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Loho v. Mukasey, 04-73136 (2008)

Court: Court of Appeals for the Ninth Circuit Number: 04-73136 Visitors: 15
Filed: Jul. 08, 2008
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LIEKE LOHO, Petitioner, No. 04-73136 v. Agency No. A95-178-821 MICHAEL B. MUKASEY, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 5, 2008—Pasadena, California Filed July 8, 2008 Before: John R. Gibson,* Diarmuid F. O’Scannlain, and Susan P. Graber, Circuit Judges. Opinion by Judge O’Scannlain *The Honorable John R. Gibson, Senior Unit
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                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LIEKE LOHO,                                
                             Petitioner,           No. 04-73136
                   v.
                                                   Agency No.
                                                   A95-178-821
MICHAEL B. MUKASEY, Attorney
General,                                             OPINION
                    Respondent.
                                           
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                   Argued and Submitted
             March 5, 2008—Pasadena, California

                         Filed July 8, 2008

  Before: John R. Gibson,* Diarmuid F. O’Scannlain, and
             Susan P. Graber, Circuit Judges.

                 Opinion by Judge O’Scannlain




   *The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

                                 8163
                       LOHO v. MUKASEY                    8165


                         COUNSEL

Joseph S. Porta, Esq., Law Offices of Cohen, Porta & Kim,
Los Angeles, California, argued the cause for the petitioner
and was on the briefs.

Anthony Norwood, Attorney, Department of Justice, Wash-
ington, D.C., argued the cause for the respondent and was on
the briefs; Peter D. Keisler, Assistant Attorney General, Civil
Division, Terri J. Scadron, Mark L. Gross, Gregory B. Friel,
and Christopher C. Wang, Attorneys, Department of Justice,
Washington, D.C., were on the briefs.
8166                   LOHO v. MUKASEY
                          OPINION

O’SCANNLAIN, Circuit Judge:

   We must decide whether an immigration judge properly
discredited an asylum applicant’s claim that she suffered per-
secution in her native country of Indonesia, when previous to
her applications she twice visited the United States and yet
voluntarily returned to Indonesia following each sojourn.

                               I

   Lieke Loho, a native and citizen of Indonesia, was admitted
into the United States as a non-immigrant visitor on July 9,
2001. Shortly thereafter, Loho filed applications for asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”). At the heart of her applications
were claims that indigenous Indonesians persecuted her
because of her Chinese ethnicity and Christian faith.

   At the removal hearing that followed, Loho alleged, among
other things, that she twice was attacked by assailants uttering
racial slurs, that her house was robbed by indigenous Indone-
sians, and that her workplace and church were damaged dur-
ing riots aimed at Indonesians of Chinese ancestry. Loho also
testified that she visited family in the United States on two
occasions during the period of alleged persecution, once in
1998 for two weeks and once in 2000 for ten days. Loho vol-
untarily returned to Indonesia after each visit without apply-
ing for asylum or otherwise seeking to remain in the United
States. When asked by the immigration judge (“IJ”) why she
failed to apply for asylum during her visits, Loho explained
that “the time was so short and [she] didn’t know about asy-
lum,” and that she “didn’t have a chance” to look into filing
such an application. In discussing her 2000 visit, Loho
acknowledged that she was informed by a cousin who was a
United States citizen and resident about the possibility of not
returning to Indonesia. The cousin, however, “was busy” and
                        LOHO v. MUKASEY                       8167
therefore could not assist her. While Loho testified that she
“actually was afraid to return” to Indonesia, she explained that
she did anyway because she was excused from her job as a
manager of a “food business” for only ten days and thus “had
to work.”

   The IJ found that Loho was not credible and therefore
denied her asylum, withholding of removal and CAT claims.
The IJ based his adverse credibility finding, in relevant part,
on Loho’s “astonishing” explanation that she did not “have
time” to look into the possibility of applying for asylum dur-
ing her previous visits to the United States, despite the severe
mistreatment she claimed to have suffered in Indonesia. The
Board of Immigration Appeals (“BIA”) adopted and affirmed
the IJ’s adverse credibility finding.

                                II

   To be eligible for asylum, Loho must proffer sufficient
credible evidence that she is unwilling or unable to return to
her country of origin “ ‘because of persecution or a well-
founded fear of future persecution on account of [her] race,
religion, nationality, membership in a particular social group,
or political opinion.’ ” Singh v. Ashcroft, 
367 F.3d 1139
, 1142
(9th Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). We have
defined persecution as “the infliction of suffering or harm
upon those who differ (in race, religion or political opinion)
in a way regarded as offensive,” but have noted that it is an
“extreme concept that does not include every sort of treatment
our society regards as offensive.” Mansour v. Ashcroft, 
390 F.3d 667
, 672 (9th Cir. 2004) (internal quotation marks omit-
ted).

