Lumanauw v. Mukasey , 510 F.3d 75 ( 2007 )

United States Court of Appeals
For the First Circuit
No. 07-1307
MARY JANE LUMANAUW,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,*
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Randall A. Drew and Law Offices of Mona T. Movafaghi, PC on
brief for petitioner.
Peter D. Keisler, Acting Attorney General, Leslie McKay,
Senior Litigation Counsel, and Angela N. Liang, Trial Attorney, on
brief for respondent.
December 7, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzáles as the respondent herein.
CYR, Senior Circuit Judge. In 2001, Mary Jane Lumanauw,
a citizen and national of Indonesia, entered the United States,
remained illegally after the expiration of her temporary visa, was
placed in removal proceedings, conceded removability, and filed an
asylum and withholding-of-removal application based on her
allegations that she had been persecuted in Indonesia because she
is a Christian. Specifically, petitioner alleged that in October
1999, her ex-fiancé – a Muslim – had threatened to kill her and
kidnap their minor daughter Sasha. Three days later, three men
wearing military uniforms came to the petitioner’s house asserting
the same demands. In December 2000, petitioner's ex-fiancé arrived
at the house to get Sasha, but left without incident. Petitioner
reported the incident to the police, who informed the petitioner’s
father that “they had other serious matters to take care [of].”
Petitioner contends that most police officers are Muslim, and that
they refused to assist her because she is a Christian. After
leaving Sasha with her parents, petitioner departed for the United
States. Her parents and Sasha followed one year later.
After conducting an evidentiary hearing, the immigration
judge (IJ) credited petitioner's testimony, but denied her asylum
application as untimely, in that it was filed more than one year
after her arrival in the United States. Petitioner does not
request review of this ruling. See Tum v. Gonzales, 503 F.3d 159,
160 (1st Cir. 2007) (noting that we lack jurisdiction to review a
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denial of an asylum application for untimeliness, citing 8 U.S.C.
§ 1158(a)(3)). With respect to the petitioner’s application for
withholding of removal, the IJ held that the petitioner failed to
meet her burden to prove a likelihood of future persecution upon
her return to Indonesia, in that (i) her ex-fiancé’s threats were
motivated by his legitimate parental interest in Sasha, and not by
any professed oppugnancy to the petitioner’s Christian beliefs;
(ii) the record contained no evidence to support the petitioner’s
bald assertion that the police refused to protect her because she
was a Christian; and (iii) the petitioner eventually evaded further
confrontations with her ex-fiancé by relocating from Manado to
Jakarta. On appeal, the BIA summarily affirmed the IJ’s ruling.
In her petition for review, Lumanauw contends that the
denial of her withholding application is erroneous because the
administrative record compels a finding that it is more likely than
not that she would be threatened by her ex-fiancé and the police on
account of her Christian beliefs were she repatriated to Indonesia.
See id. § 1231(b)(3)(A); Sunoto v. Gonzales, 504 F.3d 56, 60 (1st
Cir. 2007) (noting that “we use the deferential substantial
evidence standard for factual findings . . . [and will] ‘uphold the
BIA's decision “unless any reasonable adjudicator would be
compelled to conclude to the contrary”’”) (citations omitted). We
do not agree.
The record contains no conclusive evidence that
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petitioner’s ex-fiancé’s actions were motivated to any extent by
petitioner’s Christian beliefs. See Fesseha v. Ashcroft, 333 F.3d
13, 18 (1st Cir. 2003) (noting that aliens “must provide
‘conclusive evidence’ that they were targeted based on one of the
five asylum grounds”) (citation omitted). As the IJ aptly noted,
her ex-fiancé mentioned her religion only once, threatening that,
if petitioner chose not to surrender the custody of Sasha to him,
he could harm her with impunity by arranging it to appear as though
her injuries had resulted from a random act of religious violence.
The IJ fairly inferred, therefore, that this was essentially a
child custody battle between estranged parents, and one which
likely would have occurred even if petitioner had been a Muslim.
See, e.g., Silva v. Ashcroft, 394 F.3d 1, 6 (1st Cir. 2005) (noting
that withholding of removal cannot be premised on what is
“essentially a personal dispute,” unrelated to animus toward one of
five protected statutory classes [e.g., a religious group])
(emphasis added); Romilus v. Ashcroft, 385 F.3d 1, 6 (1st Cir.
2004) (same). As the IJ’s finding is amply supported by
substantial record evidence, we deny the petition for review.
Denied.
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