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Uli v. Mukasey: IMMIGRATION - credibility; harassment not persecution; burden of proof on government regarding change in circcumstances; no error denying asylum

1Michael B. Mukasey has been appointed Attorney General of the United
States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2345
___________
Anita Dona Uli, *
*
Petitioner, *
* Petition for Review of an Order of
v. * the Board of Immigration Appeals.
*
Michael B. Mukasey,1 Attorney *
General of the United States. *
*
Respondent. *
___________
Submitted: March 14, 2008
Filed: July 18, 2008
___________
Before BYE, SMITH, and COLLOTON, Circuit Judges.
___________
SMITH, Circuit Judge.
Anita Dona Uli, a Christian native and citizen of Indonesia, petitions for review
of an order of the Board of Immigration Appeals ("the Board") affirming an
immigration judge's (IJ) denial of her application for asylum, withholding of removal
and Convention Against Torture (CAT) protection. For the reasons discussed below,
we deny the petition.
-2-
I. Background
Uli last entered the United States on November 26, 2002, as a nonimmigrant
visitor. In January 2003, she filed an application for asylum, and one year later,
removal proceedings began. Uli was charged with being removable, pursuant to
Immigration and Nationality Act (INA) section 237(a)(1)(B), as an alien who
remained in the United States for a time longer than permitted. At a hearing on
February 4, 2004, Uli conceded removability.
On March 4, 2005, she filed an updated application for asylum. Uli appeared
at an additional hearing on April 8, 2005, where she testified in support of her
application for relief. Uli testified that she was born and raised in Jakarta, Indonesia.
As a Catholic, Uli and her family attended church every week on Wednesdays and
Sundays, and the church she attended was only about 200 meters from her family's
home.
Uli claims religious persecution as a ground for relief. The factual backdrop
to Uli's asylum application includes the May 1998 Indonesian riots. Uli testified that
during these riots, her family home was burned. Early in the morning on the day her
home was burned, Uli smelled smoke and saw hundreds of Muslim people walking
down the street shouting. Uli's mother took her and her sister to a hiding place under
a nearby bridge; while hiding Uli watched her house burn. In addition to Uli's family
home, her church was also destroyed in a fire. Uli testified that she and her sister
stayed under the bridge where their mother had taken them until six o'clock that night.
Uli's mother returned to the family home to save important papers and to help Uli's
father and brother keep rioters away from the children's hiding place under the bridge.
Uli testified that during this day of rioting, her mother saw other people being
abused. Her father was beaten during the incident and, afterwards, went insane. Her
brother was stabbed in the stomach during the riots and has never fully recovered from
the wound. Following these events, none of Uli's family members went to the hospital
-3-
or saw a doctor for treatment. Uli testified that, as far as she knows, the police did not
come to the neighborhood during the riots, made no arrests and conducted no
investigation.
After the riots, according to Uli's testimony, her family remained in the same
location and rebuilt their house. Uli testified that she has heard that new threats were
made in 2003 to burn the house. Because Uli's church had burned down, she attended
various other churches. She recalls seeing cars vandalized while she attended church.
In addition to religious persecution based upon the riots, Uli also requests relief
based on sexual harassment that she suffered in Indonesia. She testified that she was
sexually assaulted, including being groped on the street. Once while on an elementary
school bus, Uli awoke with the Muslim conductor of the bus grabbing and touching
her breasts. Uli was not wearing Muslim garb at the time, and she believed that she
was targeted because she is Christian. In 2000, while on a college trip, she stayed in
a room with two other people and she woke up with a Muslim man on top of hershe
kicked him off. Uli was the only Christian girl on this trip. Uli also testified that she
suffered sexual harassment from her work supervisor in 2001. Uli made no formal
complaint but instead had her brother and father drive her to work for protection. Uli
had heard that her cousin was raped and that the police merely sent her cousin home.
Uli did not include either the sexual harassment or her brother's and father's riot
related injuries in her original asylum application.
Uli has made two trips to the United States. First, in February 2001, she came
with her parents. Uli traveled with a visitor's visa, and she did not tell anyone at the
consulate about her problems in Indonesia. Although Uli had a six-month visa, she
and her parents decided to return to Indonesia after one month in the U.S. to attend to
her brother. Uli accompanied her parents back to Indonesia to help them travel. In
November 2002, Uli returned to the United States this time for her sister's wedding.
As before, she did not mention fears to the consulate when getting her second visa.
