Sugiarto Halim v. Eric Holder, Jr. , 755 F.3d 506 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1024
SUGIARTO HALIM,
Petitioner,
v.
ERIC H. HOLDER, Attorney General of
the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A098-919-014
ARGUED MAY 23, 2014 — DECIDED JUNE 17, 2014
Before BAUER and EASTERBROOK, Circuit Judges, and ST. EVE,
District Judge.*
BAUER, Circuit Judge. Sugiarto Halim, an Indonesian citizen,
came to the United States in 2000 and overstayed his tempo-
rary visa. He filed for asylum, withholding of removal, and
*
The Honorable Amy J. St. Eve, of the United States District Court for the
Northern District of Illinois, sitting by designation.
2 No. 14-1024
protection under the Convention Against Torture (“CAT”)
stating that he feared he would be persecuted if he were
sent back to Indonesia due to his status as a Chinese Christian.
The Immigration Judge (“IJ”) denied Halim’s application for
asylum because he failed to apply within the one-year statu-
tory limit, and denied Halim’s other requests for relief because
he failed to show past persecution or establish a well-founded
fear of future persecution. Halim appealed to the Board of
Immigration Appeals (“BIA”); it affirmed the IJ’s decision and
dismissed the appeal. Halim now petitions this court for
review of his application for withholding of removal. We
conclude that the orders of the IJ and BIA are supported by
substantial evidence and deny Halim’s petition.
I. BACKGROUND
Halim, a native and citizen of Indonesia, came to the United
States on a visa in March 2000, and was authorized to stay for
six months. After his visa expired, he stayed in the United
States without applying for any type of legal residency. In
2005, the Department of Homeland Security detained Halim
and initiated removal proceedings against him for overstaying
his visa in violation of 8 U.S.C. § 1227(a)(1)(B).
Halim sought asylum, withholding of removal proceedings
under § 241(b)(3) of the Immigration and Nationality Act, and
protection under the CAT. Halim contended that if he was
forced to return to Indonesia, he would be subject to persecu-
tion because of his Chinese ethnicity and Christian beliefs.
In his removal proceedings, Halim testified about discrimi-
nation he and his family faced in Indonesia due to their
Chinese descent. Halim testified that because his sister was
No. 14-1024 3
earlier denied enrollment in an Indonesian university, he
speculated that he would be rejected as well. Therefore, he left
his hometown of Medan in 1988 to attend university in
Germany.
On a trip home to visit his family in 1994, Halim witnessed
a riot fueled by ethnic and labor issues. The riot targeted
Chinese-owned stores and was at a shopping mall where his
sister owned a store. Halim and his sister were not injured and
the rioters did not enter or damage his sister’s store.
In 1998, violent racial riots targeting people of Chinese
ethnicity broke out again throughout Indonesia. In Halim’s
hometown of Medan, rock-throwing rioters swarmed the
streets in his family’s neighborhood. Halim’s family members
were not targeted or injured in the riot. At the time, Halim was
in Germany.
Additionally, Halim recounted several occasions when he
thought that he was harassed because of his ethnicity. He
claimed that when he traveled from Germany to Medan,
Indonesian airport personnel took his passport, searched his
luggage, and demanded money from him before they returned
his possessions. Halim alleged that the airport personnel
treated only ethnic Chinese in this manner. Halim said that he
complained about the crooked practice one time to an office at
the airport, but nothing came of his complaint. Halim also
testified about a hostile incident he had with a taxi driver when
he accidently stepped on the taxi driver’s foot. The driver told
Halim that if he had his friends with him, they would have
killed Halim.
4 No. 14-1024
Halim returned home for a year after completing his
master’s degree in 1999. Halim testified that people came to his
home and would “knock at the door, asking for money,
throwing rocks and saying Chinese likes to eat pork.” Halim
was never detained, arrested, prosecuted, or beaten because of
his ethnicity during the year he lived in Indonesia. He flew to
Los Angeles, California, in 2000.
