Cendrawasih v. Holder

571 F.3d 128, 2009 WL 1886915
CourtCourt of Appeals for the First Circuit
DecidedJuly 2, 2009
Docket08-2178
StatusPublished
Cited by6 cases

This text of 571 F.3d 128 (Cendrawasih v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cendrawasih v. Holder, 571 F.3d 128, 2009 WL 1886915 (1st Cir. 2009).

Opinion

BOUDIN, Circuit Judge.

Maya Cendrawasih, a native and citizen of Indonesia, seeks review of the Board of Immigration Appeals’ (“BIA”) denial of her asylum application. Cendrawasih left Indonesia on September 26, 2001, entering the United States on a non-immigrant visitor’s visa that expired on March 24, 2002. She sought asylum, withholding of removal, and relief pursuant to the Convention Against Torture (“CAT”) in November 2002. After deportation proceedings were initiated, a hearing was scheduled to consider her applications for all three forms of relief.

Cendrawasih testified that she is both Christian and ethnic Chinese. She recounted an incident where her brother was attacked and robbed by a group of Muslims, as well as incidents where a friend’s relatives were raped and stabbed. She personally felt threatened when, in 1998, a group of Muslims — one carrying a knife-approached her on a bus, although she escaped by leaping off the bus. In June 2001, a Muslim taxi driver sexually assaulted Cendrawasih, but she managed to escape without physical injury; the driver called out after her: “Chinese girl, where are you running to?”

Cendrawasih also testified that toward the end of her time in Indonesia, she became afraid to attend church due to bombings. Since coming to the United States, she has been an active member of her church. Cendrawasih married an Indonesian man in December 2003; the two have a young, U.S. citizen son. Although her father remained in Indonesia at the time of her initial hearing, both of Cendrawasih’s parents are now lawful permanent residents of the United States.

After the hearing, the immigration judge (“IJ”) denied her relief save for granting her voluntary departure; the IJ did not consider her asylum application, finding it time-barred, but resolved the withholding and CAT claims on the merits. Cendrawasih appealed to the BIA; the BIA initially dismissed her appeal but on motion to reconsider, remanded the asylum claim for resolution on the merits. The IJ— relying on the testimony from the first hearing — denied relief; the BIA then dismissed Cendrawasih’s second appeal. She now seeks review in this court, challenging only the denial of asylum.

To obtain asylum, Cendrawasih had to establish a well-founded fear of future persecution on account of race, religion, nationality, membership in a social *130 group, or political opinion. 8 U.S.C. § 1101(a)(42)(A) (2006); 8 C.F.R. § 208.13(b) (2009). A showing of past persecution gives rise to a rebuttable presumption of future persecution. 8 C.F.R. § 208.13(b)(1). In addition, the applicant must establish that the persecution is a result of government or government-supported action, or the government’s inability or unwillingness to control private actors. Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir.2008).

The IJ found Cendrawasih to be credible, but denied relief because she had failed to establish that her fear of future persecution was well-founded. The IJ determined that Cendrawasih’s testimony seeking to show past persecution established only a few isolated incidents, and her fear of future persecution — while genuine — was not objectively reasonable, particularly in light of improved country conditions. On review, the BIA agreed that Cendrawasih failed to meet her burden of proof to qualify for asylum; it also denied her request to consolidate her proceedings with her husband’s application.

Where a challenge is to factual determinations, we must uphold IJ and BIA decisions when “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted), reversing only if a reasonable fact-finder would be compelled to conclude relief was warranted, id. at 483-84, 112 S.Ct. 812 (codified at Immigration and Nationality Act § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B)). There may, of course, be other flaws in a decision beside raw infirmities in fact-finding.

Cendrawasih’s main argument in this court is that her case should be remanded because the IJ and the BIA did not consider the impact of her brother’s successful application for asylum on her claims. She argues that a well-founded fear of persecution can be based on the experiences of others who are similarly situated, and her brother is similarly situated to her. Her husband obtained a remand from an adverse ruling, Ticoalu v. Gonzales, 472 F.3d 8 (1st Cir.2006), based in part on his brother’s successful asylum application, and on remand, her husband was granted withholding of removal. 1

We said in Ticoalu that the BIA should explicitly have considered whether the order granting Ticoalu’s brother asylum was material to Ticoalu’s own claim; the court said that it was “likely that either the IJ in the instant case or the IJ who issued Ticoalu’s brother’s order has erred in assessing the extent of inter-religious violence in Indonesia and, in particular, in Sulawesi.” Id. at 12. However, there is no such tension in this case and Ticoalu’s reasoning does not apply: after Cendrawasih filed her petition, the BIA reversed the IJ’s grant of asylum to her brother.

The IJ and BIA here appropriately relied on country condition reports, Budiono, 548 F.3d at 49, and found that, while there is still religious tension in Indonesia, “conditions ... appear to be improving.” The problems faced by Christian and ethnic Chinese individuals in Indonesia have been addressed by this court on numerous occasions, and we have upheld this determination, finding that there is “no ongoing pattern or practice of persecution against ethnic *131 Chinese or Christians in Indonesia,” Kho v. Keisler, 505 F.3d 50, 54 (1st Cir.2007), and that thus country conditions without more do not qualify a Christian Indonesian for asylum, Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir.2008).

The individual difficulties Cendrawasih has faced, while thoroughly unpleasant, are a series of isolated incidents, Budiono, 548 F.3d at 49, no greater than those faced by other Indonesian Christians that this court has found insufficient to warrant asylum. Susanto v. Gonzales, 439 F.3d 57 (1st Cir.2006); Budiono, 548 F.3d at 46, 49-50.

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Bluebook (online)
571 F.3d 128, 2009 WL 1886915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cendrawasih-v-holder-ca1-2009.