Odmar v. Mukasey ( 2008 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2361
FNU ODMAR,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and Schwarzer,* Senior District Judge.
William A. Hahn with whom Hahn & Matkov was on brief for
petitioner.
Gregory K. Katsas, Acting Assistant Attorney General, Civil
Division, Cindy S. Ferrier, Senior Litigation Counsel, and Tracie
N. Jones, Trial Attorney, Office of Immigration Litigation, Civil
Division, on brief for respondent.
October 1, 2008
*
Of the Northern District of California, sitting by
designation.
SCHWARZER, District Judge. Fnu Odmar, a native and
citizen of Indonesia, petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of his appeal from the
denial of asylum and withholding of removal by an Immigration Judge
(“IJ”).1 Odmar contends that the BIA erred in determining (1) that
there was no material change in circumstances establishing an
exception to the requirement that asylum applications be filed
within one year of arrival in the United States, and (2) that he
was not entitled to withholding of removal. Because we lack
jurisdiction to review the BIA’s determination regarding the
timeliness of Odmar’s asylum application and substantial evidence
supports the denial of withholding, we dismiss Odmar’s petition for
review in part and deny it in part.
I. BACKGROUND
Odmar entered the United States on April 4, 1999, as a
crew member authorized to remain for no more than twenty-nine days.
On April 14, 2003, Odmar was served with a Notice to Appear
charging him as removable pursuant to Section 237(a)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B). Odmar
filed a defensive asylum application on July 28, 2005, based on his
1
Odmar has waived any challenge to the denial of relief under
the Convention Against Torture (“CAT”) by not raising it in his
opening brief. See Levin v. Dalva Bros., Inc., 459 F.3d 68, 76 n.4
(1st Cir. 2006).
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Christianity.
In his testimony before the IJ and in his asylum
application, Odmar described various incidents of harm in support
of his applications for asylum, withholding of removal, and CAT
relief. The IJ found Odmar credible. Odmar described being
fearful after witnessing the 1984 clash between Muslims and
Christians in the Tanjung Priok area of Jakarta. In June 1996, a
Muslim group leader interrupted a home prayer service in which
Odmar participated and demanded that the attendees stop their
prayers. In December 1998, Odmar witnessed a Muslim group attack
a man on a bus identified as Christian on his national
identification card, which indicates religion. Odmar described
that members of Muslim organizations solicited him, but not his
Muslim neighbors, for donations, and that he felt pressured to
contribute. Odmar also testified that his mother and sister
continue to reside in Indonesia and practice Christianity without
problems.
At the conclusion of the March 2, 2006, hearing, the IJ
denied all relief except voluntary departure. The IJ determined
that Odmar did not file an asylum application within one year of
arriving in the United States, and that he did not qualify for an
exception based on materially changed circumstances in Indonesia.
The IJ denied withholding of removal finding that Odmar did not
show that it was more likely than not that he would be persecuted
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on account of his Christianity if he returned to Indonesia. The IJ
found that Odmar’s experiences did not rise to the requisite level
of past persecution. The IJ also noted that Odmar testified that
his mother, sister, and brother-in-law, who were also Christian,
worshiped without any interference from Muslims or the government.
Odmar timely appealed the IJ’s decision to the BIA. The
BIA issued a decision on August 3, 2007, affirming the denial of
all relief and the grant of voluntary departure. The BIA found
that Odmar was ineligible for asylum based on his failure to file
within the statutory one-year deadline, and his inability to
establish “any changed circumstances in Indonesia affecting his
eligibility or extraordinary circumstances relating to the delay in
filing an application.” The BIA observed that although Odmar
claimed that conditions in Indonesia had been deteriorating since
his 1999 departure, he did not apply for asylum until six years
later in 2005, and he did not identify “any new ‘changes’ that
occurred in his native country within a reasonable time of his
filing that related to his claim for relief, and excused his delay
in filing.”
The BIA found that Odmar’s experiences were not
sufficiently severe to establish past persecution. The BIA denied
withholding, determining that there was no objective basis in the
record to conclude that it was more likely than not that Odmar
would be persecuted if he returned to Indonesia. The BIA also
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agreed with the IJ’s determination that Odmar was not entitled to
CAT relief.
Odmar filed a timely petition for review.
II. ANALYSIS
A. Timeliness of Odmar’s Asylum Application
We lack jurisdiction to review the denial of Odmar's
asylum application based on the BIA’s determinations that Odmar did
not file his application within the one year deadline and failed to
demonstrate changed or extraordinary circumstances excusing his
late filing. See 8 U.S.C. § 1158(a)(3); Hayek v. Gonzales, 445
F.3d 501, 506-507 (1st Cir. 2006). Under the REAL ID Act, this
court does retain jurisdiction to review constitutional claims or
questions of law raised in a petition for review.