Halim learned about Christianity when he lived and
studied in Germany, but was not baptized until 2005. He fears
returning to Indonesia as a practicing Christian because he
read articles about churches being bombed in Indonesia and
some were Christian churches. Halim, however, did not
personally experience any discrimination on account of his
Christian beliefs while he lived in Indonesia.
Halim also submitted documentation to the IJ about the
turmoil that existed in Indonesia after his departure. The
United States Department of State’s 2010 Human Rights Report
for Indonesia (“2010 Human Rights Report”) indicated that the
Indonesian government officially promoted racial and ethnic
tolerance; yet, a number of laws, regulations, and decrees still
had discriminatory effects on ethnic Chinese citizens. The
United States Department of State’s 2010 Religious Freedom
Report for Indonesia (“2010 Religious Freedom Report”)
described the religious, legal, and political framework of the
country and documented several of the religious abuses which
occurred between 2008 and 2010. Various internet articles
detailed religious attacks on Christians and the continued
discrimination against ethnic Chinese throughout Indonesia.
No. 14-1024 5
At the time of Halim’s removal proceedings, his father and
four of his five siblings still lived in Medan. His four siblings
owned their own businesses in Indonesia.
The IJ denied Halim’s requests and ordered his deportation.
First, the IJ determined that Halim’s asylum application was
untimely because he filed it more than one year after his arrival
in the United States. Next, the IJ determined that Halim did not
qualify for withholding of removal, finding that the evidence
did not demonstrate that Halim had personally suffered past
persecution or that he would face a clear probability of future
persecution if he returned to Indonesia. The IJ also found that
the evidence did not support Halim’s claim that a pattern or
practice of persecution against Chinese Christians as a group
existed in Indonesia. Finally, the IJ determined that Halim did
not qualify for protection under the CAT.
On appeal to the BIA, Halim challenged the IJ’s denial of
withholding of removal and protection under the CAT. Halim
did not contest the IJ’s finding that his application for asylum
was untimely. The BIA agreed with the IJ that Halim failed to
meet his burden of showing past persecution or a clear
probability of future persecution in order to qualify for
withholding of removal. The BIA also concluded that Halim
failed to establish that he faced a clear probability of torture, a
requirement for CAT protection. The BIA upheld the IJ’s order
and dismissed the appeal.
II. DISCUSSION
On appeal, Halim now argues only that he is entitled to
withholding of removal. He does not contest the BIA’s denial
of his application for asylum or protections under the CAT in
6 No. 14-1024
his brief and he has waived his right to review of these issues.
Asere v. Gonzales, 439 F.3d 378, 381 (7th Cir. 2006). Halim
focuses his appeal on the legal standards required for with-
holding of removal that this Circuit discussed in Salim v.
Holder, 728 F.3d 718 (7th Cir. 2013). Halim contends that he has
a well-founded fear of future persecution based on the “pattern
and practice” of persecution in Indonesia against groups of
similarly-situated ethnic Chinese and/or Christians. As an
alternative, Halim contends that he met his burden of proof
and showed that he faces an individualized risk of persecution
if he is forced to return to Indonesia. Halim does not argue
that he experienced past persecution, which under 8 C.F.R.
§ 208.16(b)(1)(i) would entitle him to a presumption that he
would face future persecution upon his return to Indonesia.
