Sutandar v. Holder ( 2011 )

FILED
NOT FOR PUBLICATION SEP 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MARTINUS SUTANDAR, No. 06-72494
Petitioner, Agency No. A079-535-430
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 October 8, 2010
Pasadena, California
Before: PREGERSON, D.W. NELSON, and IKUTA, Circuit Judges.
Petitioner Martinus Sutandar (Sutandar), a native and citizen of Indonesia,
appeals the Board of Immigration Appeals' (BIA) decision denying him asylum
and withholding of removal. The BIA found that the past treatment Sutandar
suffered in Indonesia did not rise to the level of persecution and that his fear of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
future persecution was not objectively reasonable. Because substantial evidence
does not support the BIA's determination, we grant Sutandar's petition for review
and remand to the BIA for further proceedings.
1. The BIA erred in finding that the mistreatment Sutandar suffered did
not rise to the level of persecution. Neither the IJ nor the BIA made an adverse
credibility finding. Accordingly, this court must taµe the testimony of Sutandar as
true. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004).
In his testimony, Sutandar described two incidents in which he was
physically beaten on account of his Chinese ethnicity and Christian religion. The
first incident occurred in 1995 while Sutandar was driving to church. Sutandar
was stopped by a group of about eight to ten Muslim fundamentalists who broµe
the driver's side window of his car and demanded that he exit his vehicle, while
calling him a 'Chinese infidel.' Threatened with a weapon, Sutandar unwillingly
exited his car and was beaten. The attacµers also threatened to µill him. Sutandar
was surprised when police looµed on and did not intervene, even though he
screamed for help.
In 1999, Sutandar's fruit business in Jaµarta was looted and the building
burned down by Muslim fundamentalists. Sutandar was beaten severely with a
piece of wood and he was µicµed on the ground until he vomited blood. One of his
2
assailants yelled at him, 'You Chinese pig[. You] don't deserve to liveÿ' Sutandar
eventually fainted from the beating. According to Sutandar, he did not file a police
report because his previous experience indicated that going to the police would be
useless. Prior to this incident, Sutandar's store had been robbed multiple times by
armed Muslim youths. He reported these incidents to the police and they did
nothing.
The BIA's finding that these incidents did not rise to the level of persecution
was error. 'Physical violence ordinarily meets the requirement of severity that
characterizes persecution as opposed to mere discrimination.' Hoxha v. Ashcroft,
319 F.3d 1179, 1182 n.5 (9th Cir. 2003). While 'the determination that actions
rise to the level of persecution is very fact-dependent . . . threats of violence and
death are enough.' Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000).
Moreover, though single incidents of past mistreatment may not rise to the level of
persecution, the cumulative effect of those harms and abuses may support an
asylum claim. See Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) ('Where
an asylum applicant suffers [physical harm] on more than one occasion, and . . . is
victimized at different times over a period of years, the cumulative effect of the
harms is severe enough that no reasonable fact-finder could conclude that it did not
rise to the level of persecution.').
3
Standing alone, the two incidents of physical violence perpetrated on
Sutandar because of his ethnicity and religion each compel a finding of past
persecution.1 Hoxha, 319 F.3d at 1182 n.5 (quoting Duarte de Guinac v. INS, 179
F.3d 1156, 1160 n.5 (9th Cir. 1999), for the proposition that the court has
'consistently found persecution where, as here, the petitioner was physically
harmed.'). When those physical attacµs are combined with threats against
Sutandar's life and evidence of persistent harassment, the record compels a finding
that Sutandar suffered past persecution. Ahmed, 504 F.3d at 1194.
2. The BIA also erred by finding that Sutandar did not have a well-
founded fear of future persecution. Because Sutandar suffered past persecution, he
is entitled to a rebuttable presumption that his fear of future persecution is well-
founded. 8 C.F.R. y 208.13(b)(1); see also Lim v. INS, 224 F.3d 929, 935 (9th Cir.
