Yani Mulyani v. Eric Holder, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1653
YANI MULYANI; DIDIN WAHIDIN,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 17, 2014 Decided: November 14, 2014
Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.
Petition for review denied by published opinion. Judge Thacker
wrote the opinion, in which Judge Niemeyer and Judge Duncan
joined.
ARGUED: H. Glenn Fogle, Jr., THE FOGLE LAW FIRM, LLC, Atlanta,
Georgia, for Petitioners. Gregory Michael Kelch, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Stuart F. Delery, Assistant Attorney General, Linda S.
Wernery, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
THACKER, Circuit Judge:
Yani Mulyani (“Mulyani”) is a native of Indonesia.
She petitions this court for review of a Board of Immigration
Appeals (“BIA”) decision denying her application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). 1 Her petition for review raises three
arguments. First, Mulyani asserts that the statutory time bar,
8 U.S.C. § 1158(a)(2)(B), does not preclude her application for
asylum. Second, she disputes the BIA’s determination that her
claims for asylum and withholding of removal cannot proceed
because she failed to show that the Indonesian government was
unwilling or unable to protect her. Finally, Mulyani challenges
the BIA’s conclusion that CAT relief is unavailable because she
has not shown that, upon removal, she would likely endure
torture by or with the approval or acquiescence of the
Indonesian government.
We do not reach Mulyani’s first argument, as we lack
jurisdiction to decide whether she qualifies for an exception to
the statutory time bar. We reject her remaining arguments
1
Mulyani’s husband, Didin Wahidin, is also a petitioner in
this case. However, because he seeks relief solely as a
derivative beneficiary on his wife’s application for asylum and
withholding of removal, his claims rise and fall with hers.
Accordingly, our opinion in this case focuses primarily on
Mulyani.
2
because substantial evidence supports the BIA’s determinations.
Therefore, Mulyani’s petition is denied.
I.
Mulyani grew up a Christian in Indonesia, a majority-
Muslim country. Her parents were converts to the Christian
faith and had her baptized when she was four years old. For
years, the family attended church every Sunday. To this day,
Mulyani’s parents and siblings continue to live in Indonesia and
remain practicing Christians.
Mulyani’s husband and co-petitioner, Didin Wahidin, is
a Muslim. He prays at home but does not attend a mosque. Since
arriving in the United States, Mulyani has practiced her faith
in a similar fashion, worshipping exclusively in the home.
Mulyani and Wahidin came to the United States on
vacation in September 2000. Instead of returning to Indonesia
when their vacation ended, they chose to remain in the United
States indefinitely. Mulyani asserts that she would suffer
religious persecution if forced to return to Indonesia, having
endured several instances of religiously motivated violence
there during her youth. Her application for relief from removal
recounts four such incidents.
The first of those incidents occurred in 1991, when
Mulyani was 16 years old. A group of about ten students
attacked her at a bus stop. The students hit and kicked her,
3
and one struck her with a metal rod. Mulyani suffered a broken
left arm. Though she told her parents and her pastor about the
beating, she did not report the incident to police, purportedly
because she believed the police would not care about her because
she was a Christian.
A few years later, when Mulyani was in college, she
and a female companion were accosted on their way home from a
prayer meeting at a friend’s residence. Mulyani was carrying a
bible at the time. The assailants, three men she did not know,
chased the two young women and called them names like “nasty
Christian” and “slutty Christian.” J.A. 140. 2 The men grabbed
Mulyani and held her hands behind her back. One man put his
penis on her and tried to rape her. The assailants fled when
someone across the street yelled “oy, oy.” Id. at 142. As
before, Mulyani did not report the incident to the police.
Later, in 1998, Mulyani and two other people were
walking through downtown Majalengka in search of a lunch spot
when they encountered what she described as a large crowd of
“radical” Muslims staging an anti-Christian protest. J.A. 152.
One protestor pointed at Mulyani and said, “Christian,
Christian, burn the Christian.” Id. at 153. Roughly 20 or 30
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
protestors attacked Mulyani. They hit and kicked her and
stuffed a handkerchief in her mouth. One man snatched a hot
skewer from a street vendor and pressed it to her stomach. A
police siren prompted the assailants to release her and flee the
scene. Once again, Mulyani did not report the incident to the
police.
The final incident occurred shortly after the protest.
