Wakkary v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW HENOCH WAKKARY, 
Petitioner, No. 05-71539
v.
 Agency No.
A096-141-948
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 15, 2008—San Francisco, California
Filed March 10, 2009
Before: Richard A. Paez and Marsha S. Berzon,
Circuit Judges, and Harold Baer,* District Judge.
Opinion by Judge Berzon
*The Honorable Harold Baer, Jr., United States District Judge for the
Southern District of New York, sitting by designation.
2989
WAKKARY v. HOLDER 2993
COUNSEL
Robert George Ryan, Law Offices of Eugene C. Wong, Inc.,
San Francisco, California, for the petitioner.
Ashley B. Han, Jeffrey S. Bucholtz, and Linda S. Wendtland,
U.S. Department of Justice, Washington, D.C., for the respon-
dent.
OPINION
BERZON, Circuit Judge:
The primary question we decide today concerns whether
one’s membership in a “disfavored group” — that is, a group
of individuals in a certain country or part of a country, all of
whom share a common, protected characteristic, many of
whom are mistreated, and a substantial number of whom are
persecuted — is pertinent in determining whether an applicant
for withholding of removal is eligible for that form of relief.
The question arises because we have recognized that member-
ship in a disfavored group is relevant to whether an applicant
has a well-founded fear of future persecution for purposes of
an asylum claim, but have never determined the role of disfa-
vored group analysis in the context of a claim for withholding
of removal. We do so now.
Under the Immigration and Nationality Act (“INA”), eligi-
bility for asylum is established by demonstrating “ ‘a well-
founded fear of persecution’ ” on account of “ ‘race, religion,
2994 WAKKARY v. HOLDER
nationality, membership in a particular social group, or politi-
cal opinion.’ ” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.
2001) (quoting 8 U.S.C. § 1101(a)(42)(A)). To be “well-
founded,” the applicant’s fear of persecution must be “both
‘subjectively genuine’ and ‘objectively reasonable.’ ” Id.
(internal citation omitted); see also 8 C.F.R. § 208.13(b)(2)(i).
Because asylum is a discretionary form of relief, the standard
for objective reasonableness is fairly low: Even a ten percent
chance of future persecution may establish a well-founded
fear. INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987). Eli-
gibility for asylum is also conditioned upon a range of other
factors, including — most relevantly for the petitioner in this
case — the statutory requirement that the application for asy-
lum be filed within one year of the applicant’s arrival in the
United States. 8 U.S.C. § 1158(a)(2)(B).
The INA also provides two additional, non-discretionary
forms of relief to aliens who risk certain kinds of harm if
removed to their home countries. First, withholding of
removal under 8 U.S.C. § 1231(b)(3) provides relief to appli-
cants who fear persecution according to the same substantive
criteria as asylum, but with a higher standard of objective rea-
sonableness; future persecution must be “more likely than
not.” 8 C.F.R. § 208.16(b)(2). Second, withholding or deferral
of removal is available under the Convention Against Torture
(commonly called “CAT relief”). Applications for CAT relief
must meet the same standard of objective reasonableness as
do applications for normal withholding under 8 U.S.C.
§ 1231(b)(3), but substantive criteria differ. To be eligible for
CAT relief, aliens must show that it is “more likely than not”
that they will be tortured (rather than persecuted on a pro-
tected ground) if returned to their home countries. 8 C.F.R.
§ 208.16(c)(2).
The petitioner in this case, Matthew Henoch Wakkary,
sought all three types of relief, and the agency found him inel-
igible for each one. We conclude, first, that the determination
that Wakkary’s asylum claim is time-barred must be reconsid-
WAKKARY v. HOLDER 2995
ered as the Board of Immigration Appeals (“BIA”) applied
the wrong legal standard in determining whether Wakkary
filed his asylum application within a “reasonable period” after
the expiration of his immigration status. See 8 C.F.R.
§ 208.4(a)(5). Second, we hold that the BIA should have con-
sidered Wakkary’s country-conditions evidence regarding the
widespread mistreatment of Chinese and Christians in Indone-
sia when assessing the likelihood that he would face future
persecution for withholding of removal purposes, and so
remand for reconsideration of the withholding decision.
Finally, we hold that the BIA’s determination that Wakkary
did not demonstrate eligibility for CAT relief is supported by
substantial evidence.
I. BACKGROUND
A. Factual background
Wakkary was born in 1974 in Medam, Indonesia. His
mother is ethnically Chinese, and his father is ethnically Indo-
nesian. His father has served as a Pentecostal Christian pastor
in Medam for over twenty years. Wakkary, like his father, is
a Pentecostal Christian pastor who has been active in the
church.
As Wakkary’s country-conditions evidence shows, and as
we have recognized in other, similar cases, Indonesia’s ethnic
Chinese minority has suffered a long history of abuse and
mistreatment at the hands of the native Indonesian majority.
See Sael v. Ashcroft, 386 F.3d 922, 923 (9th Cir. 2004). Com-
prising approximately three percent of the country’s popula-
tion, Chinese Indonesians are considered relatively more
affluent than the native Indonesian population, and are widely
resented because of their presumed affluence. Former presi-
dent Suharto accused the Chinese minority of backing an
attempted coup in 1965. During his reign from 1967 to 1998,
Suharto used the alleged disloyalty of the Chinese minority as
a pretext to implement a range of discriminatory policies
2996 WAKKARY v. HOLDER
imposing various legal disadvantages on individuals of Chi-
nese ethnicity. Although many of these official restrictions
have been recently relaxed, popular resentment, discrimina-
tion, and, at times, violence against members of the Chinese
minority have persisted. The continued occurrence of attacks
on Christian churches reflects a religious dimension to the
ethnic tensions. Many of Indonesia’s Chinese minority are
Christian, while the majority of native Indonesians are Mus-
lim.
As a person of mixed Chinese ethnicity and a practicing
Christian, Wakkary has personally experienced manifesta-
tions, some relatively minor and others somewhat more seri-
ous, of this widespread anti-Chinese and anti-Christian
sentiment.
In 1985, at age eleven, Wakkary encountered a group of ten
native Indonesian youths in the street who told him, “Chi-
nese[,] you stop.” The youths stole Wakkary’s sandals and
beat him. Wakkary told his parents about the incident, but
they did not report it to the police because they believed that
the police “couldn’t do anything.”
In 1990, at age sixteen, Wakkary and two friends, one eth-
nic Chinese and one ethnic Indian, encountered a group of
native Indonesian youths. The youths forced Wakkary to hand
over his watch and money at knifepoint, and then beat Wak-
kary and one of his friends with a stick. Again, Wakkary did
not report this incident to the police because “[t]his happened
many times in our city. [Native Indonesians] continued to do
[ ]thing[s] to the Chinese. [The police] could not defend me.”
