Lead Opinion
Harold Makatengkeng (“Makateng-keng”) and his now-adult son, Frengky Makatengkeng,
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,
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
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
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,
The IJ likewise found that Makateng-keng could not meet the higher burden of proof required for a grant of withholding of removal.
The IJ then moved to Makatengkeng’s claim under the CAT. The IJ found that the people Makatengkeng fears in Indonesia “are essentially general members of society who have taunted and harassed him because of his physical appearance.” The IJ concluded that without any government involvement or evidence that Maka-tengkeng ever went to the authorities to complain about his condition, “[t]here simply is insufficient evidence in the record to establish that it is more likely than not that the government of Indonesia or someone acting with the acquiesce of the government would want to harm [Makateng-keng].”
On September 20, 2005, after he had submitted his brief to the Board, Maka-tengkeng filed a motion to the Board to “admit evidence on appeal.” Makateng-keng sought to introduce two pieces of evidence: (1) a statement from his siblings regarding the country conditions in Indonesia, and (2) a recent diagnosis he received showing that he suffered from skin cancer. As an appendix to the motion, Makatengkeng attached a letter from his diagnosing doctor, dated July 8, 2005, which stated that Makatengkeng’s skin cancer was a result of “growing up and living in the tropics” with albinism. The letter stated that Makatengkeng “is at great risk for further skin cancer if he remains in a tropical area, and he is also at risk for melanoma, which can be deadly.” In his motion, Makatengkeng argued that his skin cancer diagnosis demonstrated that “he [would] face additional hardship” if he was removed to Indonesia. He asked the Board to admit and consider the additional evidence based on “the principle of fundamental fairness and the interests of justice,” or, alternatively, to remand the case to the IJ.
On February 13, 2006, the Board adopted and affirmed the IJ’s decision, adding that “[t]he concept of persecution does not encompass every sort of treatment that our society regards as offensive, unfair, unjust, or even unlawful or unconstitutional.” Regarding Makatengkeng’s motion to “admit evidence on appeal,” the Board treated the motion as a motion to reopen, and found that “the allegations and submissions on appeal do not meet the requirements for such a motion.” The Board dismissed Makatengkeng’s appeal and denied his motion. The Board mentioned that the type of “hardship” relief Makatengkeng appeared to be seeking with the introduction of the new evidence would be more relevant in an application for cancellation of removal.
We review the Board’s factual determinations for substantial evidence. Mamana v. Gonzales,
A. Asylum
The Attorney General has discretion to grant asylum to a refugee. 8 U.S.C. § 1158(b)(1)(A). “Refugee” is defined as a person who is outside his country of nationality and is unable or unwilling to return to 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.... ” 8 U.S.C. § 1101(a)(42)(A).
“A finding of past persecution creates a presumption of a well-founded fear of future persecution” on the same grounds. Woldemichael v. Ashcroft,
1. Particular Social Group
As a threshold matter, we have doubts as to whether Makatengkeng can show that albino Indonesians qualify as a “particular social group” for asylum purposes. Makatengkeng argues that he was persecuted on two grounds: his medical condition and his Christianity. The IJ found, and we agree, that there is little substance to his claim of persecution based on his religion.
The IJ found that Makatengkeng’s “medical condition” made him a member of a particular social group because “[a]lbinism is an immutable characteristic that [he] is incapable of changing,” and because “[i]t clearly identifies him on sight.”
2. Past Persecution
We move next to the IJ’s determination that the harassment and hardship Makatengkeng suffered in Indonesia did not rise to the level of persecution. The Immigration and Nationality Act (“INA”) does not define “persecution,” but our court has held that persecution involves “the infliction or threat of death, torture, or injury to one’s person or freedom on account of a statutory ground.... ” Woldemichael,
“Low-level intimidation and harassment alone do not rise to the level of persecution.” Berte v. Ashcroft,
Makatengkeng argues that the economic discrimination he faced in Indonesia amounts to past persecution. Further, he contends that the insults and harassment he suffered, when examined in the aggregate, rise to the level of persecution. For the following reasons, we disagree.
We first discuss Makatengkeng’s argument that he suffered economic persecution. Makatengkeng contends that the level of economic hardship he suffered in Indonesia, on account of his albinism, amounted to economic persecution. Maka-tengkeng and his wife testified that, despite having completed high school, no one would hire him to perform any job. Maka-tengkeng faced the same problems every place he lived in Indonesia. Further, he testified that his now-deceased brother, who was an albino, also could not find work.
