Siahaan v. Mukasey ( 2008 )

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2167
MARUHUM MAROJAHAN SIAHAAN, et al.
Petitioners,
v.
MICHAEL B. MUKASEY,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, Circuit Judges,
and Domínguez,* District Judge.
William A. Hahn, on brief for petitioners.
Nicole M. Nurley, Attorney, U.S. Department of Justice, Civil
Division, Office of Immigration Litigation, Jeffrey S. Bucholtz,
Acting Assistant Attorney General, Civil Division, and James A.
Hunolt, Senior Litigation Counsel, on brief for respondent.
October 17, 2008
*
Of the District of Puerto Rico, sitting by designation.
TORRUELLA, Circuit Judge. Petitioners Willy M. Siahaan
("Mrs. Siahaan") and her husband, Maruhum M. Siahaan ("Mr.
Siahaan") (collectively, "Petitioners"), are natives and citizens
of Indonesia. The Department of Homeland Security charged
Petitioners with removability due to overstayed visas pursuant to
section 237(a)(1)(B) of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1227(a)(1)(B). Thereafter, Petitioners filed
separate applications for asylum alleging religious persecution.
They also requested withholding of removal and protection under the
Convention Against Torture ("CAT"). Their applications were
consolidated and denied by an immigration judge ("IJ") who found
them to be removable as charged. The Board of Immigration Appeals
("BIA") summarily affirmed this decision. After careful
consideration, we deny their petition for review.
I. Background1
We summarize the facts as presented by Mrs. Siahaan in
her hearing testimony and asylum application. See Sok v. Mukasey,
526 F.3d 48, (1st Cir. 2008). Petitioners were born in Indonesia
and married in Jakarta; they have four grown children who still
live there. Mr. Siahaan last came to the United States in August
2002, and Mrs. Siahaan in April 2004. They are Protestant and,
1
Mr. Siahaan did not testify during the immigration proceedings
and, as he is a rider on his wife's application, his request for
asylum depends in the first instance on the facts adduced by Mrs.
Siahaan.
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while in Indonesia, they attended the Nazareth Church in Jakarta.
Petitioners now attend the Holy Trinity Indonesian Church in New
Hampshire.
The Petitioners' claims of persecution are predicated on
their religious beliefs. Mrs. Siahaan testified that she and her
husband encountered problems attending church in Indonesia because
of bombing incidents. She described bomb threats during the
Christmas holidays in 1998, 1999, and 2000. Although none of these
threats were leveled against the Petitioners' church, the
congregation's fears resulted in the church being guarded.
Mrs. Siahaan also testified that in the early afternoon
on May 14, 1998, while at a shopping mall, she heard a bomb
explode. She saw some shops on fire and people running and crying.
As she exited the mall, Mrs. Siahaan was pushed to the ground by
three individuals who she assumed to be Muslim -- based on
appearance and attire -- and who asked her if she was Christian.
Mrs. Siahaan contends that they identified her as Christian due to
her Chinese appearance and because she was wearing a cross. The
individuals kept pushing Mrs. Siahaan, but she was able to reach an
exit and escape. That same night, Petitioners were warned by
neighbors to leave their home because rioters targeting Christians
were headed toward the area; the rioters never arrived because they
were told that everyone living in the Petitioners' residential
complex was native Indonesian.
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In another incident in 2003, Mrs. Siahaan was at home
with her daughter when she heard someone throwing rocks at their
house. Mrs. Siahaan contends that the people throwing rocks were
Muslims trying to terrorize her for being Christian. When asked at
the hearing how they knew she was Christian, Mrs. Siahaan surmised
that some neighbors must have told them.
Mrs. Siahaan further testified that from 1997 to 2004 she
traveled multiple times between Indonesia and the United States.
Despite being in possession of a valid United States visa and
Indonesian passport during the 1998 riots, for example, Mrs.
Siahaan chose to stay in Indonesia because she testified she needed
time to get her affairs in order. In August 2003 Mrs. Siahaan also
returned to Indonesia on an extended visit to receive follow-up
care on a medical operation she had undergone the year before; she
stayed for seven months. In April 2004, Mrs. Siahaan traveled back
to the United States and has remained since then.
