Filed: Nov. 07, 2013
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 12-3733 _ Eric Supangat lllllllllllllllllllllPetitioner v. Eric H. Holder, Jr., Attorney General of the United States lllllllllllllllllllllRespondent _ Petition for Review of an Order of the Board of Immigration Appeals _ Submitted: September 25, 2013 Filed: November 7, 2013 [Published] _ Before RILEY, Chief Judge, BRIGHT and BYE, Circuit Judges. _ PER CURIAM. Eric Supangat petitions for review of the decision of the Board of Immigratio
Summary: United States Court of Appeals For the Eighth Circuit _ No. 12-3733 _ Eric Supangat lllllllllllllllllllllPetitioner v. Eric H. Holder, Jr., Attorney General of the United States lllllllllllllllllllllRespondent _ Petition for Review of an Order of the Board of Immigration Appeals _ Submitted: September 25, 2013 Filed: November 7, 2013 [Published] _ Before RILEY, Chief Judge, BRIGHT and BYE, Circuit Judges. _ PER CURIAM. Eric Supangat petitions for review of the decision of the Board of Immigration..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3733
___________________________
Eric Supangat
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: September 25, 2013
Filed: November 7, 2013
[Published]
____________
Before RILEY, Chief Judge, BRIGHT and BYE, Circuit Judges.
____________
PER CURIAM.
Eric Supangat petitions for review of the decision of the Board of Immigration
Appeals (BIA) denying his claims for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). We deny the petition.
I. Background
Supangat, a citizen of Indonesia, entered the United States on October 29,
2000, at the age of 23 on an F-1 student visa to attend Pacific Rim Language Institute
in California. He stopped attending the institution as of December 31, 2000, thereby
failing to maintain or comply with the conditions of his nonimmigrant status, and
making himself subject to removability under 8 U.S.C. § 1227 (a)(1)(C)(i). On
February 10, 2003, Supangat applied for asylum, withholding of removal, and
protection under the CAT on the grounds that he had suffered past persecution in
Indonesia because of his Chinese ethnicity and Christian religion and he feared such
persecution upon his return. After immigration officials instituted removal
proceedings, Supangat conceded removability and reasserted his claims for asylum,
withholding of removal, and protection under the CAT.
During a merits hearing before an immigration judge (IJ), Supangat testified
that he converted to Christianity around age 11 or 12. He remembered his religion
causing problems for him and his family beginning around the time that he was 13
years old. Supangat recalled that individuals, whom he identified as being Muslim,
would demand money from him, steal his book bag, call him names, and harass him
on his way to and from church and his Christian schools. He claimed that in 1994,
three Muslim men kidnapped him from a mall and drove him by taxi to a cemetery
where they threatened him, put a knife to the back of his neck, took everything on him
except his pants, and left him to walk barefoot. Supangat asserted that after he
opened a business with a friend in 1999, Muslims intimidated him and demanded
money. He further alleged that his family members were also subject to attacks and
harassment, including incidents that occurred after he came to the United States in
2000. Supangat testified that he did not report any of the incidents to the police in
Indonesia because he believed that they were also Muslim and that they would not
care.
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After the hearing, the IJ concluded that Supangat’s asylum application was
untimely because he had filed it more than one year after his arrival to the United
States. See 8 U.S.C. § 1158(a)(2)(B). The IJ further concluded that Supangat failed
to establish that he was eligible for withholding of removal and protection under the
CAT. The IJ denied Supangat’s petition and ordered his removal to Indonesia.
Supangat appealed the IJ’s decision to the BIA. The BIA dismissed Supangat’s
appeal, and incorporated the IJ’s reasons in its decision. In reaching its decision, the
BIA did not address the timeliness of the asylum claim. Supangat now petitions for
a review of the BIA’s decision.
II. Discussion
Supangat argues that the BIA erred by dismissing his appeal after finding that
the incidents he described did not rise to the level of persecution that would afford
him relief. He contends that the BIA failed to consider the aggregate harm he
suffered and failed to consider a significant and traumatic event in its decision.
“We generally review the BIA’s decision as the final agency action, but where
the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning,
we review both decisions.” Osonowo v. Mukasey, 521 F.3d 922, 926–27 (8th Cir.
2008) (citation omitted) (internal quotation marks omitted). We review questions of
immigration law de novo. Tang v. INS,
223 F.3d 713, 718-19 (8th Cir. 2000). We
review an IJ’s factual determinations under the substantial-evidence test, which
requires that those determinations be supported by reasonable, substantial, and
probative evidence. Perinpanathan v. INS,
310 F.3d 594, 597 (8th Cir. 2002). We
will not reverse factual findings unless “the petitioner demonstrates that the evidence
was so compelling that no reasonable fact finder could fail to find in favor of the
petitioner.” Turay v. Ashcroft,
405 F.3d 663, 667 (8th Cir. 2005).
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A. Asylum and Withholding of Removal Claims
We first address Supangat’s request for asylum and withholding of removal.
The Attorney General may grant asylum to an individual unwilling to return to his or
her country or origin 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), 1158(b)(1). We have defined
persecution as “‘the infliction or threat of death, torture, or injury to one’s person or
freedom’ for a proscribed reason.” Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir.