Ethnic tension in Indonesia became especially acute in mid-
May of 1998. Widespread anti-Chinese rioting broke out, with
native Indonesian mobs in Jakarta and elsewhere in the coun-
try attacking Chinese individuals and destroying their homes
and businesses. According to the newspaper accounts Wak-
kary submitted to the agency, over a thousand Chinese indi-
WAKKARY v. HOLDER 2997
viduals were killed during this period. Christian churches also
became the targets of vandalism, looting, and arson. Many of
the crimes perpetrated against the Chinese and Christian
minorities went unpunished. Indeed, as the U.S. State Depart-
ment’s 2000 Country Report indicates, an official factfinding
team found evidence that the Indonesian security forces not
only tolerated the attacks, but may have been involved in
planning and executing them.
During this period, Wakkary was traveling by car one day
with his father, his mother, his aunt, and his brother and his
brother’s wife to a Bible-school gathering in another city. At
the city limits, between twenty and thirty ethnic Indonesians
with weapons blocked the car and asked “where [they] were
going and what people [they were].” Wakkary’s father (an
ethnic Indonesian) said they were from the city of Manado,
and the native Indonesians allowed them to pass after paying
a small donation to build a mosque. Further on, as the car
approached the next city, another group of ethnic Indonesians
approached the car, “yelling loudly, [‘A]re there any Chinese
or Christians in that car[?’]” The mob attempted “to get
through the glass window into the car.” Wakkary’s father, an
ethnic Indonesian, told the mob, “[‘W]e are Indonesian indig-
enous[,]’ ” and the car was allowed to pass through.
When Wakkary and his family arrived at the Bible school,
“there was crying” and “a lot of . . . people shouting.” Wak-
kary noticed groups of native Indonesians looting Chinese-run
shops nearby. He and others feared that the Bible school
would also be attacked, so they stopped choir practice to
“avoid any provocation.” He and some other leaders of the
group “asked [the people] to stay in the room” while they
“guard[ed] the complex.” Wakkary was not harmed during
the incident.
Soon after the incident at the Bible school, Wakkary
applied for, and was granted, an R-1 visa authorizing him to
enter the United States as a temporary religious worker. His
2998 WAKKARY v. HOLDER
departure to the United States was delayed by several days
due to unrest in Jakarta and large crowds of Chinese Indone-
sians at the airport attempting to board flights out of the coun-
try. Wakkary took refuge in a complex near the airport with
other Chinese Indonesians, hiding from the armed rioters.
Several days later, he ventured back to the airport and
boarded a flight to the United States. He was admitted to the
United States on May 16, 1998.1
In September 2000, Wakkary’s father told him by phone
that Wakkary’s friend Kalep, also a Christian, was shot and
killed by two native Indonesians while driving Pastor Munthe,
a Christian pastor, to church. Wakkary confirmed his father’s
account of Kalep’s murder through the Internet. Wakkary also
learned that several weeks before Kalep’s murder, a bomb had
exploded on the lawn outside Pastor Munthe’s church, and
that there had been an attempted bombing of Pastor Munthe’s
car. Wakkary believes that these acts were perpetrated by
native Indonesian extremists who targeted Kalep and Pastor
Munthe on account of their religion. Wakkary’s country-
conditions evidence confirms that hundreds of churches
throughout Indonesia were attacked and bombed in 1999,
2000, and 2001.
On March 31, 2001, Wakkary was readmitted to the United
States on a new R-1 visa, and he has remained in this country
ever since. His R-1 visa authorized him to remain here only
until April 11, 2002. He ultimately filed his asylum applica-
tion on October 15, 2002. After an interview with the asylum
office, his application was denied, and on November 25,
2002, the then-Immigration and Naturalization Service2 initi-
ated removal proceedings by issuing a Notice to Appear.
1
It is unclear from the record when Wakkary left the United States to
return to Indonesia. His asylum application notes that his R-1 status was
valid until April 11, 2000. He apparently returned to Indonesia at some
point, because his asylum application indicates that he left Indonesia for
the United States for the final time on March 30, 2001.
2
The Immigration and Naturalization Service, or “INS,” was dissolved
in 2002 by the Homeland Security Act, Pub. L. No. 107-296, 116 Stat.
WAKKARY v. HOLDER 2999
B. Proceedings before the IJ
Wakkary appeared before an Immigration Judge (“IJ”) for
his removal hearing on July 17, 2003. The IJ determined, first,
that Wakkary’s asylum claim was not timely filed, so he was
ineligible for that form of relief. Moving on to Wakkary’s
claims for withholding of removal under 8 U.S.C.
§ 1231(b)(3) and CAT relief — for which there are no filing
deadlines — the IJ rejected Wakkary’s claims on the merits.
He denied withholding of removal because he found that the
thefts and beatings that Wakkary experienced in 1985 and
1990 were “[a]pparently . . . random encounters” that were
“remote in time and circumstances to [his] departure” from
Indonesia, while the more recent events that occurred in the
context of the 1998 riots were “isolated circumstance[s]” that
were “not directed against [Wakkary] personally.” The IJ also
went on to deny CAT relief because he found that Wakkary
had failed to show that it is more likely than not that he would
be subjected to torture upon return to his native country.
C. Appeal to the BIA
On appeal, the BIA “adopt[ed] and affirm[ed]” the IJ’s
decision that Wakkary had not timely filed for asylum and
that he had not met his burden of proof for withholding of
removal or CAT relief. The BIA also added its own commen-
tary regarding this Court’s “disfavored group” holding in Sael
v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), which was decided
after Wakkary’s hearing before the IJ. The BIA characterized
Sael as prescribing a “reduced burden of proof” for asylum
applicants who belong to disfavored groups. Based on that
2135 (Nov. 25, 2002), codified at 6 U.S.C. § 101(a) et seq. Under the Act,
most of the INS’s functions (including the adjudication of visa applica-
tions, immigration enforcement, detention, and removal, as well as litiga-
tion before Immigration Court and the BIA) were transferred to various
departments in the newly constituted Department of Homeland Security
(“DHS”).
3000 WAKKARY v. HOLDER
understanding of Sael, the BIA considered Sael inapplicable
in the context of a claim for withholding of removal, which
requires that the applicant meet a higher burden of proof than
is required of an asylum applicant. The BIA therefore refused
to apply Sael’s disfavored group analysis to Wakkary’s with-
holding and CAT claims.
Wakkary timely filed a petition for review with this Court,
arguing that the BIA erred (1) in holding that his asylum
claim was time-barred; (2) in rejecting his claim for withhold-
ing of removal, either (a) because the record compels a find-
ing that he suffered past persecution or, in the alternative, (b)
because he faces a clear probability of future persecution in
light of the widespread mistreatment of Chinese and Chris-
tians and his own past experiences; and (3) in rejecting his
CAT claim. We have jurisdiction over his petition for review
under 8 U.S.C. § 1252.
II. ANALYSIS
In cases in which, as here, the BIA “adopt[s] and affirm[s]”
the decision of the IJ but also adds its own analysis, the scope
of our review extends to the decisions of both the IJ and the
BIA. Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir. 2000). We
review the agency’s legal determinations de novo, and factual
findings for substantial evidence. Hernandez-Gil v. Gonzales,
476 F.3d 803, 804 n.1 (9th Cir. 2007). Because the IJ found
Wakkary credible, we treat Wakkary’s testimony as true. See
Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir. 2004).
A. Wakkary’s Asylum Claim
[1] The INA generally requires that an alien file for asylum
within one year of arriving in the United States. 8 U.S.C.
