Samuel Sentosa v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2021
• Docket: 19-73171
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED AUG 30 2021 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMUEL SENTOSA, No. 19-73171

Petitioner, Agency No. A079-529-464

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted May 4, 2021 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 Before: BOGGS,** BERZON, and MURGUIA, Circuit Judges.

Samuel Sentosa is a citizen of Indonesia by nativity, Chinese by ethnicity, and

a Christian by faith. During Indonesia’s widespread discrimination and violence

against ethnic Chinese and Christians in the 1990s—including his own experiences

of being attacked, threatened, and robbed—Sentosa fled for American shores in

1999. He overstayed his visa and has been both granted and denied asylum and

withholding of removal more than once. The agency’s last determination was to

deport him. He seeks to stay on American soil with his American wife. On appeal,

he raises only his withholding-of-removal claim. We have jurisdiction to review

final orders of removal under 8 U.S.C. § 1252(a)(1). We do not revisit the facts

except to provide necessary context. We DENY in part and GRANT in part the

petition for review. We REMAND for full consideration of Sentosa’s disfavored-

group claim in a manner consistent with this order.

1. An applicant seeking withholding of removal must show that his life or

freedom would be threatened on account of one of the grounds enumerated in 8

U.S.C. § 1231(b)(3). Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). An

applicant may establish eligibility for withholding of removal based upon either past

** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 persecution or a clear probability of future persecution. Hanna v. Keisler, 506 F.3d

933, 939–40 (9th Cir. 2007). Past persecution creates a rebuttable presumption of

eligibility for withholding of removal. See, e.g., Mutuku v. Holder, 600 F.3d 1210,

1213 (9th Cir. 2010); Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). As

an alternative, an applicant can establish a clear probability of future persecution by

showing a “pattern or practice” of persecution against a group to which he belongs,

8 C.F.R. § 208.16(b)(2)(i)–(ii), or by showing that he will be singled out individually

for future persecution, id. § 208.16(b)(2).

2. Under a de novo standard of review, we might conclude that Sentosa has

suffered past persecution. But the deference we owe to the agency under the

substantial-evidence standard requires we uphold its determination that the

mistreatment Sentosa endured—the beating that targeted Christians on a bus, the

threat at knifepoint to make him stop attending his university Christian group, and

the mob robbery that targeted his Chinese ethnicity—did not amount to past

persecution. Although this court has found past persecution under similar

mistreatment, see, e.g., Mashiri v. Ashcroft, 383 F.3d 1112, 1119–21 (9th Cir. 2004),

it has also declined to find past persecution under arguably harsher mistreatment,

see, e.g., Gu v. Gonzales, 454 F.3d 1014, 1019–21 (9th Cir. 2006); see also Hoxha

v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003); Prasad v. INS, 47 F.3d 336, 339–

40 (9th Cir. 1995). Therefore, “[a]lthough a reasonable factfinder could have found

3 th[ese] incident[s] sufficient to establish past persecution, we do not believe that a

factfinder would be compelled to do so. We are not permitted to substitute our view

of the matter for that of the [BIA].” Prasad, 47 F.3d at 340 (second emphasis added).

3. Nor does the evidence compel this court to find that there is a pattern or

practice of persecution against Chinese people or Christians in Indonesia. Circuit

precedent, Wakkary v. Holder, 558 F.3d 1049, 1061 (9th Cir. 2009), and the

substantial-evidence standard prevent us from reversing the agency’s determination

here. Sentosa describes widespread discrimination against Christians and Chinese

people in Indonesia that is consistent with the discrimination described in Wakkary

and other cases that this court has found fell short of a pattern or practice of

persecution. Without evidence of worse discrimination now, we again cannot reverse

the agency’s determination.

4. The BIA failed to conduct a proper disfavored-group analysis to determine

if Sentosa is more likely than not to be persecuted in Indonesia. Disfavored-group

claims are based on an individualized risk of future persecution and are distinct

from claims based on past persecution or a pattern or practice of persecution.

See, e.g., Wakkary, 558 F.3d at 1060, 1062–63. In disfavored-group claims, an

applicant must both (1) belong to a disfavored group and (2) face an individualized

threat or have endured past harm. Id. at 1065.

4 Disfavored groups are those that face widespread discrimination that falls

short of a pattern or practice of persecution. See id. at 1066; Tampubolon v. Holder,

610 F.3d 1056, 1060 (9th Cir. 2010). Similarly, the individual past harms at issue in

such a claim fall short of past persecution, and individual threats involved do not, on

their own, show a “more likely than not” risk for future persecution. Wakkary, 558

F.3d at 1063–64. But an applicant can receive relief so long as, when both elements

are considered together, he faces an aggregate more-likely-than-not risk of future

persecution. See Id. at 1065–66. The logic of the disfavored-group doctrine is that

an applicant’s individualized risk cannot be accurately assessed in a vacuum, limited

only to what he or she has personally suffered. “[W]hen asking how likely it is that

an individual applicant will be ‘singled out’ in the future on the basis of his group

membership, it is indisputably relevant (though of course not dispositive) how others

in his group are treated.” Id. at 1064.