When the BIA adopts and affirms the IJ’s decision and adds
its own analysis, as it did here, we review both decisions. See
Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013); Familia
Rosario v. Holder, 655 F.3d 739, 743 (7th Cir. 2011). We apply the
principles of Chevron deference to the BIA’s interpretation of
the immigration laws. Scialabba v. Cuellar de Osorio, No. 12-930
(U.S. June 9, 2014), Slip. Op. 13 (plurality opinion); see Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842–844 (1984). Thus, we apply a statute’s plain meaning
if the statute is clear, or we defer to the BIA’s reasonable
interpretation if the statute is unclear. Id. When the issue
requires a review of the BIA’s factual findings, as is the case
here, we review the BIA’s decision for substantial evidence. See
Bathula, 723 F.3d at 897–98; Vahora v. Holder, 626 F.3d 907, 912
(7th Cir. 2010). We will affirm the BIA’s determination to deny
eligibility for withholding of removal if its determination “is
No. 14-1024 7
supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992); Vahora, 626 F.3d at 912. We reverse only if
the record “is so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution.” Elias-Zacarias, 502
U.S. at 483–84.
To be eligible for withholding of removal, an applicant
must prove a past or future “threat to life or freedom.” 8 C.F.R.
§ 208.16(b)(1)-(2); Yi Xian Chen v. Holder, 705 F.3d 624, 628 (7th
Cir. 2013). A threat to life or freedom is synonymous with
persecution, which this Circuit defines as “detention, arrest,
interrogation, prosecution, imprisonment, illegal searches,
confiscation of property, surveillance, beatings, torture,
behavior that threatens the same, and non-life-threatening
behavior such as torture and economic deprivation if the
resulting conditions are sufficiently severe.” Yi Xian Chen, 705
F.3d at 629 (internal citations omitted). “‘Persecution’ does not
include the actions of private citizens ‘unless the government
is complicit in those acts or is unable or unwilling to take steps
to prevent them.’” Bitsin v. Holder, 719 F.3d 619, 628 (7th Cir.
2013) (quoting Chakir v. Gonzales, 466 F.3d 563, 570 (7th Cir.
2006)).
If an applicant did not suffer past persecution, he must
prove that it is “more likely than not” that he faces future
persecution “on account of his race, religion, nationality,
membership in a particular social group, or political opinion.”
8 C.F.R. § 208.16(b); Bitsin, 719 F.3d at 628. An applicant can
prove a future threat to life or freedom in one of two ways:
(1) establish that the country to which the applicant is to be
8 No. 14-1024
removed has a “pattern and practice of persecution” against “a
group of persons similarly-situated to the applicant,” or (2)
establish that the applicant faces a personal risk of persecution
if he is forced to return home. 8 C.F.R. § 208.16(b)(2)(i)-(ii);
Salim, 728 F.3d at 722–23.
A. Halim’s Pattern or Practice of Persecution Claim
An applicant for withholding of removal faces a difficult
burden to prove that a country has a pattern or practice of
persecuting a group similarly-situated to himself. Mitreva v.
Gonzales, 417 F.3d 761, 765 (7th Cir. 2005). To establish a
country’s pattern or practice of persecution, an applicant must
prove the existence of a “systematic, pervasive, or organized
effort to kill, imprison, or severely injure members of the
protected group, and this effort must be perpetuated or
tolerated by state actors.” Ingmantoro v. Mukaskey, 550 F.3d 646(7th Cir. 2008). Pattern or practice cases require an extreme
level of persecution because “once the court finds that a group
was subject to a pattern or practice of persecution, every
member of the group is eligible.” Ahmed v. Gonzales, 467 F.3d
669, 675 (7th Cir. 2006).
1. Whether a Pattern or Practice of Persecuting Ethnic
Chinese Exists in Indonesia
This Circuit denied the petitions of Chinese Christians
being deported to Indonesia in three prior cases because
petitioners could not prove that Indonesia’s government had
a pattern or practice of persecuting members of similarly-
situated racial or religious groups. See Salim, 728 F.3d 718;
Ingmantoro, 550 F.3d 646; Kaharudin v. Gonzales, 500 F.3d 619(7th Cir. 2007). These cases do not foreclose Halim’s petition
No. 14-1024 9
because each application for withholding of removal is
independently reviewed to ensure that human rights condi-
tions have not deteriorated to an extreme level of persecution.
