Andayani v. Gonzales , 240 F. App'x 425 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 05-2269
TUTTY ANDAYANI, et al.,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.
William E. Graves, Jr. and Graves & Doyle for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Greg D. Mack, Senior Litigation Counsel, and Thomas L. Holzman,
Special Attorney, United States Department of Justice, Civil
Division, Office of Immigration Litigation, for respondent.
July 13, 2007
*
Of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.
Per Curiam. Tutty Andayani, her husband, and their two
minor children,1 petition for review of an order of the Board of
Immigration Appeals (BIA) summarily affirming an Immigration
Judge’s (IJ) denial of their applications for asylum and
withholding of removal. We deny the petition.
Andayani is a native and citizen of Indonesia who, with
her two children, entered the United States on September 7, 2001 as
a non-immigrant with authorization to remain until February 6,
2002. Her husband, also a native and citizen of Indonesia, had
previously been admitted to the country on a visa. The entire
family overstayed their authorizations.
In March 2002, Andayani filed an application for, inter
alia, asylum and withholding of removal, and was subsequently
interviewed by an asylum officer.2 The officer did not grant the
application. Subsequently, the Immigration and Naturalization
Service (“INS”) filed a Notice to Appear charging that Andayani,
her husband, and her two children were subject to removal.
Thereafter, a hearing was held before an IJ at which
1
Andayani is designated as the lead petitioner in this case.
Because the claims of her husband and their two minor children are
derivative of Andayani’s asylum application, we do not discuss them
separately. See 8 U.S.C. § 1158(b)(3); Silva v. Ashcroft, 394 F.3d
1, 4 n.4 (1st Cir. 2005).
2
Andayani also sought relief under the Convention Against
Torture but has not briefed this claim on appeal, and therefore, we
consider it waived. See Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st
Cir. 2002).
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Andayani and her family admitted the factual allegations in the
Notice to Appear, conceded removability, and asked for asylum and
withholding of removal. Andayani testified in support of her
application as follows.
In 2001, Andayani lived with her husband and two children
in Bandung, Indonesia. She characterized herself as a “moderate”
Muslim and anti-fundamentalist but stated that as a “native” and a
Muslim, she felt a certain degree of safety.
Andayani’s husband came to the United States to study in
early 2001. Shortly thereafter, Muslim “extremists” from a group
called the “Jihad Army” began visiting houses in Andayani’s
neighborhood, asking for donations and participants to carry out
their plans.
Initially, the men asked Andayani to join them, but when
she refused, they demanded money and threatened her and her
children. They asked about Andayani’s husband and became upset
when they learned he had gone to the United States. They called
her husband a traitor and did not believe Andayani when she said
she had no money. Andayani convinced the men to come back in two
days for the money. They returned as requested and collected the
equivalent of about $50 U.S. dollars. Over the next several weeks,
these individuals returned several more times, and Andayani paid
them the equivalent of about $200 U.S. dollars in total.
Andayani tried reporting the problem to the police, but
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the police insisted on bribes and refused to take action. Andayani
later sold her house in the summer of 2001 and moved to live with
her parents in Jakarta. She experienced no further problems until
she left for the United States in September 2001.
The IJ found Andayani credible but concluded that she
failed to demonstrate an entitlement to relief. The IJ based this
finding on Andayani’s success in relocating within Indonesia
without further significant incident. The IJ also noted that
Andayani did not claim any physical violence and the only damage to
her property was damage to her front door because it had been
kicked in by the extremists during one of the visits. Andayani
appealed to the BIA, which affirmed without opinion. Andayani then
timely petitioned this court for review.
Where the BIA summarily affirms the IJ’s decision, we
review the IJ’s decision directly.3 Tota v. Gonzales, 457 F.3d
161, 165 (1st Cir. 2006); Akinfolarin v. Gonzales, 423 F.3d 39, 42
(1st Cir. 2005); 8 C.F.R. § 1003.1(e)(4). We review the IJ’s
denial of asylum and withholding of removal under the “substantial
evidence” standard. Chreng v. Gonzales, 471 F.3d 14, 21 (1st Cir.
2006). Under this standard, the decision will stand unless the
3
Andayani asserts that the BIA’s use of its summary affirmance
procedure, see 8 C.F.R. § 1003.1(e)(4), denied her due process of
law. We have rejected such challenges before, see Disu v.
Ashcroft, 338 F.3d 13, 18 (1st Cir. 2003); Albathani v. INS, 318
F.3d 365, 375-79 (1st Cir. 2003); El Moraghy v. Ashcroft, 331 F.3d
195, 205-06 (1st Cir. 2003), and do so again.
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record evidence “would compel a reasonable factfinder to make a
contrary determination.” Pan v. Gonzales, 445 F.3d 60, 61 (1st
Cir. 2006).
Under the Immigration and Nationality Act (“INA”), the
Attorney General or the Secretary of Homeland Security may grant
asylum to an applicant who establishes “refugee” status. 8 U.S.C.