8 U.S.C. § 1252(a)(2)(D). The BIA’s findings regarding timeliness
and changed or extraordinary circumstances, however, are usually
factual determinations outside the court’s jurisdiction. See
Hayek, 445 F.3d at 506-507.
Odmar contends that we retain jurisdiction because he
raises a question of law. He argues that the IJ used the incorrect
legal standard by concluding that "an increase in the intensity in
the circumstances in a particular country does not constitute a
material change as contemplated by the regulations," and that the
BIA "affirmed and simply cited the statute and regulation."
This argument is unavailing. Though the BIA affirmed the
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IJ, the BIA supplied its own reasoning and did not simply adopt the
reasoning of the IJ. Based on the record evidence, the BIA
concluded that Odmar had not identified "any new ‘changes' that
occurred in his native country within a reasonable time of his
filing that related to his claim for relief, and excused his delay
in filing." Contrary to Odmar's argument, this determination did
not involve the application of an erroneous legal standard; rather,
it is a factual determination that Odmar did not demonstrate that
circumstances in Indonesia had changed such that his untimely
application should be excused. Determinations of changed
circumstances are generally factual determinations, Hayek, 445
F.3d at 506-507, and Odmar has not presented a convincing argument
that the agency's determination here was not of a factual nature.
This court therefore lacks jurisdiction to review Odmar's claim
that the BIA erred in finding that his untimely application was not
excused.
B. Withholding of Removal
We review the BIA's findings of fact for substantial
evidence. See Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
The BIA's findings are upheld if they are "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole," and are reversed only if "the record evidence would compel
a reasonable factfinder to make a contrary determination." Id.(internal quotation marks and citations omitted).
6
To qualify for withholding of removal, Odmar must either
(1) show that he suffered past persecution on account of a
protected ground, creating a rebuttable presumption of future
persecution; or (2) demonstrate a clear probability of persecution,
which requires a showing that it is "more likely than not" that his
life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political
opinion. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987);
Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).
1. Past Persecution
Sufficient evidence supports the BIA's determination that
Odmar’s experiences do not rise to the level of past persecution.
His home prayer service was disrupted, he was solicited for money,
and he witnessed physical confrontations. Odmar never suffered any
physical harm, was never confined, and was never directly
threatened. Occasional mistreatment or a generalized fear of
mistreatment do not, on their own, constitute persecution. See
Sombah v. Mukasey, 529 F.3d 49, 50-52 (1st Cir. 2008) (Christian
Indonesian did not establish past persecution where applicant
hosted monthly prayer meetings and the attendees’ cars were
vandalized, her church was burned down, her husband was threatened
on a bus, and Muslim neighbors killed her dog); Susanto v.
Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006) (Chinese Christian
Indonesian did not establish past persecution where she was
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mugged, her home was vandalized during the 1998 riots, her church
was bombed, and a Muslim crowd threatened and threw stones at her).
Odmar's contention that the IJ failed to take into
account the totality of the circumstances and violated due process
by ignoring evidence of country conditions between 2002 and 2005 is
meritless. In his decision, the IJ specifically refers to evidence
of country conditions from this time period, including news
articles, State Department reports, and other reports submitted in
Exhibit 6, and materials postdating September 2005. See Sombah,
529 F.3d at 51-52. The parties also addressed the 2005
International Religious Freedom Report during the hearing before
the IJ.
2. Future Persecution
Substantial evidence supports the BIA’s finding that
Odmar did not establish that it was more likely than not that his
life or freedom would be threatened on account of his Christianity
based on country conditions and Odmar’s testimony that his family
remains unharmed in Indonesia. See Sipayung v. Gonzales, 491 F.3d
18, 20 (1st Cir. 2007) (no objectively reasonable fear of future
persecution where family remained in Indonesia unharmed and able to
safely practice their religion, and country reports indicated
improved conditions for Christians); Ferdinandus v. Gonzales, 504
F.3d 61, 63 (1st Cir. 2007) (safety of petitioner's children, who
still live and attend church in Indonesia, undercuts her argument
8
that she will suffer future persecution).
Odmar also argues that direct government involvement
triggers “heightened scrutiny” of his claims. We need not consider
this argument because Odmar failed to present it to the BIA. See
Sombah, 529 F.3d at 52 (rejecting same argument).
We dismiss the petition for review in part for lack of
jurisdiction and deny it in part.
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