Pulisir v. Mukasey

• Decision Date: 29 April 2008
• Docket Number: No. 07-1356.,07-1356.
• Parties: Agust H. PULISIR, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

524 F.3d 302

Agust H. PULISIR, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-1356.

United States Court of Appeals, First Circuit.

Submitted March 18, 2008.

Decided April 29, 2008.

William A. Hahn and Hahn & Matkov on brief for petitioner.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Kristina R. Sracic, Attorney, Office of Immigration Litigation, on brief for respondent.

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

SELYA, Senior Circuit Judge.

The petitioner, Agust H. Pulisir, is an Indonesian national. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA) approving the denial of his request for withholding of removal. Discerning no basis for overturning that order, we deny the petition.

The facts are straightforward (although reasonable minds can draw differing inferences from them). The petitioner entered the United States in 1994 and remained illegally for some nine years before the Department of Homeland Security instituted removal proceedings. See 8 U.S.C. § 1227(a)(1)(B). Before the immigration judge (IJ), the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT).

The petitioner's basic claim was that, as a Protestant Christian living in a predominantly Muslim nation, he had suffered persecution on account of his religion. Of the various events to which he testified in support of this claim, the three most salient involved alleged acts of persecution transpiring while he was in Indonesia. We chronicle them briefly.

In two instances, both occurring in 1987, vandals threw rocks at the church that the petitioner attended. When asked how he knew that the rock-throwers were Muslims, he explained that he assumed as much because ninety-seven percent of the people who lived near the church were of the Muslim faith.

The third incident occurred in 1988, when the petitioner's family was hosting a women's prayer meeting at the family's home. The meeting took place at the same time that the local mosque was playing Islamic prayers over a loudspeaker. Several uninvited individuals intruded and scolded the worshipers. The intruders stated that if a party was going to occur, the hosts needed to secure permission from the head of the neighborhood. The petitioner's mother told the men that the gathering was not a party. A fight broke out and the petitioner lost a front tooth. Police eventually arrived but no arrests were made.

The petitioner, who claimed that he knew every Protestant in the neighborhood, could not identify the intruders. Consequently, he inferred that they were Muslims. Moreover, he expressed a disdainful belief that the police had treated the intruders with kid gloves.

The petitioner left Indonesia in 1990. Nevertheless, relying on anecdotal accounts he testified that, during 1991, his mother and four of her friends had been walking to church when a young man blocked their passage. Seeing that they held bibles in their hands, the man told them that they could not pass. When the petitioner's mother tried to assert herself, she was roughed up and ultimately required medical attention.

The petitioner testified on cross-examination to a checkered travel history over the years 1990-1994. During that period, he worked for Carnival Cruise Lines and regularly returned to Indonesia for roughly two months at a stretch, typically at six to ten month intervals (either between assignments or on vacation). The petitioner made four such pilgrimages in all. He described no specific acts of harassment that occurred during any of these trips, although he made a vague allusion that there was "always a problem."

For the most part, the petitioner's testimony proceeded without incident. At one point, however, he attempted to testify concerning current conditions in Indonesia. The IJ cut off that line of inquiry when the petitioner tried to recount developments that had taken place in Indonesia from 1994 forward.¹ The IJ reasoned that the petitioner was incompetent to testify to recent country conditions in light of his eleven-year absence from the country. Relatedly, the IJ noted that substantial evidence about that subject already was in the record, mainly in the form of State Department Country Reports.

When the hearing concluded, the IJ denied all three of the requested forms of relief in a bench decision. Two of these initiatives were quickly dispatched: the IJ dismissed the asylum application as untimely and rejected the CAT claim for failure to show a threat of torture at the hands of governmental actors. Neither of those claims are pursued in this court, so we make no further mention of them.

As to the request for withholding of removal, the IJ discounted the petitioner's testimony regarding the alleged events of 1987, 1988, and 1991. The IJ noted the conspicuous lack of specificity, detail, and corroboration, and gave significant weight to the pacific nature of the petitioner's trips to Indonesia during the 1991-1994 time frame.