§ 1158(b)(1)(A). Applicants can meet this burden by (1)
demonstrating past persecution on the basis of one of five
statutory grounds: race, religion, nationality, membership in a
particular social group, or political opinion; or (2) establishing
they have a well-founded fear of future persecution based on one of
the five statutory grounds. See 8 C.F.R. § 208.13(b).
Establishing a well-founded fear of future persecution requires
applicants to demonstrate that their fear is both genuine and
objectively reasonable. See Khem v. Ashcroft, 342 F.3d 51, 53 (1st
Cir. 2003). By establishing past persecution, applicants create a
rebuttable presumption of a well-founded fear of future
persecution. See 8 C.F.R. § 208.13(b)(1).
Andayani first asserts that the IJ’s decision is
unsupported because she established past persecution as a result of
harassment on account of her perceived religious status as a
“moderate” Muslim. Past persecution requires “more than mere
discomfiture, unpleasantness, harassment, or unfair treatment.”
Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005). Conduct
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of the quality and degree experienced by Andayani does not compel
a finding of persecution. See Susanto v. Gonzales, 439 F.3d 57, 59
(1st Cir. 2006) (affirming finding of no persecution where
petitioners were subjected to vandalization of their home, bombing
of their church, and threats from crowds); see also Bocova v.
Gonzales, 412 F.3d 257, 263-64 (1st Cir. 2005) (affirming finding
of no persecution where petitioner suffered two police beatings
within two years); Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir.
2000) (compiling cases; affirming finding of no persecution where
petitioner was subjected to three episodes of solitary confinement,
physical abuse, periodic surveillance, threatening phone calls, and
occasional stops and searches).4
Andayani also has failed to show that the IJ’s rejection
of her future persecution claim was unsupported by substantial
evidence. To show a well-founded fear of persecution, “an
applicant must not only harbor a genuine fear of future
persecution, but also must establish an objectively reasonable
basis for that fear.” Toloza-Jimenez v. Gonzales, 457 F.3d 155,
161 (1st Cir. 2006) (quoting Laurent v. Ashcroft, 359 F.3d 59, 65
4
Andayani challenges the cases relied on by the IJ to support
the finding of no persecution, Disu v. Ashcroft, 338 F.3d 13 (1st
Cir. 2003), Velasquez v. Ashcroft, 342 F.3d 55 (1st Cir. 2003), and
Khem v. Ashcroft, 342 F.3d 51 (1st Cir. 2003), on the grounds that
they are either factually distinguishable or involved less credible
applicants. The IJ, however, only referred to those cases to make
the general point that Andayani’s claim does not rise to the level
of past persecution. The differences between these cases and
Andayani’s do not undermine the soundness of the IJ’s decision.
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(1st Cir. 2004)). Andayani contends that the IJ failed to
appreciate her fear of returning to Indonesia because he did not
adequately consider the United States State Department Country
Condition Report on Indonesia as evidence of targeted persecution
of Muslim moderates by armed Islamic fundamentalist groups.
We have held that State Department Reports are “generally
probative of country conditions,” but that their findings must be
considered within the context of the petitioner's specific claim.
Chreng, 471 F.3d at 21. The Country Condition Report does show
that there are certain parts of Indonesia where armed extremist
groups attack Muslims. But the Report does not suggest that these
abuses take place in Jakarta, where Andayani moved after receiving
the threats.
An ability to relocate to another part of the country to
avoid persecution weighs heavily against a well-founded fear of
future persecution. See 8 C.F.R. § 1208.13(b)(1)(i)(B),
(b)(2)(ii); see also Susanto, 439 F.3d at 61 (family relocated to
safer region during violent riots). This is particularly true
where, as here, the applicant’s relatives have lived peacefully in
another part of the country for an extended period. See Silva v.
Ashcroft, 394 F.3d 1, 7 (1st Cir. 2005) (applicant’s wife and
daughter lived peacefully for a year at a relative’s house in
another area); Velasquez, 342 F.3d at 59 (numerous relatives of
petitioners lived undisturbed in another part of the country for
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over twenty years), abrogated on other grounds by Bocova v.
Gonzales, 412 F.3d 257 (1st Cir. 2005); see also Aguilar-Solis v.
INS, 168 F.3d 565, 573 (1st Cir. 1999) (“[T]he fact that close
relatives continue to live peacefully in the alien's homeland
undercuts the alien's claim that persecution awaits his return.”).
Andayani’s parents have lived in Jakarta for many years without
ever being bothered by fundamentalist Islamic militants.
Accordingly, substantial evidence supports the IJ’s conclusion that
Andayani does not have a well-founded fear of future persecution.5
For these reasons, the denials of Andayani’s claims for
asylum and withholding of removal are supported by substantial
evidence. The petition for review is therefore denied.
5
Since Andayani failed to satisfy the more lenient asylum
standard, she cannot satisfy the more demanding withholding of
removal standard. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir.
2004).
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