Mrs. Siahaan's siblings, daughters, and sons, all of whom
are Christian, remain in Jakarta without incident to this day.
Mrs. Siahaan testified that her younger brother was beaten by
Muslims in the 1970s for being Christian. As a result of the
beating, Mrs. Siahaan's brother suffered brain damage and has had
to take medication to this day. On further inquiry, Mrs. Siahaan
also testified that the individuals who assaulted her brother were
morphine addicts.
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After hearing Mrs. Siahaan's testimony, the IJ denied the
Petitioners' application for asylum, withholding of removal, and
protection under the CAT, and found Petitioners to be removable as
charged. The IJ found that although Mrs. Siahaan's testimony "was,
at all times, credible," he could not find that the Petitioners had
experienced past persecution because the 1998 riot incident was
"isolated violence rather than persecution directed at [Mrs.
Siahaan] . . . due to [her] religious faith." The IJ found
similarly regarding the rock-throwing incident in 2003, describing
the incident as "a random act." On June 27, 2007, the BIA affirmed
the IJ's decision in its entirety, and dismissed Petitioners'
appeal. Petitioners now seek judicial review.2 They argue that
the IJ erred in finding that they suffered no past persecution.
II. Discussion
A. Standard of Review
While we normally review decisions of the BIA and not
those of IJs, to the extent that the BIA has adopted and affirmed
the IJ's decision, we review the adopted portion of the IJ's
decision. See Mewengkang v. Gonzáles, 486 F.3d 737, 739 (1st Cir.
2007); accord Vásquez v. I.N.S., 177 F.3d 62, 64 (1st Cir. 1999).
2
We consider only Petitioners' asylum claim as they failed to
raise their withholding of removal and CAT claims on this petition
for judicial review. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
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Thus, as the BIA summarily affirmed the IJ's decision, our review
focuses on the IJ's factual findings and legal conclusions.
The IJ's factual findings are reviewed under the
"substantial evidence" standard; they may only be reversed if the
evidence on the record would compel a reasonable factfinder to make
a contrary determination. Sok, 526 F.3d at 52-53. Findings
regarding eligibility for asylum are treated as factual findings
under the "substantial evidence" standard. See I.N.S. v. Elías-
Zacarías, 502 U.S. 478, 483 (1992) (applying this standard). The
IJ's legal conclusions are reviewed de novo, granting the necessary
appropriate deference to the agency's reasonable interpretation of
the INA or any other statute or regulation within its purview. See
Kechichian v. Mukasey, 535 F.3d 15, 21 (1st Cir. 2008) (quoting
Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)).
B. Applicable Law
Asylum applicants have the burden of establishing that
they are eligible for asylum by providing credible evidence
showing: (1) that the applicant has a fear of persecution; (2) that
such fear is based on past persecution or a well-founded fear of
future persecution; (3) that the persecution is on account of race,
religion, nationality, membership in a particular social group, or
political opinion; and (4) that the applicant is unable or
unwilling to avail herself of the protection of her country of
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provenance because of such persecution. 8 C.F.R. § 208.13 (a)-(b);
Galicia v. Ashcroft, 396 F.3d 446, 448 (1st Cir. 2005).
If the court were to find that the applicant suffered
past persecution, then it presumes there is a well-founded fear of
future persecution. 8 C.F.R. § 208.13(b)(1); Phal v. Mukasey, 524
F.3d 85, 90 (1st Cir. 2008). The burden then shifts to the
Government to show that the conditions in the applicant's country
of provenance have sufficiently changed to rebut this presumption
or that the applicant could avoid future persecution by relocating
to a different part of the country. 8 C.F.R. § 208.13(b)(1)(i)(A)-
(B); Orelien v. Gonzáles, 467 F.3d 67, 71 (1st Cir. 2006).
If a court were to find that there was no past
persecution, however, an asylum applicant may still be eligible for
asylum based on a well-founded fear of future persecution. See 8
C.F.R. § 208.13(b)(1); Toloza-Jiménez v. Gonzáles, 457 F.3d 155,
160-61 (1st Cir. 2006) (quoting 8 U.S.C. § 1101(a)(42)(A)). In
order to show a well-founded fear of future persecution an
applicant must not only harbor a genuine subjective fear of future
persecution, but she must also show, on an objective basis, that a
reasonable person in her circumstances would fear persecution upon
removal. See Toloza-Jiménez, 457 F.3d at 161 (quoting Laurent v.