According to Mulyani, a group of between four and eight
“radical” Muslims gathered outside her parents’ house at night.
J.A. 156, 294. They banged on the door and windows and
threatened to burn the house down if the occupants did not come
out. Someone threw a Molotov cocktail through one of the
windows, but the bomb did not explode. Mulyani says she
believes the group targeted the house because her family is
Christian.
Mulyani remained in Indonesia for approximately two
years after the last of these incidents. In January 2000, she
and Wahidin married. The couple traveled to the United States
on September 3, 2000, to vacation in Los Angeles and Las Vegas.
Mulyani had a tourist visa and was authorized to remain in the
United States until March 2, 2001. After about two weeks of
sightseeing, the couple headed east to visit a friend in
Wisconsin. While there, Mulyani says, “I realized and I
observed that in [the] United States, they . . . have freedom of
5
religion. They don’t care if you’re Christian or a Muslim.”
J.A. 162. For this reason, she says, she and her husband
decided to stay in America.
In 2001, the couple responded to a magazine
advertisement for an agency called the Chinese Indonesian
American Society (“CIAS”), which was offering to help people
obtain a green card or work permit. Hoping to acquire work
permits, they agreed to send CIAS money and copies of certain
personal records. “[T]hey sent us back blank pages telling us
where to sign these papers,” Mulyani later recalled. “We did
and sent them back, and then we received our working permits.”
J.A. 295. Although she says she did not know what she was
signing, one of the documents was, in fact, an application for
asylum and withholding of removal. CIAS filed the application
on Mulyani’s behalf in June 2002. 3
Mulyani says she did not then know what asylum was.
She says she did not learn about this form of protection -- nor
that CIAS had already sought it for her -- until late 2004 or
early 2005, when she hired an attorney to renew her work permit.
It was during the course of these discussions with the attorney,
3
A 2004 federal investigation implicated CIAS and its
founder, Hans Gouw, in an asylum fraud scheme. See Loren Ryter,
Indonesians in Asylum, in Identifying with Freedom: Indonesia
After Suharto 125, 131 (Tony Day ed. 2007).
6
she says, that she realized she might qualify for asylum and
decided she wanted to pursue it. She failed to take action,
though, and in September 2008 the Department of Homeland
Security initiated removal proceedings against Mulyani and
Wahidin.
Both Mulyani and her husband conceded removability
under section 237(a)(1)(B) of the Immigration and Nationality
Act (“INA”), which provides that any alien unlawfully present in
the United States is deportable. See 8 U.S.C. § 1227(a)(1)(B).
Mulyani sought relief in the form of asylum, withholding of
removal, and withholding pursuant to the CAT. In support of her
claims, she submitted a number of country reports and online
articles indicating that the Indonesian government was
indifferent, if not hostile, to the rights of Christians. The
documents included a 2008 Department of State report observing
that the Indonesian government sometimes “tolerated
discrimination against and the abuse of religious groups by
private actors and often failed to punish perpetrators.” J.A.
506. This same report, however, also says that the Indonesian
government operates programs to replace damaged churches and
ease religious tension, and that the government has successfully
tried and convicted numerous terrorists believed to have
committed acts of interreligious violence.
7
Following a hearing, an immigration judge (“IJ”)
denied all requested relief. The IJ first determined that
Mulyani’s application for asylum was untimely under 8 U.S.C.
§ 1158(a)(2)(B) and therefore barred. With regard to the
application for withholding of removal, the IJ found that the
harm Mulyani experienced during her youth in Indonesia rose to
the level of persecution. The IJ also acknowledged that the
evidence permits a “reasonable inference” that this harm was on
account of her Christian faith. J.A. 61. Nevertheless, the IJ
denied the request for withholding of removal because Mulyani
had not established that the Indonesian government was unable or
unwilling to control her persecutors. The IJ also denied relief
under the CAT, finding that Mulyani had failed to demonstrate
that, if returned to Indonesia, she would likely “be tortured
by, or at the instigation of, or with the consent or
acquiescence of, a public official.” Id. at 65.
On appeal, the BIA took no position as to whether
Mulyani’s application for asylum was time-barred, but it
concluded that her claims for asylum and withholding of removal
fail regardless because she had not established that the
Indonesian government was unwilling or unable to protect her.