-4-
Uli's older sister, Artati Triani Steward, also testified on her behalf. Steward,
now a Christian Scientist, came to the United States in 1999 and is a permanent
resident through marriage. Uli's sister testified that her brother had tried to obtain a
visa and had been unable to, and her parents remained there because of their son.
Steward recounted the problems that her family had experienced during the May 1998
riots, including the damage to their church and her brother's injury. She also testified
that she was aware that Uli had been sexually harassed in Indonesia. Steward stated
that she had made two return trips to Indonesia, once in 2002 and again in 2004 when
she stayed for three weeks in her family home. Steward knew of no harm to her family
since 1998 but said that there had been threats to burn the family home again.
On October 11, 2005, the IJ issued a decision finding Uli removable as charged,
denying her applications for asylum, withholding of removal and CAT protection, and
granting her voluntary departure. The IJ did not find Uli's evidence credible. The IJ
based this credibility determination on the absence of critical fact allegations from
Uli's first asylum application and asylum interview. Uli did not mention sexual abuse
nor did she mention the injuries suffered by her father and brother during the 1998
riots in her initial application. The IJ found that, in light of Uli's credibility issues, she
needed to present corroborating evidence and that she did not.
The IJ also questioned Uli's subjective fear in returning to Indonesia because
she had come to the United States in 2001 stayed one month and returned to
Indonesia. Additionally, Uli's sister, who is also a Christian, made two trips back to
Indonesia in recent years apparently without incident. The IJ stated further that even
if Uli had established some level of past persecution, circumstances have changed
substantially since 1998. The IJ noted that the 1998 riots affected many societal
groups, not exclusively religious, and violence in Jakarta has not approached that level
since that time. Because Uli's asylum claim failed, the IJ found necessarily that the
petition for withholding of removal also failed. The IJ also stated there was no
evidence of torture for the CAT claim. The IJ then granted voluntary departure.
2Uli did not raise her CAT claim in her brief on appeal and therefore has
abandoned the issue. See Anderson v. Larson, 327 F.3d 762, 771 (8th Cir. 2003)
(failure to raise or discuss an issue in the briefs is deemed to be an abandonment of
the issue).
-5-
On May 10, 2007, the Board, while not endorsing all aspects of the IJ's
decision, affirmed the decision of the IJ and dismissed the appeal. The Board did find
some merit with the issues raised by Uli on appealin particular, her contention that
the IJ erred in basing its adverse credibility finding on her reluctance to recount her
sexual harassment experience. The Board noted that supplementing an initial asylum
application does not lead directly to an adverse credibility finding. The Board then
stated that even taking Uli's testimony as true, the Board still agreed with the IJ that
she had not demonstrated eligibility for relief.
The Board found that Uli's "major problems" occurred during Indonesia's 1998
riots and that the record indicated that since the time of that civil unrest, the situation
in Indonesia had improved. Citing the 2004 Department of State International
Religious Freedom Report, two other Department of State reports on Indonesia, and
the 2004 Country Report on Human Rights Practicesall submitted by the
governmentthe Board found that the record indicated that the population in
Indonesia enjoys a high degree of religious freedom, Christians make up almost nine
percent of the population and Catholics make up three percent, and religious attacks
continue to decline. The Board acknowledged that Uli had endured unfortunate
experiences, but found that they did not rise to the level of past persecution. The
Board concluded that, while it did not endorse all aspects of the IJ's opinion, the IJ
reached the correct result. Accordingly, the Board dismissed the appeal and ordered
that Uli be permitted to voluntarily depart. Uli then filed this petition for review.
II. Discussion
Uli challenges the Board's denial of her application for asylum and withholding
of removal.2 Uli argues that because the IJ and the Board applied an incorrect legal
-6-
standard, we must remand the case for further consideration under the correct
standard.
We review the Board's legal determinations de novo, according substantial
deference to the Board's interpretation of the statutes and regulations it administers.
Hassan v. Gonzales, 484 F.3d 513, 516 (8th Cir. 2007). "A denial of asylum is
reviewed for abuse of discretion; underlying factual findings are reviewed for
substantial support in the record." Id. We must uphold an IJ's factual determinations
if supported by reasonable, substantial, and probative evidence on the record
considered as a whole. Id.
"Any alien who is physically present in the United States or who arrives in the
United States . . . irrespective of such alien's status, may apply for asylum . . . ." 8
U.S.C. 1158(a)(1). To qualify for asylum, the applicant must establish that he or she
is a refugee as defined in the statute. 8 C.F.R. 1208.13. Pursuant to section
101(a)(42) of the INA, a refugee is "any person who is outside any country of such
person's nationality . . . 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 . . . ." 8
U.S.C. 1101(a)(42)(A).