Turning to the likelihood of future persecution, the IJ determined that while discrimination against Christians existed in Indonesia, it was neither widespread nor in most instances severe. Furthermore, the Indonesian government was committed to the principle of religious diversity and actively discouraged discrimination against non-Muslims.

When all was said and done, the IJ concluded that the petitioner had failed to carry his burden of proving that, more likely than not, he would be persecuted if remitted to his homeland. Accordingly, he refused the request for withholding of removal.

On appeal, the BIA upheld the IJ's ukase. As to withholding of removal, it rested its decision on somewhat broader grounds, concluding that the record left unclear whether religious animus had sparked the incidents of which the petitioner complained (and, thus, that the petitioner had failed to carry his burden in this regard). The BIA also took special note of the fact that, since 1991, the petitioner's family has lived tranquilly in Indonesia. It then cited cases such as Susanto v. Gonzales, 439 F.3d 57 (1st Cir.2006), in which withholding of removal had been denied due to a failure to prove acts severe enough to constitute persecution. See id. at 59-60.

The BIA also addressed the petitioner's claim that the IJ's truncation of his testimony abridged his due process rights. It rejected this claim, observing that the petitioner had not identified any relevant evidence that otherwise could have been presented to the trier.

This timely petition for judicial review followed. In it, the petitioner calumnizes the denial of his request for withholding of removal on a variety of grounds and characterizes the hearing before the immigration court as violative of due process.

As to the petitioner's main group of arguments, our standard of review is familiar. When assessing findings of fact in immigration proceedings, we must respect those findings as long as they are supported by substantial evidence on the record as a whole. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.2007). Under this deferential standard, an IJ's factual determination will be upheld unless the record is such as to compel a reasonable factfinder to reach a contrary determination. Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). Abstract legal points are reviewed de novo, but with some deference to the agency's reasonable interpretation of statutes and regulations that fall within its purview. Pan, 489 F.3d at 85; see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

In immigration matters, judicial review normally focuses on the decision of the BIA as opposed to that of the IJ. Stroni v. Gonzales, 454 F.3d 82, 86 (1st Cir.2006). That approach obtains wherever the BIA has conducted an independent evaluation of the record and rested its affirmance of the IJ's decision on a self-generated rationale. See Acevedo-Aguilar v. Mukasey, 517 F.3d 8, 9 (1st Cir.2008). This is such a case.

Turning to the substantive law, an applicant for withholding of removal has the burden of proving that, more likely than not, he would be subject to persecution on account of a statutorily protected ground should he be repatriated.² See 8 U.S.C. § 1231(b)(3)(C); 8 C.F.R. § 1208.16(b)(2); Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir.2004). The alien may, of course, carry this burden by proving future persecution simpliciter. He also may carry it by proving past persecution. See 8 C.F.R. § 1208.16(b)(1). If past persecution is established, a rebuttable presumption arises that the alien would be subject to future prosecution as well. Id. The government may then overcome the presumption in one of two ways: either by proof that circumstances in the country of removal have changed for the better (thus dissipating the threat of persecution) or by proof that the alien may avoid the discerned threat by relocating elsewhere within his homeland. See id. § 1208.16(b)(1)(i). On both of these theories, the devoir of persuasion rests with the government. See id. § 1208.16(b)(1)(ii).

Against this backdrop, the petitioner's first claim of error is that neither the BIA nor the IJ made an express finding about past persecution. This claim need not occupy us for long: it overlooks the well-settled tenet that an implicit finding of past persecution will suffice to undergird a decree. See Rotinsulu v. Mukasey, 515 F.3d 68, 72-73 (1st Cir.2008) ("Although we expect an immigration judge to make findings on all grounds that are necessary to support his decision, those findings can be either explicit or implicit."). That tenet controls here.

To be sure, the decisions below may be slightly elliptical,...