The agency also accepted the IJ’s determination that Mulyani did
not merit CAT relief because she “has not shown that it is more
likely than not that she would be tortured by or with the
8
approval or acquiescence of the government of Indonesia.” J.A.
4. Accordingly, the BIA dismissed the appeal.
II.
A.
Mulyani first challenges the IJ’s determination that
her asylum application was untimely and therefore statutorily
barred.
To apply for asylum, an alien must demonstrate “by
clear and convincing evidence that the application has been
filed within 1 year after the date of the alien’s arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). Mulyani’s 2002
application came too late to satisfy this requirement.
Accordingly, to obtain relief, she must prove “[t]o the
satisfaction of the asylum officer, the immigration judge, or
the Board that . . . she qualifies for an exception to the 1-
year deadline.” 8 C.F.R. § 1208.4(a)(2)(i).
Mulyani asserts that she qualifies for the
“extraordinary circumstances” exception to the one-year time
limit. See 8 U.S.C. § 1158(a)(2)(D). This provision permits an
alien to bring an untimely application if she “demonstrates to
the satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating
to the delay in filing.” Id. Mulyani’s argument, which the IJ
9
rejected, is that her failure to file within the one-year time
limit should be excused because CIAS neglected to tell her about
asylum before the filing deadline expired. We conclude that we
lack jurisdiction to consider this claim, both because the BIA
took no position on whether the statutory time limit bars her
application and because Congress has expressly restricted our
power to review agency decisions involving the time bar.
1.
By law, our power to review an order of removal is
limited to the “final” order. 8 U.S.C. § 1252(a)(1); Martinez
v. Holder, 740 F.3d 902, 908 n.1 (4th Cir. 2014). An order does
not become final until “‘all administrative remedies’” have been
exhausted. Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 359 n.2
(4th Cir. 2006) (quoting § 1252(d)(1)). Thus, as a general
matter, final orders in removal proceedings come not from the
IJ, but “from the BIA, the highest administrative tribunal.”
Martinez, 740 F.3d at 908 n.1 (internal quotation marks
omitted).
This rule is not without exceptions. For instance,
when the BIA issues an order, without opinion, affirming an IJ’s
decision and endorsing that decision as “the final agency
determination,” 8 C.F.R. § 1003.1(e)(4)(ii), we will “treat the
reasoning of the IJ Order as that of the BIA.” Haoua v.
Gonzales, 472 F.3d 227, 231 (4th Cir. 2007).
10
In other cases, such as the instant one, the BIA may
issue a brief order affirming, modifying, or reversing an
immigration judge’s decision. See 8 C.F.R. § 1003.1(e)(5).
Under these circumstances, where the BIA has “essentially
adopted the IJ’s opinion while adding some of its own
reasoning,” the court may review both decisions. Thu v. Holder,
596 F.3d 994, 998 (8th Cir. 2010) (internal quotation marks
omitted); see Martinez, 740 F.3d at 908. We have noted, though,
that review of an IJ decision is permissible only to the extent
that the BIA adopted it. See Martinez, 740 F.3d at 908 n.1
(“[W]here the BIA issues an opinion without adopting the IJ’s
opinion in whole or in part, this Court can only review the
BIA’s opinion.”).
Here, the BIA expressly stated that it was “not
finding that [Mulyani] has successfully established an exception
to the 1 year filing deadline.” J.A. 3. Instead, its decision
“assume[d] arguendo” that her application was timely, and it
concluded that her claims failed on the merits, regardless. Id.
In doing so, the BIA excluded the timeliness issue from the
final order of removal, leaving this court without power to
consider the matter in our review.
11
2.
That is not to say that we would have had the power to
review the timeliness issue if the BIA had ruled on it. In
fact, we would not. Congress restricted our authority in 8
U.S.C. § 1158(a)(3). This provision states, “No court shall
have jurisdiction to review any determination of the Attorney
General under [8 U.S.C. § 1158(a)(2)],” a subsection that
includes both the time limit and the exception for extraordinary
circumstances. 8 U.S.C. § 1158(a)(3). Plainly, judicial review
of the IJ’s timeliness holding is unavailable under this
provision. See Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir.
2009) (holding that, “under the express language of
§ 1158(a)(3),” we lacked jurisdiction to review an IJ’s
determination that an asylum applicant “had not demonstrated
changed or extraordinary circumstances to excuse her untimely
filing”).
