Nikijuluw v. Gonzales, 427 F.3d 115, 1st Cir. (2005)

427 F.
3d 115
Edward Dirk NIKIJULUW, Petitioner,

v.
Alberto GONZALES, Attorney General of the United States,
Respondent.
No. 05-1452.
United States Court of Appeals, First Circuit.

Submitted September 22, 2005.
Decided October 26, 2005.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Haian Lin on brief for petitioner.
Peter Keisler, Assistant Attorney General, Civil Division, Terri J.
Scadron, Assistant Director, Office of Immigration Litigation, and Robbin
K. Blaya, Attorney, United States Department of Justice, on brief for
respondent.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and
HOWARD, Circuit Judge.
SELYA, Circuit Judge.
In this immigration case, the petitioner, Edward Dirk Nikijuluw, asserts that he
is a religious refugee from his native Indonesia. An Immigration Judge (IJ)
found that the petitioner's claim of religious persecution lacked substance and
ordered him removed. The Board of Immigration Appeals (BIA) upheld the IJ's
order. The petitioner now seeks judicial review. After careful consideration, we
deny the petition for review.
I.
Background
2
The petitioner is a fifty-two year old citizen of Indonesia who lawfully entered
the United States on September 8, 2001 as a non-immigrant visitor for business
purposes. By its terms, his B-1 visa permitted him to remain in the United
States until October 7, 2001. See generally 22 C.F.R. 41.31(a) (1998). The
petitioner overstayed his visa without securing the appropriate authorization
from the Immigration and Naturalization Service (INS).1 Consequently, the
INS charged him with remaining longer than permitted, see 8 U.S.C. 237(a)
(1)(B), and instituted removal proceedings. The petitioner conceded
removability but cross-filed for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). He claimed in substance that,
while in Indonesia, radical Muslims had persecuted him and his family (at a
bare minimum, the petitioner and his parents, wife, and children subscribe to
the Christian Protestant faith).2
3
The petitioner pointed to three specific incidents which, in his view, established
his claim of religious persecution. First, he expressed his belief that Muslims
were behind the disappearance of his eldest daughter, whose whereabouts have
been unknown since 2001. Second, he alleged that Muslims set fire to the
church to which he belonged in November of 1999. Third, he averred that
because he sometimes held religious services in his home, he received at least
three anonymous threats and unknown persons stoned the house.
An INS asylum officer interviewed the petitioner as part of an investigation

into his application and, finding that his account of what had transpired in
Indonesia lacked veracity, referred his case to the immigration court. After an
evidentiary hearing, the IJ concluded that the petitioner had failed to carry the
burden of proof on any of his asserted claims, in part because the petitioner's
testimony regarding past incidents of alleged persecution was not credible. The
IJ provided specific and cogent reasons to support this conclusion.
To begin, the IJ found no evidence that the disappearance of the petitioner's

daughter had anything whatever to do with her religious affiliation. In fact, the
credible evidence indicated that the daughter had become a Muslim and had
attempted to persuade her family to accept that religion.
In all events, the petitioner's testimony about this incident was wildly
inconsistent. For example, on his asylum application he wrote that his daughter
had been seduced by a fanatic Muslim, but during his interview he claimed that
she had vanished during a series of riots that included attacks on his church.
Later still, he stated that he did not know why or how his daughter had
disappeared. There was also an intimation in the record that the petitioner's
daughter may simply have run away with her boyfriend after she had begun
performing as a night club singer.
As to the second incident, it was clear that fire had consumed the petitioner's
church in November of 1999. The IJ noted, however, that the church was in the
process of being rebuilt and that the church community continued openly to
hold regular worship services.
In the same vein, the IJ cited the Department of State Country Report on
Human Rights Practices for 2002 (the Country Conditions Report) as evidence
that the petitioner's claims of religious persecution were overblown. The
Country Conditions Report explained that the Indonesian constitution "provides
for every resident to adhere to their respective religion and to perform their
religious duties in accordance with their religion and faith." It also vouchsafed
that the Indonesian government generally respected this constitutional provision
and officially acknowledged Protestantism as one of several recognized
religions. Finally, the Country Conditions Report indicated that, by 2002,
incidents targeting churches were "much less frequent than in previous years."
The IJ also considered, and rejected, the petitioner's testimony regarding the
anonymous threats and the stoning of his home. He observed that the petitioner
had failed to mention these incidents to the asylum officer. While the statement
attached to his asylum application recounted threats of stone-throwing, it did
not mention that such an event had actually occurred. On the basis of these
omissions, the IJ found that the petitioner had failed to establish by credible
testimony that the stone-throwing incident had taken place.
10
Overall, the IJ evaluated the petitioner's assertions as "general, meager and

