Iskandar Winata v. Michael B. Mukasey , 287 F. App'x 544 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2151
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Iskandar Tjahya Winata, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Michael B. Mukasey1, Attorney *
General of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: April 18, 2008
Filed: July 18, 2008
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Before GRUENDER, BRIGHT, and BENTON, Circuit Judges.
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PER CURIAM.
Appellant, Iskandar Winata (“Winata”), petitions for review of an order of the
Board of Immigration Appeals (“BIA”), which adopted and affirmed the Immigration
Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”).2
1
Attorney General Mukasey is substituted as respondent pursuant to Rule
43(c)(2) of the Federal Rules of Appellate Procedure.
2
On appeal, Winata does not challenge the IJ’s denial of his petition for relief
under the CAT.
Winata, a Christian Indonesian of Chinese descent, petitioned for asylum,
withholding of removal, and relief under the CAT on the grounds that he suffered past
persecution in Indonesia on the basis of his ethnicity and religion, and that he had a
well-founded fear of future persecution should he return to Indonesia. After a hearing,
the IJ denied Winata’s petition finding that Winata failed to establish that he suffered
past persecution or had a well-founded fear of future persecution. The BIA adopted
and affirmed the IJ’s decision and added that Winata’s testimony, even if credited,
failed to establish a pattern or practice of persecution of Christians in Indonesia.
On appeal, Winata argues that the BIA erred by: (1) failing to apply the proper
standard for asylum and withholding of removal; (2) failing to find that Winata
established that he suffered past persecution or had a well-founded fear of future
persecution should he return to Indonesia; and (3) failing to consider the 2003 U.S.
Department of State International Religious Freedom Report and an email from the
Vice Counsel of the American Embassy in Jakarta describing ongoing persecution
against Christians in Indonesia.
“Because the BIA essentially adopted the IJ’s opinion while adding some of its
own reasoning, we review both decisions.” Eta-Ndu v. Gonzales, 411 F.3d 977, 982
(8th Cir. 2005) (quoting Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.
2004)). We review the denial of asylum and withholding of removal under the
substantial evidence standard. Under this standard, the denial “must be upheld if
‘supported by reasonable, substantial, and probative evidence on the record considered
as a whole.’” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)); Wijono
v. Gonzales, 439 F.3d 868, 872 (8th Cir. 2006) (withholding of removal).
We conclude that neither the BIA nor the IJ erred in applying the standard for
asylum or withholding of removal. See Makatengkeng v. Gonzales, 495 F.3d 876,
882 (8th Cir. 2007) (holding that to find past persecution petitioner must present
evidence of harassment or hardship that rises to the level of persecution, which
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includes the infliction or threat of death, torture, or injury to one’s person or freedom
on account of a statutory ground); Woldemichael v. Ashcroft, 448 F.3d 1000, 1004
(8th Cir. 2006) (holding that if petitioner failed to establish past persecution, to find
well-founded fear of future persecution due to petitioner’s membership in a particular
group, petitioner must present evidence that she is a member of that group and that
group has been subjected to a pattern or practice of persecution). Next, the IJ’s
findings that Winata did not suffer past persecution or have a well-founded fear of
future persecution are supported by substantial evidence on the record as a whole.3
See Regalado-Garcia v. INS, 305 F.3d 784, 787-88 (8th Cir. 2002) (holding that
discrete incidents which do not result in physical injury or harm are not sufficient to
constitute past persecution); Tolego v. Gonzales, 452 F.3d 763, 766-67 (8th Cir. 2006)
(denying petitioner’s claim of a pattern or practice of persecution and relying in part
on the 2003 and 2004 State Department Country Reports which showed a decline in
violence against Chinese Christians in Indonesia); Woldemichael, 448 F.3d at 1004
(holding that petitioner’s claim of well-founded fear of future persecution failed
because he did not present evidence of “an objectively reasonable fear of
particularized persecution.”).
Finally, we reject petitioner’s claim that the IJ failed to consider the State
Department’s 2003 International Religious Freedom Report or the email from the Vice
Counsel of the American Embassy in Jakarta. That evidence was admitted into the
record before the IJ and the IJ expressly stated that he considered “all the documents
in the record” in reaching his decision. Moreover, the cited statements in the 2003
3
With respect to Winata’s claim that he fears future persecution if forced to
return to Indonesia, we note that the evidence that Winata willingly returned to
Indonesia in 1995 to attend his sister’s wedding and remained there, unharmed, for ten
days supports the IJ’s finding that Winata failed to establish an objectively reasonable
fear of future persecution. See Eta-Ndu, 411 F.3d at 983 (“To establish a well-founded
fear of persecution, the applicant must demonstrate the fear is both subjectively
genuine and objectively reasonable.”) (emphasis added).
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Report and the email do not materially detract from the conclusions in the State
Department Report, relied upon by the IJ, which noted the decline in violence and
growing religious tolerance in Indonesia. See Celaj v. Gonzales, 468 F.3d 1094,
1097-98 (8th Cir. 2006) (holding that the IJ’s failure to consider remarks in the
Human Rights Watch and other State Department reports indicating persecution in
petitioner’s home country was not error when the statements cited by petitioner did
not materially detract from the conclusions in the State Department report relied upon
by the IJ).
Because Winata failed to establish a well-founded fear of future persecution,
Winata’s request for withholding of removal also fails. See Regalado-Garcia, 305
F.3d at 788 (affirming the denial of withholding of removal because the applicant
failed to satisfy the less rigorous standard of well-founded fear of future persecution
required for a grant of asylum). Accordingly, we deny the petition.
GRUENDER, Circuit Judge, concurring.
I fully concur in the Court’s opinion and judgment. In addition, I explicitly
would reject Winata’s argument that the BIA erred by failing to apply the “disfavored
group” analysis of the Ninth Circuit as discussed in Sael v. Ashcroft, 386 F.3d 922
(9th Cir. 2004). In rejecting the “disfavored group” analysis, I would join the other
circuit courts that have rejected this judicially created alternative to the statutory and
regulatory scheme. See Kho v. Keisler, 505 F.3d 50, 55 (1st Cir. 2007); Kaharundin
v. Gonzales, 500 F.3d 619, 624-25 (7th Cir. 2007); Wijaya v. Gonzales, 227 Fed.
Appx. 35, 38 n.1 (2d Cir. 2007) (summary order); Lie v. Ashcroft, 396 F.3d 530, 538
n.4 (3d Cir. 2005).
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