Wakkary v. Holder

Decision Date10 March 2009
Docket NumberNo. 05-71539.,05-71539.
Citation558 F.3d 1049
PartiesMatthew Henoch WAKKARY, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Robert G. Ryan, Law Offices of Eugene C. Wong, Inc., San Francisco, CA, for the petitioner.

Ashley B. Han, Jeffrey S. Bucholtz, and Linda S. Wendtland, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-141-948.

Before: RICHARD A. PAEZ and MARSHA S. BERZON, Circuit Judges, and HAROLD BAER,* District Judge.

BERZON, Circuit Judge:

The primary question we decide today concerns whether one's membership in a "disfavored group"—that is, a group of individuals in a certain country or part of a country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted—is pertinent in determining whether an applicant for withholding of removal is eligible for that form of relief. The question arises because we have recognized that membership in a disfavored group is relevant to whether an applicant has a well-founded fear of future persecution for purposes of an asylum claim, but have never determined the role of disfavored group analysis in the context of a claim for withholding of removal. We do so now.

Under the Immigration and Nationality Act ("INA"), eligibility for asylum is established by demonstrating "`a wellfounded fear of persecution'" on account of "`race, religion, nationality, membership in a particular social group, or political opinion.'" Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001) (quoting 8 U.S.C. § 1101(a)(42)(A)). To be "well-founded," the applicant's fear of persecution must be "both `subjectively genuine' and `objectively reasonable.'" Id. (internal citation omitted); see also 8 C.F.R. § 208.13(b)(2)(i). Because asylum is a discretionary form of relief, the standard for objective reasonableness is fairly low: Even a ten percent chance of future persecution may establish a well-founded fear. INS v. Cardoza-Fonseca, 480 U.S. 421 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Eligibility for asylum is also conditioned upon a range of other factors, including— most relevantly for the petitioner in this case—the statutory requirement that the application for asylum be filed within one year of the applicant's arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).

The INA also provides two additional, non-discretionary forms of relief to aliens who risk certain kinds of harm if removed to their home countries. First, withholding of removal under 8 U.S.C. § 1231(b)(3) provides relief to applicants who fear persecution according to the same substantive criteria as asylum, but with a higher standard of objective reasonableness; future persecution must be "more likely than not." 8 C.F.R. § 208.16(b)(2). Second, withholding or deferral of removal is available under the Convention Against Torture (commonly called "CAT relief"). Applications for CAT relief must meet the same standard of objective reasonableness as do applications for normal withholding under 8 U.S.C. § 1231(b)(3), but substantive criteria differ. To be eligible for CAT relief, aliens must show that it is "more likely than not" that they will be tortured (rather than persecuted on a protected ground) if returned to their home countries. 8 C.F.R. § 208.16(c)(2).

The petitioner in this case, Matthew Henoch Wakkary, sought all three types of relief, and the agency found him ineligible for each one. We conclude, first, that the determination that Wakkary's asylum claim is time-barred must be reconsidered as the Board of Immigration Appeals ("BIA") applied the wrong legal standard in determining whether Wakkary filed his asylum application within a "reasonable period" after the expiration of his immigration status. See 8 C.F.R. § 208.4(a)(5). Second, we hold that the BIA should have considered Wakkary's country-conditions evidence regarding the widespread mistreatment of Chinese and Christians in Indonesia when assessing the likelihood that he would face future persecution for withholding of removal purposes, and so remand for reconsideration of the withholding decision. Finally, we hold that the BIA's determination that Wakkary did not demonstrate eligibility for CAT relief is supported by substantial evidence.

A. Factual background

Wakkary was born in 1974 in Medam, Indonesia. His mother is ethnically Chinese, and his father is ethnically Indonesian. His father has served as a Pentecostal Christian pastor in Medam for over twenty years. Wakkary, like his father, is a Pentecostal Christian pastor who has been active in the church.