Sentosa seeks withholding of removal as a member of two disfavored

groups: Indonesian Christians, Tampubolon, 610 F.3d at 1062, and ethnic Chinese

in Indonesia, Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004).

5. The agency failed to carefully consider the widespread discrimination

against Christians and ethnic Chinese in Indonesia as well as Sentosa’s past harm

when it analyzed Sentosa’s disfavored-group claim. Its analysis was therefore

incomplete and requires remand for proper consideration. The agency’s last

5 reasoned decision on the issue was in December 2009. Yet in Sentosa v. Holder,

552 F. App’x 707 (9th Cir. 2014), just over four years later, this court remanded

the agency’s 2009 denial of Sentosa’s withholding claim because the agency’s

denial “did not discuss” the “substantial documentary evidence [Sentosa

submitted] pertaining to country conditions in Indonesia,” id. at 708. The prior

panel reasoned that “‘[T]he BIA has a duty to review the record,’ and when

important aspects of the claim are disregarded, ‘denial of relief is arbitrary’ and ‘we

must remand such cases for proper consideration.’” Ibid. (quoting Tukhowinich v.

INS, 64 F.3d 460, 463–64 (9th Cir. 1995)).

However, on remand the agency did not address Sentosa’s documentary

evidence of group discrimination and its relevance to his disfavored-group

claim. Instead, the immigration judge “incorporate[d] [the BIA’s 2009 decision]

by reference,” and the BIA in 2019 then declined to “revisit” the issue. The

agency’s failure to engage in a new disfavored-group analysis on remand may

be attributable to the prior panel’s statement that it was granting Sentosa’s

petition “as to [his] claim for withholding of removal based on a pattern or

practice of persecution.” Sentosa, 552 F. App’x at 708. The agency, however,

did not write that only the pattern-or-practice claim was remanded and continued

to analyze Sentosa’s disfavored-group claim in subsequent proceedings, albeit

6 in a cursory way. Further, the government conceded at oral argument that

Sentosa’s disfavored-group claim was remanded back to the agency, see Oral

Arg. 16:28–16:37, presumably as part of the decision to remand Sentosa’s

“application for withholding of removal.” Id. Therefore, the agency was required

to analyze both Sentosa’s “pattern or practice” and disfavored-group arguments

for withholding of removal. The agency failed to analyze the latter when it

merely adopted its earlier incorrect and conclusory analysis from 2009, which

the prior panel had reversed in 2014.

6. Proper disfavored-group analysis is fact intensive. The agency must

carefully consider the country-conditions evidence of discrimination against the

disfavored group and then weigh it in conjunction with the applicant’s individual

risk of harm. “The relationship between these two factors is correlational; that is to

say, the more serious and widespread the threat of persecution to the group, the less

individualized the threat of persecution needs to be.” Mgoian v. INS, 184 F.3d 1029,

1035 n.4 (9th Cir. 1999); see also Sael, 386 F.3d at 927. Here, Sentosa was harmed

or threatened two times because he is a Christian, and one time because he is

ethnically Chinese. Sentosa is at greater risk of persecution by belonging to two

disfavored groups than if he only belonged to one because he can be persecuted

on more than one independent ground. Further, Sentosa’s past harms, although

not sufficient to compel this court to find past persecution, are indicative of

7 individualized risk of future harm. See, e.g., Sael, 386 F.3d at 929; Hoxha, 319 F.3d

at 1184; Wakkary, 558 F.3d at 1063.

Because the disfavored-group doctrine is the cause of some confusion, we

compare Sael v. Ashcroft with Sentosa’s case to clarify the difference in

individualized risk needed to grant relief for asylum and withholding claims based

on disfavored-group status. First, Sentosa benefits from precedent that now

recognizes both Indonesian Christians and ethnic Chinese as disfavored groups in

Indonesia. Second, unlike Sael, Sael, 386 F.3d at 927–29, Sentosa suffered

discrimination on both grounds.

Finally, Sentosa’s past harms were also worse than what Sael suffered. For

instance, the boarding house where Sael lived was pelted with stones while she

remained inside, and her car was broken into and vandalized. Id. at 927. But she was

never physically harmed. Sentosa was harmed and his life was twice threatened face-

to-face. Both during the bus attack and after the Christian group meeting, he was

threatened with weapons—a knife and large sticks. See, e.g., Ruano v. Ashcroft, 301

F. 3d 1155, 1160–61 (9th Cir. 2002) (describing similar threats and attacks); Navas

v. INS, 217 F.3d 646, 658 (9th Cir. 2000) (same). A knife is a deadly weapon. See,

e.g., Rios v. Ashcroft, 287 F.3d 895, 898 (9th Cir. 2002). Although Sael and

Sentosa’s threats from the mobs they encountered were similar, unlike Sael, Sentosa

was robbed by the mob. Sentosa has “adduce[d] a considerably larger quantum of

8 individualized risk” than would be required for an asylum applicant like Sael.

Wakkary, 558 F.3d at 1066.

We therefore DENY in part and GRANT in part the petition for review. We

REMAND for full consideration of Sentosa’s disfavored-group claim in accordance

with this order.