Our circuit’s case law regarding economic persecution is not as developed as that in other circuits. Claims of economic persecution are often embedded with claims of other forms of hardship and discrimination, where petitioners, like Makateng-keng, ask us to aggregate their experiences and find persecution. See Fisher,
Our decision in Ahmed referenced two other cases in which we stated that a petitioner’s allegations of economic hardship did not rise to the level of economic persecution: Nyonzele v. INS,
Likewise, in Minwalla, we affirmed the Board’s determination that a petitioner’s allegations did not establish a well-founded fear of persecution. Minwalla,
Makatengkeng urges us to adopt the test espoused by the Ninth Circuit in Kovac v. INS,
We note that the Board has recently clarified its standard for economic persecution. See In re T-Z-, 24 I. & N. Dec. 163 (B.I.A.2007). In that case, the Board rejected the idea that a person seeking asylum based on economic persecution must “demonstrate a total deprivation of livelihood or a total withdrawal of all economic opportunity in order to demonstrate harm amounting to persecution.” Id. at 173. The Board stated that in considering economic persecution, it determines whether the petitioner faced the “deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.” Id. at 171 (emphasis added). Thus, the Board stated, to the extent that the Kovac line of cases use the phrase “substantial economic disadvantage” to establish a lesser standard than the word “severe,” it rejects that formulation and “endorse[s] the ... requirement that an applicant for asylum must demonstrate a ‘severe economic disadvantage.’ ” Id. at 173 (emphasis added).
Except in a few circumstances, our court has continued to require a showing that allegations of economic hardship threaten the petitioner’s life or freedom in order to rise to the level of persecution. See Quomsieh,
In the proper case, it might be appropriate for our court to revisit the standard for proving economic persecution; this, however, is not that case. Simply stated, Ma-katengkeng’s allegations do not rise to the level of economic persecution under any of the standards discussed above. Maka-tengkeng asserts that, despite having a high school diploma, he was unable to find work because of his albinism. Having no way to support his family, Makatengkeng first relied on his parents (who are now deceased). However, Makatengkeng was then able to start his own business servicing electronics. He had no formal training in electronics; he testified that he learned his trade from a neighbor. Makateng-keng’s electronic business was successful. He was able to make enough money to support his wife (who did not work outside the home) and his two children. Evidence of this ability supports the IJ’s finding of no past persecution. The employment discrimination Makatengkeng faced in Indonesia on account of his albinism does not rise to the level of persecution, even under the standard Makatengkeng urges us to adopt.
Makatengkeng’s other complaints of discrimination on account of his albinism likewise do not rise to the level of persecution, see Fisher,
There is substantial evidence supporting the Board’s finding that Makatengkeng did not suffer past persecution.
3. Well-Founded Fear of Future Persecution
Further, we find that Makateng-keng has not proven a well-founded fear of persecution in the future, economic or otherwise. Both Makatengkeng and his wife testified that they feared life in Indonesia would be the same as it was when they left: people would insult them, Makateng-keng would be unable to find a job, and they would have no peace. The IJ found that their fear was credible. Again, however, even in the aggregate, the repercus
Specifically regarding his fear of future economic persecution, Makatengkeng argues that because his eyesight has deteriorated in the years since he left Indonesia, he will not be able to re-establish his electronics-servicing business if he returns. Medical records show that, even with corrective lenses, Makatengkeng is legally blind. Makatengkeng’s prospects upon returning to Indonesia appear to be worse than when he left. While this fact is troubling, we find nothing in the record that permits us to reverse the IJ and the Board’s decisions. Makatengkeng has a well-founded fear of economic hardship, not economic persecution; this is not enough to support an asylum claim. See Feleke v. INS,
Alternatively, a finding of a well-founded fear of persecution would also require the determination that Makatengkeng fears harm “inflicted either by the government of [a country] or by persons or an organization that the government [is] unable or unwilling to control.” Valioukevitch v. INS,
Because Makatengkeng “failed to satisfy the relatively lower burden of proof on his asylum claim” with regard to the severity of the alleged persecution, Mamana,
III. Motion to Admit Evidence on Appeal
Regarding his “motion to admit evidence on appeal,” Makatengkeng focuses on the letter from his treating physician discussing Makatengkeng’s diagnosis of skin cancer; we will do the same. Maka-tengkeng argues that this evidence “is particularly relevant to [his] application for asylum ... in that [he] established that he had been previously denied medical treatment in Indonesia.” Makatengkeng contends that the Board erred by failing to consider the additional evidence and by mischaracterizing the evidence as an attempt to qualify for cancellation of removal.
