Mawa v. Holder

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1179
OLGA MAWA, ET AL.,
Petitioners,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Wei Jia and Law Office of Wei Jia on brief for petitioners.
Gary J. Newkirk, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Stuart F.
Delery, Assistant Attorney General, Civil Division, and Luis E.
Perez, Senior Litigation Counsel, Office of Immigration Litigation,
on brief for respondent.
July 7, 2014
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SOUTER, Associate Justice. Olga Mawa, her husband, Djoko
Tri Tunggal, and their three daughters, Cynthia Auyningtyas,
Christina Dewi Kartika, and Naomi Manuela Priscilla, all natives
and citizens of Indonesia, petition for review of an order of the
Board of Immigration Appeals (BIA) summarily affirming an order of
an Immigration Judge (IJ) denying their applications for relief
from removal. We deny the petition.
I.
Though Indonesia is predominantly Muslim, Petitioners are
Christian. Before the IJ, they gave testimony of the following
substance. In their native province of Jakarta, they belonged to
a church group that lacked a permanent place of worship, and
occasionally they would host a religious service. On one such
occasion, in February 1998, a group of Muslims interrupted the
service by throwing firecrackers at the house, and later that night
a brick was thrown through the house's glass door. Petitioners did
not report these incidents, out of doubt that the police would take
any action.
A few months later, during the so-called "Jakarta riots"
of May 1998, rocks were thrown at Petitioners' house while Mawa was
inside with her daughters. Elsewhere in their neighborhood,
rioters set houses on fire.
Several years after that, in 2005, as Auyningtyas was
walking home from school, she was assaulted by a group of young
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Muslim males who groped her and slapped her when she tried to
escape. This incident was reported, and Auyningtyas identified the
assailants, but the police apparently did nothing, one of them
saying only, "Those are naughty children." About a year hence,
Kartika was verbally harassed on a public bus by two Muslim men
after they noticed the cross on her necklace. They urged her to
convert to Islam to avoid future harm. Because she could not
identify the men, Petitioners did not file a report.
After these incidents, Petitioners came to the United
States, but, with the exception of Kartika, who was enrolled in
school here, they returned to Indonesia to care for Mawa's ailing
mother. In 2007, during a birthday celebration for Tunggal, two
Muslim men entered Petitioners' house and demanded that they stop
their prayers. When the family ignored this request, the intruders
left to recruit others and returned with five more Muslim men, and
an altercation followed in which Mawa was pushed to the ground and
received a serious knee injury. She was taken by ambulance to the
hospital, where she stayed for two days. Mawa notified the police,
who, as far as she is aware, took no action. Later that year,
Mawa, Auyningtyas, and Priscilla entered the United States again as
visitors and reunited with Kartika. Tunggal joined them in 2008.
They are afraid to return to Indonesia.
Petitioners were charged with removability as noncitizens
who had overstayed their visas. They conceded removability, but
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filed applications for asylum and withholding of removal.1 The IJ
found that those who testified at the ensuing hearing (Mawa,
Auyningtyas, and Kartika) did so credibly. Nevertheless, the IJ
concluded that Petitioners did not satisfy the burden for asylum
and, consequently, also failed to shoulder the higher burden for
withholding of removal. In an oral decision, the judge denied the
applications for relief.
The BIA affirmed without opinion, and this petition for
review followed.
II.
Where, as here, the BIA affirms without opinion, we
review the IJ's decision. Castillo–Diaz v. Holder, 562 F.3d 23, 26
(1st Cir. 2009). We examine legal conclusions de novo and factual
findings for substantial evidence, accepting them unless the record
not merely supports but compels the contrary conclusion. Segran v.
Mukasey, 511 F.3d 1, 5 (1st Cir. 2007); see also 8 U.S.C.
§ 1252(b)(4)(B).
As for the asylum claim, Petitioners must show that they
are unable or unwilling to return to Indonesia because they either
suffered past persecution, or harbor a well founded fear of future
1
In addition to asylum and withholding of removal, the
Government's brief refers to the Convention Against Torture (CAT)
as another source of relief sought. But Petitioners do not appear
to have advanced a CAT claim before the IJ or the BIA, and they
made no argument to this court about a CAT claim. Any such claim
has by now been waived. Pangemanan v. Holder, 569 F.3d 1, 3 n.2
(1st Cir. 2009).
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persecution, in their case on account of their religion. See 8
U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Establishing past
persecution requires showing, among other things, that the harm
suffered resulted from "government action, government-supported
action, or government[] unwillingness or inability to control
private conduct." Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st
Cir. 2005). Although the IJ determined that Petitioners failed to
show this, Petitioners argue that the judge neglected to consider
evidence that the Indonesian government is unable or unwilling to
control private actors who perpetrate violence against Christians.
There is no question that the record of conflicting
material included newspaper articles and Petitioners' own testimony
that could be taken to support the claim of governmental
indifference or incapacity in the face of anti-Christian violence.