§ 1158(a)(2)(B). The INA allows for exceptions, however, for
aliens who show “extraordinary circumstances relating to the
delay in filing.” Id. § 1158(a)(2)(D). According to the applica-
ble regulations, one example of such an “extraordinary cir-
WAKKARY v. HOLDER 3001
cumstance[ ]” is when an “applicant maintained . . . lawful
immigrant or nonimmigrant status . . . until a reasonable
period before the filing of the asylum application.” 8 C.F.R.
§ 208.4(a)(5)(iv).3
Wakkary was residing in this country on a valid religious
worker visa until April 11, 2002. Under the applicable regula-
tion, his maintenance of such status qualifies as an “extraordi-
nary circumstance[.]” See 8 C.F.R. § 208.4(a)(5).
3
8 C.F.R. § 208.4(a)(5) reads:
(5) The term “extraordinary circumstances” in [8 U.S.C.
§1158](a)(2)(D) . . . shall refer to events or factors directly
related to the failure to meet the one-year deadline. Such
circumstances may excuse the failure to file within the one-
year period as long as the alien filed the application within
a reasonable period given those circumstances. The burden
of proof is on the applicant to establish . . . that the circum-
stances were not intentionally created by the alien through
his or her own action or inaction, that those circumstances
were directly related to the alien’s failure to file the applica-
tion within the one-year period, and that the delay was rea-
sonable under the circumstances. Those circumstances may
include but are not limited to:
(i) Serious illness or mental or physical disability . . . ;
(ii) Legal disability . . . ;
(iii) Ineffective assistance of counsel . . . ;
(iv) The applicant maintained Temporary Protected Status,
lawful immigrant or nonimmigrant status, or was
given parole, until a reasonable period before the fil-
ing of the asylum application;
(v) The applicant filed an asylum application prior to the
expiration of the one-year deadline, but that application
was rejected by the Service as not properly filed . . . ;
and
(vi) The death or serious illness or incapacity of the appli-
cant’s legal representative or a member of the appli-
cant’s immediate family.
(Emphases added).
3002 WAKKARY v. HOLDER
Nevertheless, noting that Wakkary submitted his asylum
application on October 15, 2002 — six months and some days
after his status expired — the IJ held his delay inexcusable.
The IJ stated:
The claim that respondent was delaying the actual
filing of the application[ ] while he attempted to
obtain supporting materials is simply not persuasive,
or otherwise capable of excusing the [one-year] fil-
ing deadline. Even so, respondent should have filed
the application immediately [upon the expiration of
his R-1 visa] and then requested time to gather sup-
porting materials while the application was under
consideration by the Immigration officers.
The IJ therefore held that Wakkary’s asylum application was
untimely. The BIA affirmed without providing further elabo-
ration.
Neither the IJ nor the BIA cited the relevant statutory or
regulatory provisions, or even used their terminology, in
reaching the conclusion that Wakkary’s application was time-
barred. The IJ stated that Wakkary “should have filed the
application immediately” when his visa expired. Thus, the IJ
effectively held Wakkary to the usual one-year filing dead-
line, ignoring the fact that he had maintained lawful non-
immigrant status until April 11, 2002, and stating further that
Wakkary’s “attempt[s] to obtain supporting materials” were
by definition not “capable” of justifying filing any later than
that. For the reasons we explain below, we hold that the IJ’s
determination is based on an incorrect understanding of the
applicable regulation.
[2] The regulations provide that, to be excused from the
one-year filing deadline, an applicant must first demonstrate
extraordinary circumstances, and then show “that those cir-
cumstances were directly related to the alien’s failure to file
the application within the one-year period, and that the delay
WAKKARY v. HOLDER 3003
was reasonable under the circumstances.” 8 C.F.R.
§ 208.4(a)(5). As noted above, Wakkary’s maintenance of
lawful status qualifies as an extraordinary circumstance under
the regulation. The question then becomes whether his delay
in filing was “reasonable under the circumstances” within the
meaning of 8 C.F.R. § 208.4(a)(5), a determination that logi-
cally depends upon both (1) the reasons given to justify the
delay, and (2) the length of time that passed between the expi-
ration of his status and the filing of his asylum application.
We recently confronted a similar question — whether an
alien filed his asylum application within a reasonable period
of the expiration of his status — in Husyev v. Mukasey, 528
F.3d 1172 (9th Cir. 2008). There, the petitioner waited exactly
364 days after the expiration of his visa to file an asylum
application, and he gave no explanation for his delay. Id. at
1182. We concluded that Husyev’s asylum application was
not filed within a reasonable period. Our conclusion was
guided in part by the Preamble to the permanent regulations,
which describes the Department of Justice’s “expect[ation]”
that “waiting six months or longer after expiration or termina-
tion of status would not be considered reasonable.” Id. at 1181
(quoting 65 Fed. Reg. 76,121-01, 76,123-24 (Dec. 6, 2000)).
In light of the Preamble’s emphasis on taking a flexible, case-
based approach to the reasonable circumstances determina-
tion, see 65 Fed. Reg. at 76123, Husyev read the Preamble’s
six-month period not as a hard cut-off, but as a “presumptive
deadline” that would apply “[i]n the absence of any special
considerations.” Husyev, 528 F.3d at 1182.4 We emphasized
4
We note, in this connection, that prefatory language to a regulation,
although often informative, does not have the same binding force as do the
regulations themselves. See, e.g., Norfolk Energy, Inc. v. Hodel, 898 F.2d
1435, 1441-42 (9th Cir. 1990) (discounting a sentence in the preamble to
the agency’s regulations because “the overall regulatory and statutory
scheme” supported a different interpretation); Loma Linda Community
Hosp. v. Shalala, 907 F. Supp. 1399, 1404 (C.D. Cal. 1995) (“[P]refatory
language [to an agency’s regulations] plainly is not mandatory . . . .”).
3004 WAKKARY v. HOLDER
that each case must be assessed “on the basis of all the factual
circumstances.” Id. at 1182 n.4.
[3] Wakkary’s filing fell just days outside the presumptive
six-month deadline. Unlike the petitioner in Husyev, he pres-
ented a cogent and well-documented reason for his delay: tak-
ing time to gather identity documents and supporting
documents he considered vital to his claim.5 Contrary to the
IJ’s blanket statement, nothing in the statute or regulations
suggests that gathering supporting documents is per se an
invalid reason for filing outside the one-year deadline where
extraordinary circumstances have been established.6 On the
5
According to the declaration Wakkary submitted to the BIA on appeal,
these “supporting materials” were his family’s personal documents (which
had to be translated), a police report on Kalep’s murder, and a letter from
Pastor Munthe describing Kalep’s death and the attacks on Pastor Mun-
the’s own life. Ultimately, for reasons he explained in his declaration,
Wakkary was unable to obtain a police report, and Pastor Munthe refused
to write a letter because he feared retaliation from native Indonesian
extremists. Wakkary submitted his application without these documents.
