Siahaan v. Mukasey ( 2008 )


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  •                 Not For Publication in West's Federal Reporter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.
    -2-
    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.
    -3-
    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.
    -4-
    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).
    -5-
    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
    -6-
    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)).
    -7-
    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
    -8-
    [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.
    -9-
    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.
    -10-