Stevianus Siswanto v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2573
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Stevianus Siswanto, *
*
Petitioner, *
*
v. * Petition of Review from the Board
* of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, * [UNPUBLISHED]
*
Respondent. *
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Submitted: March 16, 2006
Filed: May 1, 2006
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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Stevianus Siswanto, an Indonesian citizen of Chinese ethnicity and Christian
faith, was admitted into the United States as a non-immigrant student with an F-1 visa.
The then-Immigration and Naturalization Service began removal proceedings.
Siswanto admitted that he was no longer a student and conceded removability.
However, he sought asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). The Immigration Judge (IJ) and Board of
Immigration Appeals (BIA) denied relief, finding that Siswanto did not meet his
burden of proof. Having jurisdiction under 8 U.S.C. § 1252, this court affirms.
Siswanto asserts he suffered persecution in Indonesia because he is Christian
and of Chinese ancestry. Examples of persecution include an attack in 1996 on him
and his friends by students from a rival, largely Muslim public high school, and an
attack in 1999, where he was robbed, punched, threatened, and forced to charge
$2,000 on his credit card. In addition, Siswanto claims that he and his mother were
forced to bribe the police for protection and to stay out of jail. His church also has to
pay police for protection, due to fear that native Indonesians would destroy and burn
their building. Siswanto claims that he is easily distinguishable as a non-native
Indonesian because of his appearance and the fact that his religion is listed as
"Christian" on his identification card.
The BIA summarily affirmed the IJ's decision, which is treated as the final
agency decision reviewed by this Court. See Melecio-Saquil v. Ashcroft, 337 F.3d
983, 986 (8th Cir. 2003). This court reviews factual determinations for substantial
evidence, and the decision is upheld unless any reasonable fact-finder would be
compelled to conclude otherwise. See Suprun v. Gonzales, No. 05-2340, 2006 WL
860682, at *2 (8th Cir. April 5, 2006); Turay v. Ashcroft, 405 F.3d 663, 666, 668 (8th
Cir. 2005). The Attorney General has discretion to grant asylum to an alien who is
unwilling to return to his home country because of "(1) past persecution or (2) a well-
founded fear of persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion." 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1). Persecution is "a threat to one's life or freedom on account of one of
[these] five protected grounds." Eta-Ndu v. Gonzales, 411 F.3d 977, 983 (8th Cir.
2005), quoting Fisher v. INS, 291 F.3d 491, 497 (8th Cir. 2002). "The BIA has
adopted, and we have approved as reasonable, a definition of 'persecution' that
requires a harm 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." Menjivar
v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005), quoting Valioukevitch v. INS, 251
F.3d 747, 749 (8th Cir. 2001).
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Although the IJ found Siswanto generally credible, he did not establish
sufficient past persecution in order to qualify for asylum. Most incidents he describes
– including the 1996 school attack – are not threats to his life or freedom, but rather
are harassment. See Kondakova v. Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004)
("Slurs and harassment do not constitute persecution."), citing Fisher, 291 F.3d at
497. The only time he says his life was in danger was when he was punched and
robbed in 1999. The IJ concludes that this single incident "is not in and of itself
sufficient to trigger a finding of past persecution." Although some attackers made
anti-Chinese statements, this alone does not establish a nexus between the attack and
a protected ground. See Ming Ming Wijono v. Gonzales, 439 F.3d 868, 873 (8th Cir.
2006), citing Lie v. Ashcroft, 396 F.3d 530, 535-36 (3d Cir. 2005) (ethnic slurs made
during robberies of Chinese Christians in Indonesia were not sufficient to conclude
the intrusions were on account of ethnicity). As the IJ finds, the 1999 incident could
have been based on criminal intent, rather than ethnic or religious bias. See Wijono,
439 F.3d at 873.
The harassment Siswanto experienced was sporadic and did not rise to the level
of persecution necessary to establish past persecution. See Setiadi v. Gonzales, 437
F.3d 710, 713 (8th Cir. 2006) ("Even minor beatings or limited detentions do not
usually rise to the level of past persecution."); Zakirov v. Ashcroft, 384 F.3d 541, 546
(8th Cir. 2004) ("Low-level intimidation and harassment alone do not rise to the level
of persecution."). In fact, his mother and brother continue to live in Indonesia without
incident and attend church there.1 "The reasonableness of a fear of persecution is
diminished when family members remain in the native country unharmed, and the
applicant himself had not been singled out for abuse." Krasnopivtsev v. Ashcroft, 382
F.3d 832, 839 (8th Cir. 2004).
