Sip Tjhin Bong v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13234
Non-Argument Calendar
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Agency No. A097-939-260
SIP TJHIN BONG,
FALU HAVALENA,
YVONNA HENDRA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 30, 2014)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Sip Bong, along with his wife and daughter, natives and citizens of
Indonesia, seek review of the Board of Immigration Appeals’s (“BIA”) decision,
affirming the Immigration Judge’s (“IJ”) denial of Bong’s application for asylum
and withholding of removal. On appeal, Bong argues that, based on his asylum
application and credible testimony, which was supported by the background
evidence of country conditions, he established that he suffered past persecution
based on his Chinese ethnicity and Christian religion. He further argues that his
testimony and the current country condition evidence, specifically the 2011 State
Department Country Report and Human Rights Watch’s World Report 2012,
established that he had a well-founded fear of future persecution. Lastly, Bong
argues that the evidence established that he would more likely than not be
persecuted as a Chinese Christian in Indonesia, and thus, the IJ erred in denying
him withholding of removal.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). When the BIA explicitly agrees with the
findings of the IJ, we review the decision of both the BIA and the IJ as to those
issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). Because the
BIA agreed with the IJ’s findings, and made additional observations, we review
both decisions.
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In a petition for review of a BIA decision, we review factual determinations
under the substantial evidence test. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1350 (11th Cir. 2009). Under the substantial evidence test, we draw every
reasonable inference from the evidence in favor of the decision, and reverse a
finding of fact only if the record compels a reversal. Id. at 1351. We must affirm
if the BIA’s decision is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. The fact that the record may
support a contrary conclusion is insufficient to reverse. Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc).
An applicant for asylum must meet the Immigration and Nationality Act’s
(“INA”) definition of a refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The
INA defines a refugee as a person who cannot return to his home country due to
“persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). To establish eligibility for asylum, a
petitioner must demonstrate either past persecution, or a well-founded fear of
future persecution, based on a statutorily listed factor. Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1257 (11th Cir. 2006). The alien must present “specific, detailed facts
showing a good reason to fear that he or she will be singled out for persecution.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). If the
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petitioner demonstrates past persecution, there is a rebuttable presumption that he
has a well-founded fear of future persecution. Ruiz, 440 F.3d at 1257. If the
petitioner cannot demonstrate past persecution, he must demonstrate that his well-
founded fear of future persecution is subjectively genuine and objectively
reasonable. Id.
An alien seeking withholding of removal similarly must show that his “life
or freedom would be threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.”
INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The burden of proof for
withholding of removal, however, is “more likely than not,” and, thus, is “more
stringent” than the standard for asylum relief. Sepulveda, 401 F.3d at 1232.
Where a petitioner fails to establish a claim of asylum on the merits, often he
necessarily fails to establish any claims for withholding of removal. See Zheng v.
U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir. 2006).
We have held that “persecution is an extreme concept, requiring more than a
few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Sanchez Jimenez v. U.S. Att’y Gen.,
492 F.3d 1223, 1232 (11th Cir. 2007). In determining whether an alien suffered
past persecution, the IJ must consider the cumulative effects of the incidents. De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008). We have
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previously concluded that circumstances involving only minimal violence do not
compel a conclusion of persecution. See Kazemzadeh, 577 F.3d at 1353
(upholding the BIA’s determination of no past persecution where the petitioner
was “arrested while participating in a student demonstration, interrogated and
beaten for five hours, and detained for four days, but . . . did not prove that he
suffered any physical harm,” and state authorities monitored him after his release
and ordered him to appear before a university disciplinary committee and a state
court); Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (upholding
the BIA’s determination of no past persecution where the petitioner was threatened
with arrest by students who lacked the power to carry out that threat, “in
conjunction with [a] minor beating” that merely resulted in “scratches and
bruises”); Sepulveda, 401 F.3d at 1231 (upholding the BIA’s determination of no
past persecution where petitioner received “menacing telephone calls and threats”
and the restaurant where she worked was bombed). As to economic persecution,
we have held that “employment discrimination which stops short of depriving an
individual of a means of earning a living does not constitute persecution.”
Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir. 2001) (holding
that although petitioner suffered employment discrimination, lost his job as a taxi
driver, and was forced to take menial work, he was not persecuted).
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On the other hand, for example, we have held that repeated death threats
accompanied by the attempted kidnapping of the petitioner’s daughter and the
attempted murder of the petitioner whose moving vehicle was shot at multiple
times, but was he not struck by the bullets or physically injured, constituted
persecution. See Sanchez Jimenez, 492 F.3d at 1233. In reaching this conclusion,
we rejected the IJ’s reliance on the fact that the petitioner managed to escape from
his persecutors unharmed and concluded that being shot at while driving was
“sufficiently ‘extreme’ to constitute persecution.” Id. We have also held that the
petitioner suffered past persecution based on the totality of the verbal death threats,
an attempted attack, and one attack by three gunmen who threw the petitioner to
the ground, hit him with the butt of a rifle, and broke his nose that occurred over an
18-month period. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257-58 (11th Cir.
2007).
Substantial evidence supports the BIA’s determination that Bong failed to
establish past persecution. Bong’s testimony established that, during the May 1998
riots, rocks were thrown at him as he drove his motorcycle and his store was looted
and burned. It also established that, when he was operating his store, the native
Indonesians demanded money from him and threatened to kill him. When
compared to our precedent, the incidents described by Bong do not compel the
finding that these incidents were anything more than isolated incidents of verbal
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harassment or intimidation. See Kazemzadeh, 577 F.3d at 1353; Djonda, 514 F.3d
at 1174; Sepulveda, 401 F.3d at 1231. Moreover, contrary to Bong’s assertion on
appeal, the mistreatment he experienced was not nearly as extreme as the situation
presented in Sanchez Jimenez. See Sanchez Jimenez, 492 F.3d at 1233.
Additionally, the IJ and BIA did not base their determination that Bong did not
suffer past persecution solely on the fact that he did not suffer any physical harm;
instead the IJ and BIA’s decisions reflect that the BIA considered the cumulative
effects of the incidents and determined that they did not rise to the level of
persecution. As to Bong’s claim of past economic persecution, nothing in the
record compels the conclusion that Bong’s inability to continue to operate a
business in Indonesia constituted persecution because no evidence indicated that
his inability to do so deprived him of the means of earning a living. See Barreto-
Claro, 275 F.3d at 1340.
Substantial evidence also supports the BIA’s determination that Bong did
not have a well-founded fear of future persecution. Because Bong failed to
establish that he suffered past persecution, he is not entitled to a presumption of a
well-founded fear of future persecution. See Ruiz, 440 F.3d at 1257. Bong cites no
record evidence that establishes that he has a well-founded fear of future
persecution in Indonesia on account of his Chinese ethnicity. Instead, he only
argues that the BIA erred in concluding that he did not have well-founded fear of
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future persecution on account of his Christian religion. While the World Report
2012 does state that incidents of religious violence got more deadly and more
frequent in 2011, this statement in the report, in light of the other evidence alone,
does not compel the conclusion that Bong demonstrated a well-founded fear of
future persecution. As the BIA correctly indicated, the 2011 State Department
International Religious Freedom Report provided that the Indonesian constitution
protected religious freedom, even though there were some laws and regulations
that restricted it. While the report did note that there are societal abuses or
discrimination based on religious freedom and that there were isolated incidents of
religiously motivated terrorism, this does not indicate individual Christians were
likely to be singled out for persecution. Accordingly, Bong did not submit specific
and detailed facts that established that he would be singled out for persecution. See
Sepulveda, 401 F.3d at 1231.
Because Bong failed to establish a claim of asylum on the merits, he failed
to establish any claim for withholding of removal. See Zheng, 451 F.3d at 1292.
Therefore, the BIA did not err in denying his applications for asylum and
withholding of removal. Accordingly, we deny Bong’s petition for review.
PETITION DENIED.
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