United States Court of Appeals Fifth Circuit F I L E D Revised July 30, 2004 July 21, 2004 UNITED STATES COURT OF APPEALS For the Fifth Circuit Charles R. Fulbruge III Clerk
No. 03-60092
JOPIE EDUARD,
Petitioner,
VERSUS
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent. -------------------------------------------------------------- consolidated with
No. 03-60093
YULIANA PAKKUNG,
Respondent.
Petition for Review of an Order of the Board of Immigration Appeals
Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges. DeMOSS, Circuit Judge:
Petitioners, citizens of Indonesia, were ordered removed by
the Immigration and Naturalization Service (“INS”). The
Immigration Judge (“IJ”) dismissed their applications for asylum
and withholding of removal. The Board of Immigration Appeals
(“BIA”) affirmed without opinion. Petitioners contend that the IJ
erred by denying their applications for asylum. They also assert
that the IJ erred by failing to address their claims for relief
under the Convention Against Torture (“CAT”). We hold that the IJ
committed legal error and therefore reverse and remand for further
proceedings not inconsistent with this opinion.
BACKGROUND
Petitioners Jopie Eduard (“Eduard”) and his wife, Yuliana
Pakkung (“Pakkung”), are natives and citizens of Indonesia.
Pakkung entered the United States in June 1989, as a nonimmigrant
visitor, with permission to remain for six months. Eduard entered
the United States in June 1991, as a nonimmigrant crewman, with
permission to remain for 29 days.
The INS initiated removal proceedings against Pakkung and
Eduard in November 2000. Pakkung and Eduard conceded removability,
and applied for asylum and withholding of removal.1
The IJ held a consolidated hearing on April 23, 2001. The IJ
1 Petitioners each filed an “Application for Asylum and/or Withholding of Removal.” Both applications claimed, inter alia, that they feared being subject to torture in Indonesia.
2 issued an oral decision denying Eduard’s and Pakkung’s applications
for asylum, and denying withholding of removal pursuant to INA
§ 241(b)(3)(B). 8 C.F.R. § 208.16(b) (2004). The IJ reasoned
that neither applicant had established past persecution or a well-
founded fear of future persecution. The IJ did not discuss whether
removal could be withheld under the CAT. Id. § 208.16(c).
A member of the BIA, acting for the board, affirmed the IJ’s
decision without opinion. Eduard and Pakkung timely filed this
appeal.
DISCUSSION
Because the BIA summarily affirmed the opinion of the IJ, we
review the factual findings and legal conclusions of the IJ. See
Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003) (providing
that the IJ’s decision is the final agency decision if the BIA
summarily affirms). We must uphold the IJ’s factual findings
unless we find that they are not supported by substantial evidence
in the record. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).
Substantial evidence is lacking only if the petitioner establishes
that the record evidence was “so compelling that no reasonable fact
finder could fail to find” the petitioner statutorily eligible for
asylum or withholding of removal. INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992); Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th
Cir. 2001). We review conclusions of law de novo. Mikhael v.
INS, 115 F.3d 299, 305 (5th Cir. 1997); Carbajal-Gonzalez v. INS,
3 78 F.3d 194, 197 (5th Cir. 1996). Consequently, even though we are
required to review the factual findings of the IJ for substantial
evidence, we nevertheless may reverse an IJ’s decision if it was
decided on the basis of an erroneous application of the law.
Mikhael, 115 F.3d at 305.
Petitioners contend that the IJ erred by (1) denying their
applications for asylum2 and (2) failing to address their claims
for relief under the CAT.
I. Whether the IJ erred by denying Petitioners’ applications for asylum.
Petitioners first contend that the IJ erred by denying their
applications for asylum. The Attorney General is authorized to
grant asylum to “refugees.” INA § 208(a), 8 U.S.C. § 1158(a)
(2004); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987);
Mikhael, 115 F.3d at 303. A refugee is:
[A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .
2 Petitioners do not discuss the IJ’s denial of their applications for withholding of removal under INA § 241(b)(3)(B). Withholding of removal requires a higher standard of proof than asylum. INS v. Stevic, 467 U.S. 407, 429-30 (1984); Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994). This “level of proof . . . is more stringent than for asylum purposes.” Mikhael v. INS, 115 F.3d 299, 306 (5th Cir. 1997). Thus, the IJ’s dismissal of Petitioners’ asylum claims was dispositive of their withholding of removal claims.
4 INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2004).3 Applicants
bear the burden of proving that they qualify for refugee status.
8 C.F.R. § 208.13(a) (2004); Faddoul, 37 F.3d at 188. Petitioners
assert that they were eligible for asylum because they (1) suffered
past persecution on account of their race and religion and
(2) possessed a well-founded fear of future persecution on account
of their race and religion.
A. Past Persecution.
Petitioners contend that the IJ erred by holding that they had
not suffered past persecution. In particular, they argue that
(1) the IJ’s factual findings are not supported by substantial
evidence and (2) the IJ applied erroneous law by not analyzing the
separate incidents of harm in the aggregate.