6
The regulations specify only that the circumstances contributing to the
late filing must not have been “intentionally created by the alien through
his or her own action or inaction.” 8 C.F.R. § 208.4(a)(5). Delaying filing
in the hope of gathering additional documentation is, in a sense, a choice
that the alien makes. But, as the Preamble suggests, the regulations are not
meant to condemn all exercises of individual initiative as disqualifying
factors. Rather, the Preamble indicates that the Department of Justice spe-
cifically foresaw “qualifying situations in which the alien might be forced
to choose between the lesser of two evils, or the alien might be able to
exercise a limited amount of control.” 65 Fed. Reg. at 76,123.
The Preamble’s language aptly describes Wakkary’s situation: He faced
the “two evils” of filing a timely but incomplete application, or filing
belatedly once he obtained supporting documents. If he filed an incom-
plete application, for example, he would take the chance that the asylum
office or Immigration Court handling his case would refuse to grant a con-
tinuance to allow him to procure supplemental documents. See, e.g., Mat-
ter of Sibrun, 18 I. & N. Dec. 354, 356-57 (BIA 1983) (affirming the IJ’s
denial of alien’s motion to continue his removal hearing “to obtain and
present additional evidence”). He would also take the chance that support-
ing affidavits or other documents, once obtained, might differ in some
WAKKARY v. HOLDER 3005
contrary, the regulations make clear that the reasonableness
determination must be made “under the circumstances,” on a
case-by-case basis. 8 C.F.R. § 208.4(a)(5); see also 65 Fed.
Reg. at 76,123. We therefore reject, as unsupported by the
statute or regulations, the IJ’s holding that gathering support-
ing documents can never be a valid reason for delay.
[4] The question that remains is whether Wakkary’s partic-
ular circumstances render his delay of just over six months
“reasonable” under the regulations. In Husyev, we held that
while “six months may serve in default as a reasonable pre-
sumptive deadline, we do not foreclose other reasonable peri-
ods, and exceptions thereto, that may be set out by the agency,
nor do we preclude individualized determinations of reason-
ableness of delay.” Id. at 1182 n.4. Here, of course, the
agency did not perform such an individualized determination.
Because the IJ considered the gathering of supporting docu-
ments to be necessarily “[in]capable” of justifying a reason-
able delay, he had no occasion to engage in the fact-based
inquiry of the particular circumstances for which the regula-
tions call. We therefore remand so that the agency may deter-
mine in the first instance whether, under the particular
circumstances of this case, Wakkary applied for asylum
within a “reasonable period” as the regulations require. See
Fakhry v. Mukasey, 524 F.3d 1057, 1064 (9th Cir. 2008)
(“Because the agency applied the wrong legal standard and
has not considered the issue using the correct standard, we
remand for a determination of whether Fakhry demonstrated
changed circumstances and, if so, whether he applied for asy-
lum within the requisite ‘reasonable period.’ ”).
detail from statements he has made to the immigration officials based
purely on memory of sometimes long-passed events. Such an inconsis-
tency, even if inadvertent, can make an applicant vulnerable to an adverse
credibility determination. See, e.g., Alvarez-Santos v. INS, 332 F.3d 1245,
1254 (9th Cir. 2003).
3006 WAKKARY v. HOLDER
B. Wakkary’s Withholding of Removal Claim
As noted above, asylum is a discretionary form of relief.
See Cardoza-Fonseca, 480 U.S. at 424. Therefore, even if the
agency on remand determines that Wakkary’s asylum applica-
tion was filed within a reasonable time and goes on to con-
clude on the merits that he is eligible for relief, the Attorney
General retains the discretion not to grant that relief. We
therefore consider Wakkary’s remaining arguments regarding
his claim for withholding of removal.
Wakkary submits that the BIA erred in two respects with
regard to his claim for withholding of removal: first, in con-
cluding that he had not suffered past persecution, and second,
in concluding that he failed to show that future persecution
was more likely than not.
1. Past persecution
[5] Persecution is “an extreme concept that does not
include every sort of treatment our society regards as offen-
sive.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003)
(internal quotation marks omitted). “[M]ere discrimination,”
by itself, is not the same as persecution. Fisher v. INS, 79
F.3d 955, 962 (9th Cir. 1996) (en banc). Severe and sustained
discrimination, or discrimination in combination with other
harms, however, may compel a finding of past persecution.
See, e.g., Krotova v. Gonzales, 416 F.3d 1080, 1087 (9th Cir.
2005) (granting petition for review where petitioner testified
that she and her daughter were attacked in the street; her
brother was beaten; a close family friend was murdered by
anti-Semites; and she was sexually harassed, denied promo-
tions and state-sponsored childcare, and unable to practice her
religion because she was Jewish); Duarte de Guinac v. INS,
179 F.3d 1156, 1161-62 (9th Cir. 1999) (granting petition for
review where petitioner testified that during his conscripted
service in the army, he was repeatedly beaten and subjected
to race-based insults); Korablina v. INS, 158 F.3d 1038, 1044-
WAKKARY v. HOLDER 3007
45 (9th Cir. 1998) (granting petition for review where peti-
tioner testified that her Jewish coworker disappeared and her
Jewish boss was fired; that she personally received threats and
anti-Semitic slurs; and that she witnessed violent attacks on
other Jews and experienced one herself).
[6] Wakkary’s personal experiences at the hands of native
Indonesians — being beaten by youths and robbed of his san-
dals and pocket money in 1985 and 1990 (seventeen and
twelve years, respectively, before he filed his asylum applica-
tion), and being accosted by a threatening mob while his fam-
ily was driving to Bible school in 1998 — are instances of
discriminatory mistreatment. We cannot say, however, that a
reasonable factfinder would be “compel[led]” to conclude that
these experiences, without more, cumulatively amount to past
persecution. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992). Compare Nagoulko, 333 F.3d at 1016-18 (evidence
that petitioner was insulted and harassed because of her reli-
gion, was fired from her job but able to find other work, and
witnessed the beatings of her coworkers, did not compel the
conclusion that she suffered past persecution). Further,
although harm to a petitioner’s close relatives, friends, or
associates may contribute to a successful showing of past per-
secution, see Korablina, 158 F.3d at 1044-45, Wakkary has
not demonstrated that the murder of Kalep and the attempted
murder of Pastor Munthe were part of “a pattern of persecu-
tion closely tied to” Wakkary himself, as we have required.
Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991).
We therefore conclude that the BIA’s determination that
Wakkary did not prove past persecution is supported by sub-
stantial evidence.
2. Future persecution
[7] Even though Wakkary did not demonstrate past perse-
cution, his likelihood of future persecution may still be suffi-
cient to merit withholding of removal. See Avetova-Elisseva
v. INS, 213 F.3d 1192, 1201-02 (9th Cir. 2000). To establish
3008 WAKKARY v. HOLDER
eligibility for withholding of removal in the absence of past
persecution, an applicant must demonstrate both that he has
a subjective fear of persecution in the future, and that this fear
is objectively reasonable — which, in the withholding con-
text, means that the chance of future persecution is “more
likely than not.” 8 C.F.R. § 208.16(b)(2).7
In the asylum context, the INA’s implementing regulations
map out two routes by which an asylum-seeker can show that
the objective risk of future persecution is high enough to merit
relief. First, he may show that there is a “reasonable possibili-
ty” that he will be “singled out individually for persecution”
if removed. 8 C.F.R. § 1208.13(b)(2)(iii). Second, in the alter-
native, he may show that there is a systematic “pattern or
practice” of persecution against the group to which he belongs
in his home country, such that, even without any evidence of
individual targeting, his fear of persecution is deemed reason-
able. Id. The regulations governing withholding of removal
have the same bifurcated structure, providing for both pattern
or practice claims and individualized targeting claims. 8
C.F.R. § 208.16(b)(2)(i)-(ii). Wakkary submits that he has
demonstrated the requisite risk of persecution via both routes.
