640 F. App'x 653
9th Cir.2016Background
- Darwin Theodore, an Indonesian citizen (Chinese ancestry, Christian), sought asylum, withholding of removal, and CAT protection; BIA dismissed his appeal and this court reviews the denial.
- Theodore testified to repeated past incidents: school bullying, a machete assault on his father, fear during 1998 Jakarta riots, a New Year’s Eve beating in Bali, and threats to churches — but no recent persecution for over four years before emigrating.
- BIA and IJ found these incidents amounted to discrimination and petty violence but not past persecution sufficient for asylum.
- The BIA found no pattern or practice of persecution against ethnic Chinese/Christians in Indonesia and concluded Theodore lacked a well-founded fear of future persecution; family members remain in Indonesia without incident.
- Because asylum failed, the BIA also denied withholding of removal (higher "clear probability" standard) and denied CAT relief, finding record evidence insufficient to show torture more likely than not by or with acquiescence of Indonesian officials.
Issues
| Issue | Theodore's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Theodore suffered past persecution qualifying for asylum | His history of harassment, violence, and threats due to ethnicity/religion amounted to past persecution | Incidents were discriminatory/petty violence but not severe enough to constitute persecution | Denied — incidents insufficient to establish past persecution |
| Whether Theodore has a well-founded fear of future persecution | Fear based on ethnic/religious status and country conditions | No pattern/practice shown; incidents ceased years before departure; family not targeted | Denied — no objectively reasonable, individualized risk |
| Whether withholding of removal is warranted (clear probability standard) | Same evidence supports a clear probability of persecution | Higher standard not met given asylum failure and record | Denied — standard not satisfied |
| Whether CAT protection applies (more likely than not tortured by or with acquiescence of government) | Risk of torture asserted based on country reports and testimony | Record does not show government acquiescence or likelihood of torture | Denied — substantial evidence supports denial |
Key Cases Cited
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (standard for past persecution and evaluating discriminatory incidents)
- Halim v. Holder, 590 F.3d 971 (9th Cir. 2009) (assessment of well‑founded fear and temporal gap between incidents and departure)
- Castro‑Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011) (definition of refugee/asylum eligibility)
- Hernandez‑Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007) (comparative severity of past persecution in childhood cases)
- Castillo v. INS, 951 F.2d 1117 (9th Cir. 1991) (continued undisturbed residence after incidents undermines well‑founded fear)
- Hakeem v. INS, 273 F.3d 812 (9th Cir. 2001) (family remaining safely in home country weakens persecution claim)
- Jiang v. Holder, 754 F.3d 733 (9th Cir. 2014) (withholding of removal is more stringent than asylum)
- Bringas‑Rodriguez v. Lynch, 805 F.3d 1171 (9th Cir. 2015) (CAT standard: torture more likely than not with government acquiescence)
- Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003) (BIA may rely on prior asylum findings in denying CAT relief)