Charles Kowaas v. Eric Holder, Jr. ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHARLES ALBERTINUS KOWAAS, No. 11-70054
AKA John Doe, AKA Romy Alryt
Pondaag, Agency No. A077-318-181
Petitioner,
MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 29, 2014**
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and BYBEE, Circuit Judges.
In denying asylum to Romy Alryt Pondaag, both the Immigration Judge (IJ)
and the Board of Immigration Appeals (BIA) relied on Pondaag’s failure to meet
his burden of showing that it would not be reasonable for him to relocate within
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Indonesia. 8 C.F.R § 1208.13(b)(2)(ii). Pondaag’s opening brief does not dispute
the internal relocation finding. Rather, he argues that the burden of persuasion
should have shifted to the government because he demonstrated past persecution.
Both the IJ and the BIA concluded that Pondaag had failed to demonstrate
past persecution. Pondaag points to three harms that he has faced because of his
religion: (1) employment discrimination, (2) hindering of prayer meetings when
neighbors threw rocks at his home, and (3) a bruise resulting from stones thrown at
his back on one occasion. As noted by the IJ, Pondaag never sought medical
treatment for his bruise, and no person was physically injured by the rocks thrown
during prayer meetings. In fact, Pondaag was able to continue the prayer meetings,
and his house did not suffer so much damage as to prevent him from continuing to
live there.
We are unable to conclude that the record compels a finding of past
persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1151, 1153 (9th Cir. 2005)
(describing damage to a petitioner’s car and bicycle as “de minimis”); Nagoulko v.
INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (holding that the record did not compel a
conclusion of past persecution based on the petitioner having been fired because of
her religious beliefs); Hoxha v. Ashcroft, 319 F.3d 1179, 1182–83 (9th Cir. 2003)
(holding that there was substantial evidence to support a finding of lack of past
2
persecution despite the fact that the petitioner had suffered “extensive facial
bruises and two broken ribs” in an attack).
Because Pondaag “has not established past persecution,” he bore “the burden
of establishing that it would not be reasonable for him . . . to relocate, unless the
persecution is by a government or is government-sponsored.” 8 C.F.R.
§ 1208.13(b)(3)(i). He neither challenges the finding that he did not meet that
burden nor argues that any purported future persecution will be by, or sponsored
by, the Indonesian government. See, e.g., Cerezo v. Mukasey, 512 F.3d 1163, 1165
n.5 (9th Cir. 2008) (ruling that issues not raised in an opening brief are waived).
The relocation finding is dispositive as to fear of future persecution. 8 C.F.R.
§ 1208.13(b)(2)(ii) (“An applicant does not have a well-founded fear of
persecution if the applicant could avoid persecution by relocating to another part of
the applicant’s country . . . if under all the circumstances it would be reasonable to
expect the applicant to do so.”). We therefore will not consider Pondaag’s separate
arguments that the IJ and the BIA erred in failing to find that he has a well-founded
fear of future persecution.
Because Pondaag’s asylum argument fails, we also reject his withholding of
removal argument. See Nahrvani, 399 F.3d at 1154.
3
The IJ concluded that there was no evidence that Pondaag had previously
been tortured or that the Indonesian government would want to hurt Pondaag in the
future. Pondaag argues that the IJ ignored a 2004 Religious Freedom Report from
the State Department showing that Indonesian Christians face torture. Without
citation of the record, Pondaag purports to quote and paraphrase the report.
Although that document appears in the record, it does not contain the statements
that Pondaag attributes to it. We cannot fault the IJ for ignoring evidence that was
not before her. Accordingly, we conclude that substantial evidence supports the
denial of relief under the Convention Against Torture.1
PETITION DENIED.
1
In light of our decision upholding the IJ and BIA determinations, the
government’s Motion to Strike Petitioner’s August 7, 2014 Letter Filed with the
Court is DENIED as moot.
4