Our power to review an IJ’s determination would
survive the limitation in § 1158(a)(3) only if the appeal
presented a constitutional claim or question of law. See 8
U.S.C. § 1252(a)(2)(D) (providing that statutory limitations on
judicial review in certain immigration cases “shall [not] be
construed as precluding review of constitutional claims or
questions of law raised upon a petition for review”); Vasile v.
12
Gonzales, 417 F.3d 766, 768 (7th Cir. 2005). Mulyani’s appeal,
however, presents no such claim or question.
BIA determinations ordinarily reviewable under the
substantial evidence standard are “necessarily factual in
nature, and therefore beyond our jurisdiction to review.”
Saintha v. Mukasey, 516 F.3d 243, 249 (4th Cir. 2008); see
Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir. 2006) (“We are
not free to convert every immigration case into a question of
law, and thereby undermine Congress’s decision to grant limited
jurisdiction over matters committed in the first instance to the
sound discretion of the Executive.”). In Gomis v. Holder, we
joined the majority of federal circuit courts in concluding that
8 U.S.C. § 1252(a)(2)(D) does not confer appellate jurisdiction
to consider an applicant’s claims of changed or extraordinary
circumstances. 571 F.3d at 358. That being so, we proceed no
further on this question and turn instead to Mulyani’s other
arguments.
B.
Mulyani next challenges the BIA’s conclusion that she
failed to meet her burden of proof for asylum and withholding of
removal. She contends that the evidence proves the Indonesian
government would be unwilling or unable to protect her from
religious persecution, and that the BIA’s determination to the
contrary was in error. We disagree.
13
A BIA decision granting or denying asylum under 8
U.S.C. § 1158(a) “shall be conclusive unless manifestly contrary
to the law and an abuse of discretion.” 8 U.S.C.
§ 1252(b)(4)(D). We may not disturb the BIA’s determinations on
asylum eligibility so long as those determinations “are
supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Tassi v. Holder, 660 F.3d
710, 719 (4th Cir. 2011). While we review the BIA’s legal
conclusions de novo, our standard of review of the agency’s
factual findings is “narrow and deferential.” Djadjou v.
Holder, 662 F.3d 265, 273 (4th Cir. 2011). We accept the
agency’s factual findings unless “any reasonable adjudicator
would be compelled to conclude to the contrary.”
§ 1252(b)(4)(B).
The scope of our review of a final order denying
withholding of removal is likewise narrow. See Hui Pan v.
Holder, 737 F.3d 921, 926 (4th Cir. 2013). Where, as here, the
BIA concludes that the applicant has not met her burden of
proof, “we will affirm the BIA’s determination if it is
supported by substantial evidence on the record considered as a
whole.” Niang v. Gonzales, 492 F.3d 505, 510 (4th Cir. 2007).
Even if the record “plausibly could support two results: the one
the IJ chose and the one [the petitioner] advances, reversal is
only appropriate where the court find[s] that the evidence not
14
only supports [the opposite] conclusion, but compels it.” Id.
at 511 (alterations and emphasis in original) (internal
quotation marks omitted).
The BIA requires an applicant alleging past
persecution to show that the harm was inflicted by the
government or by others whom the government is unable or
unwilling to control. See In re Acosta, 19 I. & N. Dec. 211,
222 (BIA 1985), overruled in part on other grounds by In re
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987); see also Menjivar v.
Gonzales, 416 F.3d 918, 921 (8th Cir. 2005). This requirement
is not explicit in the INA. Rather, it derives from the board’s
interpretations of two words with profound significance in
asylum law -- namely, “refugee” and “persecution.”
To qualify for asylum, an applicant must prove that
she meets the definition of a “refugee” under 8 U.S.C.
§ 1101(a)(42). The applicant makes this showing by
demonstrating that “she has suffered from past persecution or
that she has a well-founded fear of future persecution” on
account of race, religion, nationality, membership in a
particular social group, or political opinion. Mirisawo v.
Holder, 599 F.3d 391, 396 (4th Cir. 2010). An applicant who
establishes past persecution on the basis of a protected factor
benefits from a rebuttable presumption that she has a well-
15
founded fear of future persecution. See 8 C.F.R.
§ 208.13(b)(1); Djadjou, 662 F.3d at 272.