We address the two routes in reverse order.
a. Pattern or practice of persecution
[8] To establish the objective reasonableness of one’s fear
of future persecution via the “pattern or practice” route, an
applicant for withholding of removal must demonstrate, first,
that “in [his home] country there is a pattern or practice of
persecution of a group of persons similarly situated to the
applicant on account of race, religion, nationality, member-
ship in a particular social group, or political opinion,” and
second, that by reason of his “inclusion in and identification
7
The IJ rejected Wakkary’s withholding of removal claim on the sec-
ond, objective, prong. As to the first, subjective, prong, the IJ noted that
he did “not question the sincerity of [Wakkary’s] testimony.”
WAKKARY v. HOLDER 3009
with such group of persons such that it is more likely than not
that his . . . life or freedom would be threatened upon return
to that country.” 8 C.F.R. § 208.16(b)(2)(i)-(ii). In Wakkary’s
case, the IJ never reached the second question, because he
determined that Wakkary failed at the first step — that is, he
did not demonstrate that a pattern or practice of persecuting
Chinese Christians existed in Indonesia. The record before us
does not compel us to overturn the IJ’s ruling on this point,
for the following reasons.
We have never specified with any precision how wide-
spread the pattern or practice of persecuting a protected group
must be to meet the statutory definition. See Bromfield v.
Mukasey, 543 F.3d 1071, 1078 (9th Cir. 2008) (finding a pat-
tern or practice of persecuting gay men in Jamaica); Knezevic
v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) (finding that Croats
maintained a pattern or practice of ethnically cleansing Serbs
in the petitioners’ region of Bosnia-Herzegovina); Mgoian v.
INS, 184 F.3d 1029, 1036 (9th Cir. 1999) (finding a pattern
or practice of persecution against a family in the Kurdish-
Muslim intelligentsia in Armenia). We have used the word
“systematic” to describe the sort of persecution that might
amount to a pattern or practice, see Kotasz v. INS, 31 F.3d
847, 853 (9th Cir. 1994),8 but we have never reduced our
understanding of the term to a concrete percentage, and we
8
Several of the other circuits use the word “systematic” to describe their
various standards for pattern or practice claims. See Ahmed v. Gonzales,
467 F.3d 669, 675 (7th Cir. 2006) (holding that a pattern or practice is “a
systematic, pervasive, or organized effort to kill, imprison, or severely
injure members of the protected group, and this effort must be perpetrated
or tolerated by state actors”) (internal quotation marks omitted); Lie v.
Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (holding that a pattern or prac-
tice must be “systematic, pervasive, or organized”); Woldemeskel v. INS,
257 F.3d 1185, 1191 (10th Cir. 2001) (a “pattern or practice” is “some-
thing on the order of systematic or pervasive persecution”) (internal quota-
tion marks omitted); see also Mufied v. Mukasey, 508 F.3d 88, 92-93 &
n.3 (2d Cir. 2007) (collecting authorities, but declining to adopt a stan-
dard).
3010 WAKKARY v. HOLDER
decline to do so here. Further, although we have acknowl-
edged that one of the archetypal examples of a pattern or
practice of persecution was “the systematic attempt to annihi-
late the Jews in Nazi Germany,” Kotasz, 31 F.3d at 852 — a
case in which the persecution was incremental, but a broad
campaign of marginalization, and eventually extermination,
was organized by the Nazi government itself9 — we have rec-
ognized that a pattern or practice may also be the work of pri-
vate actors, so long as the persecution is sufficiently
widespread and the government is unable or unwilling to con-
trol those actors. See Lolong v. Gonzales, 484 F.3d 1173,
1180 (9th Cir. 2007) (en banc).
[9] Under these general principles, the record in Wakkary’s
case does not compel the conclusion that there exists a pattern
or practice of persecution against Chinese and Christians in
Indonesia. Although the record contains evidence of wide-
spread anti-Chinese and anti-Christian discrimination that
affects a very large number of individuals, and although it is
clear that a certain portion of those individuals suffer treat-
ment that rises to the level of persecution, the record does not
establish that the situation in Indonesia is similar to the pat-
terns or practices of persecution described in our prior case
law.
In Bromfield, for example, the petitioner’s country-
conditions evidence showed that “violence against homosexu-
als [in Jamaica] is widespread, and is perpetrated by both pri-
vate individuals and public officials such as police officers
and prison personnel,” and that “Jamaican law criminalizes
homosexual conduct, making it punishable by up to ten-years
imprisonment . . . .” Bromfield, 543 F.3d at 1079. And in
Knezevic, the record revealed that the petitioners’ home town
was “targeted for bombing, invasion, occupation, and ethnic
cleansing of Serbs by Croats,” and specifically, that “a bus of
9
See generally SAUL FRIEDLNDER, NAZI GERMANY AND THE JEWS: THE
YEARS OF PERSECUTION, 1933-1939 (1997).
WAKKARY v. HOLDER 3011
Serbs attempting to return . . . was stoned by Croats; violent
mobs of Croats blocked Serb re-entry to the town and
destroyed the Serbs’ homes; police refused to guarantee pro-
tection to Serbs seeking to return; and harassment, looting of
vacant homes, cattle theft, and physical violence against Serbs
by Croats were wide-spread.” Knezevic, 367 F.3d at 1212.
[10] Applying substantial evidence review, we can only
conclude that the record before us does not compel the con-
clusion that the agency’s determination was wrong. We hold
that substantial evidence supports the agency’s denial of Wak-
kary’s pattern or practice claim.
b. Individualized targeting and disfavored group
analysis
In the alternative, Wakkary submits that the agency erred
in its assessment of whether he would be individually targeted
for persecution by refusing to consider evidence that Wakkary
belongs to a “disfavored group.” The BIA reasoned that our
holding in Sael — regarding the evidentiary relevance of an
asylum applicant’s membership in a disfavored group — is
simply inapplicable to claims for withholding of removal. As
a result, the agency ignored a large amount of record evidence
that is pertinent to whether Chinese Christians in Indonesia
are widely disfavored, discriminated against, and, in a sub-
stantial number of instances, persecuted on account of their
race and religion.