1. Whether substantial evidence supports the IJ’s finding of no past persecution.
Petitioners argue that the IJ’s finding of no past persecution
is not supported by substantial evidence. Persecution has been
defined by this Court as:
The infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take
3 Being classified as a refugee, however, does not automatically grant the alien asylum. Mikhael, 115 F.3d at 303 (recognizing this definition to be “a provision stated in precatory language, i.e., it allows the Attorney General the discretion to grant asylum to refugees”).
5 other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.
Abdel-Masieh v. INS, 73 F.3d 579, 583-84 (5th Cir. 1996) (citation
omitted).4
Eduard is a Christian of Manado ancestry; he asserts, however,
that Indonesians presume he is Chinese because of his skin tone and
the shape of his eyes. When Eduard lived in Indonesia, he was
struck in the head with a rock while walking to church. Although
Eduard was not able to identify the assailant, he nonetheless
presumed that the assailant was a Muslim because the assault
occurred just days after a large civil dispute between the
Government and the Muslims.5 Eduard sustained cuts on his head and
was given medication to stop the bleeding. Eduard also testified
that he was taunted as a “pork eater” by a Muslim while he sat on
a bus. Aside from the stone-throwing incident, Eduard was never
4 Persecution is an “extreme concept that does not include every sort of treatment our society regards as offensive.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (citation omitted); see also Ouda v. INS, 324 F.3d 445, 450 (6th Cir. 2003) (“[D]iscrimination does not ordinarily amount to persecution within the meaning of the Act.”); Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998) (stating that persecution “requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty”). 5 Petitioners contend that the IJ mischaracterized “the Tanjung Priok riots” as a “civil disturbance caused by certain Muslims failing to obey police orders.” Petitioners, however, fail to establish that the IJ’s characterization of the riots as a “civil disturbance” was not supported by substantial evidence.
6 physically punished or harmed in Indonesia because of his Christian
faith or imputed Chinese ethnicity.
Pakkung is a Christian of Chinese ethnicity. She testified
that she was taunted in school by Muslim students and that the bus
of a fellow Christian was stoned in 1986. Pakkung, however, did
not actually witness the stoning. Pakkung also stated that her
grandparents tried to convert her to Islam when she was eight years
old. She claimed that they “hit [her] and beat [her] up” when she
refused to say Muslim prayers. Pakkung, however, did not testify
that she suffered any injuries or that she ever required medical
treatment.
The IJ found that “the taunting described by [Eduard] and the
general harassment does not rise to the level of a serious
punishment or harm that would justify a grant of asylum.” The IJ
also concluded that “there is no evidence that [Pakkung] was ever
targeted for any actual physical abuse in Indonesia.”
The IJ’s findings are supported by substantial evidence.
Neither Eduard nor Pakkung were interrogated, detained, arrested,
or convicted in Indonesia. The only violence suffered by either
party, on account of either religion or ethnicity, was the injury
to Eduard’s head allegedly caused by a purported Muslim. The rest
of the mistreatment recounted during the IJ hearing was composed of
mere denigration, harassment, and threats. Neither discrimination
nor harassment ordinarily amounts to persecution under the INA,
even if the conduct amounts to “morally reprehensible”
7 discrimination on the basis of race or religion. Fisher v. INS,
79 F.3d 955, 961 (9th Cir. 1996). Thus, substantial evidence
supports the IJ’s finding that Petitioners failed to establish past
persecution.
2. Whether the IJ applied erroneous law by not analyzing the separate incidents of harm in the aggregate.
Petitioners also contend that the IJ committed legal error by
not considering the incidents of harm in the aggregate. Matter of
O-Z- & I-Z-, 22 I & N Dec. 23, 26 (BIA 1998). Neither the
Petitioners’ briefs nor the IJ’s decision establishes that the IJ
analyzed each incident of harm in isolation. Because the burden of
proving that the IJ analyzed each incident independently falls on
Petitioners, and Petitioners have failed to carry that burden, we
do not agree with Petitioners and thus find no error.
B. Petitioners’ Well-Founded Fear of Persecution.
Despite an adverse finding on their claims of past
persecution, Petitioners can still establish their refugee status
by demonstrating well-founded fears of persecution. An applicant
has a well-founded fear of persecution if:
(A) The applicant has a fear of persecution in his or her country of nationality . . . on account of race, religion, nationality, membership in a particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and
(C) He or she is unable or unwilling to return to, or
8 avail himself or herself of the protection of, that country because of such fear.
8 C.F.R. § 208.13(b)(2)(i). “To show a well-founded fear of
persecution, an alien must have a subjective fear of persecution,
and that fear must be objectively reasonable.” Lopez-Gomez,
263 F.3d at 445. The applicant must establish that “a reasonable
person in [his] circumstances would fear persecution” in his native
country. Faddoul, 37 F.3d at 188. Moreover, a finding of a well-
founded fear of persecution is negated if the applicant can avoid
persecution by relocating to another part of his home country.
8 C.F.R. § 208.13(b)(2)(ii). The well-founded fear standard,
however, does not require an applicant to demonstrate that he will
be persecuted in his native country; rather the applicant must
“establish, to a ‘reasonable degree’, that return to his country of
origin would be intolerable.” Mikhael, 115 F.3d at 305 (quoting
Cardoza-Fonseca, 480 U.S. at 439).
