Kamuh v. MuKasey

Not for Publication In West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1639
SAMUEL RUDDY KAMUH,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,*
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Selya and Siler,** Senior Circuit Judges.
William P. Joyce and Joyce & Associates, PC on brief for
petitioner.
Greg D. Mack, Senior Litigation Counsel, Peter D. Keisler,
Assistant Attorney General, and Terri J. Scandron, Assistant
Director, on brief for respondent.
June 11, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzales as the respondent herein.
**
Of the Sixth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Samuel Ruddy Kamuh, a citizen of
Indonesia, petitions for review of the denial by the Board of
Immigration Appeals (BIA) of his application for asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT). See 8 U.S.C. § 1252(a). After careful
consideration, we deny the petition for review.
I.
Kamuh entered the United States on December 8, 2002, on
a nonimmigrant, six-month tourist visa. On November 13, 2003, he
filed an application for asylum, claiming religious persecution.
The Department of Homeland Security then served a Notice to Appear
on Kamuh on January 29, 2004, charging him with overstaying his
visa. See 8 U.S.C. § 1227(a)(1)(B).
At an immigration hearing on November 4, 2005 and in his
written asylum application, Kamuh described himself as an active
member of the Seventh Day Adventist Church and reported that his
father was the pastor of their congregation in Indonesia.1 Kamuh
recounted four negative encounters that he had had in Indonesia
with Muslims who were prejudiced against Christians. He also
described other incidents involving violence against various family
1
Kamuh's father, Evert, was granted asylum by a different
immigration judge on July 17, 2006. Kamuh, who was 35 years old
when he applied for asylum, was not and could not have been
included in his father's application for asylum. See 8 U.S.C. §
1158(b)(3) (permitting an asylee's child to receive asylum); 8
U.S.C. § 1101(b)(1) (defining "child" as an "unmarried person under
twenty-one years of age").
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members. The immigration judge (IJ) found Kamuh's testimony to be
credible.
The first personal encounter took place in July 1999 in
Ternate, where Kamuh had stopped over briefly while traveling by
ship. As Kamuh made his way back to reboard the ship, a fight
broke out between one of the ship's guards and a man who had tried
to enter the area through a fence. The man and three others beat
the guard, and rumors quickly swept through the crowd that
Christians had killed a Muslim guard. Shortly thereafter, two
guards requested that Kamuh show them his national identification
card, which identified him as a Christian. One of the guards then
punched Kamuh in the jaw. Before the guard could hit him a second
time, Kamuh ran toward the ship with the guards in pursuit. He was
able to lose them in the crowd and reboarded the ship without
further incident. The following morning, Kamuh learned that a
group of people had killed a man on board the ship and thrown the
body into the sea before leaving on their own boat.
The second incident occurred in July 2002 at the Kramat
Jati Market in East Jakarta. Kamuh and two friends happened to be
at the market when an argument between a Christian and a Muslim
salesman sparked a riot. Kamuh testified that during the fighting,
three men grabbed him and forced him to show them his national
identification card. The men then beat Kamuh for twenty to thirty
minutes before he was able to flee to his car where his friends
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were waiting for him. He reported that his face was bruised, his
left eye injured, and his lip torn during the beating. After Kamuh
left, police and soldiers arrived to end the riot and secure the
marketplace.
The third encounter took place in September 2002, when a
group of ten or twelve armed young men came to his apartment
complex searching for a Christian. Kamuh testified that he locked
the door to his apartment and hid while the Muslim men searched the
complex. He reported that he observed through the window as the
men dragged a Christian man into the soccer field in front of the
building and beat him. Kamuh stated that police came and took the
militants away before they reached his apartment.
The final encounter involving Kamuh occurred in November
2002. Kamuh stated that he was stopped in an alley by a group of
young people after he left a Prayer Night at his church with
friends. The group shouted insults at Kamuh and his friends for
their Christian beliefs and threatened to kill them if they ever
took that road again. Two weeks later, stones were thrown at him
as he rode his motorcycle through the same alley. One stone passed
in front of his face, narrowly missing him, and others hit his
motorcycle. He did not stop and did not see who was throwing the
stones. He also did not call the police, convinced that they would
not follow up on his report because he is Christian.
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Other members of Kamuh's family had similar encounters
because of their religious beliefs. Kamuh's father, Evert,
received death threats because of his position as a pastor in the
Seventh Day Adventist Church. In April 2001, one of Evert's former
students warned him that Muslim militants were planning to burn
Evert's house; Evert called the police. Shortly thereafter, two
men approached Evert on a bus and told him to stop "Christianizing"
young Muslims through his English classes. The men also demanded
that Evert pay them two million rupiahs for "teaching Christianity"
to Muslim students.
In December 1998, Kamuh's brother Daniel was staying in
Ambon, at a hotel, when religious rioting broke out in the city.
The owner of the hotel told Daniel to stay in his room for his own
safety. Daniel hid in the hotel for three or four days and then
escaped with the help of police. Kamuh also reported that his
sister was robbed by a group of men who stopped her on the street,
ascertained that she was Christian, and then further harassed her.
Additionally, in January 2002, Kamuh's uncle was hit in the stomach
by a stone thrown by Muslim militants who had boarded his train
looking for Christians.