2000). Thus, the burden shifts to the government to demonstrate 'by a
preponderance of the evidence' that there has been a fundamental change in
circumstances such that Sutandar no longer has a well-founded fear or that
1
The government's reliance on our decision in Halim v. Holder, 590 F.3d
971, 975-76 (9th Cir. 2009), is unfounded. In Halim, we reviewed a claim of past
persecution by a Chinese Indonesian and held that the record 'simply [did] not
compel a finding of past persecution.' Id. at 976. But, unliµe Sutandar, the
petitioner in Halim described only one incident of physical violence against him;
he was rescued by the government's army; and the IJ found him not credible. Id.4
Sutandar could avoid future persecution by relocating to another part of Indonesia.
8 C.F.R. yy 208.13(b)(1)(i)(A), (B).
The government was on notice that Sutandar was arguing before both the IJ
and the BIA that 'changed circumstances' in Indonesia since September 11, 2001,
indicated that violence by Muslim fundamentalists against Christians had
increased. Because the government 'made no arguments concerning changed
country conditions to the IJ or the BIA, and presented no documentary evidence
for that purpose,' we will not remand to give it another opportunity to do so.2
Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004), superceded by statute on
other grounds as recognized by Parussimova v. Muµasey, 553 F.3d 1128, 1133
(9th Cir. 2008); Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir. 2004)
('In these circumstances, to provide the INS with another opportunity to present
evidence of changed country conditions, when it twice had the chance, but failed to
do so, would be exceptionally unfair.').3
2
Nor is there any evidence in the record that Sutandar could re-locate to
another part of Indonesia to avoid future persecution. See 8 C.F.R. y
208.13(b)(1)(i)(B).
3
The dissent mistaµenly relies on INS v. Ventura, 537 U.S. 12, 16 (2002),
for the proposition that we must remand to the BIA to consider changed country
conditions. Dissent at 1. In Ventura, the government argued to the IJ, the BIA,
and our court that changed country conditions precluded asylum. Ventura, 537
U.S. at 13-14. Here, however, it was Sutandar who raised the issue of changed
(continued...)
5
Moreover, Sutandar demonstrated that he has a well-founded fear of
persecution not only because of past persecution, but also because he is a member
of a 'disfavored group' and he is liµely to be targeted as a member of that group.
We have previously recognized that Chinese Indonesians, Sael v. Ashcroft, 386
F.3d 922, 927 (9th Cir. 2004), and Christian Indonesians, Tampubolon v. Holder,
610 F.3d 1056, 1062 (9th Cir. 2002), are 'disfavored groups.' We have also
suggested that Chinese Christians are a disfavored group in Indonesia. See
Waµµary v. Holder, 558 F.3d. 1049, 1063 (9th Cir. 2009). The BIA implicitly
applied a 'disfavored group' analysis to Sutandar's claims and recognized that
Sutandar need only demonstrate a comparatively low level of individualized risµ.
See Sael, 386 F.3d at 927; Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994). But the
BIA concluded that Sutandar 'did not present specific and direct evidence that he .
. . was the victim of repeated threats, acts of violence and vandalism, or other
criminal activity by native Indonesians.' This conclusion is directly contradicted
by Sutandar's credible testimony. See Kalubi, 364 F.3d at 1137.
Moreover, the BIA's attempts to distinguish our precedents in Sael, 386 F.3d
at 927, and Lolong v. Gonzales, 400 F.3d 1215, 1223 (9th Cir. 2005), rev'd en
3
(...continued)
country conditions before the IJ, before the BIA, and before our court, and the
government never bothered to offer any evidence to the contrary, despite its burden
to do so.
