Hutauruk v. Ashcroft , 121 F. App'x 404 ( 2005 )

Not For Publication in West's Federal Reporter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. 03-2485
POLTAK HUTAURUK,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,
Respondent.*
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Howard, Circuit Judges.
Steven A. Mundie, on brief for petitioner.
William C. Minick, Attorney, Office of Immigration Litigation,
Peter D. Keisler, Assistant Attorney General, Civil Division, and
Linda S. Wernery, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
February 18, 2005
*
Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted Attorney
General Gonzales for John Ashcroft as the respondent. See Fed. R.
Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2).
Per Curiam. Poltak Hutauruk, a native of Indonesia,
petitions for review of a Board of Immigration Appeals ("BIA")
decision summarily affirming an immigration judge’s ("IJ’s") denial
of his request for asylum. We deny the petition.
On July 13, 2001, the Immigration and Naturalization
Service issued to Hutauruk a Notice to Appear, alleging that he was
an alien removable for staying beyond the term of his visitor’s
visa.1 See 8 U.S.C. § 1227(a)(1)(B). Hutauruk admitted that he
was removable but sought asylum on the ground that he had been
persecuted because of his religion.2
Hutauruk is a Pentecostal Christian and a native
Indonesian. His wife and son still live in Indonesia. Hutauruk
testified that on May 14, 1998, there were riots in the
neighborhood where he worked, an ethnically Chinese area. During
these riots, Hutauruk was injured and had to seek medical
attention. He testified that the rioters were screaming Muslim
religious slogans and that their actions were directed at
Christians. After the riots, Hutauruk got a new job and stayed in
Indonesia until September 23, 2000, when he traveled to the United
1
The relevant functions of the INS were transferred to the
Department of Homeland Security and reorganized into the Bureau of
Immigration and Customs Enforcement in March 2003. Because the
relevant events took place prior to the reorganization, we refer to
the INS.
2
Hutauruk also applied for withholding of removal and
protection under the Convention Against Torture, but does not
challenge the denials of those applications in his petition.
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States. Hutauruk did not report any other incidents during the 28
months that he remained in Indonesia.
Hutauruk also testified that his family has experienced
religious violence since he came to the United States. He stated
that on December 24, 2000, while his wife, son, and mother-in-law
were attending Christmas services, the church they were in was
bombed. Though his child was not hurt, Hutauruk’s wife was hit in
the head with glass, and his mother-in-law injured her knee.
After a hearing before an IJ, Hutauruk’s request for
asylum was denied. The IJ determined that Hutauruk did not prove
either that he had endured persecution or that he had a reasonable
fear of future persecution. Regarding past persecution, the IJ
concluded that Hutauruk’s religion was not a cause of his injuries
because the rioting on May 14, 1998 was general rioting and the
rioters had no way of knowing that Hutauruk was Christian.
Concerning Hutauruk’s claim that he will be persecuted if he
returns to Indonesia, the IJ determined that the attacks against
Christians were not invidious enough to amount to persecution and
that the government of Indonesia had not condoned the actions of
the “extremists.” The BIA summarily affirmed.
When the BIA summarily affirms an IJ’s ruling, we review
the IJ’s decision directly. Albathani v. INS, 318 F.3d 365, 373
(1st Cir. 2003). We review the IJ’s conclusions under the
“deferential ‘substantial evidence’ standard,” Carcamo-Recinos v.
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Ashcroft, 389 F.3d 252, 256 (1st Cir. 2004), which requires us to
uphold the IJ’s decision “if supported by reasonable, substantial,
and probative evidence on the record considered as a whole.”
Khalil v. Ashcroft, 337 F.3d 50, 55 (1st Cir. 2003)(internal
quotation mark omitted). Under this standard, a petitioner must do
more than simply identify alternative findings supported by the
evidence. See Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003);
see also INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992); Aguilar-
Solis v. INS, 168 F.3d 565, 569 (1st Cir, 1999). Rather, the
petitioner must show that the evidence is so overwhelming that a
reasonable factfinder would have to conclude that he is entitled to
asylum. Elias-Zacarias, 502 U.S. at 482.
Hutauruk’s petition, which challenges only the finding as
to likely future persecution, relies entirely on a 2002 State
Department report on human rights practices in Indonesia submitted
by the government in the administrative proceedings.3 Hutauruk
reads the report to establish conclusively that he would be
persecuted were he to return to Indonesia. But the report does not
compel such a conclusion. Though the report describes instances of
religious violence in Indonesia and governmental ineffectiveness in
responding to these incidents, it also states that the government
3
The INS contends that Hutauruk’s argument regarding the
report is not properly before us because he did not base his BIA
appeal upon it. Because the outcome of this proceeding is
foreordained under circuit precedent regardless, we shall treat
Hutauruk’s contention, arguendo, as properly raised on appeal.
See Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000).
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was working with a non-governmental organization to investigate the
December 24 bombings, and that there is no evidence “that security
forces, as an institution, supported either side.” The report
further states that Indonesia’s religious freedom provisions are
“generally respect[ed],” and that perpetrators of some of the
December 24 bombings were convicted and given prison sentences.
Finally, and in any event, the report does not indicate that
religious persecution is so pervasive in Indonesia that Hutauruk
could not avoid it by relocating within the country. See 8 C.F.R.
208.13(2)(C)(ii).
We have no basis to disturb the denial of Hutauruk’s
asylum application. Accordingly, we deny his petition for review.
So Ordered
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