Ingmantoro, 550 F.3d at 651. However, they do present a
significant hurdle for him to overcome.
Halim submitted the 2010 Human Rights Report to the IJ to
support his argument that a pattern or practice of persecution
of ethnic Chinese exists in Indonesia. He argues that the
evidence we reviewed in Ingmantoro and Kaharudin is now
outdated and does not reflect the current conditions in Indone-
sia. The 2010 Human Rights Report stated that the Indonesian
“government officially promotes racial and ethnic tolerance”
and that ethnic Chinese “increasingly participated in politics.”
However, the report also stated that “[a] number of articles of
law, regulation, or decree discriminated against ethnic Chinese
citizens” and “public servants still discriminated against them
when issuing marriage licenses and in other services.”1 The
2010 Human Rights Report, however, is insufficient to establish
a pattern or practice of persecution: the “systematic, pervasive,
or organized effort to kill, imprison, or severely injure” ethnic
1
The 2013 Human Rights Report, the most recent report, does not include
the statement “[a] number of articles of law, regulation, or decree discrimi-
nated against ethnic Chinese citizens.” Instead, the 2013 report only
concludes that “[t]he government officially promotes racial and ethnic
tolerance.” U.S. Dep’t of State, Indonesia 2013 Human Rights Report,
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=
2013&dlid=220196. Contrary to Halim’s argument, the Human Rights
Reports support the conclusion that conditions for ethnic Chinese in
Indonesia are improving since the riots of the 1990s. See more at:
http://www.state.gov/j/drl/rls/hrrpt/.
10 No. 14-1024
Chinese in Indonesia. While the report alluded to discrimina-
tion against ethnic Chinese, “[g]eneral conditions of hardship
that affect entire populations, however, are not persecution.”
Ahmed, 467 F.3d at 673. We agree with the IJ and BIA that the
evidence did not rise to the level necessary to establish a
pattern or practice of persecution.
2. Whether a Pattern or Practice of Persecuting Chris-
tians Exists in Indonesia
To establish that he faces a likelihood of future persecution
based on his Christian faith, Halim testified before the IJ and
presented evidence of the religious tensions in Indonesia.
Halim now relies on an article about attacks at Christian
churches in Indonesia and the 2010 Religious Freedom Report.
The article mentioned a report that chronicled religious
attacks on Christians, but a researcher for the report said
“‘[t]he dominant actors who committed violence are vigilante
groups,’” not the Indonesian government. In the article, the
Minister of Religious Affairs for Indonesia downplayed the
existence of religious discrimination and said that the “main
cause of religious tensions was that some groups did not want
to meet legal requirements for establishing houses of
worship.”2 The Setara Institute for Democracy and Peace, a
non-government organization which promotes human rights
in Indonesia, also appreciated the steps the local police took
against the perpetrators of a violent attack at a Christian
2
The legal requirements for establishing a house of worship require the
approval of local community members, which can be difficult for Christians
to obtain in neighborhoods with a Muslim majority.
No. 14-1024 11
church in which the pastor and an elder were stabbed. The
Indonesian Supreme Court also upheld an administrative
court’s ruling to allow the building permit of a Christian
church. The article did conclude, however, that Indonesian
politicians and police should take further steps to resolve
religious conflict.
The 2010 Religious Freedom Report mirrored much of what
was said in the article, but stressed that the Indonesian
government increased efforts to condemn religiously moti-
vated attacks and promote human rights. For example, the
Indonesian government hosted its first-ever interfaith dia-
logue with United States delegates in 2010, which encouraged
interfaith participation and addressed community needs.
Religious organizations, such as Nahdlatul Ulama’s
Lakpesdam, developed scholarship programs to enable
Muslim students to study Christian theology at Christian
schools. Local governments prosecuted individuals suspected
of committing past religiously-motivated violence. And, local
police reportedly protected churches holding joint Christian
and Muslim religious services in Poso, an area “once the scene
of extreme tension and sectarian violence.”