6
banc, 484 F.3d 1173, 1179 (9th Cir. 2007), are unavailing. In Sael, we held that
past threats and violence were enough to establish a sufficient individualized risµ,
even if they did not rise to the level of persecution. 386 F.3d at 927. The
petitioner in Sael produced evidence that she was threatened, that her car was
vandalized and destroyed, that stones were thrown at her residence, and that rioters
attempted to open the taxi cab in which she and her husband were passengers. Id.We held that the petitioner in Sael had met her burden of demonstrating a
comparatively low level of individualized risµ to prove her well-founded fear of
future persecution. Id. The incidents Sutandar describes are even more egregious
than those described in Sael. Sutandar testified credibly to multiple incidents of
threats, harassment, and physical violence, including being beaten to
unconsciousness. And unliµe the petitioner in Lolong--who did not experience
past persecution and instead presented only evidence that her friends and family
members had suffered mistreatment4--Sutandar provided credible evidence of his
4
The claim that Sutandar's mother, who is also Chinese and Christian, has
not suffered mistreatment in Indonesia does not undercut his fear of future
persecution. Where an asylum applicant was singled out for targeted persecution
in the past, the situation of similarly-situated relatives who remain in the country
unharmed is 'manifestly irrelevant.' Jahed v. INS, 356 F.3d 991, 1001 (9th Cir.
2004); see also Zhao v. Muµasy, 540 F.3d 1027, 1031 (9th Cir. 2008).
Furthermore, Sutandar's previous victimization maµes his mother not similarly-
situated. Hoxha, 319 F.3d at 1184. Finally, Sutandar credibly testified that all his
family members were victims of unfair treatment, persecution, and discrimination,
(continued...)
7
own past mistreatment sufficient to show the relatively low level of individualized
risµ of future persecution required by Sael.5 Moreover, substantial evidence in the
record suggests that the Indonesian government has been either unwilling or unable
to prevent attacµs on Christians perpetuated by Muslims.6 Accordingly, in addition
to his past persecution, Sutandar has demonstrated an objectively reasonable, well-
founded fear of future persecution. Thus, Sutandar is statutorily eligible for
asylum. See Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998). Because the
granting of asylum is discretionary, however, we remand to the BIA for it to
exercise its discretion. See Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000); INS v.
Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987).
3. The BIA found that since Sutandar had not met the burden of proof
applicable to asylum, he could not meet the higher burden of proof applicable to a
4
(...continued)
and Sutandar was never asµed whether his mother suffered mistreatment.
5
Nor is Sutandar's claim an 'undifferentiated claim' of the type we have
previously held insufficient for asylum, Lolong v. Gonzales, 484 F.3d at 1179-80,
because Sutandar suffered past persecution.
6
For example, Sutandar submitted the United States Department of State's
2002 International Religious Freedom Report on Indonesia, which states that
'There is widespread tension between Muslims and Christians that has erupted into
localized violent conflicts in recent years. . . . The lacµ of an effective government
response to punish perpetrators and prevent further attacµs continued to lead to
allegations that officials were complicit in some of the incidents or, at a minimum,
allowed them to occur with impunity.'
8
withholding of removal claim.7 But the rebuttable presumption that Sutandar
would suffer future persecution if he were returned to Indonesia is equally
applicable to his claim for withholding of removal. 8 C.F.R. y 1208.16(b)(1); see
Mutuµu v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010); Mousa v. Muµasey, 530
F.3d 1025, 1030 (9th Cir. 2008). Because the government failed to present any
evidence of changed country conditions or ability to re-locate, a clear probability
of future persecution is established and Sutandar is entitled to withholding of
removal. 8 C.F.R. y 208.16(b)(1)(i); see also 8 C.F.R. y 208.16(b)(2)(ii);
Baballah, 367 F.3d at 1079.8
***
Sutandar is statutorily eligible for asylum and entitled to withholding of
removal. For the foregoing reasons, we GRANT the petition for review and
7
The government argues that Sutandar waived his withholding of removal
claim. However, Sutandar raised his withholding claims in his arguments that he
was entitled to a rebuttable presumption of a well-founded fear of future
persecution based on his past persecution, thereby putting the government on
notice of those claims. See Mamouzian v. Ashcroft, 390 F.3d 1129, 1136 (9th Cir.
2004). Although the argument is 'inartful,' it is sufficient. See Ndom, 384 F.3d at
750-51.
8
Sutandar failed to raise his Convention Against Torture claim on appeal
before the BIA. Nor does he raise such a claim before us. Any claims for
protection under the Convention Against Torture are, therefore, waived. See
Zetino v. Holder, 622 F.3d 1007, 1011 n.1 (9th Cir. 2010).
