Freddy Tjiudiningrat v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JAN 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDDY TJIUDININGRAT; No. 09-73787
JULIENTJE NONA MATINDAS; FERLI
FRANKLY SUTIAWAN; JONATHAN Agency Nos. A079-539-702
FERDINAND, A079-539-572
A079-539-573
Petitioners, A079-539-573
A079-539-574
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 7, 2014
Pasadena, California
Before: NOONAN and BERZON, Circuit Judges, and SABRAW, District Judge.**
Petitioners Freddy Tjiudiningrat, Julientje Matindas, Ferli Sutiawan, and
Jonathan Ferdinand, natives and citizens of Indonesia, petition for review of a final
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Dana M. Sabraw, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
order of the Board of Immigration Appeals (“BIA”) denying their petition for
withholding of removal.
We review the BIA’s factual findings for substantial evidence. Wakkary v.
Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). For the reasons below, we deny the
petition for review.
To qualify for withholding of removal “under the disfavored group
approach, an applicant . . . must show that his chance of future persecution is
greater than fifty percent,” or more likely than not. Wakkary, 558 F.3d at 1065.
An asylum applicant, by contrast, need show only “a ten percent chance of future
persecution.” Id. at 1052; see also Sael v. Ashcroft, 386 F.3d 922, 926 (9th Cir.
2004). “[A]n applicant for withholding . . . [therefore] need[s] to adduce a
considerably larger quantum of individualized-risk evidence to prevail than would
an asylum applicant . . . because the ultimate bar for withholding is higher.”
Wakkary, 558 F.3d at 1066.
Among other modes of proof, “a withholding applicant may demonstrate
that his fear of future persecution rises to the requisite level of objective
reasonableness [i.e. the fifty percent threshold] either by showing a ‘pattern or
practice of persecution,’ or by showing that he will be ‘singled out individually’”
as a member of a disfavored group. Id. at 1052. “[A] petitioner’s membership in
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a disfavored group is not sufficient by itself to meet her ultimate burden of proof;
‘some evidence of individualized risk is necessary for the petitioner to succeed.’”
Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010) (quoting Wakkary,
558 F.3d. at 1065).
The BIA determined that Petitioners had not adduced sufficient
individualized evidence of risk to satisfy even the ten percent likelihood asylum
threshold, much less the fifty percent likelihood threshold for withholding of
removal:
The respondents testified that the lead respondent’s home was burned
in 1965, rocks were thrown at them on occasion, and the lead
respondent was given unfair treatment at a hospital; the female
respondent was mistreated once on a bus and feared rape. While these
experiences show discrimination against the respondents in Indonesia,
they do not compare to the experiences of . . . [successful asylum and
withholding applicants], and, without more, we do not find that they
provide sufficient evidence of a clear probability of persecution.
The BIA also determined there was not “sufficient evidence that establishes a
pattern or practice of persecution against Chinese Christians.”
Petitioners argue that remand is required in order to allow the BIA to
reassess their withholding claim under Tampubolon because they are members of
two different disfavored groups, Chinese Indonesians and Christian Indonesians.
Tampubolon held that Christians of all ethnicities are a disfavored group in
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Indonesia. Id. at 1062. This Court had previously held that Indonesians of ethnic
Chinese descent are a disfavored group in that country, see Sael, 386 F.3d at 923,
and suggested that Chinese Christians are also a disfavored group, see id.; see also
Wakkary, 558 F.3d at 1067 (noting “the risk of mistreatment and persecution that
all Chinese Christians in Indonesia face”).
Membership in two disfavored groups does not obviate Petitioners’ need to
show a sufficiently individualized risk of persecution to qualify for withholding of
removal: “a petitioner’s membership in a disfavored group is not sufficient by itself
to meet her ultimate burden of proof; ‘some evidence of individualized risk is
necessary for the petitioner to succeed.’” Tampubolon, 610 F.3d at 1062 (quoting
Wakkary, 558 F.3d. at 1065).
Substantial evidence supports the agency’s determination that petitioners
“experienced insufficient individualized incidents of harm” to qualify for
withholding of removal. Even as members of two disfavored groups, Chinese and
Christian, the record does not compel the conclusion that Petitioners demonstrated
sufficient evidence of singling out to establish a clear probability of future
persecution. Accordingly, petitioners’ withholding claim fails.
PETITION FOR REVIEW DENIED.
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