   [1] It is well established in this court that an alien’s history
of willingly returning to his or her home country militates
against a finding of past persecution or a well-founded fear of
future persecution. See, e.g., Kumar v. Gonzales, 
439 F.3d 520
, 524 (9th Cir. 2006) (denying a petition for review where
8168                    LOHO v. MUKASEY
“[t]he IJ stated that Mr. Kumar’s voluntary return to Fiji was
indicative of Kumar’s own belief that it would be safe and
appropriate for him to live in Fiji”); Boer-Sedano v. Gonzales,
418 F.3d 1082
, 1091 (9th Cir. 2005) (noting that “return trips
can be considered as one factor, among others,” in determin-
ing whether an applicant has a well-founded fear of future
persecution).

   [2] As the foregoing precedent demonstrates, we have con-
sidered a petitioner’s voluntary return to his or her home
country solely in the context of assessing whether such peti-
tioner suffered past persecution or possessed a well-founded
fear of future persecution. In this case, however, the IJ consid-
ered Loho’s voluntary return as detracting from the credibility
of her testimony altogether. We fail to see why the IJ’s reli-
ance on such fact in rendering his adverse credibility finding
was inappropriate. Loho’s admission that she twice was
offered a clear opportunity to flee her native land, and yet
willingly returned, inherently undermines her testimony that
she experienced past suffering or that she feared returning
home. It therefore is of little surprise that two of our sister cir-
cuits have upheld adverse credibility findings founded in part
on a petitioner’s voluntary return. See Tarraf v. Gonzales, 
495 F.3d 525
, 530, 534 (7th Cir. 2007); Jean v. Gonzales, 
461 F.3d 87
, 89, 91 (1st Cir. 2006).

   [3] Although we have never held as much, our caselaw has
implied that a petitioner’s voluntary return may be considered
in rendering an adverse credibility finding. In Ding v. Ash-
croft, 
387 F.3d 1131
(9th Cir. 2004), we rejected an adverse
credibility finding where the IJ relied in part on its conclusion
that the petitioner “was unable or unwilling to explain why
she did not seek refuge in another country nor why she volun-
tarily returned to the country where she claimed to have been
persecuted.” 
Id. at 1139-40
(internal quotation marks omit-
ted). There, we held that the IJ improperly ignored Ding’s tes-
timony “that her travel documents were held by the leaders of
her trip, under whose control she remained at all times” and
                       LOHO v. MUKASEY                     8169
that she “was not even aware that the United States could
offer her asylum.” 
Id. at 1140.
   Here, by contrast, Loho alleged in her asylum application
that she was “especially fearful that [she and her family]
could be . . . victims because of the consuming hatred the
Muslim native Indonesians have against them and their aims
to eliminate all Non-Muslims from Indonesia.” Nevertheless,
she twice voluntarily returned to Indonesia after reaching a
point of safety in the United States. Unlike the petitioner in
Ding, Loho was not coerced into returning. Rather, Loho tes-
tified that she stepped back into the den of the “consuming
hatred” she feared for the purpose of returning to work. We
also note that Loho was put on notice of the possibility of
staying in the United States by her cousin, yet when Loho
learned that her cousin was too busy to assist her, she failed
to take any additional steps to avoid returning to Indonesia.

   [4] We are persuaded that Loho’s two voluntary returns to
her home country support the IJ’s adverse credibility finding
even though she was not specifically aware of the possibility
of applying for asylum. What cuts against Loho’s credibility
is not that she failed to submit an asylum application during
her previous visits, but that after leaving her home country for
the safety of the United States, Loho took minimal steps to
investigate the availability of some means of avoiding a return
to the country she claims to have feared. In light of the “ex-
tremely deferential” review of an IJ’s decision that applies,
see Wang v. INS, 
352 F.3d 1250
, 1257 (9th Cir. 2003), such
evidence is sufficient to support the IJ’s adverse credibility
finding. See Don v. Gonzales, 
476 F.3d 738
, 743 (9th Cir.
2007). Accordingly, we must conclude that Loho has pro-
duced insufficient evidence to compel the conclusion that she
suffered past persecution or has a well-founded fear of future
persecution in Indonesia. Kohli v. Gonzales, 
473 F.3d 1061
,
1071-72 (9th Cir. 2007).
8170                    LOHO v. MUKASEY
                               III

   [5] Because Loho’s asylum claim fails, she necessarily can-
not satisfy the more stringent standard of proof required to
demonstrate eligibility for withholding of removal. See Farah
v. Ashcroft, 
348 F.3d 1153
, 1156 (9th Cir. 2003). Moreover,
in light of the IJ’s adverse credibility finding, we are satisfied
that substantial evidence supports denial of Loho’s claim
under CAT. See Malhi v. INS, 
336 F.3d 989
, 993 (9th Cir.
2003) (noting that relief under CAT requires a showing that
“it is ‘more likely than not’ that [the petitioner] will be tor-
tured if returned to [his native land]” (quoting 8 C.F.R.
§ 208.16(c)(2)); see also 
Farah, 348 F.3d at 1157
(noting that
“[the petitioner’s] claims under the Convention Against Tor-
ture are based on the same statements . . . that the BIA deter-
mined to be not credible”).

                               IV

  For the foregoing reasons, the petition for review is

  DENIED.

Source:  CourtListener

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