Ashcroft, 359 F.3d 59, 65 (1st Cir. 2004)).
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C. Asylum Claim
Petitioners state two main contentions regarding the 1998
riot and 2003 rock-throwing incidents experienced by Mrs. Siahaan.
First, they argue that the IJ erred in finding that such incidents
did not amount to persecution. Second, they assert that because
the IJ found Mrs. Siahaan's testimony to be credible, he was
"required to accept her testimony as true." Lukwago v. Ashcroft,
329 F.3d 157, 164 (3d Cir. 2003) (internal quotation marks
omitted).
Under the substantial evidence standard, the question
before us is whether the evidence on the record would compel a
reasonable factfinder to make a determination contrary to that of
the IJ; i.e., that the 1998 riot and 2003 rock-throwing incidents
amount to past persecution. Our review of the record leads to the
conclusion that the evidence does not necessarily compel such a
finding. While it is clear that the incidents at issue took place
during widespread civil unrest, there is no evidence that they
amounted to targeted persecution of Mrs. Siahaan. See Journal v.
Keisler, 507 F.3d 9, 12 (1st Cir. 2007) ("In determining whether
alleged incidents rise to the level of persecution, one important
factor is whether 'the mistreatment can be said to be systematic
rather than reflective of a series of isolated incidents.'"
(quoting Bocova v. Gonzáles, 412 F.3d 257, 263 (1st Cir. 2005))).
The IJ properly evaluated the incidents, stating that
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[w]hile [Petitioners] may suffer from some
unease and concern that [the] unrest and
friction [in Indonesia] may erupt into
violence, and they may be in the line of fire,
there has been no evidence presented in this
case that any such violence or any activity
rising to the level of persecution has been
directed at the respondents.
We agree and find that the evidence on the record supports the IJ's
holding. As traumatic as her experiences may have been, Mrs.
Siahaan only experienced two unfortunate incidents of violence
during a period of civil unrest; she was not a specifically
targeted victim of persecution. See Sela v. Mukasey, 520 F.3d 44,
46 (1st Cir. 2008).
The IJ was also justified in finding that, although
Petitioners may have a genuine subjective fear of returning, the
record does not compel a finding that a reasonable person in their
situation would, on an objective basis, have a well-founded fear of
persecution upon removal. Petitioners made several trips to
Indonesia after the incidents that form the basis for their asylum
claim, and have family members living in Indonesia who have not
suffered any persecution. See Journal, 507 F.3d at 12 (finding
that the petitioner's family's ability to relocate and continue to
live in Haiti safely and without harassment significantly undercuts
the petitioner's claimed fear of persecution) (citing Nikijuluw v.
Gonzáles, 427 F.3d 115, 122 (1st Cir. 2005)). These facts
undermine Petitioners' claims of fear of future persecution.
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With respect to Petitioner's argument that the IJ was
required to accept Mrs. Siahaan's testimony as true because he
found her to be credible, we find such argument to be meritless.
We have previously upheld an IJ's conclusions on the basis that,
while a petitioner may testify credibly as to his genuinely felt
fear, the petitioner may fail to meet the objective test that
"'requires a showing by credible and specific evidence that [such]
fear is reasonable.'" Journal, 507 F.3d at 12 (quoting Mukamusoni
v. Ashcroft, 390 F.3d 110, 120 (1st Cir. 2004)); see also Phal, 524
F.3d at 90 (affirming BIA's and IJ's conclusion "that regardless of
whether [petitioner] had testified credibly, she failed to
establish a well-founded fear of future persecution"). As such,
the IJ was not required to make a finding of past persecution
because, even accepting all of Mrs. Siahaan's factual testimony as
true, the evidence on the record does not necessarily compel such
a finding.3
III. Conclusion
For the foregoing reasons, we deny the petition for
judicial review.
DENIED.
3
As we find that the 1998 riot and 2003 rock-throwing incidents
do not rise to the level of persecution, we refuse to entertain the
Petitioners' argument that the IJ failed to engage in a proper
"mixed motives" analysis regarding the motivation behind such
incidents.
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