Benito v. Mukasey

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2648
RADJAMIN HASUDUNGAN BENITO,
Petitioner,
v.
MICHAEL B. MUKASEY,
ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Stahl, and Howard,
Circuit Judges.
Armin A. Skalmowski on brief for petitioner.
Gregory G. Katsas, Acting Assistant Attorney General, and
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
October 22, 2008
STAHL, Circuit Judge. The Board of Immigration Appeals
(BIA) affirmed an Immigration Judge's (IJ's) decision finding
Radjamin Hasudungan Benito ineligible for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).
Benito now petitions this court for a review of the BIA's denial of
his claims. We deny the petition for review.
I. BACKGROUND
In May 2002, Benito, a native and citizen of Indonesia,
entered the United States as a non-immigrant visitor with
authorization to remain in the country until June 18, 2002. In a
Notice to Appear dated April 11, 2003, the Department of Homeland
Security (DHS) began removal proceedings. Conceding removability,
Benito appeared before an IJ on November 29, 2005, and sought
asylum, withholding of removal, and relief under the CAT.
The IJ found Benito credible, and thus, we relate the
facts of the case as he testified to them.
Benito was born in January 1972 to a Protestant Christian
family. During his childhood and adult life in Indonesia, a
largely Muslim nation, he was an active member of Christian
churches. Benito and his family experienced anti-Christian verbal
threats and abuse by neighbors and acquaintances, and he observed
discrimination against Christians during high school and at the
University of Sumatera Utara.
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After graduating in 1996 with a degree in economic
management, Benito worked for five years at a Korean-owned
manufacturing company. On several occasions, coworkers sent him
emails with graphic images and news stories detailing murders of
Christian citizens. Benito did not report the emails to his Korean
supervisors or the Indonesian police, believing such efforts would
be futile. During this time, many Christian churches were burned
and destroyed. Benito also recalls hearing of additional bombings
and murders of Christians. In August 2001, Benito began working
for a foreign currency exchange, and while there, experienced no
anti-Christian encounters.
Benito entered the United States on a tourist visa for 30
days in May 2002 to attend his brother's graduation from the
Rochester Institute of Technology in New York. Before Benito
departed Indonesia, his brother, who was concerned for Benito's
safety as a Christian in Indonesia, suggested that Benito remain in
the United States. While Benito's brother returned to Indonesia
within weeks of his graduation, Benito remained in the United
States and spent the next three years working odd jobs and
following events in Indonesia. During this time, Benito's parents,
brother, and three sisters continued to live in Indonesia as
Christians. While Benito believed they faced "intimidation," no
family member experienced physical harm. On October 26, 2005,
believing that conditions in Indonesia had worsened, Benito filed
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an application for asylum, withholding of removal, and protection
under the CAT.
After a hearing on November 29, 2005, the IJ determined
that Benito was removable as charged. Specifically, the IJ found
that Benito did not establish extraordinary or changed
circumstances to justify his failure to apply for asylum within one
year of his arrival to the United States, failed to show clear
probability of future persecution to warrant withholding of
removal, and provided no evidence that he likely faced torture upon
his return to Indonesia, thus failing to satisfy the CAT's
requirements. On appeal, the BIA affirmed the IJ's decision and
rejected as evidence of changed circumstances warranting a remand
two news articles Benito attached to his appellate brief.
II. ANALYSIS
A. Standard of Review
This court reviews the BIA's decision for substantial
evidence and accepts the BIA's findings of fact if they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Njenga v. Ashcroft, 386 F.3d
335, 338 (1st Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)) (internal quotation marks omitted). We will
reverse factual determinations contained in the decision below only
if "any reasonable adjudicator would be compelled to conclude to
the contrary." 8 U.S.C. § 1252(b)(4)(B). Where, as here, "the BIA
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adopts an IJ's decision, we review the relevant portion of the IJ's
opinion as though it were the decision of the BIA." Guillaume v.
Gonzáles, 504 F.3d 68, 72 (1st Cir. 2007) (citing Stroni v.
Gonzáles, 454 F.3d 82, 86-87 (1st Cir. 2006)).
B. Asylum
An application for asylum must be filed within one year
of the alien's arrival in the United States, absent changed
circumstances affecting eligibility for asylum or extraordinary
circumstances relating to the delay in filing. 8 U.S.C. §§
1158(a)(2)(B), 1158(a)(2)(D). Here, it is undisputed that Benito
resided in the United States more than three years before filing
for asylum. The IJ determined no extraordinary or changed
circumstances existed to justify waiving the time limit.
Therefore, we lack jurisdiction to review this determination. Id.at § 1158(a)(3); Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir.
2005) (explaining we lack jurisdiction to review the BIA's findings
regarding compliance with the one-year time limit as well as
whether there are extraordinary or changed circumstances sufficient
to merit an exception).
C. Withholding of Removal
Benito next appeals the BIA's denial of withholding of
removal. First, he asserts that the IJ committed reversible error
in failing to make a specific finding regarding past persecution.
The Government counters that Benito never presented this argument
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to the BIA, and therefore, this court lacks jurisdiction to review
it.
"When a claim presented to us on appeal has not
previously been presented to the BIA, the petitioner has failed to
exhaust his administrative remedies, eliminating this court's
jurisdiction to review the agency's actions." Berrio-Barrera v.
Gonzáles, 460 F.3d 163, 167 (1st Cir. 2006) (citing Makhoul v.
Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004) and 8 U.S.C. §
1252(d)(1)). In his BIA appeal, Benito argued the IJ erred in
ruling there was no past persecution and no fear of future
persecution. However, Benito did not take issue with the
specificity of the IJ's holding on past persecution. The BIA thus
lacked notice that Benito believed the IJ's failure to make an
explicit finding constituted reversible error. Because Benito did
not exhaust his administrative remedies by raising this argument
below, we lack the jurisdiction to consider it now.
