Dondocambey v. Ashcroft , 106 F. App'x 740 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2548
TREACE CHRISTIEN DONDOCAMBEY,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Howard, Circuit Judges.
Thomas V. Massucci on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Michelle E. Gorden, Senior Litigation Counsel, Office of
Immigration Litigation, and Thomas H. Tousley, Attorney, Office of
Immigration Litigation, on brief for respondent.
August 20, 2004
LYNCH, Circuit Judge. Treace Dondocambey, a native and
citizen of Indonesia, entered the United States on November 17,
2000, as a visitor for pleasure. She remained here longer than her
authorized stay, and the INS issued a Notice to Appear on August
28, 2001, charging the petitioner with being removable. On
November 7, 2001, the petitioner, with the assistance of counsel,
conceded removability, renewed her application for political asylum
and withholding of removal, and requested protection under Article
3 of the Convention Against Torture. On May 21, 2002, the
Immigration Judge (IJ) denied her claims, finding that she had not
shown past persecution or a well-founded fear of future persecution
on account of her religion, the basis for her claim of asylum, and
that she had offered no evidence of torture to establish a claim
under the Convention Against Torture. See 8 C.F.R. § 1208.16(c)
(discussing eligibility for withholding of removal under the
Convention Against Torture). The Board of Immigration Appeals
(BIA) affirmed the decision without opinion, and Dondocambey now
petitions for review of the order. We affirm the BIA decision.
I.
We recount the facts largely as accepted by the IJ.
Dondocambey is a Christian. In May of 1998, violent riots broke
out in Indonesia often directed against the ethnic Chinese. In the
midst of this turmoil, the petitioner was attacked by a group of
individuals on May 14, 1998. On the day of the attack, the riots
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and looting continued on the streets in front of her office in
Jakarta, and she became increasingly fearful for her safety. She
sought and received permission to leave work early, and she
contacted two of her friends. The three women attempted to go
home. Along the way, a group of people carrying sharp objects
approached and stopped them. The group forced the women from the
car, tried to steal their wallets, jewelry, and cell phones; they
then attempted to rape each of the three women.
Dondocambey was dragged into the bushes by two attackers.
She pleaded with her attackers not to rape her. She told them that
she was pregnant. In response to a direct question about her
religion, she lied and said that she was Muslim. She spoke a few
words in Arabic to convince them. The leader of the group ordered
the others to let her go. In testimony she said that if she had
revealed her true religion, she believes the attackers would have
raped and perhaps killed her. After the attackers released her,
she drove home accompanied by one of the other two women, who had
been badly beaten, but was not raped after she said she was
menstruating. The third woman did not leave with the petitioner.
Dondocambey testified that she tried to contact her after the
incident and that she later heard the woman moved to Australia.
The petitioner returned to work approximately 7-10 days
after the attack. She remained in Indonesia for more than two and
one-half years, until she entered the United States in November of
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2000. During this time, the petitioner did not experience another
act of violence. She stated that she continued to feel scared and
that she changed her behavior to avoid large crowds. Her family,
including her husband, still live in Indonesia. They are
Christians, and since the time of the petitioner's journey to the
United States, they have lived unharmed in Indonesia. However, the
petitioner stated, without elaboration, that her family had
problems when they wanted to go to church.
II.
We summarize the findings of the IJ, which were affirmed
without opinion by the BIA.1 The IJ found that the petitioner's
testimony regarding the attack was credible and determined that
"the rioters certainly did not pursue these three young women on
account of their being Christian." As the IJ explained, "there is
no way that the rioters could have known whether or not the women
were Christian or Muslims, and in point of fact at least one of the
other women was not a Christian." The IJ also found that the
attempted rapes were not based on the women being Christian, for
similar reasons.
The IJ also considered the 2001 United States Department
of State Country Report on the topic of violence against
1
When the BIA affirms the IJ's decision without opinion, the
Court of Appeals reviews the findings and conclusions of the IJ as
the final agency determination. Albathani v. INS, 318 F.3d 365,
373 (1st Cir. 2003).
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Christians. The IJ recognized that the Indonesian government is
ineffective against some forms of violence. That violence involved
"attacks [by] and against all of the particular religious
factions." The IJ noted that "[t]here [have] been attacks on
churches, mosque [sic], temples, and other religious facilities
during the year, and the government views proselyting by recognized
religions in areas heavily dominated by another recognized religion
as potentially dangerous and disruptive and discourages it." The
IJ also considered that the Indonesian constitution provides for
religious freedom of recognized religions, and this freedom is
generally respected by the government. The law officially
recognizes five religions, including Islam, Catholicism,
Protestantism, Buddhism, and Hinduism, and the government lifted
its ban on Jehovah's Witnesses in June 2001. The IJ found that it
was clear "that while there appears to be overt discrimination
between the respective religious groups, there is no showing that
the discrimination is so pervasive and intolerable and either
government directed or condoned as to be tantamount to
persecution."