Withholding of removal is also based on persecution
but “‘implicates a more demanding standard of proof.’” Lizama
v. Holder, 629 F.3d 440, 446 n.3 (4th Cir. 2011) (quoting
Mirisawo, 599 F.3d at 396). Necessarily, “an applicant who
fails to meet the lower standard for showing eligibility for
asylum will be unable to satisfy the higher standard for showing
withholding of removal.” Mirisawo, 599 F.3d at 396.
Persecution, for purposes of asylum and withholding of
removal, “‘involves the infliction or threat of death, torture,
or injury to one’s person or freedom, on account of one of the
enumerated grounds in the refugee definition.’” Li v. Gonzales,
405 F.3d 171, 177 (4th Cir. 2005) (quoting Kondakova v.
Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004)). The term
encompasses “‘actions less severe than threats to life or
freedom.’” Id. (quoting Dandan v. Ashcroft, 339 F.3d 567, 573
(7th Cir. 2003)). “[W]hen one who seeks asylum demonstrates
that he has been severely physically abused or tortured, courts
have not hesitated to characterize such treatment as
persecution.” Id.
Prior to the adoption of the Refugee Act of 1980, Pub.
L. No. 96-212, 94 Stat. 102, the BIA construed the term
“persecution” to mean “either a threat to the life or freedom
16
of, or the infliction of suffering or harm upon, those who
differ in a way regarded as offensive.” Acosta, 19 I. & N. Dec.
at 222. Employing this construction, the board declared that
the “harm or suffering had to be inflicted either by the
government of a country or by persons or an organization that
the government was unable or unwilling to control.” Id. Many
of our sister courts agree that an applicant alleging past
persecution must establish either that the government was
responsible for the persecution or that it was unable or
unwilling to control the persecutors. 4 See, e.g., Gathungu v.
Holder, 725 F.3d 900, 906 (8th Cir. 2013); Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc); Jorgji v.
4
In Crespin-Valladares v. Holder, we recognized that
persecution under the INA “encompasses harm inflicted
by . . . an entity that the government cannot or will not
control.” 632 F.3d 117, 128 (4th Cir. 2011); see Soliman v.
Holder, 373 F. App’x 384, 385 (4th Cir. 2010) (per curiam)
(defining persecution as “‘the infliction of harm or suffering
by the government, or persons the government is unwilling or
unable to control, to overcome a characteristic of the victim.’”
(quoting Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009))).
Consistent with this understanding, we have upheld BIA decisions
denying relief where the applicant failed to show that the
government was unwilling or unable to protect against
persecution. See, e.g., Ramos-Gonzalez v. Holder, 453 F. App’x
417, 419 (4th Cir. 2011) (per curiam) (denying a petition for
review of an order denying an application for withholding of
removal); Sydykov v. Gonzales, 127 F. App’x 100, 100-01 (4th
Cir. 2005) (per curiam) (denying a petition for review of an
order denying asylum, withholding of removal, and CAT relief).
17
Mukasey, 514 F.3d 53, 57 (1st Cir. 2008); Sukwanputra v.
Gonzales, 434 F.3d 627, 637 (3d Cir. 2006).
Mulyani does not dispute the need to establish
governmental unwillingness or inability to control private
actors. She contends, rather, that she made the necessary
showing -- i.e., that her testimony recounting the persecution
she suffered in Indonesia, combined with the country reports and
articles accompanying her application, sufficiently demonstrate
that the government was unwilling or unable to protect her.
The record shows that Mulyani never notified the
police or any other governmental authorities about the
persecution she claims to have suffered. Mulyani’s own
testimony suggests, moreover, that her attackers did not
consider themselves free to assault her with impunity. In one
instance, the attackers fled when a man across the street yelled
“oy, oy.” J.A. 142-43. In another, the anti-Christian
protesters ceased the assault and scattered when they heard
police sirens. It would seem, then, that the very people
persecuting Mulyani believed the government was indeed willing
and able to crack down on interreligious violence.
Moreover, the BIA decision points to a 2008 Department
of State report observing that the Indonesian government
maintains programs to replace damaged churches and ease
religious tension, and that the government has successfully
18
prosecuted perpetrators of religiously motivated violence.
This, too, is probative evidence of the government’s willingness
and ability to fight religious persecution. See, e.g., Osuji v.
