Sugiarto v. Holder
| Citation | 586 F.3d 90 |
| Decision Date | 10 November 2009 |
| Docket Number | No. 08-2502.,08-2502. |
| Parties | Senly SUGIARTO, Jemmy Korompis, and Jeisy Vanya Korompis, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Armin A. Skalmowski, on brief for petitioners.
Julia J. Tyler, Trial Attorney, Office of Immigration Litigation, Civil Division, Tony West, Assistant Attorney General, Civil Division, and Barry J. Pettinato, Assistant Director, on brief for respondent.
Before TORRUELLA, SELYA, and DYK,* Circuit Judges.
Petitioner, Senly Sugiarto, a practicing Christian of Indonesian nationality, seeks review of a decision by the Board of Immigration Appeals ("BIA") affirming the denial by the Immigration Judge ("IJ") of her applications for asylum, withholding of removal under § 241(b)(3) of the Immigration and Nationality Act ("INA"), and relief under the Convention Against Torture ("CAT"). Sugiarto advances no argument on appeal with respect to her withholding of removal or CAT claims, and as a result, these claims are waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). Sugiarto does argue that the BIA's denial of her asylum claim, which was based on past persecution and a well-founded fear of future persecution on account of her Christian religion, was not supported by substantial evidence. After careful consideration, finding the BIA's decision adequately supported, we deny the instant petition for review.
Petitioner, Sugiarto, is a native and citizen of Indonesia, as is her husband, Jemmy Korompis, and their 10-year-old daughter, Jeisy.1 Sugiarto, was raised as a Protestant Christian in Tinoor, Manado, where she was a member of the local church and the treasurer of the church's women's group. She reports that the demographics of Manado have shifted in recent years: while the majority used to be Christian, 99% of residents are now Muslim. Sugiarto asserted that she had problems in Indonesia on account of her identity as a Christian, and attributed the following incidents to her religious status.
First, Sugiarto describes an incident that occurred on September 15, 2003 while she was employed as the treasurer of a company called PI Pelni. Sugiarto was traveling with a security guard and a driver to a bank to pick up money for her company. At the bank, Sugiarto withdrew $99,000, which she held in her lap while returning to the office. While en route to her office, two men on a motorcycle blocked the road and broke the back window of the car, attempting to force open the back door near where Sugiarto was sitting. Although the men were unable to steal the money, Sugiarto's arms were cut from the broken glass, causing her to seek medical treatment at the hospital. The petitioner asserts that these men were members of a Muslim terrorist group because that was the kind of behavior these groups engaged in. Although Sugiarto had a current U.S. visitor's visa when this incident occurred, she decided to remain in Indonesia because she "had a good job."
Second, Sugiarto recounts an incident that took place on December 16, 2004. On that day Sugiarto and her family were forced to rush out of a mall in Manado when a bomb threat warning was issued. She reports that it was very difficult to breathe amidst the fleeing crowds. Neither Sugiarto nor her husband or daughter required medical treatment after the incident. Sugiarto did not know specifically who caused the bomb threat, but reasoned that, because Manado is 99% Muslim and this event took place shortly before Christmas, those responsible were likely Muslim.
Sugiarto reported that she felt threatened as a Christian minority living in Manado due to both of these events and also because of bombings of houses, churches and various public places that were taking place in her surrounding area. She explained that these attacks often targeted church leaders and others with special duties in the church. Her fear of religious violence sometimes prevented her from attending church. Sugiarto also explained that her daughter, Jeisy, who was born with a leg condition that causes her to limp, suffered ridicule and harassment by her classmates in Indonesia because of her condition.
Sugiarto and Jeisy arrived in the United States on January 16, 2005 on a visitor's visa. Sugiarto's husband, Korompis, arrived in June of that year, also on a visitor's visa. The petitioner explains that her daughter has felt more comfortable with herself since coming to the United States. Doctors in both Indonesia and the United States have indicated that Jeisy can undergo surgery once her bones develop further, which will enable her to walk normally. Since arriving in the United States, petitioner's family has joined and regularly attended services at the Naturia Presbyterian Church in Rochester, New Hampshire, where, in March 2006, Sugiarto was elected deacon. The record contains evidence documenting her active participation in the church.
