Sompotan v. Mukasey

• Decision Date: 16 July 2008
• Docket Number: No. 07-1635.,07-1635.
• Citation: 533 F.3d 63
• Parties: Petra B. SOMPOTAN and Jansen A. Koloay, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

533 F.3d 63

Petra B. SOMPOTAN and Jansen A. Koloay, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-1635.

United States Court of Appeals, First Circuit.

Submitted April 9, 2008.

Decided July 16, 2008.

William A. Hahn on brief for the petitioner.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Terri J. Scadron and Anthony Wray Norwood on brief for the respondent.

Before TORRUELLA, Circuit Judge, CUDAHY,^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

CUDAHY, Senior Circuit Judge.

Petitioners Petra B. Sompotan and Jansen A. Koloay, natives and citizens of Indonesia, appeal from a final order of the Board of Immigration Appeals (the Board) denying their applications for asylum, withholding of removal and protection under the Convention Against Torture (the Convention). The immigration judge (IJ) found that the petitioners had failed to establish that the mistreatment they suffered was "on account of" their race or religion; the IJ also found that much of the mistreatment did not amount to "persecution." In a brief order, the Board affirmed. The petitioners then filed this petition for review, claiming that the IJ and the Board committed a legal error in failing to conduct a "mixed motives analysis." As we shall explain, this argument is without merit.

I.

Sompotan and Koloay are, as we have said, natives of Indonesia. They are both Christians, and Sompotan is also ethnic Chinese. Sompotan and Koloay entered the United States at St. Paul, Minnesota on September 18, 2001 as non-immigrant tourists with authorization to remain within the country for one month. Sompotan applied for asylum on February 3, 2003 listing Koloay as a beneficiary.¹ The Department of Homeland Security issued them both a Notice to Appear on June 26, 2003, charging them with overstaying their non-immigrant visas.

The removal hearing was held on April 4, 2005; both Sompotan and Koloay testified. In December 1997, they operated a restaurant in Jakarta. One day, Sompotan saw men approaching the restaurant. The men approached her husband and demanded cigarettes and money. When Koloay refused, they hit him over the head with a stick. Sompotan fled the restaurant and waited by the corner, but the men approached her, knocked her to the ground, and took her necklace and watch, while saying "crazy Christian" and "Chinese bastard."

Petitioners testified that during the time they lived in Jakarta, they held weekly prayer groups in which about twenty-three people would sing, albeit softly. Petitioners claim that the meetings were disrupted by loud music, motorcycle noises, and shouts of "Allah Huakvar" ("God is Great") from the streets. When they looked outside to see who was causing the commotion, they saw a group of youths who wore red bandanas.

In May 1998, the petitioners were caught in the now-infamous Jakarta riots. Rioters began looting and burning a supermarket next to their restaurant, and quickly moved to their restaurant. Koloay testified that they heard the people approaching the restaurant saying "he is Chinese, he is also Chinese." Sompotan and Koloay were able to flee to safety but their restaurant was badly damaged and they never returned to it.

After the riots, the petitioners returned to the town of Tatelu Menado, where they opened a convenience store. Their Muslim neighbors, with whom they were on good terms, asked them for a loan. When the neighbors did not repay the loan, Sompotan went to the neighbors and told them that if they did not repay the loan, she would report them to the police. The neighbors soon gave Sompotan three fresh fish, which she cooked and consumed. After eating the fish, she passed out. The doctors at the hospital told her that she had been poisoned. The incident was reported to the police, who questioned the neighbors but did not arrest them.

The IJ found that Sompotan and Koloay were removable and denied their applications for asylum, withholding of removal and protection under the Convention. The IJ concluded that their application for asylum was untimely as it was not filed within one year of their entry into the United States, and that they had failed to establish that "extraordinary circumstances" excused the delay. In the alternative, the IJ concluded that their claims for asylum were without merit because they did not establish that they had suffered persecution "on account of" their race or religion. He also noted that many of the incidents described by the petitioners did not amount to persecution. Because they failed to satisfy the requirements for asylum, the IJ determined that they could not satisfy the more stringent standards for withholding of removal and relief under the Convention. The IJ did, however, grant them voluntary departure. The petitioners appealed to the Board, which affirmed the IJ's decision. They then filed a petition for review in this court.