1
Siswanto also emphasizes the robbery of his mother in 1997, reported to the
police without resolution. The IJ did not err in finding that this incident is not a case
of past persecution because it was a robbery typical of a lot of criminal activity in
Indonesia.
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To establish a well-founded fear of future persecution, the alien must show that
"he subjectively fears persecution, and that there is credible, direct, and specific
evidence that a reasonable person in the alien's position would fear persecution if
returned to the alien's native country." Mamana v. Gonzales, 436 F.3d 966, 968 (8th
Cir. 2006). The subjective element may be proven by credible testimony that the
applicant genuinely fears persecution. Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th
Cir. 2004), citing Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir. 1993). Siswanto
claims he has also presented objective evidence that his race and religion make it more
likely than not that he will suffer persecution if returned to Indonesia. A petitioner
can meet the statutory burden of proving a clear probability of future persecution by
offering compelling evidence of past persecution. See 8 C.F.R. § 1208.16(b)(1)(i).
This kind of evidence creates a presumption that removal to the country where
persecution was previously inflicted will result in a threat to the petitioner's life or
freedom when returned. Id. The government can rebut this presumption by
establishing a "fundamental change in circumstances such that the applicant's life
would not be threatened... upon removal to that country." Id. § 1208.16(b)(1)(i)(A).
Because Siswanto did not prove past persecution, he does not receive the presumption
of future persecution in this case. See Francois v. INS, 283 F.3d 926, 930 (8th Cir.
2002); see also 8 C.F.R. § 208.13(b)(1).
Even so, Siswanto contends that he has demonstrated future persecution by
showing a "
Although Chinese Christians
living in Indonesia have experienced violence and discrimination in the past, the IJ
notes that racially motivated attacks against Chinese Indonesians have dropped
sharply since mid-1998 and "there is every indication that conditions have improved
substantially since then." See Wijono, 439 F.3d at 874 (attacks against Christian
Indonesians are perpetrated by groups of extremist Muslims, and persecution appears
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to be inflicted by fellow citizens and not the result of governmental inaction or
acquiescence). In making this determination, the IJ relies on the U.S. State
Department's 2003 Country Report on Human Rights Practices in Indonesia, which
reports a sharp decline in violence against Chinese Christians in Indonesia since the
1998 riots. See Perinpanathan v. INS, 310 F.3d 594, 599 n.1 (8th Cir. 2002); Meas
v. Aschroft, 363 F.3d 729, 730 (8th Cir. 2004) (State Department reports are
persuasive authority for determining whether asylum seeker has well-founded fear of
future persecution). Given these changed circumstances, Siswanto did not prove that
he will suffer persecution if returned to Indonesia.
Additionally, Siswanto argues that he is eligible for withholding of removal.
Because Siswanto fails to establish eligibility for asylum, he cannot meet the standard
for withholding of removal. See Ngure v. Ashcroft, 367 F.3d 975, 992 (8th Cir.
2004); Prokopenko v. Ashcroft, 372 F.3d 941, 944 (8th Cir. 2004).
Siswanto also seeks relief under Article 3 of the CAT. An alien is eligible for
relief under the CAT by proving "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. § 208.16(c)(2).
Torture is defined as an extreme form of cruel and inhuman treatment intentionally
inflicted by or with the acquiescence of a person acting in an official capacity. Id. §
208.18(a)(1), (2). Review of a denial of relief under the CAT is "whether the
evidence was so compelling that a reasonable factfinder must have found the alien
entitled to relief." Sheikh v. Gonzales, 427 F.3d 1077, 1082 (8th Cir. 2005), quoting
Ngure, 367 F.3d at 992.
Siswanto asserts that the IJ should have analyzed his request for relief under the
CAT independently of his asylum and withholding claims. However, independent
analysis is required only"when there is evidence that the alien might be tortured for
reasons unrelated to [the alien's] claim for asylum and withholding of removal."
Alemu v. Gonzales, 403 F.3d 572, 576 (8th Cir. 2005); See Ibrahim v. Gonzales, 434
F.3d 1074, 1080 (8th Cir. 2006). Here, Siswanto relies on the same evidence to prove
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a likelihood of torture as invoked to prove a likelihood of persecution. Therefore, the
IJ's rejection of his claims for asylum and withholding of removal warrants denial of
relief under the CAT. See Madjakpor v. Gonzales, 406 F.3d 1040, 1046 (8th Cir.
2005).
The judgment of the BIA is affirmed.
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