Luther M. Rogahang v. U.S. Attorney Gen. ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 13, 2005
No. 04-15723
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-469-873
LUTHER MARTYN ROGAHANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 13, 2005)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Before us is the petition of Luther Martyn Rogahang, a native and citizen of
Indonesia, seeking review of the Board of Immigration Appeals (“BIA”) decision
affirming an Immigration Judge (“IJ”) order denying his application for
withholding of removal under § 241(b)(3)(A) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1231(b)(3)(A).1 The specific relief he seeks is the reversal
of the decision denying his application for withholding of removal under the INA.2
An alien is entitled to withholding of removal under the INA if he can show
that his life or freedom would be threatened on account of his race, religion,
nationality, membership in a particular social group, or political opinion. Mendoza
v. U.S. Attorney Gen., 327 F.3d, 1283 1287 (11th Cir. 2003); see also INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3). If credible, the alien’s testimony “may be
1
Because Rogahang’s removal proceedings commenced after April 1, 1997, the
effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (“IIRIRA”), this case is governed by the
permanent provisions of the INA, as amended by IIRIRA. Gonzalez-Oropeza v. U.S. Attorney
Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Rogahang’s petition does not seek review of the
BIA’s decision denying his application for asylum or protection under the United Nations
Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
2
To the extent that the BIA’s decision was based on a legal determination, our review is
de novo. D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 817 (11th Cir. 2004). The BIA’s
factual determinations are reviewed under the substantial evidence test, and this Court “must
affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.
2001) (quotation omitted). We “cannot engage in fact-finding on appeal, nor may we weigh
evidence that was not previously considered below.” Id. at 1278. Therefore, a finding of fact
will be reversed “only when the record compels a reversal; the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal . . . .” Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc), petition for cert. filed, (No. 04-7944), (U.S. Oct. 28,
2004); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .”).
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sufficient to sustain the burden of proof without corroboration.” Mendoza, 327
F.3d at 1287 (quoting 8 C.F.R. § 208.16(b)). “An alien bears the burden of
demonstrating that he more-likely-than-not would be persecuted or tortured upon
his return to the country in question.” Mendoza, 327 F.3d at 1287. An alien can
meet his burden by showing either (1) “past persecution in his country based on a
protected ground,” in which case a rebuttable presumption is created that his life or
freedom would be threatened if he returned to his country; or (2) “a future threat to
his life or freedom on a protected ground in his country.” Id.If the alien demonstrates past persecution, it is presumed that his or her life
or freedom would be threatened in the future unless the government can rebut the
presumption. 8 C.F.R. § 208.16(b)(1)(i). If, however, the alien does not establish
past persecution, he or she bears the burden of showing that it is more likely than
not that (1) he or she would be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion; and (2) he or she
could not avoid a future threat to his or her life or freedom by relocating to another
part of his or her country if under all the circumstances it would be reasonable to
expect relocation. See 8 C.F.R. § 208.16(b)(2); see also Mendoza, 327 F.3d at
1287 (finding that “[a]n alien who has not shown past persecution, though, may
still be entitled to withholding of removal if he can demonstrate a future threat to
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his life or freedom on a protected ground in his country”). To establish the
necessary causal connection between the political opinion and the feared
persecution, the alien must present “specific, detailed facts showing a good reason
to fear that he or she will be singled out for persecution on account of such an
opinion.” Al Najjar, 257 F.3d at 1287 (quotations omitted) (discussing asylum).
Although the INA does not expressly define “persecution,” we have said that
“persecution is an extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation, and that mere harassment does not amount to
persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted). Generally,
conditions which affect the populace as a whole or in large part are insufficient to
establish persecution, Al Najjar, 257 F.3d at 1288, and other circuits have held that
harassment or discrimination without more does not rise to the level of persecution.
See Ghaly v. I.N.S., 58 F.3d 1425, 1431 (9th Cir. 1995) (holding that
“[d]iscrimination on the basis of race or religion, as morally reprehensible as it
may be, does not ordinarily amount to "persecution" within the meaning of the
Act.” ); see also Bastanipour v. I.N.S, 980 F.2d 1129, 1133 (7th Cir. 1992)
(distinguishing persecution from mere discrimination or harassment).
In considering the record as a whole, we are satisfied that substantial
evidence supports the conclusion that Rogahang did not show that it is more likely
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than not that he suffered or will suffer future persecution; moreover, the record
does not compel a conclusion to the contrary. The evidence established that
Rogahang suffered (1) a May 15, 1998, incident during which anti-Chinese
comments were directed at him as he was beaten, robbed and his house was burned
down, (2) a November 1998 incident during which his Christian church was
burned, but he was not physically harmed, and (3) an April 1999, incident during
which anti-Chinese comments were directed at him as he was beaten.
Although the evidence could support a finding that he was targeted on
account of his Chinese ethnicity and Christian faith, his testimony indicates that,
with respect to the May 15 incident, the perpetrators’ primary objective may have
been to rob him of his wallet and ATM card, as opposed to persecuting him on the
basis of his ethnicity or religious beliefs. Likewise, regarding the April 1999
incident, he testified that he was beaten only after he told his attackers that he did
not have any money or cigarettes. Again, although the perpetrators displayed a
degree of ethnic animus, his testimony supports the IJ’s finding that his Chinese
ethnicity and religious affiliation were not the motivating force behind the attack.
Rather, the evidence supports the IJ’s finding that, in the midst of widespread
looting and mob violence, the attack was precipitated because the perpetrators
wanted his cigarettes and money.
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The November 1998 church-burning incident, however, is more problematic
because neither the IJ nor the BIA discussed it directly, although the IJ did imply
that this incident was motivated by discrimination, not persecution. Rogahang,
however, was not physically injured during the incident and the record does not
compel the conclusion that he was singled out for persecution. As we have
recognized, “[n]ot all exceptional treatment is persecution,” Gonzalez v. Reno, 212
F.3d 1338, 1355 (11th Cir. 2000), and the mere fact that the record may support a
contrary conclusion is not enough to justify a reversal. See also Sepulveda, 401
F.3d at 1231 (holding that although the evidence put forth by the petitioner
permitted the finding that she was attacked and threatened on account of her
political activities, the record did not compel the conclusion that the threats and
attacks rose to the level of persecution because of her political involvement). Like
Sepulveda, the record in this case may support the conclusion that Rogahang may
have been targeted based on a protected ground, but the record does not compel a
finding that Roghang was in fact singled out and persecuted because of his
religious beliefs so as to justify our reversal of the decisions below.
Although Rogahang’s fear that he will be persecuted if he returns to
Indonesia appears to be subjectively reasonable, the evidence in the record does
not compel a finding that his fear is objectively reasonable. Rather, the evidence
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tends to establish that it is not objectively reasonable for Rogahang to fear
persecution upon his return to Indonesia. Notably, his family members, who are all
similarly situated, continue to reside in Indonesia and he presented no evidence
that they have been harmed in any way because of their Chinese ethnicity or
Christian faith and practice. In sum, the BIA’s determination that Rogahang failed
to establish a clear probability that he would be persecuted if he returned to
Indonesia is supported by substantial evidence, and nothing in the record compels a
reversal of that decision.
PETITION DENIED.
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