Makatengkeng v. Gonzales

495 F.3d 876, 2007 U.S. App. LEXIS 18486, 2007 WL 2214486
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 3, 2007
Docket06-1630
StatusPublished
Cited by47 cases

This text of 495 F.3d 876 (Makatengkeng v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Makatengkeng v. Gonzales, 495 F.3d 876, 2007 U.S. App. LEXIS 18486, 2007 WL 2214486 (8th Cir. 2007).

Opinions

[878]*878MELLOY, Circuit Judge.

Harold Makatengkeng (“Makateng-keng”) and his now-adult son, Frengky Makatengkeng,2 natives and citizens of Indonesia, overstayed their non-immigrant visitor visas. After being charged as removable, Makatengkeng applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied all three applications, and the Board of Immigration Appeals (“Board”) adopted and affirmed the decision of the IJ. The Board also denied Makatengkeng’s “motion to admit evidence on appeal.” Makatengkeng now petitions our court for review. We deny the petition.

1. Background

Harold Makatengkeng arrived in the United States on July 4, 2002, as a nonim-migrant visitor. He overstayed his visa. On June 30, 2003, immigration authorities commenced removal proceedings against Makatengkeng by serving him with a notice to appear. At a master calender hearing on September 10, 2003, Makatengkeng admitted removability and indicated his intent to file a combined application for asylum,3 withholding of removal, and CAT relief. The IJ held a final removal hearing on November 2, 2004.

A. Factual Background

Makatengkeng and his wife, Reni Mare, both testified at the removal hearing. We recount the substance of their testimony here. Makatengkeng was born in Bitung, North Sulawesi, Indonesia, in 1957. Maka-tengkeng suffers from albinism and blurry vision; since living in the United States, he has been declared legally blind.

Starting when he was young, Makateng-keng was treated differently because of his albinism. In school, Makatengkeng was insulted daily by the other students and the teachers hit him because his poor eyesight prevented him from performing the work he was given. As an adult, the insults and abuse continued. People called Makatengkeng “budo,” an insult that means, according to Makatengkeng, “somebody that is a disgrace.” People also called Makatengkeng “londo,” the Java word for “Dutch.” Because the Dutch colonized Indonesia, being called Dutch is an insult. After she married Makatengkeng, Mare, who is not an albino, was subjected to the same insults. Mare’s relatives tried unsuccessfully to prohibit her from marrying Makatengkeng because, “people like [him] usually have no future.” Makatengkeng’s children were also insulted in school and in the streets because of their father’s condition. They were called “abnormal people,” or “budo,” and people laughed at them because their father was white. Sometime people would scream at them, calling them “stupid” or “londo.”

Makatengkeng graduated from high school; upon graduation, however, he was [879]*879unable to find employment. According to his testimony, no one would hire him because “of my situation like this. There is no way I can do anything.” Makateng-keng and his family were supported by his parents until he was able to start his own business servicing electronics. He had no formal training in electronics, but he learned the trade from his neighbor. Ma-katengkeng earned enough from his business to support his family.

Makatengkeng never suffered serious physical abuse, but he testified that people pulled the hair on his arms and removed the hat that he had to wear to protect his pale skin from the sun. Children and even some adults would throw rocks at Maka-tengkeng and his family every day when they went out, although never causing injury. Makatengkeng never reported these incidents to police; Mare testified that generally all the police are Muslim, and therefore it would do no good to report the discrimination and abuse the family suffered because Makatengkeng, Mare, and their children are Christians.

Makatengkeng moved around Indonesia, trying “to find peace.” He moved from Bitung to Surabaya, East Java, back to Bitung, then to Sorong, West Irian Jaya, back to Bitung again, to Sorong again, and, finally, to Jakarta. He and his family were insulted every place they lived.

Makatengkeng and his family attended church in Jakarta, Bitung, and Sorong. In 1999, the pastor of Makatengkeng’s church in Jakarta prohibited the congregation from having services for approximately three months. The pastor closed the church because he received a flyer from people in the community threatening the church. No one told the police about this incident because “usually the police are Muslim so there is no use.” Also in 1999, Makatengkeng’s cousin, who lived in a different area of Indonesia, was killed because of his Christian faith. During the time at issue, Makatengkeng testified, “all the Christians in that area [of eastern Indonesia] were killed.” Makatengkeng never lived in this region.

Makatengkeng testified that after the United States attacked Afghanistan, he felt terrified to leave the house. Because of his skin condition, some people in Indonesia thought he looked American, and he feared that the anger shown against the United States in daily demonstrations would be taken out on him. No one ever attacked him, but people warned him that he should “be careful when [he] walk[ed] outside because they will think you are American.” Makatengkeng testified that, after receiving his visa on April 5, 2001, he was even more afraid of staying in Indonesia. He did not arrive in the United States until July 4, 2002, however, because he wanted his son to finish school.

To support his claims for relief, Maka-tengkeng submitted the following: documents corroborating his family’s involvement in a Christian church in Indonesia; a letter from the Pentecostal Church of Indonesia in Minnesota; materials relating to his medical treatment from the Minnesota state services for the blind; a copy of his Indonesian identity card, which identifies him as a Christian; and news articles relating violence in Indonesia. The administrative record also included the U.S. State Department 2003 Country Report on Indonesia (“Report”).

B. The IJ’s Decision

The IJ found Makatengkeng and Mare to be credible. According to the IJ, the documents Makatengkeng provided confirmed that Makatengkeng is a Christian and that he has serious eye problems relating to his albinism. The IJ noted that “the main issue in the case relates to [Ma-katengkeng’s] medical condition” and [880]*880found little evidence to support a claim of persecution based on religious affiliation.

Starting with the asylum claim, the IJ found that Makatengkeng is a member of a particular social group because of his medical condition. According to the IJ, “[a]lbinism is an immutable characteristic that [Makatengkeng] is incapable of changing. It clearly identifies him on sight.” The court then determined that Makatengkeng did not show that he had suffered past persecution. The IJ cited Fisher v. INS, 291 F.3d 491, 497 (8th Cir.2002), for the proposition that “persecution involves a threat to one’s life or freedom on account of one of the protected bases under the [Immigration and Nationality] Act.” The IJ determined that Maka-tengkeng “was essentially the victim of social discrimination,” which does not amount to past persecution under the law. The IJ also found that Makatengkeng could not establish a well-founded fear of future persecution because the insults regarding his appearance did not “involve a serious threat to his life or freedom.”

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495 F.3d 876, 2007 U.S. App. LEXIS 18486, 2007 WL 2214486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/makatengkeng-v-gonzales-ca8-2007.