Sael v. Ashcroft

• Decision Date: 14 October 2004
• Docket Number: No. 02-71872.,02-71872.
• Parties: Taty Lieana Tearsa SAEL, Orville Wright Manariangkuba, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

386 F.3d 922

Taty Lieana Tearsa SAEL, Orville Wright Manariangkuba, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 02-71872.

United States Court of Appeals, Ninth Circuit.

Argued May 13, 2004.

Submitted October 14, 2004.^*

Filed October 14, 2004.

Robert G. Ryan, Law Offices of Valencia & Wong, San Francisco, CA, for the petitioners.

Jeffrey J. Bernstein and Jamie M. Dowd, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

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

Before B. FLETCHER, TROTT, and FISHER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Taty Lieana Tearsa Sael ("Sael") and her husband, Orville Wright Manariangkuba ("Manariangkuba"), seek asylum from Indonesia. Immigration Judge ("IJ") Miriam Hayward granted relief, but the Board of Immigration Appeals ("BIA") reversed. We grant the petition for review because Sael, the lead petitioner, has established a well-founded fear of future persecution on account of her Chinese ethnicity. Sael has demonstrated that Indonesians of Chinese descent are a disfavored group and that she is particularly at risk, based on past threats and acts of violence against her.

I.

Indonesia's ethnic Chinese minority makes up only three percent of the country's population, AR 223, and has been a frequent target of violence throughout its history. Evidence in the record documents anti-Chinese violence dating back to the period of Dutch colonial rule, when ethnic Chinese were segregated from Indonesia's indigenous population. AR 695, 753. Ethnic violence continued after independence, as the Chinese minority came under suspicion for disloyalty as a communist "fifth column." AR 531. More recently, anti-Chinese violence has been fueled by resentment of the Chinese minority's economic power and by religious tensions between Muslims and Chinese Christians. AR 532-34; see also AR 218, 221. Human Rights Watch has assessed the anti-Chinese current in Indonesia as drawing on a long history of "severe discrimination" and "[a]nti-Chinese violence." AR 531.

The experiences of Sael's family reflect this history. Sael and her father suffered from discrimination throughout their lives — discrimination that spared Sael's siblings who do not appear Chinese. AR 113, 130-31. Sael was tormented as a young student and later threatened by an anti-Chinese mob that attacked a boarding house where she lived. AR 113-14, 124-27. In 1998, Sael was attacked again by an anti-Chinese mob in Jakarta and by a group of anti-Chinese men in her own Bandung neighborhood. AR 116-20, 122-24. The men vandalized Sael's car and told her that she had "better be careful." AR 124.

Sael and Manariangkuba decided to flee Indonesia after these last two incidents. They entered the United States on August 8, 1998, overstayed their visas, AR 1094, and responded to Notices to Appear by applying for political asylum, withholding of removal, and relief under the Convention Against Torture. Judge Hayward granted the petitioners asylum on March 24, 2000, citing a "pattern and practice" of persecution against ethnic Chinese in Indonesia.¹ AR 60-61. The BIA disagreed with Judge Hayward's "pattern and practice" assessment and reversed. AR 2-3. Sael timely petitioned for review.

We have jurisdiction over Sael's petition pursuant to 8 U.S.C. § 1252(a) (2004).² Because the BIA issued a reasoned opinion after conducting its own review of the record, we review the BIA's decision for substantial evidence. See Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). In doing so, we accept Sael's testimony as true. See Navas v. INS, 217 F.3d 646, 652 n. 3 (9th Cir.2000) ("Where the BIA does not make an explicit adverse credibility finding, we must assume that the applicant's factual contentions are true.").

II.

In order to be eligible for asylum, Sael must establish that she is a refugee — a person unable or unwilling to return to Indonesia "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." Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (quoting 8 U.S.C. § 1101(a)(42)(A) (1994)). "Persecution encompasses the infliction of suffering or harm upon those who differ in race, religion or political opinion in a way regarded as offensive." Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir.2004) (internal quotation marks omitted).

An asylum applicant's well-founded fear of persecution must be both subjectively genuine and objectively reasonable. Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999). An applicant "satisfies the subjective component by credibly testifying that she genuinely fears persecution." Id. Sael satisfied this requirement with her credible testimony that she fears being hurt, raped or killed in Indonesia. AR 129. An asylum applicant "generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution." Id. In this case, Sael relies on a fear of future persecution, not on a showing of past persecution.³ "Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear." Knezevic, 367 F.3d at 1212.