Petitioners contend that the IJ erred by holding that they did
not establish well-founded fears of persecution. In particular,
Petitioners argue that the IJ applied erroneous law to conclude
that: (1) their feared persecution was not on account of race or
religion; (2) their feared persecution was unreasonable; and
(3) they could relocate within Indonesia.
1. Whether the IJ applied erroneous law to conclude that Petitioners’ feared persecution was not on account of race or religion.
Petitioners contend that the IJ applied erroneous law to
9 conclude that Petitioners’ feared persecution was not based on race
or religion. The IJ concluded that Petitioners did not satisfy
8 C.F.R. § 208.13(b)(2)(i)(A), which requires that a fear of
persecution be “on account of” a protected belief or
characteristic. Although the IJ recognized that Petitioners’ fears
were partially due to their Christianity,6 the IJ held that such
fear was not “on account of” their religion because Indonesia is
rife with civil uprisings and violence which are not specific to
Christian or Chinese inhabitants.7
The IJ supported this legal conclusion by citing Matter of
Mogharrabi, 19 I & N Dec. 439, 447 (BIA 1987) abrogated on other
grounds by Pitchershaia v. INS, 118 F.3d 641, 647 (9th Cir. 1997).
Respondent cites Hallman v. INS, 879 F.2d 1244 (5th Cir. 1989), and
6 The IJ held that “a general climate of violence based, at least in part, on differences between Islam and Christianity and socio- economic tensions, as described by the United States State Department, which are exacerbated by Chinese ethnicity, exists in Indonesia.” 7 The IJ stated that “religious tensions in Indonesia between Christians and Muslims have spawned violence and there is a risk of violence in Indonesia, not only for [Petitioners], but for all citizens who live in Indonesia.” The IJ found that “not all of the [forced religious] conversions involve forced conversions of Christians to Islam. There have also been reports of Muslims who are forced to convert to Christianity.” The IJ emphasized that “there have been closures and attacks not only on churches, but also temples and mosques, in different parts of Indonesia.” The IJ also noted that “both the Christian and the Muslim communities blame each other for initiating and perpetuating violence.” The IJ stated that “[a]lthough conditions are tense in parts of Indonesia, it appears that [Petitioners] would not be at any greater risk than any other citizen of Indonesia if they returned.”
10 Campos-Guardado v. INS, 809 F.2d 285 (5th Cir. 1987), to further
support the IJ’s conclusion. None of these cases, however, holds
that a fear of persecution based on a protected belief or
characteristic is negated simply because the applicant also fears
general civil violence and disorder.
Mogharrabi states:
[A]n alien who succeeds in establishing a well-founded fear of persecution will not necessarily be granted asylum. He must also show that the feared persecution would be on account of his race, religion, nationality, membership in a particular social group, or political opinion. Thus, for example, aliens fearing retribution over purely personal matters, or aliens fleeing general conditions of violence and upheaval in their countries, would not qualify for asylum. Such persons may have well-founded fears, but such fears would not be on account of their race, religion, nationality, membership in a particular social group, or political opinion.
Mogharrabi, 19 I & N Dec. at 447 (emphasis added).
In Campos-Guardado, we found that an applicant’s fear of
persecution on account of her uncle’s political opinion did not
support a finding of a well-founded fear of persecution. 809 F.2d
at 288, 291. We stated that Congress, when it passed the statute
governing asylum applications, “did not intend to confer
eligibility for asylum on all persons who suffer harm from civil
disturbances–conditions that necessarily have political
implications.” Id. at 290.
In Hallman, we held that a bombing raid upon an applicant’s
village was not on account of the applicant’s political opinion,
but rather a battlefield tactic designed to eliminate a source of
11 security and support available to guerillas in a war zone.
879 F.2d at 1247. We concluded that “asylum is not available to
every victim of civil strife, but is restricted to those persecuted
for particular reasons.” Id.
These cases hold that an applicant’s fear of persecution
cannot be based solely on general violence and civil disorder.
None of these cases, however, supports the IJ’s proposition that
fear based on a protected belief or characteristic is negated
simply because of general violence and civil disorder. Congress no
doubt anticipated that citizens of countries rife with general
violence and civil disorder would seek asylum in the United States.
If it had intended to deny refugee status to applicants from such
countries, who also feared persecution based on one of the five
statutorily protected beliefs and characteristics, it would have
presumably stated so.
Upon review of the record, it is clear that Petitioners’ fears
of persecution were not based solely on the peripheries of civil
violence and disorder.8 For example, Pakkung submitted in her
application that she:
[I]s afraid to go back to Indonesia because Christians are being persecuted there by the Moslems and the Indonesian government cannot control them. Killings, bloodshed, burnings, persecutions of Christians are happening all over Indonesia in places like Jakarta,
8 It is less clear whether Petitioners established that they feared persecution on account of their Chinese ethnicity (or imputed ethnicity in Eduard’s case).
12 Bandung, Solo, Situbondo, Surabaya, Lombok, Bali, West Kalimantan, Ujung Pandang, Poso, Maluku Island and even in Irian Jaya . . . . When the Government catches the Moslem culprits, they pardon and release them.