Two of the incidents that befell Petitioners, for example, the
assault on Auyningtyas and the attack on Mawa in her home, were
reported to the police. The response to the former was dismissive,
and to the latter Mawa testified they did nothing. But whether
"naughty children" reflected sexual permissiveness or religious
animus is uncertain; and, as the IJ noted, "whether the police did
anything more than accept [Mawa's report of the attack in her home]
is not really known." See Barsoum v. Holder, 617 F.3d 73, 80 (1st
Cir. 2010) (record did not compel conclusion that police were
unable or unwilling to protect petitioner who had "sought
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assistance from the police only once . . . and [had] claim[ed] that
they failed to investigate his story, but he never again sought
their help"). Other incidents, apparently, were never reported.
Not only is the evidence of a governmental connection
weak, but other material in the record belies Petitioners'
assertion of it. For instance, the State Department's August 2009
Issue Paper on Christians in Indonesia gives examples to support
its conclusion that, in the preceding years, "[t]he government took
steps to bring those responsible for religiously motivated violence
to justice." So too, the State Department's November 2010
International Religious Freedom Report on Indonesia recites
evidence that the government investigates and prosecutes
religiously motivated crime. In sum, the record does not compel
the conclusion that the Indonesian government is unable or
unwilling to control private actors who perpetrate religious
violence. Accordingly, the IJ's determination that Petitioners
failed to establish past persecution must stand.2
To establish a well founded fear of future persecution,
Petitioners must demonstrate a fear that is both subjectively
genuine and objectively reasonable. Castaneda-Castillo v. Holder,
2
In addition to a governmental connection, past persecution
requires that the harm suffered exceed "unpleasantness, harassment,
and even basic suffering." Nelson v. I.N.S., 232 F.3d 258, 263
(1st Cir. 2000). The IJ determined that Petitioners failed to make
this showing as well. Because, in our view, the IJ did not err in
concluding that Petitioners failed to establish the governmental
connection, we need not consider this additional determination.
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638 F.3d 354, 362 (1st Cir. 2011). In the absence of probative
support that a showing of past persecution was made, the IJ
concluded that Petitioners' fear, while subjectively genuine, was
not objectively reasonable. The judge explained that violence
against Christians in Indonesia has declined significantly and
that, even if returning to Jakarta would be dangerous, Petitioners
could live safely in other parts of the country. Petitioners argue
that the IJ selectively cited parts of the record and ignored
others. We, however, find the IJ's conclusion to be supported by
substantial evidence.
Here again, the record contains some conflicting
material, and Petitioners are correct that even the documents cited
by the IJ fall short of painting an entirely one-sided picture.
But it is another thing to say that the IJ failed to take account
of the contrary evidence. Thus, in discussing the 2010
International Religious Freedom Report, the IJ explicitly noted
that, during the reporting period, "there were 200 incidents of
religious freedom violations in the country." The IJ simply
weighed this fact against others, such as the Report's
documentation of "numerous areas of improvements in religious
freedom." And while Mawa testified that her Christian relatives in
Indonesia continue to experience difficulties on account of their
religion, the most recent incident to which she testified was the
burning of a sibling's house during the Jakarta riots of May 1998.
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It is not, therefore, fair to claim that the IJ ignored Mawa's
testimony in concluding that Petitioners' relatives "have not
experienced any religious-based violence since [Petitioners] have
been here in the United States."
Petitioners take particular issue with the fact that the
IJ's decision refers to the Indonesian constitution's promise of
religious freedom. As they say, this guarantee has been on the
books since 1945, but has been scant protection during periods of
rampant religious violence, such as the May 1998 riots. But the IJ
did not merely refer to the constitution, for her exposition spoke
to the 2010 International Religious Freedom Report, which not only
explains that "[t]he constitution provides for freedom of
religion," but also proceeds to say that, during the reporting
period, "[t]he government generally respected religious freedom for
the six officially recognized religions," including Christianity.
We have previously endorsed such citations, see, e.g., Kamuh v.
Mukasey, 280 F. App'x 7, 10 (1st Cir. 2008); Nikijuluw, 427 F.3d at
119, and even if the IJ's passing reference to the constitution
were misplaced, the judge's conclusion would hardly stand or fall
on it.
Finally, contrary to Petitioners' argument, substantial
evidence supports the IJ's determination that they could safely
live in other places within Indonesia, if not in Jakarta. The
Issue Paper, for example, not only notes an overall downward trend
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in religious violence, but indicates that the five Indonesian
provinces housing Christian majorities, of which Jakarta is not
one, are particularly safe for Christians. See Susanto v.
Gonzales, 439 F.3d 57, 61 (1st Cir. 2006) ("[T]he IJ reasonably
concluded that, were petitioners threatened with . . . harm, they
reasonably might relocate to a safer part of Indonesia, such as the
areas with a Christian majority."). Hence, the record does not
compel the conclusion that Petitioners established a well founded
fear of future persecution. Absent a showing of either past
persecution or a well founded fear of persecution in the future,
the asylum application was properly denied.
To be eligible for withholding of removal, Petitioners
must show that on removal to Indonesia they would more likely than
not face future persecution on account of their religion. See 8
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2). Because the "more
likely than not" standard for withholding of removal is stricter
than that for asylum, Petitioners' inability to satisfy the asylum
standard precludes their meeting the standard for withholding of
removal, see Mediouni v. I.N.S., 314 F.3d 24, 27 (1st Cir. 2002),
which was properly denied.
III.
The petition for review is DENIED.
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