner.

Peter Keisler, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Robbin K. Blaya, Attorney, United States Department of Justice, on brief for respondent.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and HOWARD, Circuit Judge.

SELYA, Circuit Judge.

In this immigration case, the petitioner, Edward Dirk Nikijuluw, asserts that he is a religious refugee from his native Indonesia. An Immigration Judge (IJ) found that the petitioner's claim of religious persecution lacked substance and ordered him removed. The Board of Immigration Appeals (BIA) upheld the IJ's order. The petitioner now seeks judicial review. After careful consideration, we deny the petition for review.

I. Background

The petitioner is a fifty-two year old citizen of Indonesia who lawfully entered the United States on September 8, 2001 as a non-immigrant visitor for business purposes. By its terms, his B-1 visa permitted him to remain in the United States until October 7, 2001. See generally 22 C.F.R. § 41.31(a) (1998). The petitioner overstayed his visa without securing the appropriate authorization from the Immigration and Naturalization Service (INS).¹ Consequently, the INS charged him with remaining longer than permitted, see 8 U.S.C. § 237(a)(1)(B), and instituted removal proceedings. The petitioner conceded removability but cross-filed for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He claimed in substance that, while in Indonesia, radical Muslims had persecuted him and his family (at a bare minimum, the petitioner and his parents, wife, and children subscribe to the Christian Protestant faith).²

The petitioner pointed to three specific incidents which, in his view, established his claim of religious persecution. First, he expressed his belief that Muslims were behind the disappearance of his eldest daughter, whose whereabouts have been unknown since 2001. Second, he alleged that Muslims set fire to the church to which he belonged in November of 1999. Third, he averred that because he sometimes held religious services in his home, he received at least three anonymous threats and unknown persons stoned the house.

An INS asylum officer interviewed the petitioner as part of an investigation into his application and, finding that his account of what had transpired in Indonesia lacked veracity, referred his case to the immigration court. After an evidentiary hearing, the IJ concluded that the petitioner had failed to carry the burden of proof on any of his asserted claims, in part because the petitioner's testimony regarding past incidents of alleged persecution was not credible. The IJ provided specific and cogent reasons to support this conclusion.

To begin, the IJ found no evidence that the disappearance of the petitioner's daughter had anything whatever to do with her religious affiliation. In fact, the credible evidence indicated that the daughter had become a Muslim and had attempted to persuade her family to accept that religion.

In all events, the petitioner's testimony about this incident was wildly inconsistent. For example, on his asylum application he wrote that his daughter had been seduced by a fanatic Muslim, but during his interview he claimed that she had vanished during a series of riots that included attacks on his church. Later still, he stated that he did not know why or how his daughter had disappeared. There was also an intimation in the record that the petitioner's daughter may simply have run away with her boyfriend after she had begun performing as a night club singer.

As to the second incident, it was clear that fire had consumed the petitioner's church in November of 1999. The IJ noted, however, that the church was in the process of being rebuilt and that the church community continued openly to hold regular worship services.

In the same vein, the IJ cited the Department of State Country Report on Human Rights Practices for 2002 (the Country Conditions Report) as evidence that the petitioner's claims of religious persecution were overblown. The Country Conditions Report explained that the Indonesian constitution "provides for every resident to adhere to their respective religion and to perform their religious duties in accordance with their religion and faith." It also vouchsafed that the Indonesian government generally respected this constitutional provision and officially acknowledged Protestantism as one of several recognized religions. Finally, the Country Conditions Report indicated that, by 2002, incidents targeting churches were "much less frequent than in previous years."

The IJ also considered, and rejected, the petitioner's testimony regarding the anonymous threats and the stoning of his home. He observed that the petitioner had failed to mention these incidents to the asylum officer. While the statement attached to his asylum application recounted threats of stone-throwing, it did not mention that such an event had actually occurred. On the basis of these omissions, the IJ found that the petitioner had failed to establish by credible testimony that the stone-throwing incident had taken place.

Overall, the IJ evaluated the petitioner's assertions as "general, meager and weak" and concluded that the petitioner had not carried his burden of establishing religious persecution. To buttress this conclusion, the IJ noted that the petitioner had lived, worked, and raised a family in Indonesia, for the most part without incurring any religious hostility. The IJ further noted that the petitioner's family, including his wife, children, parents, and siblings, remained in Indonesia and that there was no evidence that any family member had been a victim of religious persecution at any time after the petitioner's entry into the United States. Finally, the IJ noted that the petitioner had never been arrested, detained, threatened, or put in harm's way by the Indonesian government or any of its agents on account of his religious beliefs.

Consistent with these findings, the IJ denied the cross-application for asylum, withholding of removal, and protection under CAT; ordered the petitioner removed; and designated Indonesia as the country of removal. The BIA upheld the IJ's decision, concluding that the petitioner had failed to establish past persecution, a well-founded fear of future persecution, or a sufficient likelihood that he would be subjected to torture upon his return to Indonesia. This timely petition for judicial review followed.

II. Discussion

We start — and end — with the denial of the petitioner's application for asylum.³ In reviewing the BIA's denial of an asylum application, we examine its findings of fact, including its credibility determinations, to ascertain whether those findings are supported by substantial evidence in the record. See Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005); Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). Under this highly deferential standard, we must accept the BIA's findings so long as they are "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). Absent an error of law, we can overrule the BIA's ensuing decision only if the evidence "points unerringly in the opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004).

The petitioner bears the burden of establishing that he qualifies for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). To qualify as a refugee within the meaning of the Immigration and Nationality Act, an asylum seeker must show that he cannot return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Upon a satisfactory showing of past persecution, a rebuttable presumption arises that a petitioner's fear of future persecution is well-founded. Makhoul, 387 F.3d at 79.

The Immigration and Nationality Act provides no precise definition of "persecution." The case law, however, is more informative. We have held that past persecution requires that the totality of a petitioner's experiences add up to more than mere discomfiture, unpleasantness, harassment, or unfair treatment. See, e.g., Bocova, 412 F.3d at 263; Nelson v. INS, 232 F.3d 258, 263 (1st Cir.2000). Moreover, persecution "always implies some connection to government action or inaction." Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir.2005). Thus, an applicant qualifies for asylum only when he suffers persecution that is the direct result of government action, government-supported action, or government's unwillingness or inability to control private conduct. Id.

It is transparently clear that in order to establish refugee status, an alien must support his claim of persecution through credible testimony. Credible testimony, standing alone, may be adequate to sustain the alien's burden of proof. See Settenda v. Ashcroft, 377 F.3d 89, 92 (1st Cir.20...