We disagree with the agency’s refusal to consider this evi-
dence in evaluating the future persecution issue. At the same
time, we do recognize that the disfavored group mode of anal-
ysis needs clarification, as it has been misunderstood by both
the agency and some other circuits. Moreover, we note that in
practice, the impact of the disfavored group mode of analysis
is likely to be of considerably less significance in withholding
than in asylum cases, due to the different standards of proof
for these two forms of relief. Still, even though this evidence
3012 WAKKARY v. HOLDER
will not often change the outcome of a withholding claim, it
is nevertheless relevant, and the BIA erred in not considering
it.
i. Disfavored group analysis in asylum cases
We begin by briefly reviewing the development, in the asy-
lum context, of what has come to be called — perhaps unfor-
tunately, as the terminology may be misleading —
“disfavored group” analysis. We first recognized the evidenti-
ary relevance of an asylum applicant’s membership in a “dis-
favored group” in Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994).
Kotasz explained that although the asylum regulations provide
two ways to establish a well-founded fear of future persecu-
tion — showing a “pattern or practice” of persecution, or
showing a likelihood of being “individually singled out,” see
8 C.F.R. § 1208.13(b)(2)(iii) — these two categories of
future-fear claims should not be understood to require discrete
sorts of evidence.
As Kotasz emphasized, “[g]roup membership is an aspect
of nearly all asylum claims, not a special problem limited to
pattern or practice cases.” Id. at 853. Indeed, Kotasz noted,
the most “common” individualized persecution scenario is
one in which, “although members of the disfavored group[ ]
are not threatened by [a pattern or practice of] systematic per-
secution of the group’s entire membership, the fact of group
membership nonetheless places [the individual] at some risk.”
Id. The “singled out” path is not reserved solely for those
applicants whose would-be persecutors seek them out person-
ally, by name. Rather, Kotasz recognized that one’s chances
of being singled out from the general population and sub-
jected to persecution is often strongly correlated with the fre-
quency with which others who share the same disfavored
characteristics are mistreated and persecuted.
So, in a case in which the asylum applicant attempts to
show that he faces a reasonable likelihood of being singled
WAKKARY v. HOLDER 3013
out individually on account of a protected characteristic,
“[p]roof that the government or other persecutor has discrimi-
nated against a group to which [he] belongs is . . . always rele-
vant,” because that proof says something about the chances
that he, as a member of that group, will be persecuted.10 Id.
Based on this common-sense evidentiary proposition, Kotasz
held that once an applicant establishes that he is a member of
a group that is broadly disfavored, “the more egregious the
showing of group persecution — the greater the risk to all
members of the group — the less evidence of individualized
persecution must be adduced” to meet the objective prong of
a well-founded fear showing. Id. (emphases added); see also
Mgoian, 184 F.3d at 1035 n.4.
Since Kotasz, we have found petitioners from a number of
groups to have established that they are members of disfa-
vored groups for asylum purposes. See, e.g., El Himri v. Ash-
croft, 378 F.3d 932, 937 (9th Cir. 2004) (stateless Palestinians
born in Kuwait); Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83
(9th Cir. 2003) (ethnic Albanians in Kosovo); Singh v. INS,
94 F.3d 1353, 1359-60 (9th Cir. 1996) (ethnic Indians in Fiji).
We first applied disfavored group analysis to the asylum
claim of a member of Indonesia’s Chinese Christian minority
in Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004).
10
The circumstance of being a member of a disfavored group is primar-
ily relevant in cases where the applicant has failed to show past persecu-
tion. If an alien does show that he suffered past persecution, he is entitled
to a presumption that he has an objectively reasonable fear of future perse-
cution, which the government can rebut only by showing a fundamental
change in circumstances or a reasonable possibility of internal relocation.
8 C.F.R. § 208.13(b)(1) (asylum); id. § 208.16(b)(1)(i) (withholding). In
practice, both these grounds for rebuttal depend heavily upon country con-
ditions evidence. We have thus never needed to emphasize in that context,
as we have in the future persecution context in Sael and Kotasz, that evi-
dence of the mistreatment or persecution of others who are members of the
same disfavored group as the applicant is relevant to the applicant’s own
risk if he is returned.
3014 WAKKARY v. HOLDER
[11] In Sael, we found that the record evidence, document-
ing centuries of popular and official discrimination against the
Chinese and Christian minorities in Indonesia, “establishe[d]
that ethnic Chinese are significantly disfavored in Indonesia.”
386 F.3d at 927. Accordingly, Sael, as a Chinese Christian
woman, had to “demonstrate a ‘comparatively low’ level of
individualized risk in order to prove that she ha[d] a well-
founded fear of future persecution.” Id. We concluded that
Sael met her burden of showing individualized risk by adduc-
ing evidence of her past personal experiences of threats, van-
dalism, and threatened violence by native Indonesians. Id. at
927-29. These experiences, “even [though] not sufficient to
compel a finding of past persecution,” were “indicative of
individualized risk [of future harm].” Id. at 928-29. When
viewed in the context of the country-conditions evidence of
widespread discrimination against Chinese Christians, Sael’s
evidence of individualized risk compelled the conclusion that
her own fear of future persecution was objectively well-
founded. Id. at 929.
ii. The application of disfavored group analysis to
withholding claims
[12] Until today, we have applied the disfavored group
approach only to asylum claims. In Sael, we expressly
reserved the question whether this mode of analysis is appli-
cable in the context of withholding of removal claims as well.
Sael, 386 F.3d at 930 n.10. Wakkary’s case presents that
question squarely. When it dismissed Wakkary’s appeal, the
BIA held that Sael prescribes a “reduced burden of proof” for
asylum seekers belonging to disfavored groups, which it con-
sidered to be incompatible with “the higher, and less elastic,
clear probability standard required for withholding of remov-
al.” In so ruling, the BIA misunderstood Sael’s holding.
Disfavored group analysis does not prescribe a lower-than-
usual burden of proof for the asylum claims of members of
certain judicially-anointed groups. An individual seeking asy-
WAKKARY v. HOLDER 3015
lum must always show that he faces at least a ten percent
chance of future persecution, whether he attempts to meet his
burden by showing a pattern or practice or by showing a like-
lihood that he will be individually singled out. See Al-Harbi,
242 F.3d at 888. We have never held, in Sael, Kotasz, or else-
where, that a member of a disfavored group must show only,
say, a five or nine percent likelihood of persecution to be eli-
gible for asylum.
[13] Instead, the “lesser” or “comparatively low” burden to
which we averted in Kotasz, 31 F.3d at 854, and Sael, 386
F.3d at 927, refers not to a lower ultimate standard, but to the
lower proportion of specifically individualized evidence of
risk, counterbalanced by a greater showing of group targeting,
that an applicant must adduce to meet that ultimate standard
under the regulations’ “individually singled out” rubric. The
more evidence of group targeting an asylum applicant prof-
fers, the less evidence of individually specific evidence he
needs to reach that ten percent. In other words, the disfavored
group concept simply describes the basic evidentiary proposi-
tion that an asylum applicant’s membership in a group whose
members are shown to have been widely targeted for discrim-
ination, a substantial number of whom are shown to have
been persecuted, is relevant evidence in assessing whether his
fear of being personally targeted for persecution in the future
rises to the requisite level of objective reasonableness.
With this clarification, it should be apparent that our disfa-
vored group cases do not invent a “judicially created alterna-
tive to the statutory and regulatory scheme,” Kho v. Keisler,
505 F.3d 50, 55 (1st Cir. 2007), or a “lower threshold of
proof,” Firmansjah v. Gonzales, 424 F.3d 598, 607 n.6 (7th
Cir. 2005), as some other circuits have mistakenly assumed.