As Wakkary's country-conditions evidence shows, and as we have recognized in other, similar cases, Indonesia's ethnic Chinese minority has suffered a long history of abuse and mistreatment at the hands of the native Indonesian majority. See Sael v. Ashcroft, 386 F.3d 922, 923 (9th Cir.2004). Comprising approximately three percent of the country's population, Chinese Indonesians are considered relatively more affluent than the native Indonesian population, and are widely resented because of their presumed affluence. Former president Suharto accused the Chinese minority of backing an attempted coup in 1965. During his reign from 1967 to 1998, Suharto used the alleged disloyalty of the Chinese minority as a pretext to implement a range of discriminatory policies imposing various legal disadvantages on individuals of Chinese ethnicity. Although many of these official restrictions have been recently relaxed, popular resentment, discrimination, and, at times, violence against members of the Chinese minority have persisted. The continued occurrence of attacks on Christian churches reflects a religious dimension to the ethnic tensions. Many of Indonesia's Chinese minority are Christian, while the majority of native Indonesians are Muslim.

As a person of mixed Chinese ethnicity and a practicing Christian, Wakkary has personally experienced manifestations, some relatively minor and others somewhat more serious, of this widespread anti-Chinese and anti-Christian sentiment.

In 1985, at age eleven, Wakkary encountered a group of ten native Indonesian youths in the street who told him, "Chinese[,] you stop." The youths stole Wakkary's sandals and beat him. Wakkary told his parents about the incident, but they did not report it to the police because they believed that the police "couldn't do anything."

In 1990, at age sixteen, Wakkary and two friends, one ethnic Chinese and one ethnic Indian, encountered a group of native Indonesian youths. The youths forced Wakkary to hand over his watch and money at knifepoint, and then beat Wakkary and one of his friends with a stick. Again, Wakkary did not report this incident to the police because "[t]his happened many times in our city. [Native Indonesians] continued to do [ ]thing[s] to the Chinese. [The police] could not defend me."

Ethnic tension in Indonesia became especially acute in mid-May of 1998. Widespread anti-Chinese rioting broke out, with native Indonesian mobs in Jakarta and elsewhere in the country attacking Chinese individuals and destroying their homes and businesses. According to the newspaper accounts Wakkary submitted to the agency, over a thousand Chinese individuals were killed during this period. Christian churches also became the targets of vandalism, looting, and arson. Many of the crimes perpetrated against the Chinese and Christian minorities went unpunished. Indeed, as the U.S. State Department's 2000 Country Report indicates, an official factfinding team found evidence that the Indonesian security forces not only tolerated the attacks, but may have been involved in planning and executing them.

During this period, Wakkary was traveling by car one day with his father, his mother, his aunt, and his brother and his brother's wife to a Bible-school gathering in another city. At the city limits, between twenty and thirty ethnic Indonesians with weapons blocked the car and asked "where [they] were going and what people [they were]." Wakkary's father (an ethnic Indonesian) said they were from the city of Manado, and the native Indonesians allowed them to pass after paying a small donation to build a mosque. Further on, as the car approached the next city, another group of ethnic Indonesians approached the car, "yelling loudly, [`A]re there any Chinese or Christians in that car[?']" The mob attempted "to get through the glass window into the car." Wakkary's father, an ethnic Indonesian, told the mob, "['W]e are Indonesian indigenous[,]'" and the car was allowed to pass through.

When Wakkary and his family arrived at the Bible school, "there was crying" and "a lot of ... people shouting." Wakkary noticed groups of native Indonesians looting Chinese-run shops nearby. He and others feared that the Bible school would also be attacked, so they stopped choir practice to "avoid any provocation." He and some other leaders of the group "asked [the people] to stay in the room" while they "guard[ed] the complex." Wakkary was not harmed during the incident.

Soon after the incident at the Bible school, Wakkary applied for, and was granted, an R-1 visa authorizing him to enter the United States as a temporary religious worker. His departure to the United States was delayed by several days due to unrest in Jakarta and large crowds of Chinese Indonesians at the airport attempting to board flights out of the country. Wakkary took refuge in a complex near the airport with other Chinese Indonesians, hiding from the armed rioters. Several days later, he ventured back to the airport and boarded a flight to the United States. He was admitted to the United States on May 16, 1998.1

In September 2000, Wakkary's father told him by phone that Wakkary's friend Kalep, also a...

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