Kurniawan v. Mukasey

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2421
HERU KURNIAWAN, ET AL.,
Petitioners,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Yan Wang on brief for petitioners.
Anthony Wray Norwood, Senior Litigation Counsel, Jeffrey S.
Bucholtz, Acting Assistant Attorney General, and Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, U.S.
Department of Justice, on brief for respondent.
August 28, 2008
Per Curiam. Heru Kurniawan,1 a native and citizen of
Indonesia, petitions for review of a decision by the Board of
Immigration Appeals (BIA) affirming the Immigration Judge's denial
of his application for withholding of removal under 8 U.S.C. §
1231(b)(3).2 He claims that when he lived in Indonesia, he was
subject to harassment by members of his family because he converted
from Islam to Christianity. Kurniawan claims that the harassment
will continue if he returns to Indonesia.
In order to qualify for withholding of removal, "an alien
must show, by a clear probability, that [he] will be persecuted
based on a protected ground if [he] is returned to [his] native
country." Ly v. Mukasey, 524 F.3d 126, 132 (1st Cir. 2008). The
applicant must also show that the persecution is "the direct result
of government action, government-supported action, or government's
unwillingness or inability to control private conduct." Id.(quoting Kho v. Keisler, 505 F.3d 50, 55 (1st Cir. 2007)). A
1
His given name is Rifai Andreas Tumangka; however, he has
adopted the name Heru Kurniawan in the United States. Kurniawan's
wife, Patty Diane Deetje, and their adult sons, Defri Steven and
Welson Agustinus, filed derivative applications for relief from
deportation based on Kurniawan's application. Their claims rest on
Kurniawan's and we therefore do not independently address them.
2
Petitioner also seeks review of the BIA's denial of his
petition for relief under the United Nations Convention Against
Torture. However, he waived this claim by failing to meaningfully
raise it before the BIA. Molina De Massenet v. Gonzales, 485 F.3d
661, 664 (1st Cir. 2007) (explaining that arguments not raised
before the BIA are waived due to a failure to exhaust
administrative remedies).
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showing of past persecution gives rise to a rebuttable presumption
of future persecution. 8 C.F.R. § 1208.16(b)(1)(i); Ruiz v.
Mukasey, 526 F.3d 31, 35 (1st Cir. 2008).
Before the Immigration Judge (IJ), the petitioner
testified that he converted from Islam to Christianity in 1984.
Since that conversion, he and his wife have received threats from
his parents and his father's family. These family members
threatened to take his children away from him and his wife if he
did not revert to Islam and raise his sons as Muslims. Although
the IJ acknowledged that "harassment from one's family is ugly,
discriminatory, and regrettable," the IJ concluded that he could
not "find the harassment of the quality and degree experienced by
the petitioners" supported a finding of persecution. This finding
deprived the petitioner of a rebuttable presumption of future
persecution. Ruiz, 526 F.3d at 35.
As the IJ properly noted, "[a]n applicant who has not
suffered past persecution may demonstrate that his life or freedom
would be threatened in a country on account of a protected ground"
and thereby qualify for withholding of removal.3 See 8 C.F.R. §
3The IJ rejected the petitioner's application for asylum
because the application was filed after the one-year filing
deadline. The IJ found that the petitioner did not raise any
extraordinary or changed circumstances that would justify ignoring
the requirement that aliens file an asylum application within one
year of arriving in the United States. Jorgji v. Mukasey, 514 F.3d
53, 55 (1st Cir. 2008). The petitioner does not challenge that
determination on appeal. In any event, we would not have the
jurisdiction to entertain such a challenge. Ly, 524 F.3d at 130.
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1208.16(b)(2). However, the IJ explained that the petitioner had
failed to make such a showing. The petitioner provided no evidence
of anyone outside of his family engaging in harassing or
threatening behavior. The IJ further found that "there is no
evidence that the government of Indonesia tolerates the
discrimination [against Christians] in that country such as to be
found as government directed or condoned so as to be tantamount to
persecution." In support of this conclusion, the IJ cited the
2005 Country Report on Human Rights Practices in Indonesia, which
refers to occasional incidences of violence against Christians, but
does not indicate that the government either condones the
religiously motivated violence or is unable to control it.
The BIA affirmed the IJ's decision, adopting its factual
findings.4 In seeking review, the petitioner challenges only the
IJ's and BIA's conclusion that he fails to meet his burden of
proving that it is more likely than not that he would be persecuted
if he returns to Indonesia. He argues that the persecution he
suffered in Indonesia, in conjunction with the 2005 Country Report
on Human Rights Practices in Indonesia, constitutes evidence
sufficient to satisfy his burden. However, nothing in the record
or in his woefully inadequate brief compels a contrary finding.
Jamal v. Mukasey, 531 F.3d 60, 66 (1st Cir. 2008) (explaining that
4
We review both the IJ's and BIA's decisions when the BIA
adopts and affirms the IJ's decision and adds its own analysis.
Ly, 524 F.3d at 130.
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a petitioner "must demonstrate the evidence in the record not only
supports a contrary conclusion but compels it").
Therefore, we deny the petition for review.
So ordered.
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