The Board denied Makatengkeng’s motion to reopen, finding “that the allegations and submissions on appeal do not meet the requirements for such a motion.” The Board stated that Makatengkeng’s claim of “ ‘hardship’ is not an element of establishing eligibility for asylum.”
We agree with the Board that Maka-tengkeng’s skin cancer diagnosis is not material to his application for asylum, withholding of removal, or CAT relief. Makatengkeng attempts to link the diagnosis with his testimony that doctors in Indonesia said they could do nothing for his albinism, and he argues that this fact adds to his claim of a well-founded fear of future persecution. The current diagnosis does not prove a failure to diagnose by doctors in Indonesia. Makatengkeng’s fear that the medical care he will receive in Indonesia will not be as effective as the care he would receive in the United States is not a fear of persecution. Evidence of Makatengkeng’s diagnosis of skin cancer would not have changed the outcome of any of his claims. See Berte,
As to Makatengkeng’s argument that the Board erred by not reviewing his medical condition as a hardship factor pursuant to 8 C.F.R. § 208.13(b)(l)(iii)(B), we note that this provision “requires a showing of past persecution.” Akhtar v. Gonzales,
The Board did not abuse its discretion in denying Makatengkeng’s motion to reopen.
IV. Conclusion
The facts of this case are sympathetic. As distasteful as it may be to send someone with Makatengkeng’s medical issues back to a country where he and his family will undoubtedly face harassment and discrimination, “Congress has delegated this judgment to the Executive Branch.” Pavlovich v. Gonzales,
Notes
. Despite his adulthood, Frengky Makateng-keng was treated as a derivative beneficiary on his father's application for relief because he was younger than twenty-one years old on the date his father applied for asylum. See 8 U.S.C. § 1158(b)(3)(B). Because Frengky's claim for asylum and related relief derives entirely from his father's claim, we refer only to Harold Makatengkeng in our discussion.
. Makatengkeng filed a pro se asylum application with the Immigration Service Asylum Office, which was received sometime in February or March of 2003. Shortly thereafter, immigration officials registered Makateng-keng for the National Security Entry-Exit Registration System ("NEESRS”), and placed him in removal proceedings. Accordingly, the Immigration Service Asylum Office did not adjudicate his initial asylum application. With the IJ's permission, Makatengkeng filed a second asylum application after his master calender hearing.
. The only evidence of religious persecution particular to Makatengkeng is his testimony regarding the closure of his church for two weeks in 1999. Further, while the experience of certain members of Makatengkeng's family and the Report demonstrate that Christians in certain regions are subject to considerable violence, Makatengkeng never lived in any of these regions, and he testified that, if removed, he would not live in these regions.
. At oral argument the government seemed to concede the fact that Makatengkeng was a member of a particular social group.
. Makatengkeng concedes that he is not eligible for cancellation of removal. See 8 U.S.C. § 1229b(a) (stating that ''[t]he Attorney General may cancel removal ... if the alien ... (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony”).
Concurrence Opinion
concurring in part and concurring in the judgment.
I reluctantly agree that the petition for review should be denied. I cannot, for the life of me, comprehend why the United States has chosen to devote its scarce prosecutorial resources to ensuring that a middle-aged, law-abiding, blind albino is sent back to Indonesia — where, because of the color of his skin, he is certain to be treated brutally and likely to face starvation. At the very least, the government’s decision “seems contrary to the traditions of this great Nation.” Pavlovich v. Gonzales,
For the reasons given in the careful and well-reasoned majority opinion, I agree that the Executive Branch has not acted unlawfully in seeking to remove Makateng-keng. I join all of the majority opinion, with the exception of those portions of § 11(A)(3) in which the majority holds that Makatengkeng has not established a well-founded fear of future economic persecution.
I agree that, under Eighth Circuit precedent, economic discrimination (such as the refusal to give someone a job) does not rise to the level of economic persecution unless it poses “a threat to life or freedom.” Ahmed v. Ashcroft,
Makatengkeng has proven that, if he is returned to Indonesia, his life will be threatened by the economic discrimination that he will face. Nothing in the record contradicts Makatengkeng’s evidence that he will not be able to find employment because of his albinism. Likewise, nothing in the record contradicts Makatengkeng’s evidence that the consequence of this discrimination will be to leave Makatengkeng without any means to support himself. (Because of his blindness, Makatengkeng can no longer earn a living by working at home, as he did before he came to the United States.) I believe that Makateng-keng has thus established more than a well-founded fear of “economic hardship,” as in Ahmed,
That said, Makatengkeng must prove more than that he will be persecuted; he must prove that the persecution that he will face will be inflicted by the government or by persons that the government is unable or unwilling to control. Menjivar v. Gonzales,