See also Lie, 396 F.3d at 538 n.4. Rather, our cases merely
outline a method for weighing indicators of future individual
risk, a method consistent with that employed in other circuits.
The First Circuit, for example, recognized “that in evaluating
each claim on its facts, it may be that evidence short of a pat-
3016 WAKKARY v. HOLDER
tern or practice will enhance an individualized showing of
likelihood of a future threat to an applicant’s life or freedom.”
Kho, 505 F.3d at 55. Although the First Circuit regarded that
possibility as “a different matter” from our disfavored group
approach, in fact that fairly obvious evidentiary point is the
essence of our disfavored group cases. In other words, when
asking how likely it is that an individual applicant will be
“singled out” in the future on the basis of his group member-
ship, it is indisputably relevant (though of course not disposi-
tive) how others in his group are treated. For, as the Fourth
Circuit explained,
an applicant will typically demonstrate some combi-
nation of [individual risk and group risk] to establish
a well-founded fear of persecution. ‘The more egre-
gious the showing of group persecution[,] the less
evidence of individualized persecution must be
adduced.’ Conversely, a stronger showing of individ-
ual targeting will be necessary where the underlying
basis for the applicant’s fear is membership in a dif-
fuse class against whom actual persecution is hap-
hazard and rare.
Chen v. INS, 195 F.3d 198, 203-04 (4th Cir. 1999) (internal
alterations omitted) (quoting Kotasz, 31 F.3d at 853); see also
Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995).
We see no reason why this evidentiary proposition should
be applicable to asylum claims but not to withholding claims.
The BIA correctly noted that asylum and withholding of
removal have different quantitative standards of proof — ten
percent for asylum, and “more likely than not” for withhold-
ing. See 8 C.F.R. § 1208.16(b)(1)(iii); Cardoza-Fonseca, 480
U.S. at 449; Lata v. INS, 204 F.3d 1241, 1244 (9th Cir. 2000).
To repeat, disfavored group analysis does not alter the
quantitative standard of proof. Rather, it determines what
sorts of evidence can be used to meet that standard, and, quite
WAKKARY v. HOLDER 3017
generally, in what proportions. What matters is that both asy-
lum and withholding have the same qualitative criteria for eli-
gibility, so the same sorts of evidence are relevant to
determining whether an applicant’s fear is objectively reason-
able. Under the regulations, eligibility for both forms of relief
depend upon the likelihood that the applicant will be perse-
cuted in his home country “on account of race, religion,
nationality, membership in a particular social group, or politi-
cal opinion.” 8 C.F.R. § 1208.13(b)(2)(i)(A) (asylum); id.
§ 1208.16(b) (withholding). And 8 C.F.R. § 1208.16(b)(2),
governing withholding, provides in substantially identical lan-
guage to 8 C.F.R. § 1208.13(b)(2)(iii) (governing asylum) that
a withholding applicant may demonstrate that his fear of
future persecution rises to the requisite level of objective rea-
sonableness either by showing a “pattern or practice of perse-
cution,” or by showing that he will be “singled out
individually.” Id. § 1208.16(b)(2).
[14] In sum, if an applicant’s membership in a disfavored
group is relevant to the objective reasonableness of his future
fear in the asylum context, we see no reason, either in logic
or in the statutory and regulatory design, why membership in
a disfavored group should not similarly be relevant to assess-
ing the likelihood of individual targeting in the withholding
context. We hold that it is.
iii. The need to adduce individualized evidence
Even under the disfavored group approach, an applicant for
withholding of removal must show that his chance of future
persecution is greater than fifty percent. Evidence of group
discrimination will go part of the way toward meeting that bar
— how far depending upon how “egregious” and pervasive
the showing of group discrimination is, see Mgoian, 184 F.3d
at 1035 n.4 — but, absent a “pattern or practice” of persecu-
tion, it can never go all the way. As we explained recently in
the asylum context in Lolong v. Gonzales, 484 F.3d 1173,
3018 WAKKARY v. HOLDER
1179, 1181 n.6 (9th Cir. 2007) (en banc), some evidence of
individualized risk is necessary for the petitioner to succeed.
In Lolong, we upheld the BIA’s determination that an asy-
lum applicant belonging to Indonesia’s Chinese Christian
minority failed to show an objectively well-founded fear of
future persecution, because she had offered no evidence of her
own individual risk. Id. at 1181 n.6. Rather, Lolong rested her
claim solely on evidence that Chinese Indonesian women as
a group are targeted for violent attacks and rapes, and on evi-
dence that family members and a friend had experienced anti-
Chinese violence. We held that a “general, undifferentiated
claim” based solely on the threat to the group as a whole is
not sufficient for an individual petitioner to establish the req-
uisite likelihood of persecution under the “singled out individ-
ually” rubric. Id. at 1179. Asylum applicants who attempt to
show their eligibility for asylum in part by relying on their
membership in a disfavored group must “prove something
more than their status as . . . members of” that group. Id. at
1181 n.6. Similarly, in Sael, we emphasized that the petition-
er’s showing that she is a member of a “disfavored group”
must be “coupled with a showing that she, in particular, is
likely to be targeted as a member of that group.” Sael, 386
F.3d at 925. Sael met this burden by adducing evidence that
she personally had been threatened, her home vandalized, and
her car thronged by a mob who saw that she was Chinese. Id.
at 927-28.
An applicant for withholding of removal will need to
adduce a considerably larger quantum of individualized-risk
evidence to prevail than would an asylum applicant like Sael,
assuming their disfavored group evidence is of equal severity
and pervasiveness, because the ultimate bar for withholding is
higher than the bar for asylum. As a practical matter, then,
applying disfavored group analysis to withholding claims will
not affect the outcome of most petitioners’ cases. Most aliens
seek both forms of relief as a matter of course.11 If an appli-
11
An application for asylum under 8 U.S.C. § 1158 is automatically con-
sidered an application for withholding of removal under 8 U.S.C.
§ 1231(b)(3) as well. See 8 C.F.R. § 1208.3(b).
WAKKARY v. HOLDER 3019
cant fails to demonstrate eligibility for asylum even with the
help of disfavored group analysis (such that his chance of
future persecution, even with the evidentiary boost that his
membership in a disfavored group provides, is less than ten
percent), then he will necessarily have failed to demonstrate
eligibility for withholding of removal. See Mansour v.
Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004).
[15] There are cases, however, in which the applicant’s
request for asylum fails not for lack of proof on the merits,
but because his application is found to be time-barred — as
Wakkary’s was initially, although we have remanded that
decision. In such cases, the fact of the applicant’s membership
in a group proven to be disfavored could mean the difference
between meeting withholding’s “more likely than not” bar
and coming up short. Given the high burden of proof for with-
holding, it is likely that evidence of group persecution not suf-
ficiently widespread to amount to a “pattern or practice” will
relatively infrequently succeed in filling the gap between
individually-specific risk evidence and the requisite level of
proof. But “infrequently” is not “never.” We hold that the
BIA erred in precluding consideration of disfavored group
evidence entirely with regard to withholding of removal.
iv. Application to Wakkary’s withholding claim
At his removal hearing, Wakkary presented some evidence
of past mistreatment that he suffered personally. The IJ dis-
missed these incidents as “random encounters . . . not directed
against [Wakkary] personally,” which, being random, had lit-
tle or nothing to say about Wakkary’s chances of future perse-
cution.
