Felix Kustono v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 4, 2024
• Docket: 23-3439
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0003n.06

No. 23-3439

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 04, 2024 ) KELLY L. STEPHENS, Clerk FELIX KUSTONO, ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION MERRICK B. GARLAND, Attorney General, ) APPEALS Respondent. ) ) OPINION )

Before: GRIFFIN, BUSH, and LARSEN, Circuit Judges.

PER CURIAM. Felix Kustono petitions this court for review of an order of the Board of

Immigration Appeals (BIA) dismissing his appeal from the denial of his application for asylum,

withholding of removal, and protection under the Convention Against Torture (CAT). As set forth

below, we DENY the petition for review.

Kustono, a native and citizen of Indonesia, entered the United States in May 2004 on a

visitor visa with authorization to remain for a six-month period. More than a decade later, in April

2015, Kustono filed an affirmative application for asylum and withholding of removal, claiming

persecution based on his Christian religion, and for CAT protection. The Department of Homeland

Security served Kustono with a notice to appear in removal proceedings, charging that, after his

admission as a nonimmigrant, he had remained in the United States for a time longer than

permitted. See 8 U.S.C. § 1227(a)(1)(B). In written pleadings, Kustono admitted the factual

allegations set forth in the notice to appear and conceded removability as charged. No. 23-3439, Kustono v. Garland

In his declaration and testimony supporting his application, Kustono asserted that he was

unwilling to return to Indonesia because he suffered mistreatment by Muslims there. Kustono,

who has been a practicing Catholic all his life, testified that Muslims mocked and looked down on

him for his Christianity.

According to Kustono, when he was young, Muslims identified him as Catholic because

he wore a school uniform with his non-Muslim name on it. While Kustono and his brother were

once walking home from school, a group of Muslims called them “kafir”—“an unholy person”—

and attempted to attack them, but they escaped by running home to their parents. In the early

1980s, when Kustono was around 11 years old, a group of Muslims approached him on public

transportation, and one of them punched him in the eye. The group laughed at him and then left.

He recalled that his eye hurt and that he experienced blurred vision and dizziness. Kustono went

to his parents, who took him to a nearby clinic.

Kustono also testified that, in November 1998, there was “a riot” during which Muslims

attempted to attack a church where he was praying. As Kustono escaped, he was hit by a metal

object, which injured his arm. Kustono went to a nearby pharmacy for bandages to stop the

bleeding and suffered “a little bit of fever” and scarring from the injury.

Kustono testified that he did not personally experience any other problems in Indonesia.

In his declaration, however, he asserted that his Muslim colleagues at work harassed and

discriminated against him, that Muslims threw stones at his home, and that his car was vandalized

on several occasions. Kustono further testified about an incident in February 2004 when Muslims

attacked a member of his parents’ Bible study group, but he could not recall any other problems

encountered by his family or friends in Indonesia.

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After the hearing, the immigration judge (IJ) issued a decision denying Kustono’s

application for asylum, withholding of removal, and CAT protection and ordering his removal to

Indonesia. The IJ first found that Kustono was credible and that he had provided sufficient

corroboration of his Christian religion. The IJ next determined that Kustono had failed to file his

asylum application within the one-year filing deadline and had failed to do so within a reasonable

time following any allegedly changed circumstances in Indonesia. See 8 U.S.C. § 1158(a)(2)(B),

(D). The IJ noted that Kustono cited a spike in discrimination and violence by Muslims against

Christians, but that spike had occurred “more than a decade” before he filed his application. As

for his application for withholding of removal, the IJ found that Kustono had failed to establish

past persecution on account of his religion by actors the Indonesian government was unable or

unwilling to control. The IJ went on to determine that Kustono had failed to demonstrate a clear

probability of future persecution in Indonesia on account of his religion, finding that he had failed

to establish an objectively reasonable fear of persecution, a pattern or practice of persecution

against Christians, or persecution on account of a protected ground. Also, according to the IJ,

Kustono had failed to show that relocating to another part of Indonesia to avoid future persecution

would be unreasonable. Finally, the IJ determined that Kustono had failed to demonstrate that he

would more likely than not be tortured if he returned to Indonesia or that the Indonesian

government would acquiesce in his torture, and thus he was not entitled to protection under CAT.

Kustono appealed the IJ’s decision to the BIA. Dismissing Kustono’s appeal, the BIA

adopted and affirmed the IJ’s decision. The BIA wrote separately to note that the IJ had

cited Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which had since been vacated by Matter of

A-B-, 28 I. & N. Dec. 307 (A.G. 2021). The BIA concluded that Kustono had failed to show that

the vacatur of the cited decision affected the outcome of his case.