II.

In their petition, Sompotan and Koloay abandon their claims for asylum and protection under the Convention. The only issue before us is the Board's denial of their claims for withholding of removal. Because the Board's decision largely affirmed and adopted the decision of the IJ, we review both decisions. See Settenda v. Ashcroft, 377 F.3d 89, 92-93 (1st Cir.2004).

Withholding of removal is available if "the alien's life or freedom would be threatened in [the destination] country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). A "threat to life or freedom" in a withholding case is analyzed in the same way "persecution" is analyzed in asylum cases. Attia v. Gonzáles, 477 F.3d 21, 23 (1st Cir.2007). A petitioner's burden in a withholding case is, however, more stringent; petitioners must show a "clear probability" that they were or will be persecuted. See INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Persecution "is mistreatment that . . . extend[s] beyond harassment, unpleasantness, and basic suffering." Id. Further, as in asylum cases, it is "critical" that the petitioners show a "nexus" between the alleged persecution and one of the statutorily protected grounds. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38, S.Ct. 812, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To establish the nexus, the petitioner must present "evidence from which it is reasonable to believe that the harm was motivated by a protected ground." See In re S-P-, 21 I. & N. Dec. 486, 490 (BIA 1996). The end result is that, to qualify for withholding of removal, the petitioners must "demonstrate either that [they have] suffered past persecution on account of a protected ground . . . or that it is more likely than not that [they] will be persecuted on account of a protected ground if sent to the destination country." Heng v. Gonzáles, 493 F.3d 46, 48 (1st Cir.2007) (emphasis added). These two methods are, of course, commonly referred to as past and future persecution.

Sompotan and Koloay's applications hinged almost entirely on evidence of past persecution. Specifically, they emphasized four events: (1) their restaurant was robbed by a group of Muslims, who beat Koloay over the head with a stick and pushed Sompotan to the ground; (2) their restaurant was burned during the Jakarta riots of May 1998; (3) their prayer group meetings were disturbed when their Muslim neighbors deliberately made loud noises outside; and (4) Sompotan was poisoned by her Muslim neighbors after reporting them to the police for not repaying a loan. The IJ discussed each of these incidents and concluded both that the mistreatment did not amount to persecution and that the petitioners had failed to establish that the mistreatment was motivated by ethnic or religious animosity. The Board affirmed.

Whether the persecution experienced by a petitioner amounted to persecution and whether the persecution was inflicted "on account of" a protected ground are generally questions of fact. See López de Hincapie v. Gonzáles, 494 F.3d 213, 218 (1st Cir.2007). We owe these determinations deference. See 8 U.S.C. § 1252(b)(4)(B) (specifying that "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"). Accordingly, "our review is aimed at determining whether the decision is supported by substantial evidence in the record." Halo v. Gonzáles, 419 F.3d 15, 18 (1st Cir.2005). "That the record supports a conclusion contrary to that reached by the [Board] is not enough to warrant upsetting the [Board]'s view of the matter; for that to occur, the record must compel the contrary conclusion." López de Hincapie, 494 F.3d at 218 (emphasis in original).

The petitioners argue, however, that we should review the decisions of the IJ and the Board de novo because they committed a legal error in failing to employ "a mixed motive analysis." See Petitioners' Br. 8-9 (citing In re S-P-, 21 I. & N. Dec. 486, 490 (BIA 1996)). We note, at the outset, that the petitioners are not very clear in explaining what they believe this "mixed motive analysis" to be. Of course, the Board's decision in In re S-P- laid out a five-factor test to be used in examining cases of "mixed motive," where an ostensibly legitimate government motive is actually a pretext for impermissible motivations. In re S-P-, 21 I. & N. Dec. at 494. But one look at the test makes clear that it does not apply here.² Further, the cases that purport to use a "mixed-motive analysis" have generally involved investigations into the motives underlying government prosecution or punishment. See, e.g., Menghesha v. Gonzáles, 450 F.3d 142 (4th Cir.2006) (government security agent threatened for warning students of an impending arrest); Vumi v. Gonzáles, 502 F.3d 150 (2d Cir.2007) (Congolese woman arrested, interrogated and mistreated by the military). Those cases are of little...