"If past persecution is established, an alien will be presumed to possess a well
founded fear of future persecution and the burden shifts to the government to show
by a preponderance of the evidence that conditions in the applicant's country have
changed to such an extent that the applicant no longer has a well founded fear of being
persecuted if he or she were to return." Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th
Cir. 2004).
-7-
If an applicant attempts to establish a well-founded fear of future persecution
without having shown past persecution then "an alien must show the fear is both
subjectively genuine and objectively reasonable . . . To overcome the BIA's finding
that [the applicant] lacked a well-founded fear of persecution, [the applicant] must
show the evidence he presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution." Ghasemimehr v. I.N.S., 7 F.3d 1389,
1390 (8th Cir. 1993) (internal citations and quotations omitted).
"Persecution is the infliction or threat of death, torture, or injury to one's person
or freedom, on account of race, religion, nationality, membership in a particular social
group, or political opinion." Regalado-Garcia v. I.N.S., 305 F.3d 784, 787 (8th Cir.
2002). Persecution is an extreme concept and "[l]ow-level intimidation and
harassment alone do not rise to the level of persecution." Makatengkeng v. Gonzales,
495 F.3d 876, 882 (8th Cir. 2007) (quoting Berte v. Ashcroft, 396 F.3d 993, 996 (8th
Cir. 2005)).
First, Uli claims that the Board erred by not reversing the IJ's adverse credibility
determination. The Board's decision, however, did not rely on the IJ's credibility
analysis and, in fact, rejected it. The Board assumed Uli's testimony was credible. The
IJ based its adverse credibility determination on Uli's omitting sexual harassment from
her initial asylum application. The Board corrected the IJ by stating it would treat Uli's
testimony as true. Therefore, the Board did not err with respect to the credibility
determination because it assumed Uli's account to be credible.
Second, Uli argues that the Board erred by not specifically addressing whether
she had established past persecution. The Board's opinion, in determining Uli's
eligibility for asylum, had to proceed according to the analytical framework of 8
C.F.R. 1208.13. Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007). When an
applicant for asylum alleges past persecution by state officers on account of a
protected ground, the allegation raises the threshold question of whether she has met
-8-
her burden of proof to establish past persecution, which would entitle her to the
presumption of a well-founded fear of future persecution. Id. If the administrative
opinion we are reviewing ignores the initial step of determinating past persecution,
generally we will remand that case to the Board to make a determination as to past
persecution and apply the correct legal standard. Id.
Here, although the Board was less than explicit in its discussion of past
persecution, we conclude that we need not remand the case on this issue. The Board
did not explicitly state that Uli's experience during the May 1998 riots amounted to
past persecution, instead the Board stated that her "major problems" took place during
the riots. However, a later portion of the opinion implies that the Board found, or
assumed, Uli's experience during the riots did constitute past persecution. We draw
this inference from the Board's discussion of Uli's sexual harassment claims"the
other problems cited [the sexual harassment claims] by the respondent, while
unfortunate, simply do not rise to the level of past persecution." Here, the Board
indicates that it was aware of the threshold question of whether Uli established past
persecution and that as to the events during the riots, unlike the sexual harassment
claims, Uli had established past persecution.
The Board specifically found Uli's sexual harassment allegations did not
constitute past persecution. We have stated that "[p]ersecution is the infliction or
threat of death, torture, or injury to one's person or freedom, on account of race,
religion, nationality, membership in a particular social group, or political opinion."
Regalado-Garcia, 305 F.3d at 787. "[P]ersecution is an extreme concept and does not
include low-level intimidation and harassment. Even minor beatings or limited
detentions do not usually rise to the level of past persecution." Lengkong v. Gonzales,
478 F.3d 859, 863 (8th Cir. 2007) (internal quotations and citations omitted). We
conclude that the Board's decision is supported by substantial evidence and that the
conduct Uli describes does not rise to the level of extreme conduct contemplated by
-9-
"persecution" within the meaning of the INA. The record evidence does not compel
the opposite finding.
Third, Uli argues that the Board improperly failed to shift the burden of proving
a fundamental change in circumstances to the government. Uli argues that if the Board
did implicitly find that Uli had established past persecution on account of the 1998
riots, it was then required to shift the burden to the government to show a fundamental
change in circumstances. Under our case law, "[i]f past persecution is established, an
alien will be presumed to possess a well founded fear of future persecution and the
burden shifts to the government to show by a preponderance of the evidence that
conditions in the applicant's country have changed to such an extent that the applicant
no longer has a well founded fear of being persecuted if he or she were to return."