Sugiarto reported that she could not go back to Indonesia out of fear of religious violence. She explained that since her departure from Indonesia, two of her siblings have also left Indonesia and moved to Korea out of fear of religious persecution. Some of her family members who remain in Indonesia no longer attend church because they are afraid. She has submitted, on the record, country reports and articles, including U.S. State Department Religious Freedom Reports, documenting inter-religious violence in Indonesia and acts of terrorism against Christians by extremist groups.
Petitioner and her family remained in the United States without legal status after the expiration of their visitor visas. On January 3, 2006, Sugiarto filed a timely Form I-589 application for asylum, accompanied by applications for withholding of removal, protection under the CAT, and voluntary departure. Sugiarto listed Korompis and Jeisy as beneficiaries on her application. The Department of Homeland Security ("DHS") placed the petitioner and her family in removal proceedings on February 21, 2006. Petitioner conceded removability.
On May 18, 2007, the IJ held a hearing on the merits of Sugiarto's application. In an oral decision issued that day, the IJ found that petitioner testified credibly but that her testimony as to the attempted robbery and the bomb threat in Indonesia failed to establish harm sufficiently severe as to rise to the level of "past persecution." Moreover, the IJ found that nothing in the record established a nexus between these incidents and petitioner's status as a Christian. The IJ further found that petitioner failed to show a well-founded fear of future persecution in that petitioner has not shown that she and her family were specifically singled out on account of their religion, nor that there is a "pattern or practice" of persecution against Christians in Indonesia. The IJ thus denied the petitioner's applications for asylum, withholding, and CAT relief, but granted voluntary departure to Sugiarto and Jeisy.2
Sugiarto timely appealed to the BIA, which, in an order issued October 20, 2008, affirmed the IJ's reasoning and decision, and dismissed the appeal. This petition for review followed.
This court has appellate jurisdiction over petitions for judicial review from the BIA under 8 U.S.C. § 1252. "Review of legal rulings is de novo but is deferential as to findings of fact and the determination as to whether the facts support a claim of persecution." Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.2008). We review fact-based determinations under a "substantial evidence" standard, which requires that we must affirm provided that the BIA's decision is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Bocova v. Gonzáles, 412 F.3d 257, 262 (1st Cir.2005) (quoting INS v. Elías-Zacarías, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also 8 U.S.C. § 1252(b)(4)(B). Unless the record compels a contrary conclusion, evidence in the record supporting a conclusion contrary to that reached by the BIA is not enough to upset the agency's determination. See Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.2008) (quoting López de Hincapié v. Gonzáles, 494 F.3d 213, 218 (1st Cir.2007)). In other words, we must uphold the BIA's determination unless the record "points unerringly in the opposite direction." Hincapié, 494 F.3d at 220 (quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004)).
"Usually, this court confines its review to the BIA's order that is being challenged by the petitioner." Lumataw v. Holder, 582 F.3d 78, 83 (1st Cir.2009) (internal quotation marks omitted). "However, when as here, the BIA adopts the decision of the IJ, and provides some analysis of its own, the Court reviews both decisions." Id.
"To establish eligibility for asylum, an alien must prove either past persecution, which gives rise to an inference of future persecution, or establish a well founded fear of future persecution on account of her race, religion, nationality, membership in a social group, or political opinion." Lumataw, 582 F.3d at *83 (internal quotation marks omitted); see also 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b).
If an applicant establishes past persecution, there is a presumption of a well-founded fear of future persecution, and the burden shifts to the Government to rebut this presumption. 8 C.F.R. § 1208.13(b)(1); see also Jorgji, 514 F.3d at 57. But even if the applicant cannot establish past persecution, she can nevertheless establish eligibility for asylum based on a "well-founded fear of future persecution" based on a protected ground. 8 C.F.R. § 1208.13(b). An applicant has a "well-founded fear of persecution" in her country if she can establish that her fear is both (1)...
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