Although we lack the jurisdiction to consider a remand
for more specific reasoning, we can consider whether the BIA
incorrectly denied Benito withholding of removal, an argument
Benito raised below. The "standard for withholding deportation is
more stringent than that for asylum." Albathani v. INS, 318 F.3d
365, 372 (1st Cir. 2003). While an applicant for asylum must show
that a reasonable person in his circumstances would fear
persecution, withholding of removal requires proof of a clear
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probability of persecution. Palma-Mazariegos v. Gonzáles, 428 F.3d
30, 37 (1st Cir. 2005). "To qualify as persecution, a person's
experience must rise above unpleasantness, harassment, and even
basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir.
2000). See also Topalli v. Gonzáles, 417 F.3d 128, 132 (1st Cir.
2005) (differentiating "systematic maltreatment that rose to the
level of past persecution" from "isolated incidents"); Bocova v.
Gonzáles, 412 F.3d 257, 263 (1st Cir. 2005) ("mistreatment
ordinarily must entail more than sporadic abuse in order to
constitute persecution"). We agree with the BIA that Benito has
not met this high standard.
A withholding applicant who establishes past persecution
enjoys a rebuttable presumption that "[his] life or freedom would
be threatened in the future . . . on the basis of the original
claim." 8 C.F.R. § 1208.16(b)(1)(i). Absent past persecution, the
applicant must prove he faces a clear probability of persecution on
account of a protected ground. Id. at § 1208.16(b)(2).
While the IJ explicitly stated that Benito had not
demonstrated a clear probability of future persecution, the IJ did
not make specific findings regarding Benito's evidence of past
persecution. We have previously noted this failure can
"unnecessarily complicate[] our review." Yatskin v. INS, 255 F.3d
5, 9 (1st Cir. 2001). However, we also have observed that
"findings regarding past persecution are easily inferable."
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Pulisir v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008); accord
Wiratama v. Mukasey, 538 F.3d 1, 7 (1st Cir. 2008)(determining that
IJ's findings on future persecution subsumed issue of past
persecution where applicant offered no independent evidence of
probability of future persecution).
Here, the IJ considered whether Benito had shown that it
was more likely than not he would face persecution if he returned
to Indonesia. The IJ reasoned that Benito's evidence of verbal
threats and the graphic emails did not establish a probability of
future persecution, noted that Benito had not suffered physical
harm in Indonesia, and observed that Benito's family continued to
reside in Indonesia without physical injury. See Bonilla v.
Mukasey, 539 F.3d 72, 75-78 (1st Cir. 2008) (affirming denial of
withholding of removal where applicant received repeated and
targeted phone and mail threats and was declared a military target
but his son continued to live in Colombia); Aguilar-Solis v. INS,
168 F.3d 565, 573 (1st Cir. 1999) (stating "the fact that close
relatives continue to live peacefully in [petitioner's] homeland
undercuts the alien's claim that persecution awaits his return").
Although the IJ did not respond expressly to Benito's
claim of past persecution, both the IJ and the BIA acknowledged the
alleged acts of persecution, and we can infer from the denial of
withholding "that those rather bland incidents failed to justify
the relief requested." Pulisir, 524 F.3d at 308. Indeed, like the
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petitioner in Wiratama, Benito provided no independent evidence
regarding a probability of future persecution. See 538 F.3d at 7.
The IJ's attention to the absence of physical harm to Benito and
his family thus reflected his conclusion that Benito had not
suffered past persecution. Cf. Sinurat v. Mukasey, 537 F.3d 59,
61-62 (1st Cir. 2008) (holding that harm suffered by Indonesian
alien from single beating by Muslim students did not amount to past
persecution); Pulisir, 524 F.3d at 308-09 (finding two instances of
rock-throwing by Muslims at petitioner's Christian church and one
altercation at prayer meeting during which petitioner lost a tooth
did not constitute past persecution). We agree with the BIA that
Benito has not demonstrated past persecution or a clear probability
of future persecution such that the IJ would be compelled to
conclude to the contrary.
D. Protection under the CAT
Benito appeals the BIA's determination that he is not
eligible for protection under the CAT. Benito did not make
arguments in either his petition or his brief to the BIA regarding
relief under the CAT. Therefore, we lack the jurisdiction to
consider this argument. 8 U.S.C. § 1252(d)(1).
E. New Country Conditions Evidence
Finally, Benito claims we must reverse the BIA's ruling
because the administrative tribunal refused to remand in light of
new country conditions evidence. This court reviews the BIA's
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decision on a motion to remand for abuse of discretion. Zhang v.
Ashcroft, 348 F.3d 289, 293 (1st Cir. 2003) (citing Nascimento v.
INS, 274 F.3d 26, 28 (1st Cir. 2001)). Abuse of discretion exists
only where the denial was made "without a 'rational explanation,
inexplicably departed from the established policies, or rested on
an impermissible basis.'" Id. (quoting Nascimento, 274 F.3d at
28).
Benito has not provided compelling evidence to
demonstrate the BIA abused its discretion in denying his remand.
The BIA considered Benito's evidence and concluded that it failed
to demonstrate a substantial likelihood of a different result upon
remand. We agree with the BIA that the two news articles submitted
by Benito do not demonstrate a sufficient change in country
conditions to warrant a remand of his case and conclude the BIA did
not abuse its discretion in finding that Benito failed to present
evidence that likely would change the outcome of his case.
III. CONCLUSION
For the foregoing reasons, we deny Benito's petition for
review.
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