Hasalla, 367 F.3d at 803. Again here, as above, the Board did not explicitly lay out
the distinct parts of the regulatory framework. The government argues that the Board
implicitly shifted the burden to the government by using evidence that had been
submitted by DHS to rebut the presumption that Uli had a reasonable fear of future
persecution. We agree.
Uli brings to our attention a recent Board decision, Matter of D-I-M, in which
the Board remanded an asylum case to the IJ because "[t]he Immigration Judge did not
explicitly apply the presumption and failed to shift the burden of proof to the DHS to
prove by a preponderance of the evidence that the respondent can avoid future
persecution by relocating to another part of Kenya . . . [i]nstead, the Immigration
Judge concluded, without specific references to the voluminous background materials
in the record, that the respondent could safely relocate to a metropolitan area of
Kenya." 24 I. & N. Dec. 448, 451 (BIA 2008). Unlike Matter of D-I-M, the Board here
made specific references to the materials in the record and those materials were
submitted by DHS. Therefore, although a more explicit discussion of the regulatory
framework and burden shifting is preferable, we conclude that the Board did shift the
3Uli's father and brother were injured during the riots, but the record does not
contain evidence that they have since been harmed.
-10-
burden to DHS to rebut the presumption that Uli had a reasonable fear of future
persecution by relying on DHS evidence.
Uli also argues that the Board's reliance on isolated and conclusory statements
about changed country conditions in the country reports was erroneous. However, as
we recently held in Lengkong, a similar case, evidence of changed country conditions
in country reports rebut the presumption of well-founded fear of persecution in
Indonesia. Lengkong, 478 F.3d 859. In Lengkong we held that there was substantial
evidence in the record to support the Board's denial of an asylum claim of Christian
petitioners in Indonesia based on events surrounding the 1998 riots because country
reports in the record showed conditions improved and, also, petitioner's children still
lived in Indonesia. Id. at 863. In an alternative holding we stated that:
[e]ven if the petitioners had established past persecution, the record
contains substantial evidence supporting the BIA's finding that the
petitioners did not have a well-founded fear of future persecution due to the
change in circumstances in Indonesia. The country information provided in
the record notes that Protestantism is one of the five recognized faiths in
Indonesia, that the Indonesian government is making considerable progress
in reducing interreligious violence and prosecuting those involved, and that
interreligious tolerance and cooperation are increasing. Although the record
also shows that such violence still exists in Indonesia, we agree with the IJ's
statement that the general tenor of the reports is that the government is
making progress in promoting religious freedom and trying to bring to
justice various attackers and has done so in many case[s]. In addition, the
petitioners' adult children, who are also Christian, continue to live in
Indonesia without incidenta fact that further undermines the petitioners'
claim of future persecution.
Id. This case is similarUli is an Indonesia Christian who was harmed during the
May 1998 riots, and her parents and brother still live in Indonesia.3 We have stated
-11-
that "[t]he reasonableness of a fear of persecution is diminished when family members
remain in the native country unharmed, and the applicant himself had not been singled
out for abuse." Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004).
We conclude that the record evidence does not compel a reversal. The Board
assumed Uli to be credible and that she faced persecution in 1998 but found DHS
successfully rebutted the presumption of a reasonable fear of future persecution
because conditions for Christians have improved in Indonesia, and Uli's family still
lives there safely. Although the Board could have been more explicit about shifting
the burden to the government, the Board's reliance on the government's evidence in
rebutting the presumption of a fear of future persecution is sufficient in this case.
Therefore, the Board did not err in denying Uli's asylum application.
Finally, we conclude that the Board did not err in denying Uli's request for
withholding of removal.
An alien may not be removed if the alien shows there is a clear probability
that his life, or freedom would be threatened in [the alien's] country because
of the alien's race, religion, nationality, membership in a particular social
group or political opinion. The standard for withholding of removal, a clear
probability of persecution, is more rigorous than the well-founded fear
standard for asylum. An alien who fails to prove eligibility for asylum
cannot meet the standard for establishing withholding of removal.
Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir. 2005) (internal quotations and citations
omitted). Because Uli did not meet the standard for asylum, she perforce has not met
the higher standard required for withholding of removal.
III. Conclusion
For the reasons stated above, we deny the petition for review.
______________________________
 

 
 
 

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