She also testified that she feared being persecuted by the Laskar
Jihad, a group which pressures Christians to convert to Islam.
Eduard testified that the Muslim majority presents a risk to
Christians everywhere in Indonesia under present conditions.
Eduard’s siblings, who live in Indonesia, are afraid to attend
church due to the violence. Another witness, Gideon Tandirerung,
confirmed that Christians are pressured to convert to Islam and
that churches are routinely burned. He also described the
widespread influence of the Laskar Jihad, who are responsible for
forced conversions and other physical violence against Christians.
A review of the record indicates that Petitioners’ fears of
persecution were based on their Christian faith in particular, and
Indonesian civil strife in general. The IJ committed legal error
by analyzing whether Petitioners’ fear of persecution was “on
account of” their race or religion using a standard not supported
by case law or the regulations.
2. Whether the IJ applied erroneous law to conclude that the Petitioners’ fear of persecution was unreasonable.
Petitioners also contend that the IJ applied erroneous law to
conclude that their fears of persecution were unreasonable. See
generally Mikhael, 115 F.3d at 304 (holding that a well-founded
fear of persecution must be reasonable). To demonstrate the
13 reasonableness of a well-founded fear of persecution, an asylum
applicant must show that: (1) he possesses a belief or
characteristic a persecutor seeks to overcome by means of
punishment of some sort; (2) the persecutor is already aware, or
could become aware, that the alien possesses this belief or
characteristic; (3) the persecutor has the capability of punishing
the alien; and, (4) the persecutor has the inclination to punish
the alien. Mogharrabi, 19 I & N Dec. at 446.
The IJ misstated the legal standard to establish a
“reasonable” fear of persecution. The IJ stated:
A reasonable fear of persecution is not only a subjective fear. In addition an applicant must establish that: (1) the applicant possesses a belief or characteristic connected to one of the five statutory grounds for asylum; (2) the applicant has been targeted for punishment or harm based on that belief or characteristic; (3) the persecutor is aware, or becomes aware, that the applicant possesses that belief or characteristic; (4) the persecutor has the capability to punish or harm the applicant; (5) the persecutor has the inclination to punish or harm the applicant; and (6) the threat of persecution is country wide.
(Citing Matter of Acosta, 19 I & N Dec. 211, 231 (BIA 1985)
(emphasis added)). It is unclear why the IJ cites Acosta as
authority for the above statement of law, where that case fails to
discuss either the second or sixth element mentioned by the IJ and
outlines the third element differently than the IJ’s opinion. See
id. at 231. Respondent concedes that the IJ “slightly misstated”
the analysis. Petitioners argue that the IJ erred by (1) requiring
them to prove that they had been targeted, (2) requiring them to
14 prove that the persecutor is aware of their beliefs, and
(3) improperly considering the safety of Petitioners’ family
members in Indonesia.9
a. Whether the IJ erred by requiring Petitioners to prove that they had been targeted.
Petitioners contend that the IJ erred by requiring them to
prove that they “ha[d] been targeted for punishment or harm based
on [a protected] belief or characteristic.” The IJ held that
Petitioners failed to meet this element: “Although a general
climate of violence based, at least in part, on differences between
Islam and Christianity and socio-economic tensions, as described by
the United States State Department, which are exacerbated by
Chinese ethnicity, exists in Indonesia, [Petitioners] have not been
targeted for any of these reasons in the past in Indonesia.”
The asylum regulations provide that:
In evaluating whether the applicant has sustained the burden of proving that he or she has a well-founded fear of persecution, the asylum officer or immigration judge shall not require the applicant to provide evidence that there is a reasonable possibility he or she would be singled out individually for persecution if:
(A) The applicant establishes that there is a pattern or practice in his or her country of .
9 Element six, although not analyzed in this part of the opinion, is also not a factor to determine the “reasonableness” of the applicant’s fear. Rather, an IJ should conduct a “relocation” analysis upon finding that the fear of future persecution is reasonable. 8 C.F.R. § 208.13(b)(ii) (2004) (“An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality . . . .”).
15 . . persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and
(B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.
8 C.F.R. 208.13(b)(2)(iii) (emphasis added).
It is clear from the record, and the IJ’s findings, that there
was a pattern of persecution of Christians in Indonesia.10 Thus,
Petitioners were not required to show that they would be singled
out for persecution upon return to Indonesia. Id. Moreover,
requiring an applicant to prove past targeting to establish a well-
founded fear would effectively replicate the past persecution
inquiry. Thus, the IJ committed legal error by requiring that
Petitioners prove they had been targeted in the past.
b. Whether the IJ erred by requiring Petitioners
10 The IJ noted that the United States State Department has reported that in Indonesia there were “122 religiously motivated attacks on Christian churches and other Christian facilities during 2000. . . . These attacks resulted in 3,000 deaths, the displacement of nearly 500,000 people, and damage to at least 81 churches and dozens of mosques.” Pakkung claimed that “[k]illings, bloodshed, burnings, persecutions of Christians are happening all over Indonesia in places like Jakarta, Bandung, Solo, Situbondo, Surabaya, Lombok, Bali, West Kalimantan, Ujung Pandang, Poso, Maluku Island and even in Irian Jaya.” Gideon Tandirerung confirmed that Christians are pressured to convert to Islam and churches are routinely burned. Gideon Tandirerung testified that the Laskar Jihad is widely influential throughout Indonesia. He specified that the Laskar Jihad, in its efforts to convert Christians to Islam, routinely burns churches and commits physical acts of violence against Christians.
