Kaharudin, Sylviana v. Mukasey, Michael B. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3576
SYLVIANA D. KAHARUDIN,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A79-267-261
____________
SUBMITTED JULY 10, 2007—DECIDED AUGUST 31, 2007
____________
Before BAUER, CUDAHY and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Sylviana Kaharudin, a native and
citizen of Indonesia, arrived in the United States on July 3,
1998 and overstayed her nonimmigrant visitor’s visa. After
applying for asylum in March of 2001, Ms. Kaharudin
was served a summons to appear before an Immigration
Judge (“IJ”). At her hearing, Ms. Kaharudin conceded
removability, but sought asylum, withholding of removal
and relief under the Convention Against Torture (“CAT”).
The IJ denied Ms. Kaharudin’s application for asylum as
untimely and her application for withholding of removal
on the ground that she had not shown a clear probability
2 No. 06-3576
of persecution. The IJ also denied Ms. Kaharudin’s request
for CAT relief because she had not shown that she had
been tortured by the government of Indonesia in the past
or that she would be tortured by it if she returned. Ms.
Kaharudin appealed to the Board of Immigration Appeals
(“BIA”), which affirmed the decision of the IJ in a brief,
per curiam order.
Ms. Kaharudin now petitions for review those portions
of the BIA’s order affirming the IJ’s decision to deny her
applications for asylum and withholding of removal. For
the reasons set forth in this opinion, we deny her petition
for review.
I
BACKGROUND
Before coming to the United States, Ms. Kaharudin lived
with her parents in Jakarta. Although Ms. Kaharudin was
born in Indonesia, she is of Chinese descent, an ethnic
minority in Indonesia. Additionally, although Indonesia
is predominantly Muslim, Ms. Kaharudin is a Christian.
In 1998, ethnic Chinese and Christian Indonesians in
Jakarta were subject to acts of violence at the hands of non-
Chinese, mostly Muslim, Indonesians.1 Fearing for her
safety, in July of 1998, Ms. Kaharudin’s parents sent her
to live with her sister in the United States.
1
Ms. Kaharudin refers to these individuals as “native Indone-
sians.” For ease of discussion, we shall do the same.
No. 06-3576 3
Ms. Kaharudin overstayed her visa, which expired in
January of 1999. More than two years later, in March of
2001, she applied for asylum, withholding of removal and
CAT relief. Ms. Kaharudin was then served with a notice
to appear before an IJ. At the hearing, she conceded
removability, but continued to press her requests for
asylum, withholding of removal and CAT relief. She
asserted that she was entitled to asylum and withhold-
ing of removal on the ground that she was subject to
persecution because of her membership in a particular
social group, Indonesians of Chinese descent, and on
account of her religion, Christianity.
At the hearing on the merits of her requests,
Ms. Kaharudin testified about the general conditions in
Indonesia as they related to treatment of Christians and
ethnic Chinese Indonesians. In her testimony, she acknowl-
edged that the relationship between native Indonesians
and Indonesians of Chinese descent as well as Christian
Indonesians always had been bad. However, she further
testified that conditions in Jakarta prior to her departure
in July of 1998 were marked by violence against ethnic
Chinese and Christian Indonesians, including the burning
of Christian churches and the rape of ethnic Chinese
women.
Ms. Kaharudin also testified to her own experiences
around that time. She testified that on various occasions
native Indonesians had called her derogatory names,
thrown rocks at her, spit on her and attempted to touch
her buttocks while she rode on public transportation.
However, Ms. Kaharudin also testified that she never
reported these incidents to the police because she be-
lieved that Indonesian authorities would not care about
the ill treatment. She further testified that she feared she
4 No. 06-3576
would be harmed if she returned to Indonesia because of
continued conflict between Muslims and Christians in
Indonesia.
Ms. Kaharudin’s testimony was corroborated by newspa-
per articles and by human rights reports from various
organizations, including the State Department. These
reports confirmed that there had been acts of ethnic
violence in 1998 and that these acts included the rape of
ethnic Chinese women. The reports also indicated that
Christians continued to experience harassment and dis-
crimination. However, the more recent reports also indi-
cated that such abuses as the rape of ethnic Chinese
women had not occurred recently. The reports further
indicated that there had not been similar outbreaks of
ethnic violence in Jakarta since 1998.
At the conclusion of the hearing, the IJ denied Ms.