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This timely petition for review followed. “Where the Board adopts the IJ’s decision and

supplements that decision with its own comments, as in this case, we review both the BIA’s and

the IJ’s opinions.” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011). We review the agency’s

factual findings for substantial evidence, reversing only if “any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Khalili v. Holder, 557 F.3d

429, 435 (6th Cir. 2009).

Asylum

The IJ denied Kustono’s asylum application as time-barred. An applicant for asylum must

“demonstrate[] by clear and convincing evidence that the application has been filed within 1 year

after the date of the [applicant’s] arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). If the

applicant fails to file his application within the one-year filing deadline, the application may

nonetheless be considered if the applicant demonstrates “the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). As relevant

here, “changed circumstances” may include “[c]hanges in conditions in the applicant’s country of

nationality.” 8 C.F.R. § 1208.4(a)(4)(i)(A). “The applicant shall file an asylum application within

a reasonable period given those ‘changed circumstances.’” Id. § 1208.4(a)(4)(ii).

The government contends that we lack jurisdiction to review the IJ’s denial of Kustono’s

asylum application as untimely. We lack jurisdiction to review determinations regarding the one-

year filing deadline for asylum applications but retain jurisdiction to review such determinations

when the applicant raises constitutional claims or questions of law, including “the application of a

legal standard to undisputed or established facts.” Guerrero-Lasprilla v. Barr, 589 U.S. __, 140

S. Ct. 1062, 1067 (2020); see 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).

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Kustono argues that the IJ applied an overly restrictive standard to assess whether he had

demonstrated changed circumstances warranting an exception to the one-year filing deadline and

that other circuits have found worsened conditions for Christians in Indonesia. We need not decide

whether we have jurisdiction to address these claims because, regardless, Kustono fails to address

the IJ’s ultimate ruling that he did not file his asylum application within a reasonable period

following any allegedly changed circumstances in Indonesia. See Admin. R. at 77 (“The Court

acknowledges the fluidity of country conditions within Indonesia in recent years, but the

respondent has not demonstrated that he took the appropriate steps to file for asylum within a

reasonable period based on any alleged changes within Indonesia. The respondent testified that

he was not sure why he waited to file for asylum in 2015, stating that he was trying to take his time

to decide about his future.”). He thus has forfeited review of the denial of his asylum application

by failing to address this dispositive issue in his brief. See Amezola-Garcia v. Lynch, 846 F.3d

135, 139 n.1 (6th Cir. 2016); Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005).

And even if Kustono’s asylum application were considered, his application would fail for

the same reasons that his application for withholding of removal fails. For the reasons discussed

below, Kustono cannot establish past persecution or a “well-founded fear” of future persecution

on account of his Christian religion. See Bonilla-Morales, 607 F.3d 1132, 1136 (6th Cir. 2010)

(quoting 8 U.S.C. § 1101(a)(42)).

Withholding of Removal

To qualify for withholding of removal, Kustono was required to demonstrate a clear

probability that, if removed to Indonesia, his “life or freedom would be threatened in that country

because of” his Christian religion. 8 U.S.C. § 1231(b)(3)(A); see Zaldana Menijar v. Lynch, 812

F.3d 491, 498 (6th Cir. 2015). If an applicant for withholding of removal “is determined to have

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suffered past persecution in the proposed country of removal on account of” a protected ground,

“it shall be presumed that the applicant’s life or freedom would be threatened in the future in the

country of removal on the basis of the original claim.” 8 C.F.R. § 1208.16(b)(1)(i).

The record does not compel the conclusion that Kustono suffered past mistreatment rising

to the level of persecution. “Persecution is an extreme concept that does not include every sort of

treatment our society regards as offensive.” Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004)

(cleaned up). “‘Persecution’ entails ‘punishment or the infliction of suffering or harm,’ but

‘harassment or discrimination without more does not rise to the level of persecution.’” Id. (quoting

Mikhailevitch v. INS, 146 F.3d 384, 389-90 (6th Cir. 1998)). “Types of actions that might cross

the line from harassment to persecution include: detention, arrest, interrogation, prosecution,

imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.” Gilaj

v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005) (per curiam) (quoting De Leon v. INS, 99 F. App’x

597, 598 (6th Cir. 2004)).

Kustono testified that he was physically harmed by Muslims in Indonesia on two occasions

over a 20-year period—he was punched in the eye in the early 1980s and was hit with a metal

object in 1998. Kustono otherwise complained about verbal harassment, discrimination at work,

and vandalism. The IJ found that these incidents, considered in the aggregate, failed to establish

harm rising to the level of persecution. Substantial evidence supports the IJ’s finding.

