Uli v. Mukasey

• Citation: 533 F.3d 950
• Decision Date: 18 July 2008
• Docket Number: No. 07-2345.,07-2345.
• Parties: Anita Dona ULI, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

533 F.3d 950

Anita Dona ULI, Petitioner, v. Michael B. MUKASEY,¹ Attorney General of the United States, Respondent.

No. 07-2345.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2008.

Filed: July 18, 2008.

Alan Barry Goldfarb, argued, Minneapolis, MN, for petitioner.

Thankful Townsend Vanderstar, U.S. Dept. of Justice, OIL, argued, Washington, DC, for respondent.

Before BYE, SMITH, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Anita Dona Uli, a Christian native and citizen of Indonesia, petitions for review of an order of the Board of Immigration Appeals ("the Board") affirming an immigration judge's (IJ) denial of her application for asylum, withholding of removal and Convention Against Torture (CAT) protection. For the reasons discussed below, we deny the petition.

I. Background

Uli last entered the United States on November 26, 2002, as a nonimmigrant visitor. In January 2003, she filed an application for asylum, and one year later, removal proceedings began. Uli was charged with being removable, pursuant to Immigration and Nationality Act (INA) section 237(a)(1)(B), as an alien who remained in the United States for a time longer than permitted. At a hearing on February 4, 2004, Uli conceded removability.

On March 4, 2005, she filed an updated application for asylum. Uli appeared at an additional hearing on April 8, 2005, where she testified in support of her application for relief. Uli testified that she was born and raised in Jakarta, Indonesia. As a Catholic, Uli and her family attended church every week on Wednesdays and Sundays, and the church she attended was only about 200 meters from her family's home.

Uli claims religious persecution as a ground for relief. The factual backdrop to Uli's asylum application includes the May 1998 Indonesian riots. Uli testified that during these riots, her family home was burned. Early in the morning on the day her home was burned, Uli smelled smoke and saw hundreds of Muslim people walking down the street shouting. Uli's mother took her and her sister to a hiding place under a nearby bridge; while hiding Uli watched her house burn. In addition to Uli's family home, her church was also destroyed in a fire. Uli testified that she and her sister stayed under the bridge where their mother had taken them until six o'clock that night. Uli's mother returned to the family home to save important papers and to help Uli's father and brother keep rioters away from the children's hiding place under the bridge.

Uli testified that during this day of rioting, her mother saw other people being abused. Her father was beaten during the incident and, afterwards, went insane. Her brother was stabbed in the stomach during the riots and has never fully recovered from the wound. Following these events, none of Uli's family members went to the hospital or saw a doctor for treatment. Uli testified that, as far as she knows, the police did not come to the neighborhood during the riots, made no arrests and conducted no investigation.

After the riots, according to Uli's testimony, her family remained in the same location and rebuilt their house. Uli testified that she has heard that new threats were made in 2003 to burn the house. Because Uli's church had burned down, she attended various other churches. She recalls seeing cars vandalized while she attended church.

In addition to religious persecution based upon the riots, Uli also requests relief based on sexual harassment that she suffered in Indonesia. She testified that she was sexually assaulted, including being groped on the street. Once while on an elementary school bus, Uli awoke with the Muslim conductor of the bus grabbing and touching her breasts. Uli was not wearing Muslim garb at the time, and she believed that she was targeted because she is Christian. In 2000, while on a college trip, she stayed in a room with two other people and she woke up with a Muslim man on top of her-she kicked him off. Uli was the only Christian girl on this trip. Uli also testified that she suffered sexual harassment from her work supervisor in 2001. Uli made no formal complaint but instead had her brother and father drive her to work for protection. Uli had heard that her cousin was raped and that the police merely sent her cousin home. Uli did not include either the sexual harassment or her brother's and father's riot related injuries in her original asylum application.

Uli has made two trips to the United States. First, in February 2001, she came with her parents. Uli traveled with a visitor's visa, and she did not tell anyone at the consulate about her problems in Indonesia. Although Uli had a six-month visa, she and her parents decided to return to Indonesia after one month in the U.S. to attend to her brother. Uli accompanied her parents back to Indonesia to help them travel. In November 2002, Uli returned to the United States — this time for her sister's wedding. As before, she did not mention fears to the consulate when getting her second visa.