16 to prove that persecutors had actual awareness of Petitioners’ religion and ethnicity.
Petitioners also contend that the IJ erred by requiring them
to prove that “the persecutor is aware, or becomes aware, that the
applicant possesses that belief or characteristic.” It is well-
settled that asylum applicants must only demonstrate that a feared
persecutor “could easily become aware” of an applicant’s protected
beliefs or characteristics. Mogharrabi, 19 I & N Dec. at 446. Due
to the ambiguity of the IJ’s decision, it is unclear whether the IJ
actually required Petitioners to prove that persecutors were
already aware of their race or religion. Requiring such proof is
legal error and is significant because Petitioners’ ethnicity and
Christian faith are easily discoverable by potential persecutors in
Indonesia. Thus, the IJ erred by requiring Petitioners to prove
that the persecutors were aware of Petitioners’ race or religion.
c. Whether the IJ erred by improperly considering the safety of Petitioners’ family members in Indonesia.
The IJ emphasized that the reasonableness of Petitioners’
fears was diminished because their family members in Indonesia had
not been persecuted.11 Petitioners contend that the IJ “applied an
incorrect legal standard to determine the significance of family
11 Eduard’s siblings have not been harmed as a result of either their imputed Chinese ethnicity or Christian faith. Although Pakkung’s mother is afraid to go to church because of the recent church burnings, she has not been harmed because of her Chinese ethnicity or Christianity. Pakkung’s brother, however, was beaten at an Indonesian school when he was eight years old.
17 members residing in Indonesia to the question of whether [they]
have a well-founded fear of persecution there.”
In Matter of A-E-M-, 21 I & N Dec. 1157, 1160 (BIA 1998), the
BIA held that the reasonableness of an alien’s fear of persecution
is reduced when his family remains in his native country unharmed
for a long period of time after his departure. Petitioners attempt
to distinguish A-E-M-, where persecutors existed in only limited
areas, from cases, such as theirs, where the feared persecutors
operate throughout the whole country. Such a distinction is not
valid.
The holding of A-E-M- is not limited to cases where the
persecutor operates regionally. Id. at 1159-61. The opinion
merely sets out several factors to be considered, and applies those
factors to the facts of the case, which happened to involve
persecutors with a mere regional influence. Id. There is no
logical reason to distinguish between those cases with a regional
persecutor and those cases involving a national persecutor; in
fact, ongoing family safety seems to be an even stronger indicator
of “unreasonable” fear when the feared persecutor has a national
influence. Thus, it was not legal error for the IJ to consider the
fact that Petitioners’ families remain in Indonesia unharmed.12
12 Respondent does not cite any authority establishing that the safety of family members is enough, by itself, to render a fear of persecution unreasonable. Thus, it appears that it is merely one factor which courts should consider.
18 In summary, although the IJ was not precluded from considering
the safety of Petitioners’ family members in Indonesia, the IJ’s
holding that Petitioners’ fear of persecution was unreasonable was
nonetheless based on erroneous law. In particular, the IJ erred by
requiring Petitioners to prove that they had been targeted for
punishment in the past. The IJ also erred in its analysis
regarding whether persecutors were required to be aware of
Petitioners’ protected beliefs and characteristics.
3. Whether the IJ applied erroneous law to conclude that Petitioners could relocate within Indonesia.
Although the IJ applied improper legal analyses to determine
whether Petitioners’ fears of persecution were “reasonable,” such
errors are harmless if Petitioners could safely relocate within
Indonesia.
An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality . . . if under all the circumstances it would be reasonable to expect the applicant to do so.
8 C.F.R. § 208.13(b)(2)(ii). The regulations direct the IJ to
consider:
[W]hether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and family ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.
19 Id. § 208.13(b)(3).
Because there was no showing of past persecution, Petitioners
had the burden to establish that their relocation was unreasonable.
Id. § 208.13(b)(3)(i) (“In cases in which the applicant has not
established past persecution, the applicant shall bear the burden
of establishing that it would not be reasonable for him or her to
relocate, unless the persecution is by a government or is
government-sponsored.”).
Petitioners were required to show that relocation in Indonesia
was “not reasonable.” The IJ held that “although there are
differences in Indonesia with regard to the diverse populations,
that [Petitioners] could, if necessary, relocate within Indonesia
to avoid problems.” (Emphasis added). The IJ’s finding that
Petitioners could relocate “if necessary” in no way indicates that
the IJ applied the requisite standard of proof that relocation be
“not reasonable.”
Moreover, the tone of the IJ’s decision reveals the IJ did not
analyze whether Petitioners’ relocation would be “not reasonable.”
For instance, the IJ recognized many of the hardships of relocating
within Indonesia. The IJ recounted Eduard’s testimony that
“Indonesia has many diverse groups, and it would be difficult to
relocate within Indonesia in an inconspicuous way, and always the
Muslim majority would present a risk under present conditions.”