2004) (quoting Regaldo-Garcia v. INS,
305 F.3d 784, 787 (8th Cir. 2002)).
“Persecution is an extreme concept and does not include low-level intimidation and
harassment.” Zakirov v. Ashcroft,
384 F.3d 541, 546 (8th Cir. 2004) (citation
omitted). “[T]he refugee must show evidence of persecution that is sufficiently
specific or imminent.” Lopez-Amador v. Holder,
649 F.3d 880, 884 (8th Cir. 2011).
“Low-level intimidation and harassment alone do not rise to the level of persecution,
nor does harm arising from general conditions such as anarchy, civil war, or mob
violence ordinarily support a claim of persecution.” Wijono v. Gonzales,
439 F.3d
868, 872 (8th Cir. 2006) (citation omitted) (internal quotation marks omitted).
To qualify for withholding of removal, Supangat must show that there is a clear
probability his “life or freedom would be threatened in Indonesia because of [his]
race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A); Mompongo v. Gonzales, 406 F.3d 512, 514 (8th
Cir. 2005), cert. denied,
546 U.S. 937 (2005). In other words, Supangat “must
establish that it is more likely than not that he will suffer persecution.” Ngure v.
Ashcroft,
367 F.3d 975, 989 (8th Cir. 2004) (citing INS v. Stevic,
467 U.S. 407, 429-
30, (1984)). Withholding of removal requires “a more demanding standard than that
for asylum.” Beck v. Mukasey,
527 F.3d 737, 739 (8th Cir. 2008).
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As described above, Supangat presented evidence that he was harassed and
intimidated on his way to school, church, and work due to his ethnicity and his
Christianity, and that he was once abducted and taken to a cemetery where he was
threatened with a knife. The BIA adopted the IJ’s reasoning and concluded that these
incidents, “while frightening, did not rise to the level of persecution because they
lacked severity or they were isolated acts of criminal conduct or lawlessness.” The
BIA also concluded that although Supangat may fear returning to Indonesia, that fear
is not an objectively reasonable fear of persecution. The BIA further concluded that
Supangat “failed to meet his burden of establishing a well-founded fear or that he
faces a clear probability of persecution warranting the granting of asylum and
withholding of removal if returned to Indonesia.”
Although Supangat argues that the BIA did not consider the aggregate harm
he suffered, including his abduction, the record nevertheless shows both the IJ’s and
the BIA’s decisions are supported by substantial evidence and are supported by other
cases of this nature, including cases involving captivity. See Wijono, 439 F.3d at 873
(concluding that there was no evidence that alien’s detainment by Indonesian police,
attack on street, or attack while in his father’s business, were motivated by his
Chinese ethnicity or Christian religion); see also Setiadi v. Gonzales,
437 F.3d 710,
713 (8th Cir. 2006) (“Even minor beatings or limited detentions do not usually rise
to the level of past persecution.”). Moreover, both the BIA and the IJ relied upon
evidence in the record—namely, a 2009 United States Department of State Issue
Paper on the treatment of Christians in Indonesia and a 2009 United States
Department of State Human Rights Report for Indonesia—that indicates that the
Indonesian government now promotes racial and ethnic tolerance and that violence
against Christians and ethnic Chinese has declined in recent years. Such evidence
further supports the BIA’s conclusion that Supangat did not establish that it is more
likely than not that he will suffer persecution.
Ngure, 367 F.3d at 989; see also
Wijono, 439 F.3d at 874 (affirming the BIA’s determination that petitioner was not
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eligible for withholding of removal based in part upon on a similar State Department
report from 2001).
Accordingly, we conclude that substantial evidence supports the BIA’s
determination that Supangat is not eligible for asylum or withholding of removal.
B. Convention Against Torture Claim
We now turn to Supangat’s claim that the BIA erred in denying him relief
under the CAT. To qualify for protection under the CAT, Supangat must “establish
that it is more likely than not that he . . . would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2).
The BIA concluded that Supangat “provided insufficient evidence to suggest
that he was tortured in Indonesia or that any government official in Indonesia likely
would either torture him upon his return or acquiesce (to include the concept of
willful blindness) in his torture by others.” In denying Supangat’s request, the BIA
referenced the IJ’s reliance upon the State Department reports—neither of which
show any indication that the Indonesian government condones or participates in the
persecution or torture of ethnic Chinese or Christians.
Supangat relies on the alleged factual showing supporting his application for
asylum and withholding of removal. But that is not enough. See Sow v. Mukasey,
546 F.3d 953, 956 (8th Cir. 2008) (“Although claims of ‘torture’ and ‘persecution’
are not identical, when the two claims are based on the same allegations, it is unlikely
that an applicant whose asylum application is rejected will be able to obtain relief
under the CAT.”). The standard for withholding of removal is more demanding than
that for asylum, Hasalla v. Ashcroft,
367 F.3d 799, 803 (8th Cir. 2004), and Supangat
has failed to meet that standard and failed to produce any evidence that he would be
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tortured if he were removed. He cannot obtain relief under the CAT. See Sow, 546
F.3d at 957. Thus, the denial of CAT relief must be upheld.
III. Conclusion
For the reasons stated above, we deny the petition for review.
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