Uli's older sister, Artati Triani Steward, also testified on her behalf. Steward, now a Christian Scientist, came to the United States in 1999 and is a permanent resident through marriage. Uli's sister testified that her brother had tried to obtain a visa and had been unable to, and her parents remained there because of their son. Steward recounted the problems that her family had experienced during the May 1998 riots, including the damage to their church and her brother's injury. She also testified that she was aware that Uli had been sexually harassed in Indonesia. Steward stated that she had made two return trips to Indonesia, once in 2002 and again in 2004 when she stayed for three weeks in her family home. Steward knew of no harm to her family since 1998 but said that there had been threats to burn the family home again.

On October 11, 2005, the IJ issued a decision finding Uli removable as charged, denying her applications for asylum, withholding of removal and CAT protection, and granting her voluntary departure. The IJ did not find Uli's evidence credible. The IJ based this credibility determination on the absence of critical fact allegations from Uli's first asylum application and asylum interview. Uli did not mention sexual abuse nor did she mention the injuries suffered by her father and brother during the 1998 riots in her initial application. The IJ found that, in light of Uli's credibility issues, she needed to present corroborating evidence and that she did not.

The IJ also questioned Uli's subjective fear in returning to Indonesia because she had come to the United States in 2001 stayed one month and returned to Indonesia. Additionally, Uli's sister, who is also a Christian, made two trips back to Indonesia in recent years apparently without incident. The IJ stated further that even if Uli had established some level of past persecution, circumstances have changed substantially since 1998. The IJ noted that the 1998 riots affected many societal groups, not exclusively religious, and violence in Jakarta has not approached that level since that time. Because Uli's asylum claim failed, the IJ found necessarily that the petition for withholding of removal also failed. The IJ also stated there was no evidence of torture for the CAT claim. The IJ then granted voluntary departure.

On May 10, 2007, the Board, while not endorsing all aspects of the IJ's decision, affirmed the decision of the IJ and dismissed the appeal. The Board did find some merit with the issues raised by Uli on appeal — in particular, her contention that the IJ erred in basing its adverse credibility finding on her reluctance to recount her sexual harassment experience. The Board noted that supplementing an initial asylum application does not lead directly to an adverse credibility finding. The Board then stated that even taking Uli's testimony as true, the Board still agreed with the IJ that she had not demonstrated eligibility for relief.

The Board found that Uli's "major problems" occurred during Indonesia's 1998 riots and that the record indicated that since the time of that civil unrest, the situation in Indonesia had improved. Citing the 2004 Department of State International Religious Freedom Report, two other Department of State reports on Indonesia, and the 2004 Country Report on Human Rights Practices—all submitted by the government—the Board found that the record indicated that the population in Indonesia enjoys a high degree of religious freedom, Christians make up almost nine percent of the population and Catholics make up three percent, and religious attacks continue to decline. The Board acknowledged that Uli had endured unfortunate experiences, but found that they did not rise to the level of past persecution. The Board concluded that, while it did not endorse all aspects of the IJ's opinion, the IJ reached the correct result. Accordingly, the Board dismissed the appeal and ordered that Uli be permitted to voluntarily depart. Uli then filed this petition for review.

II. Discussion

Uli challenges the Board's denial of her application for asylum and withholding of removal.² Uli argues that because the IJ and the Board applied an incorrect legal standard, we must remand the case for further consideration under the correct standard.

We review the Board's legal determinations de novo, according substantial deference to the Board's interpretation of the statutes and regulations it administers. Hassan v. Gonzales, 484 F.3d 513, 516 (8th Cir.2007). "A denial of asylum is reviewed for abuse of discretion; underlying factual findings are reviewed for substantial support in the record." Id. We must uphold an IJ's factual determinations if supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id.

"Any alien who is physically present in the United States or who arrives in the United States ... irrespective of such alien's status,...