The IJ also recognized that the Laskar Jihad has infiltrated the
20 Christian settlements within Indonesia.13 The IJ applied an
erroneous heightened standard of proof by requiring that
Petitioners establish they would be unable to relocate even “if
necessary.”
In conclusion, the IJ correctly held that Petitioners did not
suffer past persecution. The IJ committed legal error, however, in
holding that Petitioners did not have a well-founded fear of
persecution. In particular, the IJ applied erroneous law in
concluding that: (1) Petitioners’ fear was not based on race or
religion, (2) Petitioners’ fear was unreasonable, and
(3) Petitioners could relocate within Indonesia.
Petitioners’ applications for withholding removal under INA
§ 241(b)(3)(B) were summarily denied based on the IJ’s denial of
their applications for asylum. Thus, the IJ’s denials of
Petitioners’ applications for asylum and withholding of removal
under INA § 241(b)(3)(B) are reversed and remanded for a
determination under the proper legal standards.
II. Whether the IJ erred by failing to address Petitioners’ claims for relief under the CAT.
The IJ did not address whether Petitioners’ removal may be
withheld under the CAT. Respondent explains that Petitioners
13 Petitioners presented substantial evidence emphasizing the severe barriers to relocation in the Indonesian archipelago: the one million Indonesians currently displaced; the various ethnic upheavals throughout the country; and the diversity of languages and customs.
21 failed to raise sufficient claims for relief under the CAT.14
Petitioners, however, contend that their applications for asylum
and withholding of removal under INA § 241(b)(3)(B) constituted
sufficient claims for CAT relief.15
Petitioners argue that, as a matter of law, CAT claims are
raised every time an applicant files for asylum or withholding of
removal under INA § 241(b)(3)(B). We do not agree. A claim under
the CAT is a separate claim from withholding of removal under the
INA. Efe v. Ashcroft, 293 F.3d 899, 906-07 (5th Cir. 2002).
Moreover, regulatory language indicates that applicants must
demonstrate some specific intent to raise a claim for CAT relief.
Title 8, C.F.R. § 208.18(b) states that “[a]n alien who is in
exclusion, deportation, or removal proceedings on or after March
22, 1999 may apply for withholding of removal under [the CAT].”
14 It is irrelevant that Petitioners raised claims for CAT relief before the BIA. See generally Matter of Jimenez-Santillano, 21 I. & N. Dec. 567, 570 n.2 (BIA 1996) (stating that BIA need not consider an issue raised for the first time on appeal); Matter of Edwards, 20 I & N Dec. 191, 196 n.4 (BIA 1990) (same). 15 Petitioners first contend that the BIA should not have summarily affirmed the decision of the IJ as a matter of law because it contained “substantial factual and legal issues.” We do not agree with Petitioners as such review would be “unnecessary and duplicative” because courts review the actual merits of the claim when addressing the IJ’s decision. Carriche v. INS, 335 F.3d 1009, 1018 (9th Cir. 2002), amended and superseded by 350 F.3d 845 (9th Cir. 2003). That is, “[t]he decision to streamline becomes indistinguishable from the merits” of the case. Id. If the IJ’s decision is incorrect, the Board “is saddled with any errors the IJ makes and with the risk of reversal on grounds that do not reflect the BIA’s actual reasons.” Id.
22 (Emphasis added). In addition Title 8, C.F.R. § 208.16(c)(4)
states: “In considering an application for withholding of removal
under the Convention Against Torture, the immigration judge shall
first determine whether the alien is more likely than not to be
tortured in the country of removal.” (Emphasis added). Thus, a
claim for CAT relief is not raised, as a matter of law, by simply
filing an application for asylum or withholding of removal under
INA § 241(b)(3)(B).
Petitioners next contend that their responses to their
“Application for Asylum and/or Withholding of Removal” constituted,
as a matter of fact, a claim for CAT relief. Their asylum
applications expressly stated that they feared being subjected to
torture in Indonesia. Question 5 of the application asked: “Do you
fear being subjected to torture (severe physical or mental pain or
suffering, including rape or other sexual abuse) in your home
country or any other country if you return?” Both Petitioners
marked the box stating “Yes,” and described their fears of future
torture related to their religion and ethnicity. For example,
Pakkung stated on her application that “[k]illings, bloodshed,
burnings, persecutions of Christians are happening all over
Indonesia” and “[a] lot of bodies have been thrown in the forest
and become food for wild pigs.” Eduard stated on his application
that he is “afraid [he] will be beaten or killed for practicing
[his] religion.”
23 Neither the regulations nor the briefs nor arguments in this
case elaborate on what constitutes a sufficient claim for CAT
relief. Nonetheless, applicants who file for general withholding
of removal under INA § 241(b)(3)(B), and express on such
application their fear of torture, probably believe that they have
raised a claim for CAT relief. For instance, CAT relief is
described in the same Federal Regulation that outlines the
withholding of removal under INA § 241(b)(3)(B). See 8 C.F.R.