The IJ also found that Kustono had failed to show that the Indonesian government was

unable or unwilling to control his alleged persecutors. Because Kustono claimed persecution by

non-governmental actors, he had the burden to show that the Indonesian government was unable

or unwilling to control his alleged persecutors and protect him. See K.H. v. Barr, 920 F.3d 470,

475 (6th Cir. 2019); Khalili, 557 F.3d at 436. In determining “whether a government was unable

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or unwilling to control a private criminal,” the agency “must consider the totality of the

circumstances,” including “both specific evidence about the government’s response to the crimes

inflicted on an immigrant and general evidence about a country’s ability to deter those crimes.”

Palucho v. Garland, 49 F.4th 532, 536 (6th Cir. 2022).

Kustono testified that, when he was punched in the eye, his parents went to the police, who

“didn’t do anything.” Kustono also testified that, during the riot, he showed his injury to the police,

who “didn’t [do] anything.” The IJ found that general inaction by the police was insufficient to

establish that the Indonesian government was unable or unwilling to control Kustono’s alleged

persecutors, who were unknown assailants. The IJ pointed out that the country-conditions

evidence showed an active approach by the Indonesian government to protect Christians, including

prosecuting persons who supported violence against religious minorities and providing protection

for Christian churches during services. In light of the country-conditions evidence demonstrating

that the Indonesian government had taken steps to protect Christians, the IJ reasonably determined

that Kustono had failed to satisfy his burden to establish the government’s inability or

unwillingness to control his alleged persecutors. See id. at 536–37.

Because Kustono failed to establish past persecution, he was not entitled to a presumption

that his life or freedom would be threatened in the future in Indonesia on account of his religion

and was instead required to demonstrate that it was more likely than not that he would be

persecuted on account of his religion upon his removal to Indonesia. See 8 C.F.R.

§ 1208.16(b)(1)(i), (b)(2). Kustono testified that his siblings, who are also Christians, have

remained in Indonesia but have not told him about any harm that they have faced since he left the

country in 2004. “When the petitioner’s family members are also members of his . . . protected

group, the reasonableness of the petitioner’s claim of future persecution is undermined when the

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petitioner’s family members remain in the country of removal unharmed.” Amezola-Garcia,

846 F.3d at 142. The IJ acknowledged the prevalent discrimination and isolated violence against

religious minorities in Indonesia. But Kustono was required to “demonstrate more than the

existence of a generalized or random possibility of persecution in his native country” to qualify

for withholding of removal. Castellano-Chacon v. INS, 341 F.3d 533, 550 (6th Cir. 2003),

abrogated on other grounds by Almuhtaseb v. Gonzales, 453 F.3d 743, 747–48 (6th Cir. 2006).

Substantial evidence supports the IJ’s finding that Kustono had failed to demonstrate that it was

more likely than not that he would be persecuted in the future by Muslims in Indonesia.

Substantial evidence also supports the IJ’s finding that Kustono had failed to demonstrate

that relocation within Indonesia was unreasonable. An applicant for withholding of removal

“cannot demonstrate that his . . . life or freedom would be threatened if the” IJ “finds that the

applicant could avoid a future threat to his . . . life or freedom by relocating to another part of the

proposed country of removal and, under all the circumstances, it would be reasonable to expect

the applicant to do so.” 8 C.F.R. § 1208.16(b)(2). Kustono merely asserted that he could not

relocate because “Muslim people live everywhere in every part in Indonesia.” But as the IJ pointed

out, there are predominantly Christian provinces in Indonesia, and Kustono failed to explain why

he could not move to one of those provinces.

For these reasons, the record does not compel the conclusion that Kustono is eligible for

withholding of removal.

CAT Protection

Finally, the IJ addressed Kustono’s eligibility for CAT protection. To qualify for CAT

protection, Kustono was required to show that he would more likely than not be subjected to torture

if removed to Indonesia. See Ramaj v. Gonzales, 466 F.3d 520, 532 (6th Cir. 2006) (citing 8 C.F.R.

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§ 1208.16(c)(2)). “Torture is defined as any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted 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.” Zaldana Menijar, 812 F.3d at 501 (cleaned up).

The IJ acknowledged that Muslim extremists used violence to terrorize religious minorities

but pointed out that the Indonesian government had taken affirmative steps to combat violence

against religious minorities. In light of the country-conditions evidence demonstrating that the

Indonesian government had attempted to protect religious minorities, the IJ reasonably determined

that Kustono had failed to establish that the Indonesian government would acquiesce in his torture.

Id. at 502. The IJ also determined that Kustono had failed to present sufficient evidence that he

would more likely than not be subjected to torture if he returned to Indonesia. The record does not

compel a contrary conclusion given that Kustono failed to “establish a particularized threat of

torture.” Bi Xia Qu v. Holder, 618 F.3d 602, 610 (6th Cir. 2010) (quoting Cruz-Samayoa v. Holder,

607 F.3d 1145, 1155 (6th Cir. 2010)). Substantial evidence supports the IJ’s denial of CAT

protection.

For these reasons, we DENY Kustono’s petition for review.

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