The events were not random in any relevant sense. For each
of these incidents, Wakkary provided circumstantial evidence
that his harassers were motivated by anti-Chinese and/or anti-
Christian sentiment. See Sinha v. Holder, No. 04-73843, at
*1572 (9th Cir. Feb. 10, 2009) (rejecting an IJ’s characteriza-
3020 WAKKARY v. HOLDER
tion of attacks on Indo-Fijian petitioners, in the context of
widespread violence against their ethnic group, as “random,”
because “individuals of Indo-Fijian ethnicity were the specific
targets of the widespread violence” and because the petition-
ers “presented specific evidence that [their] attackers had
racially discriminatory motives,” including testimony that
their attackers berated them with racist epithets); Baballah v.
Ashcroft, 367 F.3d 1067, 1077 (9th Cir. 2003) (“The use of
[ethnic] slur[s during the attacks] amply establishes the con-
nection between the acts of persecution and Baballah’s ethnic-
ity and religion.”). Wakkary’s attackers may not have known
his name, but it is clear they targeted him, and not some other
bystander, because he is Chinese and/or a Christian. The only
way the IJ could have considered the incidents random is by
ignoring this evidence of motive, as well as the broader evi-
dence of widespread “ongoing hostility towards the Chinese
and Christian community.” Refusing to weigh Wakkary’s
individually-focused evidence in light of the risk of mistreat-
ment and persecution that all Chinese Christians in Indonesia
face, the IJ saw only random chance at work. In fact, Wak-
kary has shown that there is a strong correlation between the
harm he personally faces and the plight of Chinese Christians
in Indonesia generally.
Moreover, Wakkary testified to his position as a pastor and
a “religious leader” within the Chinese Christian community
— a position that makes him particularly visible and vulnera-
ble to attack on account of his group membership. See Kotasz,
31 F.3d at 854 n.10 (“[W]here a Christian sect is targeted,
priests may be more at risk than ordinary church members
. . . .”); Mgoian, 184 F.3d at 1035 n.4 (noting that evidence
of “the alien’s individual risk level” may include evidence
that “the alien has a special role in the group or is more likely
to come to the attention of the persecutors[,] making him a
more likely target for persecution.”).
The question for the agency on remand will be whether
Wakkary has adduced enough evidence of individual risk, in
WAKKARY v. HOLDER 3021
combination with enough evidence that the ethnic and reli-
gious group to which he belongs is disfavored in Indonesia,
to make out a clear probability of persecution upon return.
The BIA never engaged in this inquiry, because it held the
disfavored group evidence — that is, the country-conditions
evidence concerning the widespread mistreatment and perse-
cution of Chinese and Christian individuals in Indonesia — to
be entirely irrelevant to withholding of removal.
[16] Given our limited role in reviewing orders of removal,
we may not decide in the first instance whether Wakkary’s
evidence is sufficient to meet the standard for withholding.
Rather, because the BIA misunderstood our disfavored group
cases and so did not take into account the disfavored group
evidence, we are obliged to remand to the BIA for an appro-
priate decision based on all the relevant evidence. See INS v.
Ventura, 537 U.S. 12, 16-17 (2002).
C. Wakkary’s Claim for Relief Under the Convention
Against Torture
[17] Finally, Wakkary argues that the BIA erred in denying
his claim for relief under the CAT. He argues that the BIA
erred in failing to apply disfavored group analysis in assessing
his CAT claim, or in the alternative, that even without disfa-
vored group analysis, the record compels the conclusion that
he is eligible for CAT relief.
To demonstrate eligibility for withholding of removal
under the CAT, an alien must show that it is “more likely than
not” that a government official or person acting in an official
capacity would torture him or aid or acquiesce in his torture
by others. Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.
2001); 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1). The standard
of proof — more than fifty percent — is the same as for regu-
lar withholding of removal under 8 U.S.C. § 1231(b)(3).
Unlike regular withholding of removal, though, the regula-
tions that implement the CAT do not specify two routes (a
3022 WAKKARY v. HOLDER
“pattern or practice” route and a “singled out individually”
route) by which an applicant may establish that likelihood. 8
C.F.R. § 1208.16(c)(3). Rather, the CAT regulations cast a
wide evidentiary net, providing that “all evidence relevant to
the possibility of future torture shall be considered, including,
but not limited to . . . evidence of gross, flagrant or mass vio-
lations of human rights within the country of removal, where
applicable, and other relevant information regarding condi-
tions in the country of removal.” Id.
In a sense, then, Wakkary is arguing for a rule that is
already effectively required by the regulations themselves —
given our understanding that disfavored group analysis is sim-
ply an evidentiary approach to determine the risk that faces an
alien if he is returned to the country from which he fled.
Widespread mistreatment of a certain group of people may
well be relevant to an applicant’s claim that he faces a clear
probability of torture upon return, depending upon the facts of
the case. That this is so is not a product of Sael so much as
it is necessitated by the CAT regulations themselves.
[18] In Wakkary’s case, however, the record contains no
evidence whatsoever that Wakkary is likely to be tortured,
rather than persecuted, by government officials or with their
acquiescence on return to Indonesia. The CAT regulations
define torture as
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as obtaining from him or her
or a third person information or a confession, pun-
ishing him or her for an act he or she or a third per-
son has committed or is suspected of having
committed, or intimidating or coercing him or her or
a third person, or for any reason based on discrimi-
nation of any kind . . . .
8 C.F.R. § 208.18(a)(1). Wakkary has presented some evi-
dence that torture occurs in Indonesia — for example, against
WAKKARY v. HOLDER 3023
certain detainees in military or police custody — but he has
offered no evidence that he is likely to find himself in such
a position, or that torture is used against members of the Chi-
nese Christian minority. While Wakkary need not show that
the torture he fears would be “on account of” any of the five
protected grounds of race, religion, nationality, political opin-
ion, or particular social group, he must still provide some rea-
son to think that he is likely to be tortured by the actors he
fears. There being no such evidence in the record, we affirm
the BIA’s denial on this point.
III. CONCLUSION
In summary, we conclude that the agency applied an incor-
rect standard in determining whether Wakkary’s asylum claim
is time-barred, and so we remand for reconsideration on that
claim. Regarding Wakkary’s claim for withholding of
removal, we conclude that the agency’s determinations that
Wakkary failed to demonstrate past persecution or a pattern
or practice of persecution against Chinese Christians in Indo-
nesia are supported by substantial evidence. We hold, how-
ever, that the agency erred in refusing to consider the
evidence regarding whether Wakkary belonged to a disfa-
vored group in assessing the likelihood that he would face
future persecution for withholding of removal purposes, and
so remand to the BIA for reconsideration of the withholding
determination. Finally, we conclude that the BIA’s denial of
CAT relief is supported by substantial evidence.
The petition for review is GRANTED in part, and DENIED
in part.