Holder, 657 F.3d 719, 721-22 (8th Cir. 2011) (holding that an
asylum applicant had failed to prove past persecution in light
of a Department of State report on Nigeria suggesting that
ethnic violence, while “all too common,” was not condoned by the
government).
Mulyani directs our attention to another portion of
the Department of State report, zeroing in on its finding that
“[i]n some cases the [Indonesian government] tolerated
discrimination against and the abuse of religious groups by
private actors and often failed to punish perpetrators.” J.A.
506. She also cites a posting on a website for persecuted
Christians, www.persecution.com.au, reporting that the
“implementation of shari’a [in parts of Indonesia] severely
disadvantages Christians and other non-Muslims, rendering them
second-class citizens and inducing them to conform to Muslim
expectations in dress, social behaviour, criminal punishment,
and so on.” Id. at 548.
These statements, without more, do not justify a
reversal of the BIA inasmuch as we “are not considering the
evidence in the first instance, but rather are reviewing the BIA
decision under a highly deferential standard.” Evelyne v.
19
Holder, 419 F. App’x 396, 400 (4th Cir. 2011). We must uphold
the BIA’s decision so long as it is “supported by reasonable,
substantial, and probative evidence on the record considered as
a whole.” Tassi, 660 F.3d at 719. Here, we hold that
substantial evidence supports the BIA’s determination that
Mulyani does not qualify as a “refugee,” and that the accounts
found in country reports and articles accompanying her
application are insufficient to compel a contrary conclusion.
C.
Mulyani’s final argument is that the BIA improperly
denied her claim for relief under the CAT. As before, our
standard of review is deferential to the BIA. We review a
denial of relief under the CAT for substantial evidence. See
Lizama, 629 F.3d at 449. “Under this standard, ‘administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’”
Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013)
(quoting 8 U.S.C. § 1252(b)(4)(B)).
An applicant for withholding of removal under the CAT
must “establish that it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2). The burden of proof rests
with the applicant. Id. “For purposes of the CAT, torture
includes only conduct ‘by or at the instigation of or with the
20
consent or acquiescence of a public official or other person
acting in an official capacity.’” Lizama, 629 F.3d at 449
(quoting 8 C.F.R. § 1208.18(a)(1)). “A public official
acquiesces to torture if, ‘prior to the activity constituting
torture, [the official] ha[s] awareness of such activity and
thereafter breach[es] his or her legal responsibility to
intervene to prevent such activity.’” Id. (alterations in
original) (quoting 8 C.F.R. § 1208.18(a)(7)). The official or
officials need not have actual knowledge of the torture; it is
enough if they simply “turn a blind eye” to it. Suarez-
Valenzuela, 714 F.3d at 245-47.
The IJ in this case found that Mulyani had failed to
proffer any evidence that the Indonesian government knows her
identity or would harm her because of her religion, and the BIA
agreed with the IJ’s conclusion. Mulyani, again, points to
various country reports and news stories about conditions in
Indonesia as proof of government consent or acquiescence. These
reports have probative value. See Suarez-Valenzuela, 714 F.3d
at 247. Indeed, we have said that it makes sense for the BIA to
rely on State Department reports such as these because an
inquiry into country conditions “is directly within the
expertise of the Department of State.” Quitanilla v. Holder,
758 F.3d 570, 574 n.6 (4th Cir. 2014) (internal quotation marks
omitted). We have cautioned, though, that the BIA may not treat
21
such reports “‘as Holy Writ’ immune to contradiction.” Ai Hua
Chen v. Holder, 742 F.3d 171, 179 (4th Cir. 2014) (quoting
Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000)); see Gonahasa
v. U.S. INS, 181 F.3d 538, 542 (4th Cir. 1999) (recognizing that
State Department reports “may be flawed”). In any event, our
task at this juncture “is not to reweigh the evidence and
determine which of the competing views is more compelling. It
is instead to ensure that substantial evidence supports the
BIA’s judgment.” Gonahasa, 181 F.3d at 542. None of the
evidence that Mulyani presents in this appeal is sufficient to
overcome our standard of review. See Mendez-Barrera v. Holder,
602 F.3d 21, 28 (1st Cir. 2010) (“The country conditions
reports, standing alone, do not carry the day.”).
III.
Pursuant to the foregoing, we deny Mulyani’s petition
for review and affirm the BIA’s order.
PETITION FOR REVIEW DENIED
22