Cendrawasih v. Holder

United States Court of Appeals
For the First Circuit
No. 08-2178
MAYA CENDRAWASIH,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Tashima,** and Howard,
Circuit Judges.
Randall A. Drew and Wiggin & Nourie, P.A. on brief for
petitioner.
Greg D. Mack, Senior Litigation Counsel, Department of
Justice, Civil Division, Office of Immigration Litigation, and
Michael F. Hertz, Deputy Assistant Attorney General, Civil
Division, on brief for respondent.
July 2, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as respondent.
**
Of the Ninth Circuit, sitting by designation.
BOUDIN, Circuit Judge. Maya Cendrawasih, a native and
citizen of Indonesia, seeks review of the Board of Immigration
Appeals ("BIA")'s denial of her asylum application. Cendrawasih
left Indonesia on September 26, 2001, entering the United States on
a non-immigrant visitor's visa that expired on March 24, 2002. She
sought asylum, withholding of removal, and relief pursuant to the
Convention Against Torture ("CAT") in November 2002. After
deportation proceedings were initiated, a hearing was scheduled to
consider her applications for all three forms of relief.
Cendrawasih testified that she is both Christian and
ethnic Chinese. She recounted an incident where her brother was
attacked and robbed by a group of Muslims, as well as incidents
where a friend's relatives were raped and stabbed. She personally
felt threatened when, in 1998, a group of Muslims--one carrying a
knife--approached her on a bus, although she escaped by leaping off
the bus. In June 2001, a Muslim taxi driver sexually assaulted
Cendrawasih, but she managed to escape without physical injury;
the driver called out after her: "Chinese girl, where are you
running to?"
Cendrawasih also testified that toward the end of her
time in Indonesia, she became afraid to attend church due to
bombings. Since coming to the United States, she has been an
active member of her church. Cendrawasih married an Indonesian man
in December 2003; the two have a young, U.S. citizen son. Although
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her father remained in Indonesia at the time of her initial
hearing, both of Cendrawasih's parents are now lawful permanent
residents of the United States.
After the hearing, the IJ denied her relief save for
granting her voluntary departure; the IJ did not consider her
asylum application, finding it time-barred, but resolved the
withholding and CAT claims on the merits. Cendrawasih appealed to
the BIA; the BIA initially dismissed her appeal but on motion to
reconsider, remanded the asylum claim for resolution on the merits.
The IJ--relying on the testimony from the first hearing--denied
relief; the BIA then dismissed Cendrawasih's second appeal. She
now seeks review in this court, challenging only the denial of
asylum.
To obtain asylum, Cendrawasih had to establish a well-
founded fear of future persecution on account of race, religion,
nationality, membership in a social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A) (2006); 8 C.F.R. § 208.13(b) (2009). A
showing of past persecution gives rise to a rebuttable presumption
of future persecution. 8 C.F.R. § 208.13(b)(1). In addition, the
applicant must establish that the persecution is a result of
government or government-supported action, or the government's
inability or unwillingness to control private actors. Budiono v.
Mukasey, 548 F.3d 44, 48 (1st Cir. 2008).
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The IJ found Cendrawasih to be credible, but denied
relief because she had failed to establish that her fear of future
persecution was well-founded. The IJ determined that Cendrawasih's
testimony seeking to show past persecution established only a few
isolated incidents, and her fear of future persecution--while
genuine--was not objectively reasonable, particularly in light of
improved country conditions. On review, the BIA agreed that
Cendrawasih failed to meet her burden of proof to qualify for
asylum; it also denied her request to consolidate her proceedings
with her husband's application.
Where a challenge is to factual determinations, we must
uphold IJ and BIA decisions when "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole," INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citation
omitted), reversing only if a reasonable fact-finder would be
compelled to conclude relief was warranted, id. at 483-84 (codified
at Immigration and Nationality Act § 242(b)(4)(B), 8 U.S.C. §
1252(b)(4)(B)). There may, of course, be other flaws in a decision
beside raw infirmities in fact-finding.
Cendrawasih's main argument in this court is that her
case should be remanded because the IJ and the BIA did not consider
the impact of her brother's successful application for asylum on
her claims. She argues that a well-founded fear of persecution can
be based on the experiences of others who are similarly situated,
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and her brother is similarly situated to her. Her husband obtained
a remand from an adverse ruling, Ticoalu v. Gonzales, 472 F.3d 8(1st Cir. 2006), based in part on his brother's successful asylum
application, and on remand, her husband was granted withholding of
removal.1
We said in Ticoalu that the BIA should explicitly have
considered whether the order granting Ticoalu's brother asylum was
material to Ticoalu's own claim; the court said that it was "likely
that either the IJ in the instant case or the IJ who issued
Ticoalu's brother's order has erred in assessing the extent of
inter-religious violence in Indonesia and, in particular, in
Sulawesi." Id. at 12. However, there is no such tension in this
case and Ticoalu's reasoning does not apply: after Cendrawasih
filed her petition, the BIA reversed the IJ's grant of asylum to
her brother.
The IJ and BIA here appropriately relied on country
condition reports, Budiono, 548 F.3d at 49, and found that, while
there is still religious tension in Indonesia, "conditions . . .
appear to be improving." The problems faced by Christian and
ethnic Chinese individuals in Indonesia have been addressed by this
court on numerous occasions, and we have upheld this determination,
1
Ordinarily, a spouse's successful asylum application would
allow him to obtain derivative status for the other spouse. 8
U.S.C. § 1158(b)(3); 8 C.F.R. § 1208.21. But because her husband's
asylum claim was time-barred and he obtained only withholding of
removal, the derivative route is not available to Cendrawasih.
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finding that there is "no ongoing pattern or practice of
persecution against ethnic Chinese or Christians in Indonesia,"
Kho v. Keisler, 505 F.3d 50, 54 (1st Cir. 2007), and that thus
country conditions without more do not qualify a Christian
Indonesian for asylum, Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir.
2008).
The individual difficulties Cendrawasih has faced, while
thoroughly unpleasant, are a series of isolated incidents, Budiono,
548 F.3d at 49, no greater than those faced by other Indonesian
Christians that this court has found insufficient to warrant
asylum. Susanto v. Gonzales, 439 F.3d 57 (1st Cir. 2006); Budiono,
548 F.3d at 46, 49-50. An individual singled out and more
seriously threatened than normal on account of a protected
characteristic may still satisfy the statutory test; but
Cendrawasih does not meet this standard--or at least the IJ and BIA
supportably so found.
Cendrawasih also claims that the BIA erred in
distinguishing her case from her husband's based on her ability to
relocate to Jakarta, which has experienced less religious tension
than her husband's native Sulawesi. Federal regulations provide
that an asylum application may be denied if it is demonstrated by
a preponderance of the evidence that "[t]he applicant could avoid
future persecution by relocating to another part of the applicant's
country . . . and under all the circumstances, it would be
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reasonable to expect the applicant to do so." Tendean v. Gonzales,
503 F.3d 8, 11 (1st Cir. 2007) (quoting 8 C.F.R. §
1208.13(b)(1)(i)(B)).
It is not easy to sustain an order expelling Cendrawasih-
-the parent of a young son--while her husband is entitled to remain
in this country. But the problem is not that there exists proof of
a well-founded threat to Cendrawasih's safety: it is that Congress
does not allow derivative status to the spouse of one who himself
qualifies for withholding of removal, compare 8 U.S.C. §
1158(b)(3); 8 C.F.R. § 1208.21, even though this could result in
the break-up of a family. Congress can alter this policy; we
cannot.
The petition for review is denied.
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