weak" and concluded that the petitioner had not carried his burden of
establishing religious persecution. To buttress this conclusion, the IJ noted that
the petitioner had lived, worked, and raised a family in Indonesia, for the most
part without incurring any religious hostility. The IJ further noted that the
petitioner's family, including his wife, children, parents, and siblings, remained
in Indonesia and that there was no evidence that any family member had been a
victim of religious persecution at any time after the petitioner's entry into the
United States. Finally, the IJ noted that the petitioner had never been arrested,
detained, threatened, or put in harm's way by the Indonesian government or any
of its agents on account of his religious beliefs.
11
Consistent with these findings, the IJ denied the cross-application for asylum,
withholding of removal, and protection under CAT; ordered the petitioner
removed; and designated Indonesia as the country of removal. The BIA upheld
the IJ's decision, concluding that the petitioner had failed to establish past
persecution, a well-founded fear of future persecution, or a sufficient likelihood
that he would be subjected to torture upon his return to Indonesia. This timely
petition for judicial review followed.
II.
Discussion
12
We start and end with the denial of the petitioner's application for
asylum.3 In reviewing the BIA's denial of an asylum application, we examine
its findings of fact, including its credibility determinations, to ascertain whether
those findings are supported by substantial evidence in the record. See Bocova
v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005); Da Silva v. Ashcroft, 394 F.3d 1,
4 (1st Cir.2005). Under this highly deferential standard, we must accept the
BIA's findings so long as they are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." INS v. Elias-Zacarias,
502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Absent an error of
law, we can overrule the BIA's ensuing decision only if the evidence "points
unerringly in the opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st
Cir.2004).
13
The petitioner bears the burden of establishing that he qualifies for asylum. See
8 U.S.C. 1158(b)(1)(B)(i); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st
Cir.2004). To qualify as a refugee within the meaning of the Immigration and
Nationality Act, an asylum seeker must show that he cannot return to his home
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). Upon a satisfactory showing
of past persecution, a rebuttable presumption arises that a petitioner's fear of
future persecution is well-founded. Makhoul, 387 F.3d at 79.
14
The Immigration and Nationality Act provides no precise definition of

"persecution." The case law, however, is more informative. We have held that
past persecution requires that the totality of a petitioner's experiences add up to
more than mere discomfiture, unpleasantness, harassment, or unfair treatment.
See, e.g., Bocova, 412 F.3d at 263; Nelson v. INS, 232 F.3d 258, 263 (1st
Cir.2000). Moreover, persecution "always implies some connection to
government action or inaction." Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st
Cir.2005). Thus, an applicant qualifies for asylum only when he suffers
persecution that is the direct result of government action, governmentsupported action, or government's unwillingness or inability to control private
conduct. Id.
15
It is transparently clear that in order to establish refugee status, an alien must

support his claim of persecution through credible testimony. Credible
testimony, standing alone, may be adequate to sustain the alien's burden of
proof. See Settenda v. Ashcroft, 377 F.3d 89, 92 (1st Cir.2004). But if the
proffered testimony is not credible, it may be either disregarded or sharply
discounted, depending on the circumstances. See, e.g., Laurent, 359 F.3d at 64;
see also Aguilar-Solis v. INS, 168 F.3d 565, 570-71 (1st Cir.1999).
16
Commensurate with the importance of credibility determinations in

immigration cases, an IJ must offer a specific and cogent rationale for
disbelieving the alien. El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st
Cir.2003); Gailius v. INS, 147 F.3d 34, 47 (1st Cir.1998). In this instance, the
IJ's findings easily pass through that screen. Since the adverse credibility
determination is supported by substantial evidence, the petitioner's testimony
cannot carry the day and the record contains little of substance, apart from
the petitioner's testimony, that might serve to corroborate his story or otherwise
to shore up his asylum application.
17
Even if we were to leave to one side the IJ's determination that the petitioner's
tales were not worthy of credence and accept the petitioner's testimony as true,
he still would not have offered sufficient evidence to establish persecution
within the meaning of our precedents. At most, the petitioner has suffered
sporadic private discrimination and there is no evidence that such
discrimination (if, indeed, it occurred) was sponsored, supported, or condoned
by the government. We explain briefly.
18
The evidence related to the disappearance of the petitioner's daughter was