Kaharudin’s application for asylum on the ground that
she had failed to file her application within one year of
her arrival, as required by 8 U.S.C. § 1158(a)(2)(B). The IJ
further held that she had not demonstrated any material
changes in the conditions in Indonesia or extraordinary
circumstances that would justify her failure to apply within
one year of arrival. The IJ then denied Ms. Kaharudin’s
application for withholding of removal because she had
failed to demonstrate a clear probability of persecution
if she returned to Indonesia. The IJ determined that
Ms. Kaharudin had not been subjected to past persecu-
tion, concluding that, at most, she had been subjected to
discrimination and harassment. The IJ then concluded
that Ms. Kaharudin had not demonstrated a well-founded
fear of future persecution. The IJ noted that Ms.
Kaharudin’s fear that she would be raped because of her
Chinese ancestry if she returned to Indonesia was not
No. 06-3576 5
credible given the current circumstances in Indonesia,
in general, and Jakarta, in particular. The IJ pointed to a
number of human rights reports introduced into evi-
dence that indicated that the widespread rape of ethnic
Chinese women in 1998 had not occurred recently and
that there had not been an outbreak of such violence in
Jakarta since 1998. The IJ further noted that the Indonesian
constitution guaranteed religious freedom and that State
Department country reports indicated that Indonesia’s
majority Muslim population generally was tolerant of
adherents to the Christian faith.
Lastly, the IJ denied Ms. Kaharudin’s request for CAT
relief because she had not pointed to any indication of
past torture by the government of Indonesia or that she
would be tortured on her return. The IJ added that what
little contact Ms. Kaharudin had with the government of
Indonesia had been harmless.
Ms. Kaharudin then appealed the decision of the IJ to the
BIA. The BIA affirmed the decision of the IJ in all respects
in a brief, per curiam order. The BIA largely adopted the
findings and reasoning of the IJ. With respect to Ms.
Kaharudin’s asylum application, the BIA noted its agree-
ment with the IJ that Ms. Kaharudin had not demonstrated
changed or extraordinary circumstances that would
excuse her failure to apply within one year of having
turned eighteen,2 but added that, even if such circum-
stances did exist, Ms. Kaharudin nonetheless had failed
to apply for asylum within a reasonable time.
2
Ms. Kaharudin was seventeen years old when she arrived in
the United States. She turned eighteen in December of 1998,
before her visa expired and more than two years before apply-
ing for asylum.
6 No. 06-3576
Additionally, Ms. Kaharudin urged the BIA to apply a
lower standard of proof with respect to her applications for
withholding of removal because she was ethnic Chinese
and a Christian. She first asserted that, based on the Fifth
Circuit’s decision in Eduard v. Ashcroft, 379 F.3d 182 (5th
Cir. 2004), she need not show that she has been targeted
personally for persecution because ethnic Chinese and
Christians in Indonesia have been subject to a “pattern
and practice” of persecution. In the alternative, Ms.
Kaharudin submitted that, following the approach adopted
by the Ninth Circuit, see Sael v. Ashcroft, 386 F.3d 922
(9th Cir. 2004), she need only show a comparatively low-
level of individualized risk of future persecution because
ethnic Chinese have been deemed a “disfavored group” in
Indonesia. The BIA declined to adopt these approaches,
noting that Ms. Kaharudin’s application was governed by
the law of the Seventh Circuit. The BIA added that, in any
event, the lower evidentiary burdens she cited had not
been applied beyond applications for asylum, which are
subject to a lower evidentiary burden than that applied
to withholding of removal.
II
DISCUSSION
Ms. Kaharudin now petitions for review the decision of
the BIA with respect to her applications for asylum and
withholding of removal.3 Where, as here, the BIA adopts
the decision of the IJ and supplements that decision with
its own reasoning, our review is of the IJ’s decision as
3
Ms. Kaharudin does not challenge the denial of her request
for CAT relief.
No. 06-3576 7
supplemented. Pavlyk v. Gonzales, 469 F.3d 1082, 1087 (7th
Cir. 2006). We review the denials of asylum and with-
holding of removal under the substantial evidence stan-
dard. Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006).
This is a deferential standard of review, and we shall not
reverse the decision of the BIA unless the petitioner can
demonstrate not only that the evidence supports a con-
trary conclusion, but that the evidence compels such a
conclusion. Id. at 745.