The IJ also determined that before the attack in May of
1998, the petitioner had experienced no difficulty on account of
her religious beliefs: she had completed high school, attended an
accounting academy, and held a "responsible position" with a large
company in Jakarta. Further, she returned to work after the attack
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until she made plans to come to the United States in October of
2000. During that two and one-half years, she "experienced no
difficulties"; "her family remains in Jakarta and is unharmed and
apparently doing well."
On the asylum claim, the IJ concluded that while the
attack on the petitioner was "regrettable and reprehensible," the
attack did not take place on account of her religion. The IJ found
the attacks to be "acts of criminality, perhaps targeting those of
Chinese ethnicity, but clearly not directed against those of the
Christian faith."2
As to the Convention Against Torture claim,3 the IJ also
2
The petitioner argues in her brief that the attack could
have been based on Chinese ethnicity. The petitioner cannot raise
this claim for the first time in her petition for review. Ravindran
v. INS, 976 F.2d 754, 761 (1st Cir. 1992)(the petitioner is
required to exhaust administrative remedies prior to seeking
judicial remedies, and "[i]ssues not raised before the Board may
not be raised for the first time upon judicial review of the
Board's decision"). There is no evidence in the record that the
petitioner clearly raised the ethnic Chinese claim before the IJ or
the BIA. To the contrary, in her affidavit in support of her
asylum application, she states that she is an "Indonesian of ethnic
Manadonese and Christian religion." She does assert in her brief
that her physical appearance is similar to that of an ethnic
Chinese. However, in response to the question on her application
for asylum concerning the basis for which she has "ever been
mistreated or threatened," she checked only the box for religion.
Furthermore, as we read the record, there is nothing to compel
the conclusion that discrimination against individuals of Chinese
ethnicity caused her to be subject to past persecution or to have
a well-founded fear of future persecution.
3
The petitioner has waived her claim under the Convention
Against Torture because she did not raise it in her petition for
review. See Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002).
In any event, we would uphold the IJ's denial of relief under the
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concluded that the petitioner offered no evidence that the
Indonesian government or its officials torture persons on account
of their religion.
III.
We review the IJ's findings under the deferential
substantial evidence standard. INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). Determinations of eligibility for asylum must be
upheld if "supported by reasonable, substantial, and probative
evidence on the record, considered as a whole." Id. (internal
quotation omitted). "To reverse the [Immigration Judge's] findings
we must conclude that the evidence not only supports that
conclusion, but compels it." Id. at 481 n.1.
The burden of proof for establishing eligibility for
asylum lies with the petitioner. 8 C.F.R. § 1208.13(a).
Applicants must show either past persecution or a well-founded fear
of future persecution based on one of the five statutory grounds of
"race, religion, nationality, membership in a particular social
group, or political opinion." Id. § 1208.13(b)(1).
To prove past persecution, the petitioner must provide
persuasive evidence that she was persecuted on any of the five
statutory grounds. Velasquez v. Ashcroft, 316 F.3d 31, 34-35 (1st
Cir. 2002). To establish a well-founded fear of future
Convention Against Torture because the IJ's determination is
supported by substantial evidence.
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persecution, "applicants can offer specific proof, or they can
claim the benefit of a regulatory presumption based on proof of
past persecution." Khalil v. Ashcroft, 337 F.3d 50, 55 (1st Cir.
2003). To demonstrate a well-founded fear of future persecution,
"a petitioner must satisfy both an objective and a subjective
test." Id. The individual's fear "must be both genuine and
objectively reasonable." Aguilar-Solis v. INS, 168 F.3d 565, 572
(1st Cir. 1999).
"[W]ithholding [of removal] is mandatory if an alien
'establish[es] that it is more likely than not that [he] would be
subject to persecution on one of the specified grounds.'" INS v.
Aguirre-Aguirre, 526 U.S. 415, 419 (1999) (quoting INS v. Stevic,
467 U.S. 407, 429-30 (1984)). "Because the 'more likely than not'
standard for withholding [removal] is more stringent than that for
asylum, a petitioner unable to satisfy the asylum standard" will
also not satisfy the withholding standard. Albathani, 318 F.3d at
372.
Substantial evidence supports the IJ's finding that the
attack on petitioner was not on account of her Christian faith.
Additionally, the petitioner lived in Indonesia for over two years
after the attack. Although she expressed some fear of large crowds
and testified that she changed her behavior to avoid them, she did
not experience any violence or threats because of her Christian
faith, nor has her family since her departure.
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Because petitioner has not satisfied the more lenient
asylum standard, she has also failed to satisfy the withholding of
removal standard. Accordingly, we deny the petition for review.
IV.
The petition for review is denied.
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