Susanto v. Gonzales, 04-2683.

• Decision Date: 09 March 2006
• Docket Number: No. 04-2683.,04-2683.
• Citation: 439 F.3d 57
• Parties: Inge SUSANTO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

439 F.3d 57

Inge SUSANTO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 04-2683.

United States Court of Appeals, First Circuit.

Submitted December 6, 2005.

Decided March 9, 2006.

Wei Jia, and Law Office of Wei Jia, on brief, for petitioner.

Michael J. Sullivan, United States Attorney, and Jennifer C. Boal, Assistant United States Attorney, on brief, for respondent.

Before BOUDIN, Chief Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

CYR, Senior Circuit Judge.

Inge Susanto and her husband Yudi Supriady are natives and citizens of Indonesia where they belonged to two minority groups: ethnic Chinese and Christian.¹ In 2002, the Immigration and Naturalization Service (INS) charged petitioners with removability, which they acknowledge. Petitioners applied for asylum, however, asserting that they suffered persecution in Indonesia on account of their ethnicity and religion.

At their hearing before an immigration judge (IJ), petitioners adduced as evidence of persecution, inter alia, the violent riots by Indonesia's Muslim majority in 1998 against the Chinese minority, which resulted in many deaths, rapes, and serious injuries, and which prompted Susanto and her mother to wear face veils in public, so as to disguise their ethnicity, and Susanto's family to relocate from Jakarta to another part of the country for two months; the vandalization of the family home during their two-month absence from the capital, and the discovery upon their return that one of their Chinese neighbor's daughters had been raped; an incident in 1998 during which two men confronted Susanto (then age 14) outside her school, called her a "Chinese snob," and tried (but failed) to grope her; an incident during which Susanto and her mother were mugged at knifepoint on a city bus, and the mugger stated: "You Chinese, you die"; the discovery of an undetonated bomb at Susanto's church, and a subsequent bombing of the same church; and incidents in 1999 during which Muslim crowds threatened and threw stones at Susanto and her fellow worshipers.

The IJ denied petitioners' asylum application, for failure to establish past persecution or a well-founded fear of future persecution in the event they were repatriated to Indonesia. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b). Specifically, the IJ found that the alleged past incidents were not severe enough to constitute persecution, and that the prospect of future persecution was "small." On appeal, the Board of Immigration Appeals (BIA) affirmed without separate opinion, and petitioners now appeal. See Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir.2005) (noting that, on appeal from BIA's summary affirmance, court of appeals directly reviews IJ decision).

We review the IJ decision only to determine whether its findings of fact that petitioners did not suffer from cognizable past "persecution" and did not confront a well-founded fear of future persecution are supported by "substantial evidence" in the administrative record. See Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005).

Petitioners first assert that the IJ's decision is unsupported because it fails to take into account the very serious incidents of ethnicity and religion-based persecution described by Susanto. Petitioners must bear the burden of proof as to their eligibility for asylum, see INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), and we repeatedly have observed that harassment of the quality and degree experienced by petitioners simply does not compel a finding of persecution. See, e.g., Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir.2002) (affirming IJ finding of no persecution even where petitioner was placed in solitary confinement and physically abused); see also Bocova v. Gonzales, 412 F.3d 257, 263-64 (1st Cir.2005) (same, two police beatings during a two-year period). The baseline rule is that past persecution requires "more than mere discomfiture, unpleasantness harassment, or unfair treatment." Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005). Although the harassment experienced by these petitioners certainly was ugly, discriminatory, and regrettable, they experienced no physical confinement and no serious physical injuries resulted.

Next, petitioners contend that the IJ erred in determining that they failed to establish a well-founded fear of future persecution because the IJ inappropriately confined his inquiry to whether the petitioners would be murdered or raped if they were to return, and required that petitioners prove more than a 10% risk of such future persecution.² The latter argument advanced by petitioners is premised on INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), where the Supreme Court noted that even as little as a 10% risk of occurrence might support a well-founded fear of future persecution. Id. at 431, 107 S.Ct. 1207. They contend that, contrary to the IJ's interpretation of Cardoza-Fonseca, the Court did not suggest that the courts should utilize this 10% figure as an artificial benchmark. These arguments are unpersuasive as well.

The context of the IJ's decision makes it clear that he did not mean to suggest that murder and rape were the only cognizable forms of future persecution. Rather, in juxtaposition to the alleged incidents of past persecution in this case, the IJ mentioned murder and rape simply as examples of the types of harm severe enough to constitute cognizable forms of future persecution. The IJ did not imply that only murder and rape rise to the requisite level of persecution.

Likewise, the IJ's reference to Cardoza-Fonseca and the 10% formulation, read in context, does not provide a basis for reversal. While Susanto is...