A.
Ms. Kaharudin first contends that she was entitled to
asylum. The IJ and the BIA determined that she had failed
to apply for asylum within one year of arriving in the
United States or reaching eighteen years of age, as re-
quired by 8 U.S.C. § 1158(a)(2)(B), and had not estab-
lished any changed or extraordinary circumstances that
would excuse such failure. We lack jurisdiction to review
both the conclusion that Ms. Kaharudin’s application for
asylum was untimely and that she had failed to establish
changed or extraordinary circumstances that would
excuse such failure. 8 U.S.C. § 1158(a)(3); Mabasa, 455
F.3d at 744. There being no other error asserted with re-
gard to the denial of Ms. Kaharudin’s application for
asylum, we conclude that the decision was supported by
substantial evidence.
B.
Ms. Kaharudin also asserts that she was entitled to
withholding for removal. To establish eligibility for
withholding of removal, Ms. Kaharudin must demonstrate
8 No. 06-3576
a clear probability that she will face persecution if she is
removed to Indonesia. See Pavlyk, 469 F.3d at 1087. This is
a more stringent burden than that applied to asylum
claims, which Ms. Kaharudin can meet only by show-
ing that it is more likely than not that she will be perse-
cuted on account of her membership in a specified group.
Id. Although past persecution “may imply a future threat
and so require the agency to demonstrate that conditions
have improved, . . . the focus remains on what is likely to
happen following an alien’s return home.” Kobugabe v.
Gonzales, 440 F.3d 900, 901 (7th Cir. 2006); see also 8 C.F.R.
§ 1208.16(b)(1)(I).
Ms. Kaharudin first contends that the BIA erred in
finding that she had not established a clear probability
of persecution if she were to return to Indonesia. In sup-
port of her application, she points to past encounters
in which native Indonesians called her derogatory
names, spat upon her, hit her with rocks and touched her
buttocks. These encounters fall far short of persecution.
“[U]npleasant and even dangerous conditions do not
necessarily rise to the level of persecution.” Prela v.
Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005) (citing Mitev v.
INS, 67 F.3d 1325, 1331 (7th Cir. 1998)). To constitute
persecution, the harm “must rise above the level of mere
harassment.” Prela, 394 F.3d at 518; cf. Mitreva v. Gonzales,
417 F.3d 761, 764 (7th Cir. 2005) (characterizing rocks
thrown at the petitioner as harassment and discrimination,
not persecution). Additionally, “acts of private citizens
do not constitute persecution unless the government is
complicit in those acts or is unable or unwilling to take
steps to prevent them.” Chakir v. Gonzales, 466 F.3d 563,
570 (7th Cir. 2006). Ms. Kaharudin points to no evidence
in the record that the government of Indonesia was
No. 06-3576 9
complicit in or unable or unwilling to protect against the
harm of which she complains. Indeed, she admits that
she never sought assistance from the government in re-
sponse to these acts.
Nonetheless, Ms. Kaharudin asserts that, even if she
was not persecuted in the past, she still has a well-founded
fear of future persecution. Further, she contends that
she need not establish that she personally has been tar-
geted for persecution because there is a “pattern or
practice” of persecution against Chinese Christians in
Indonesia. An applicant seeking withholding of removal
can meet her burden of demonstrating a clear probability
of persecution by showing that she is a member of a
group subjected to a “pattern or practice” of persecution
in that country. 8 C.F.R. § 1208.16(b)(2); Mabasa, 455 F.3d
at 746. However, to prevail under a “pattern or practice”
theory, the persecution faced by the group must be ex-
treme. Ahmed v. Gonzales, 467 F.3d 669, 675 (7th Cir. 2006).
The applicant must establish that there exists a “systemic,
pervasive, or organized effort to kill, imprison, or se-
verely injure members of the protected group, and this
effort must be perpetrated or tolerated by state actors.” Id.
(citing Mitreva, 417 F.3d at 765).
The record does not support the conclusion that ethnic
Chinese Christians are subject to a pattern or practice of
persecution in Indonesia. First, there is no evidence in the
record to suggest that the government of Indonesia was
complicit in or unwilling or unable to protect ethnic
Chinese Christians against the private acts of violence by
native Indonesians. Without such complicity or unwilling-
ness or inability to protect, such private acts of violence
cannot constitute persecution. See Chakir, 466 F.3d at 570.