extremely sketchy. There is nothing in the record other than the petitioner's
unfounded suspicions to suggest that the daughter's disappearance stemmed
from some sort of religious jihad, much less that the Indonesian government
conspired in, or condoned her disappearance. The other evidence is no more
compelling; even assuming that radical Muslims burned down the church and
stoned the petitioner's house in retaliation for the holding of weekday worship
services, there is no proof connecting these isolated acts of private
discrimination with the Indonesian authorities. Moreover, the other undisputed
facts e.g., that the church is being rebuilt, that the congregation continues to
function openly, and that the petitioner's Christian relatives have been able to
live tranquilly in Indonesia comprise strong evidence that the government
was not involved in whatever discrimination the petitioner may have
experienced. Consequently, we find no basis for disturbing the BIA's
conclusion that the petitioner failed to show past persecution.
19
The only remaining issue is whether, independent of any presumption arising

out of past persecution, the petitioner has shown a well-founded fear of future
persecution. The IJ and the BIA answered this question in the negative. The
record does not allow us to quarrel with that answer.
20
In order to show a well-founded fear of future persecution, a petitioner must

satisfy both subjective and objective components. He must "not only harbor a
genuine fear of future persecution, but also must establish an objectively
reasonable basis for that fear." Laurent, 359 F.3d at 65. Credibility aside, the
petitioner's testimony that he fears harm should he return to Indonesia arguably
satisfies the subjective component. Thus, we focus the lens of our inquiry on
the objective component.
21
An objectively reasonable fear of future persecution exists if a reasonable

person in the petitioner's circumstances would fear persecution based on a
statutorily protected ground. Aguilar-Solis, 168 F.3d at 572. In a highly
analogous case, this court determined that a petitioner could not establish a
well-founded fear of future persecution when her family lived safely in the
country of deportation and there was neither record evidence nor significant
support in State Department reports for the petitioner's claim of likely future
persecution. Zheng v. Gonzales, 416 F.3d 97, 101 (1st Cir.2005). Here, as in
Zheng, the petitioner's family members (most of whom share his religious
affiliation) continue to live peaceably in his native land and there is no
probative evidence that the petitioner will be harmed should he return. The
Country Conditions Report states that incidents of violence against Christians
in Indonesia are in significant decline. To cinch matters, the petitioner's
Indonesian church community is rebuilding the destroyed house of worship and
continues to hold regular services. While a reasonable person in the petitioner's
position might fear encountering some private hostility in a majority Muslim
country on account of his Christian Protestant beliefs, the record does not make
manifest any objective basis for a fear of future persecution.
III.
Conclusion
22
We need go no further. Because the petitioner failed to adduce credible and

probative evidence showing either past persecution or a well-founded fear of
future persecution, the BIA's rejection of his application for relief stands on
solid ground. Accordingly, the petition for judicial review is denied.
23
So Ordered.
Notes:
1
The Homeland Security Act of 2002, Pub.L. 107-296, 471, 116 Stat. 2135,
2205 (codified as amended at 6 U.S.C. 291(a)), abolished the INS and
transferred its duties to the Department of Homeland SecuritySee Lattab v.
Ashcroft, 384 F.3d 8, 13 n. 2 (1st Cir.2004). For simplicity's sake, we refer
throughout to the INS.
The petitioner also implied in his testimony (although the record does not
explicitly so state) that his siblings are Christian Protestants
It is well established that "issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed
waived."United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990); accord
Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004) (enunciating the same
principle in the immigration context). Here, the petitioner has devoted his
appellate brief exclusively to his asylum claim and has failed to develop any
argument supporting either his claim for withholding of removal or his claim
for protection under CAT. Consequently, we deem those claims abandoned.

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427 F.

Edward Dirk NIKIJULUW, Petitioner,

United States Court of Appeals, First Circuit.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

An INS asylum officer interviewed the petitioner as part of an investigation

To begin, the IJ found no evidence that the disappearance of the petitioner's

Overall, the IJ evaluated the petitioner's assertions as "general, meager and

The Immigration and Nationality Act provides no precise definition of

It is transparently clear that in order to establish refugee status, an alien must

Commensurate with the importance of credibility determinations in

The evidence related to the disappearance of the petitioner's daughter was

The only remaining issue is whether, independent of any presumption arising

In order to show a well-founded fear of future persecution, a petitioner must

An objectively reasonable fear of future persecution exists if a reasonable

We need go no further. Because the petitioner failed to adduce credible and

It is well established that "issues adverted to in a perfunctory manner,

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