Kamuh obtained his tourist visa to come to the United
States on October 1, 2002. Following the November 2002 incident,
he made the final decision to leave Indonesia and departed for the
United States on December 7, 2002. Kamuh's father had preceded
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him, arriving in the United States in 2001. Kamuh's brother Daniel
and his mother have remained in Indonesia. Kamuh explained that
Daniel is well protected by the American corporation for which he
works and that his mother is periodically in hiding, but remains in
Indonesia because she has been unable to obtain a visa.
Having heard this account, the IJ concluded that although
Kamuh's testimony was credible, he had not established that the
incidents he described rose to the level of past persecution or
established an objectively reasonable fear of future persecution.
The IJ also found that Kamuh had failed to establish that the
Indonesian government was unwilling or unable to control the Muslim
militants. The IJ further concluded that Kamuh did not qualify for
withholding of removal or protection under the CAT, noting that
these require a higher level of proof than the asylum claim.2 The
IJ granted Kamuh voluntary departure. Kamuh appealed to the BIA,
which briefly stated its agreement with the IJ's conclusions and
dismissed the appeal. This timely petition followed.
II.
When the BIA adopts and affirms the IJ's ruling, but also
discusses some of the bases for the IJ's opinion, we consider both
the IJ's and BIA's opinions in our review. Zheng v. Gonzales, 475
2
Kamuh offers no arguments with respect to his claims for
withholding of removal or protection under the CAT. As a result,
he has waived any right to judicial review of the denial of these
claims. See Topalli v. Gonzales, 417 F.3d 128, 131 n.3 (1st Cir.
2005).
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F.3d 30, 33 (1st Cir. 2007). We afford those opinions a high
degree of deference, allowing the agency's findings of fact to
stand "unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
To establish eligibility for asylum, an alien must show
that he "is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, [his
native] country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A); see also Harutyunyan v. Gonzales, 421 F.3d 64, 67
(1st Cir. 2005). In order to establish that the mistreatment he
has experienced or would experience upon return rises to the level
of "persecution," the alien must show, inter alia, that the
mistreatment was the "'direct result of government action,
government-supported action, or government's unwillingness or
inability to control private conduct.'" Ortiz-Araniba v. Keisler,
505 F.3d 39, 41 (1st Cir. 2007) (quoting Orelien v. Gonzales, 467
F.3d 67, 72 (1st Cir. 2006)); see also Da Silva v. Ashcroft, 394
F.3d 1, 7 (1st Cir. 2005) ("Action by non-governmental actors can
undergird a claim of persecution only if there is some showing that
the alleged persecutors are in league with the government or are
not controllable by the government.").
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The IJ determined that Kamuh had failed to show that the
incidents he described, all of which involved violence by private
citizens, were connected with either action or inaction on the part
of the Indonesian government. As the IJ noted, the State
Department's 2004 Country Reports on Human Rights Practices and the
International Religious Freedom Report both indicate that the
constitution of Indonesia provides for religious freedom. Both
reports also conclude that the government generally respects this
provision and that Christianity is officially acknowledged as one
of several recognized religions. Although the Religious Freedom
Report states that "[o]n some occasions, the Government tolerated
the abuse of religious freedom by private groups or failed to
punish perpetrators," the IJ reasonably concluded that this
tolerance is not the norm. See Matter of A-M 23 I & N Dec. 737,
741 (BIA 2005) (noting that the 2002 Country Report for Indonesia
"indicate[d] that incidents of harm related to religious or ethnic
strife generally involved fellow citizens rather than the
Government or Government agents, and that Government acquiescence
[was] not the norm"). Indeed, the report goes on to detail the
government's efforts to investigate various incidents of violence
by militant Muslims aimed at Christians and to prosecute those
involved.
Moreover, Kamuh's account of his own experiences in
Indonesia demonstrates that the government was both willing and
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able to respond when authorities were alerted to interreligious
violence. See Ortiz-Araniba, 505 F.3d at 42 ("In determining
whether a government is willing and able to control persecutors, we
have explained that a prompt response by local authorities to prior
incidents is 'the most telling datum.'" (quoting Harutyunyan, 421
F.3d at 68)). The police responded to several of the incidents
Kamuh described: in December 1998, Kamuh's brother reportedly
escaped from religious violence in Ambon with help from the police;
in April 2001, Evert called police after learning of a plot to burn
his house, and the house was not burned; in July 2002 when Kamuh
was caught up in rioting in a market, the police quelled the
violence after Kamuh had left; and, in September 2002, police
arrived and took away the armed men who had come to Kamuh's
apartment building before the men arrived at Kamuh's apartment.
Against this backdrop, the IJ reasonably concluded that
Kamuh's insistence that the police "side with the militants" was
unsubstantiated by the State Department reports and Kamuh's own
testimony. Thus, we affirm the IJ's conclusion that Kamuh failed
to establish the necessary connection between the mistreatment he
experienced or would experience in the future and any action or
inaction on the part of the Indonesian government. Without this
governmental link, Kamuh cannot establish either past persecution
or a well-founded fear of future persecution and his asylum claim
necessarily fails.
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Petition denied.
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