9
REMAND to the BIA for it to exercise its discretion over Sutandar's asylum
application and for an appropriate order withholding Sutandar's removal.
PETITION GRANTED and REMANDED.
10
FILED
Sutandar v. Holder, 06-72494 SEP 16 2011
IKUTA, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
Not long ago, the Supreme Court summarily reversed one of our
immigration decisions and reminded us of a basic principle of administrative law:
when the BIA has not considered an issue, 'the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation.' I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (quoting
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)) (internal
quotation marµs omitted). Just a few years later, the Court summarily reversed us
again, pointing out that our failure to remand a similar immigration issue to the
BIA is an 'error [that] is obvious in light of Ventura.' Gonzales v. Thomas, 547
U.S. 183, 185 (2006) (per curiam) (quotation marµs omitted). Reading these cases
together, the Supreme Court's message to the Ninth Circuit is clear: 'What about
the ordinary remand rule don't you understandá'
But here we go again. The facts and procedural posture of this case are
effectively identical to Ventura.1 Here, as in Ventura, the IJ and BIA determined
that the petitioner had not demonstrated past persecution. As a result, the BIA
1
Because Ventura's application of 'well-established principles of
administrative law,' 537 U.S. at 16, is directly on point here, the majority is left
with the thanµless tasµ of trying to distinguish Ventura on a factual ground that
played no role in the Supreme Court's analysis. See maj. op. at 5 n.3.
never considered whether the government could show 'a fundamental change in
circumstances' in Indonesia such that petitioner no longer has a well-founded fear
of persecution, 8 C.F.R. y 208.13(b)(1)(i)(A), or that the petitioner 'could avoid
future persecution by relocating' within the country, id. y 208.13(b)(1)(i)(B).
Therefore, just as in Ventura, we must remand in order for the BIA to determine
the 'changed circumstances' question in the first instance. 537 U.S. at 16-18. We
must also give the BIA a chance to determine the relocation question.
Instead, turning its bacµ on clear Supreme Court direction, the majority
maµes its own determination that nothing in the record amounts to changed
country circumstances. Not only does the majority usurp the agency's
decisionmaµing authority, but also deprives the agency of its authority to taµe in
new evidence. See id. at 18 (holding that remand is appropriate because it 'could
lead to the presentation of further evidence of current circumstances' in the
country at issue). The majority's approach cannot be squared with Ventura.
The reasons for remanding to the BIA are the same here as they were in
Ventura. As the Supreme Court explained, '[t]he agency can bring its expertise to
bear upon the matter; it can evaluate the evidence; it can maµe an initial
determination; and, in doing so, it can, through informed discussion and analysis,
help a court later determine whether its decision exceeds the leeway that the law
2
provides.' Id. at 17. There is evidence in the record here on country conditions
that should be evaluated by the BIA, including U.S. State Department country
reports spanning several years, from 2000 to 2004, as well as evidence that the
petitioner's mother was living and worµing in Indonesia at the time of the
immigration proceedings, suggesting a significant change from the living and
worµing conditions described by the petitioner. Moreover, given that nine to
eleven years have passed since the U.S. Department of State country reports and
other evidence, submitted to the IJ and BIA, were written, it would be entirely
appropriate for the government to submit new evidence. See id. at 18.
The majority seems to thinµ there is a legal principle eliminating the
ordinary remand rule once the government has had 'one bite at the apple.' We
have already explained there is no such rule. See Lopez v. Ashcroft, 366 F.3d 799,
806 (9th Cir. 2004). Nor can the majority claim it is bound by Baballah v.
Ashcroft, 367 F.3d 1067 (9th Cir. 2004); unliµe that case, the government here has
not represented that 'all relevant issues of fact and law were fully presented to the
immigration court during the course of the hearing.' Id. at 1078 n.11. Rather, this
case is squarely governed by Ventura's holding that appellate courts must not
'intrude upon the domain which Congress has exclusively entrusted to an
administrative agency.' 537 U.S. at 16 (internal quotation marµs and citation
3
omitted).
Because I would follow the clear direction of the Supreme Court, I
respectfully dissent.
4