Eduard v. AshcroftEduard v. Ashcroft
- Reporters:
- ,
- Before:
- DeMoss, Emilio M. Garza, Clement
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 nоnimmigrant 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
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 еvidence 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, 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.”
[A]ny person who is outside any country of such person‘s nationality or, in the case of a person having no nationаlity, 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 . . . .
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
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
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”
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 rаce, 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
avail himself or herself of the protection of, that country because of such fear.
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
The IJ supported this legal conclusion by citing Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987) abrogated on other grounds by Pitcherskaia v. INS, 118 F.3d 641, 647 (9th Cir. 1997). Respondent cites Hallman v. INS, 879 F.2d 1244 (5th Cir. 1989), and
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 pеrsonal 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
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 recоrd, 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,
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. Sеe generally Mikhael, 115 F.3d at 304 (holding that a well-founded fear of persecution must be reasonable). To demonstrate the
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
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 providе 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 . . .
(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.
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.
b. Whether the IJ erred by requiring Petitioners
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
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
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 avоid 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.
[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.
Because there was no showing of past persecution, Petitioners had the burden to establish that their relocation was unreasonable.
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 relocаting 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
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
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
Petitioners argue that, as a matter of law, CAT claims are raised every time an applicant files for asylum or withholding of removal under
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.”
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
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
REVERSED AND REMANDED.
EMILIO M. GARZA, Circuit Judge, dissenting.
“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.”
Further, the majority opinion points to no evidence in the record compelling a contrary conclusion. See
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
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 espеcially 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
As the majority notes, an applicant must demonstratе specific intent to raises a claim for CAT relief. See
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.
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.
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