§ 208.16(c). Likewise there is no separate form that an applicant
must file to claim relief under the CAT. Moreover, withholding of
removal under INA § 241(b)(3)(B) does not require that an applicant
have a fear of torture; therefore, the very existence of a question
regarding torture on the application for general withholding of
removal might lead an applicant to believe he has raised a claim
for CAT relief. Because there is no separate and distinct procedure
for seeking CAT relief, then Petitioners’ application responses,
which clearly evinced their fears of torture, constitute claims for
relief under the CAT.
Respondent, however, argues that Petitioners did not expressly
mention the CAT during their hearing before the IJ. Nonetheless,
Respondent cites no authority to establish that an applicant need
restate legal claims which had been previously claimed in a written
application.
Petitioners raised claims for withholding of removal under the
24 CAT but the claims were ignored. Therefore, we find that the CAT
claims were raised before the IJ, and Respondent concedes that a
remand of this issue is required if the CAT claims were raised.
See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (holding that the
courts of appeals may not review the administrative records to
consider matters that must have been determined by the agency in
the first instance).
CONCLUSION
Having carefully reviewed the record of this case, the
parties’ respective briefing and arguments, for the reasons set
forth above we hold the following. The IJ did not err by finding
that Petitioners failed to establish past persecution. The IJ
nonetheless erred by holding that Petitioners did not have a well-
founded fear of persecution. In particular, the IJ applied
erroneous law in concluding that: (1) Petitioners’ fear was not
based on race or religion, (2) Petitioners’ fear was unreasonable,
and (3) Petitioners could relocate within Indonesia. Petitioners
also raised CAT claims before the IJ that were not addressed.
Thus, the IJ’s denial of Petitioners’ applications for asylum,
withholding of removal under INA § 241(b)(3)(B), and withholding of
removal under the CAT is reversed and remanded for further
REVERSED AND REMANDED.
EMILIO M. GARZA, Circuit Judge, dissenting.
25 The majority opinion is not properly deferential to the immigration judge’s (“IJ”) finding that
Eduard and Pakkung could reasonably relocate to parts of Indonesia where they would not be subject
to future persecution. It cites no evidence in the record that “compels a contrary conclusion,” see
8 U.S.C. § 1252(b)(4)(B); I.N.S. v. Elias-Zacharias, 502 U.S. 478, 481 & n.1 (1992), and ignores
the “substantial evidence” cited by the IJ demonstrating that such a relocation would be reasonable,
see Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Further, the majority opinion
incorrectly concludes that Eduard and Pakkung raised their Convention Against Torture (“CAT”)
claims in their asylum applications. Eduard and Pakkung neither requested relief under the CAT, nor
did they articulate a factual basis to support such a claim in either their asylum applications or in their
hearing before the IJ. Thus neither the IJ nor the Board of Immigration Appeals (“BIA”) erred by
not considering the claims. Because I believe there is no evidence in the record compelling reversal
of the IJ’s refusal to grant the petitioners asylum petitions, I respectfully dissent.
“An applicant does not have a well-founded fear of persecution if the applicant could avoid
persecution by relocating to another part of the applicant’s country of nationality . . . if under the
circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(2)(ii).
“[T]he applicant shall bear the burden of establishing that it would not be reasonable for him or her
to relocate . . . .” 8 C.F.R.§ 208.13(b)(3). Based on a country report from the State Department
which concluded that most of the attacks against Christians in Indonesia “occurred in north Maluku
and central Sulawesi provinces,” the IJ determined that “the more serious incidents of violence and
forced conversions . . . have been localized.” It then concluded, taking into account “differences in
Indonesia with regard to the diverse populations, that the respondents could, if necessary, relocate
within Indonesia” to avoid the areas where the religious persecutions are most acute.
26 The majority opinion concludes that the IJ applied a “heightened standard of proof by
requiring Petitioners establish they would be unable to relocate even ‘if necessary.’” The IJ did not
apply a fictional “if necessary” standard to the petitioners’ claims. Rather, it simply noted that upon
returning to Indonesia the petitioners could reasonably relocate to parts of the country where violence
against Christians is significantly less prevalent, if necessary. If Eduard and Pakkung, however, found
that their fear of persecution in their home region was unwarranted, then such a relocation would be
unnecessary. Admit tedly, the IJ never used the magical word “reasonable” in concluding that the
petitioners could relocate to safer parts of Indonesia upon their return home. However, such a
conclusion is implicit in the IJ’s finding that the petitioners co uld relocate “if necessary,” and its
ultimate denial of both petitions for asylum for failure to establish a well-founded fear of persecution.
Further, the majority opinion points to no evidence in the record compelling a contrary
conclusion. See 8 U.S.C. § 1252(b)(4)(B) (“The administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.”); Elias-Zacharias, 502
U.S. at 481 & n.1; Ontunez-Turcios v. Ashcroft, 303 F.3d 341, 351 (5th Cir. 2002) (Petitioner “must
set forth evidence so compelling that no reasonable factfinder could fail to find” a well-founded fear
of persecution.). The majority opinion cites to testimony from Eduard that he believes that it would
be difficult to relocate within Indonesia and to the IJ’s finding that Laskar Jihad has infiltrated
Christian settlements within Indonesia to support its reversal of the IJ’s ruling.