An asylum applicant demonstrates a well-founded fear of future persecution in either of two ways. Under the first approach, the applicant relies on establishing "a pattern or practice of persecution of people similarly situated...." Knezevic, 367 F.3d at 1213. Alternatively, an applicant may prove that she is a member of a "disfavored group" coupled with a showing that she, in particular, is likely to be targeted as a member of that group. Mgoian, 184 F.3d at 1035 n. 4 (internal quotation marks omitted); see also Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir. 2003); Singh v. INS, 94 F.3d 1353, 1359 (9th Cir.1996); Kotasz, 31 F.3d at 853. The latter claim consists of two elements — membership in a "disfavored group" and an individualized risk of being singled out for persecution — that operate in tandem. Thus, the "more serious and widespread the threat" to the group in general, "the less individualized the threat of persecution needs to be." Mgoian, 184 F.3d at 1035 n. 4; see also Hoxha, 319 F.3d at 1182-83; Kotasz, 31 F.3d at 853-54. Sael's strongest grounds for asylum rest on her showing both the "disfavored status" of ethnic Chinese in Indonesia and that she herself is specifically targeted for persecution.

A.

Sael has submitted compelling evidence that the ethnic Chinese minority is a "disfavored group" in Indonesia. The voluminous record documents a history of anti-Chinese violence dating as far back as 1740. See Terror in Chinatown: The Ethnic Chinese in Indonesia Continue to Live in Fear, The Economist, Aug. 22, 1998, at 31("Indonesia's Chinese are used to mob violence. As long ago as 1740, Chinese immigrants in Jakarta were attacked by a combination of hostile indigenous people and suspicious Dutch administrators.") (AR 695).⁴ Anti-Chinese attacks continued after Indonesia achieved its independence; in the 1960s, the ethnic Chinese minority was targeted in what one news account describes as "near genocidal" anti-communist pogroms. See Indonesia: Why Ethnic Chinese Are Afraid, BBC News, March 3, 1998,⁵ at http://news.bbc.co.uk/1/hi/world/analysis/51981.stm (AR 560). According to Human Rights Watch, anti-Chinese violence accompanied "virtually every outbreak of social and political unrest during President Soeharto's thirty years in power." Human Rights Watch, Indonesia Alert: Economic Crisis Leads to Scapegoating of Ethnic Chinese (Feb.1998) [hereinafter "Indonesia Alert"], at http://www.hrw.org/press98/feb/indo-al2.htm (AR 531).

Anti-Chinese violence peaked recently in 1998, when more than 1,000 people were killed and dozens of women raped during a series of bloody riots. See Bureau of Democracy, Human Rights, and Labor, United States Dep't of State, Indonesia Country Report on Human Rights Practices for 1998 (Feb. 26, 1999) (citing evidence of rapes and stating that the ethnic Chinese minority "was not protected by the authorities" during the 1998 riots) (AR 877); Human Rights Watch, World Report 1999: Indonesia and East Timor, at http:// www.hrw.org/worldreport99/asia/indonesia.html (AR 849).⁶ In the years since the 1998 riots, the international news media has documented continued tensions, resentment and violence. In at least one instance, ethnic Chinese found their homes marked for destruction, much as they had been before the 1998 violence. See Bali's Ethnic Chinese Living in State of Fear, The Jakarta Post, Feb. 6, 2000 (AR 266). Chinese Christian churches and homes have also been attacked in a violent merger of religious and ethnic tensions. See, e.g., Julie Schmit, Indonesian Violence Spreads, As Does Fear, USA Today, Jan. 20, 2000, at 8A (AR 251-52); see also Bureau of Democracy, Human Rights, and Labor, United States Dep't of State, 1999 Country Reports on Human Rights Practices: Indonesia § 5 (Feb. 25, 2000)[hereinafter 1999 Indonesia Country Report] (documenting attacks on Christian churches, and explaining that while attacks on churches "clearly reflect religious tensions," other "contributing factors" include "underlying socioeconomic and political tensions between poor Muslims and relatively more affluent ethnic Chinese Christians") (AR 221).

We recognize that Indonesia's ethnic Chinese minority is often described as economically powerful, but any reasonable factfinder would be compelled to conclude, in light of the record presented to Judge Hayward and to the BIA, that the economic success of some ethnic Chinese is used as a convenient, recent justification for an anti-Chinese sentiment that has remained constant even as periods of social and political unrest...