Budiarja v. Holder , 491 F. App'x 797 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EZRA OSCAR BUDIARJA, No. 08-70184
Petitioner, Agency No. A95-629-864
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 11, 2012
Pasadena, CA
Before: TALLMAN and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**
Petitioner Ezra Oscar Budiarja, a native and citizen of Indonesia, petitions
for review of a December 19, 2007 decision by the Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Timothy M. Burgess, United States District Judge for
the District of Alaska, sitting by designation.
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(“BIA” or “Board”), denying his petition for withholding of removal and for
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
We review the BIA’s “legal determinations de novo, and factual findings for
substantial evidence.” Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009)
(citing Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 n.1 (9th Cir. 2007)). In order
to prevail on his petition for withholding of removal, Budiarja bears the burden of
showing that he “has a well-founded fear of future persecution” if removed to
Indonesia. 8 C.F.R. § 1208.13(b). He may make this showing either by directly
proving the factual basis for the well-founded fear of future persecution, or by
showing that he has suffered past persecution. Id. A showing of past persecution
creates a rebuttable presumption of future persecution. 8 C.F.R. § 1208.13(b)(1).
This burden has not been met. For purposes of withholding of removal,
“persecution” is “‘the infliction of suffering of harm upon those who differ (in
race, religion, or political opinion) in a way regarded as offensive.’” Nagoulko v.
INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (quoting Korablina v. INS, 158 F.3d
1038, 1043 (9th Cir. 1998)). Persecution is furthermore “‘an extreme concept that
does not include every sort of treatment our society regards as offensive.’”
Wakkary, 558 F.3d at 1059 (quoting Nagoulko, 333 F.3d at 1016)..
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Before the Immigration Judge (“IJ”) and the BIA, Budiarja testified that in
1998 he was robbed and beaten by Indonesian Muslims who uttered ethnic and
religious insults. His counsel attempted to elicit testimony that the police failed to
conduct a proper investigation because of his ethnicity or religion, but the IJ
properly excluded such testimony for lack of foundation. He also testified that
Muslims had thrown rocks at his mother’s Christian church building, and that
ethnic Chinese Christians such as him were often harassed for money.
In Wakkary v. Holder, we held that substantial evidence supported a finding
of no past persecution even where the petitioner, an ethnic Chinese Christian like
Budiarja, had been twice beaten and robbed by groups of Indonesian youths, and
“accosted by a threatening mob while driving to Bible school[.]” Id. As in this
case, Wakkary’s attackers evinced a racial animus, saying “‘Chinese[,] you stop’”
and “[‘A]re there any Chinese or Christians in that car[?’]” Id. at 1054 (alterations
in original). Yet, we held that the attacks were not so systematic or harmful that
they compelled a finding of past persecution. Id. at 1060.
The same result obtains here. While it might reasonably be argued that
Budiarja’s vicious 1998 robbery amounted to discriminatory mistreatment, the IJ
held that it appeared to be an isolated incident, and not part of any systematic
persecution of ethnic Chinese Christians. The evidence does not compel us to find
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that the IJ’s ruling was in error. Having failed to prove past persecution, Budiarja
is not entitled to a presumption of future persecution.
In the absence of this presumption, Budiarja also fails to prove a likelihood
of future persecution. He has not shown that he is more likely than any other ethnic
Chinese Christian Indonesian to suffer persecution upon removal. See Sael v.
Ashcroft, 386 F.3d 922, 925-27 (9th Cir. 2004). Nor has he shown that he has a
“greater than fifty percent” chance of suffering future persecution. Wakkary, 558
F.3d at 1065. Furthermore, his family, which shares his ethnicity and religion,
continues to live in Indonesia without harm, “weaken[ing], even undercut[ting]”
Budiarja’s showing of future persecution. Hakeem v. I.N.S., 273 F.3d 812, 816 (9th
Cir. 2001), superseded by statute on other grounds as stated in Ramadan v.
Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam).
Finally, the BIA’s denial of relief under the CAT was supported by
substantial evidence. For purposes of the CAT, the torture that the petitioner hopes
to avoid must be “inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.” 8
C.F.R. § 208.18(a)(1). Even if Budiarja could show that he is likely to be beaten
again as he was in 1998, he has not submitted any evidence that such a beating
would be “with the consent or acquiescence of a public official.” Id. Therefore, the
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BIA’s denial of relief under the CAT was proper.
PETITION DENIED.
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