Though religious conflict persists in Indonesia, its govern-
ment has notably taken steps to protect its citizens and
promote religious tolerance. Respect for religious freedom in
Indonesia appears to have improved since 2004 when the Fifth
Circuit held that there was clear evidence that the Christian
petitioners had an objective fear of future persecution based on
their faith under the present conditions of civil unrest. Eduard
v. Ashcroft, 379 F.3d 182, 191 (5th Cir. 2004) (reversed and
remanded because “[a] review of the record indicate[d] that
12 No. 14-1024
Petitioners’ fears of persecution were based on their Christian
faith in particular, and Indonesian civil strife in general.”). In
this case, the evidence indicates that the Indonesian govern-
ment neither implemented nor permitted others to systemati-
cally and pervasively persecute Christians. To the contrary, the
evidence shows that local and national government took
actions to improve religious freedoms for Christians and other
faiths. Therefore, substantial evidence in the record supported
the IJ’s and BIA’s determinations that the Indonesian govern-
ment does not allow a pattern or practice of persecuting
Christians.3
B. Halim’s Individualized Risk of Future Persecution
Claim
As an alternative, Halim argues that the record reflects that
he has a well-founded fear that he will be singled out and
targeted as a Chinese Christian upon his return to Indonesia.
He contends that the general reports of continued ethnic and
religious discrimination in Indonesia in conjunction with his
proximity to the violent riots in the 1990s justify his fear of
persecution.
Belonging to a disfavored group does not entitle Halim to
a lower standard of evidence to prove his individualized fear
of persecution. Salim, 728 F.3d at 723–24. The standard is
3
The 2012 Religious Freedom Report still documented abuses of religious
freedom in Indonesia, but conditions for Christians did not show a
drastic decline or improvement from the 2010 report. U.S. Dep’t of
State, Indonesia 2012 International Religious Freedom Report,
http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?year=2012
&dlid=208232.
No. 14-1024 13
objective, and Halim must show “‘specific, detailed facts
supporting the reasonableness of [his] fear’” that it is more
likely than not that he “‘will be singled out for persecution’” if
deported. Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir. 1999)
(quoting Bevc v. INS, 47 F.3d 907, 910 (7th Cir. 1995)). A
petitioner may rely on past persecution to “‘imply a future
threat’”; however, “‘the focus remains on what is likely to
happen following an alien’s return home.’” Kaharudin, 500 F.3d
at 623 (quoting Kobugabe v. Gonzales, 440 F.3d 900, 901 (7th Cir.
2006)).
The specific facts highlighted by Halim fall short of show-
ing that he has an individualized risk of being singled out for
persecution. Halim was an unscathed bystander of the 1994
riot that occurred near his sister’s shop. He was not targeted
nor was his sister’s shop damaged. Halim was in Germany
during the 1998 riot, his family was not injured, and his
family’s house was not damaged. Furthermore, the airport
personnel’s unusual treatment of Halim, the taxi driver’s
threatening comment, and the disgruntled people who came to
his house were merely anecdotes of “unpleasant and even
dangerous conditions [that] do not necessarily rise to the level
of persecution.” Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995);
see also Kaharudin, 500 F.3d at 623 (past encounters when native
Indonesians “called her derogatory names, spat upon her, hit
her with rocks and touched her buttocks” did not amount to
persecution). Further undermining Halim’s claim is the fact
that his family continues to operate businesses and reside in
Indonesia unharmed. The IJ’s and the BIA’s decisions were
supported by substantial evidence that Halim did not reason-
14 No. 14-1024
ably fear an individualized threat of persecution upon his
return home.
III. CONCLUSION
Halim failed to meet the test required for withholding of
removal. He did not show a pattern or practice of persecution
of Chinese Christians in Indonesia, nor could he establish that
his personal fear of persecution was reasonable. For these
reasons, his petition for review is DENIED.