The majority opinion’s reliance on this evidence is unwarranted. The IJ specifically found
that the Laskar Jihad’s activities were limited to particular regions of Indonesia))giving the
petitioners the opportunity to relocate to other parts of the country. Further, Eduard’s conclusory
27 testimony that he believes that it would be too difficult to relocate in Indonesia does not by itself
make the IJ’s conclusion to the contrary unreasonable. The IJ relied on a State Department report
to conclude that the threat of persecution was limited to certain regions of the country, and
considered the ethnic and cultural differences between regions of Indo nesia in concluding that
relocation was reasonable. Eduard’s testimony, though informative, does not negate the veracity of
the State Department report, the reasonableness of the IJ’s reliance on it, or the IJ’s ultimate
conclusion that the petitioners could reasonably relocate.
The majority opinion points to no evidence in the record that suggests that the IJ’s conclusion
that religious persecution of Christians is limited to certain regions of Indonesia is unreasonable, or
even incorrect . Further it points to no evidence that establishes that moving to a different part of
Indonesia would demonstrate a unique hardship to the petitioners, or that they would be targeted for
religious persecution in parts of Indonesia not identified by the State Department’s report or the IJ’s
opinion. The majority’s decision to reverse the IJ’s ruling seems to be due to its uncomfortableness
with “the tone of the IJ’s decision.” Improper tone is not a legitimate reason to reverse an IJ’s ruling.
This is especially the case here because the IJ’s decision is supported by substantial evidence and
there is no evidence in the record compelling a contrary ruling.
The majority opinion finds that the IJ and the BIA erred in not considering Eduard and
Pakkung’s CAT claims, first raised in their appeal to the BIA, because the petitioners might have
believed that they raised their CAT claims as part of their application for withholding of removal. The
majority opinion concedes that neither Eduard nor Pakkung explicitly requested relief under CAT in
their asylum applications or during their hearing before the IJ. But it concludes that because the
petitioners checked the YES box under the question “Do you fear being subjected to torture. . . if you
28 return?” on their asylum applications the IJ should have assumed they were seeking relief under CAT
and considered their unarticulated claims. I cannot agree.
As the majority notes, an applicant must demonstrate specific intent to raises a claim for CAT
relief. See C.F.R. § 208.18(b) (requiring alien to “apply for withholding of removal under [the
CAT]”). There is no doubt that neither Eduard nor Pakkung specifically requested relief under CAT.
While I am comfortable with the majority opinion’s conclusion that an alien may articulate a claim
under CAT without specifically referring to the convention, under certain circumstances, I do not
believe that the petitioners articulated such a claim. Indeed, both Eduard and Pakkung checked the
YES box under the question “Do you fear being subjected to torture . . . if you return?”; however,
neither articulated a factual claim of fear of torture.
The regulations implementing the CAT define torture:
as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person 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 discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. 208.18(a)(1) (emphasis added).
In his asylum application Eduard simply states that he fears that he will be beaten or killed
because of his religion. He never claims that he would be tortured by “a public official or other
person acting in an official capacity,” as is required by the regulations. In fact, his fear of being killed
or beaten is based, he claims, on “the long history of violence between Muslims and Christians in
Indonesia,” not on any belief on his part that the Indonesian government would target him for torture.
29 Pakkung’s asylum application is similarly devoid of a claim of fear of torture. While in her
affidavit she does articulate a grim scene in Indonesia where “killings, bloodshed, [and] burnings” are
occurring in parts of the country, she does not claim that either she or anyone she knows has either
been tortured or is targeted for torture. Pakkung neither uses the term torture in her affidavit, nor
does she describe any factual situation where a public official has inflicted or intends to inflict severe
physical or mental pain on her or anyone similarly situated to her.
While I can understand that an alien may be confused as to the process for applying for relief
under CAT, I do not believe that a person intending to seek relief under the convention would be at
all confused about the need to articulate a factual claim of fear of torture. Neither Eduard nor
Pakkung claimed in their asylum applications and affidavits or during their hearing before the IJ that
they believed that they would be tortured if they returned to Indonesia, much less that they would be
tortured by a public official.
An IJ cannot consider and rule on a claim for relief under CAT if he does not know that a
claim has been made. The IJ cannot possibly know that such a claim has been made if the alien does
not specifically request relief under the convention or at least articulate a factual claim of fear of
torture that would be cognizable under the regulations implementing CAT. Cf. Portis v. Nat. Bank
of New Albany, Mississippi, 34 F.3d 325, 331 (5th Cir. 1993) (“The raising party must present the
issue so that it places the opposing party and the court on notice that a new issue is being raised.”).
Because Eduard and Pakkung never articulated to the IJ that they either feared being tortured if they
returned to Indonesia or that they desired to seek relief under CAT, I do not believe they raised their
CAT claims to the IJ. Neither the IJ nor the BIA erred by not ruling on these claims.
I believe there is substantial evidence supporting the IJ’s refusal to grant Eduard and Pakkung
30 applications for asylum, and the IJ and BIA did not err by not considering the petitioners claims under
the CAT. I would affirm its decision, and thus respectfully dissent.