10 No. 06-3576
Additionally, although the IJ noted that ethnic and
religious strife persists in some parts of Indonesia, the
documentary evidence demonstrates that violence against
ethnic Chinese Christians in Jakarta, where she and her
family lived before Ms. Kaharudin came to the United
States, has not broken out on a large scale since 1998. An
applicant for withholding of removal “cannot demon-
strate that his or her life or freedom would be threatened
if the . . . immigration judge finds that the applicant could
avoid a future threat . . . by relocating to another part of
the proposed country of removal and, under all of the
circumstances, it would be reasonable to expect the appli-
cant to do so.” See 8 C.F.R. § 1208.16(b)(2). Here, the record
demonstrates that, even if Ms. Kaharudin may face perse-
cution some places in Indonesia, she does not face such a
threat in Jakarta. Given that Jakarta is Ms. Kaharudin’s
family home, it is not unreasonable to expect her to
locate there.
Thus, we conclude that there is substantial evidence to
support the BIA’s determination that Ms. Kaharudin has
not demonstrated that ethnic Chinese Christians face a
pattern or practice of discrimination.4 However, in the
4
Ms. Kaharudin relies primarily upon the Fifth Circuit’s
decision in Eduard v. Ashcroft, 379 F.3d 182, 192 (5th Cir. 2005),
to support her “pattern or practice” claim. In Eduard, the
court concluded that persecution against Chinese Christians
was so widespread in Indonesia as to constitute a “pattern or
practice” of persecution, such that the applicant for asylum
was not required to show that he had been targeted personally.
Id. at 192. However, in Eduard, the Fifth Circuit did not address
the question of whether the Indonesian government was
complicit in or unwilling or unable to prevent violence against
(continued...)
No. 06-3576 11
alternative, Ms. Kaharudin asserts that she is entitled to
withholding of removal under the “disfavored group”
analysis adopted by the Ninth Circuit. Under that analysis,
the greater the risk to all members of a group, the less
individual persecution need be shown in order to qualify
for relief. See Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir.
2004); Kotasz v. INS, 31 F.3d 847, 852-54 (9th Cir. 1994). The
Ninth Circuit has deemed ethnic Chinese a disfavored
group in Indonesia, see Sael, 386 F.3d at 927, and Ms.
Kaharudin urges this court to do the same. We previously
have considered and rejected the application of the Ninth
4
(...continued)
ethnic Chinese Christians. As we already have stated, harm at
the hands of private persons cannot constitute persecution
without such a showing. We note also that each of the other
circuits to address the issue has declined to find a pattern or
practice of persecution of Christian Indonesians of Chinese
descent. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.
2007) (en banc) (holding that the petitioner had failed to
demonstrate a pattern or practice of persecution of ethnic
Chinese Christians because the Indonesian government did
not perpetrate the discrimination and had “taken concrete
steps to suppress ethnic and religious violence”); Tolego v.
Gonzales, 452 F.3d 763, 766 (8th Cir. 2006) (noting the absence
of evidence of acquiescence by the Indonesian government to
violence against ethnic Chinese Christians); Tulengkey v. Gonza-
les, 425 F.3d 1277, 1281-82 (10th Cir. 2005) (declining to follow
Eduard where the IJ had determined that relocation to avoid
persecution was feasible); Lie v. Ashcroft, 396 F.3d 530, 537 (3d
Cir. 2005) (holding that the petitioner had not established
government action or acquiescence in the violence against
ethnic Chinese Christians and noting that the record revealed a
“sharp decline in violence against Chinese Christians follow-
ing the period of intense violence in 1998”).
12 No. 06-3576
Circuit’s “disfavored group” analysis in the context of
withholding of removal, and we decline to revisit the issue
in this case. See Firmansjah v. Gonzales, 424 F.3d 598, 607 n.6
(7th Cir. 2005); see also Lie v. Ashcroft, 396 F.3d 530, 538 n.4
(3d Cir. 2005) (declining to adopt the Ninth Circuit’s
“disfavored group” analysis).
Conclusion
The denial of Ms. Kaharudin’s applications for asylum
and withholding of removal was supported by substan-
tial evidence. Therefore, we deny Ms. Kaharudin’s petition
for review and affirm the order of the BIA.
PETITION DENIED
ORDER AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-31-07