Sonny Wiratama v. MICHAEL B. MUKASEY, Attorney General of the United States

Of the Seventh Circuit, sitting by designation.*
United States Court of Appeals
For the First Circuit
____________________
No. 07-1149
SONNY WIRATAMA,
Petitioner,
v.
MICHAEL B. MUKASEY,
Attorney General of the United States,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OR IMMIGRATION APPEALS
____________________
Before
Lynch, Chief Judge,
Cudahy, Senior Circuit Judge, *
and Torruella, Circuit Judge.
____________________
Damon M. D’Ambrosio on brief for the petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Michelle E. Gorden Latour and Kohsei Ugumori on brief for the
respondent.
____________________
July 9, 2008
____________________

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CUDAHY, Senior Circuit Judge. Petitioner Sonny Wiratama,
a native and citizen of Indonesia, appeals from a final order of
the Board of Immigration Appeals (the Board), denying his
applications for asylum, withholding of removal and protection
under the Convention Against Torture (the Convention). In a brief
order, the Board largely affirmed and adopted the decision of the
immigration judge (IJ). The IJ had dismissed Wiratama’s asylum
application as untimely and dismissed his applications for
withholding of removal and protection under the Convention as
without merit after finding that Wiratama had failed to present
"credible evidence" that he would likely suffer persecution if
returned to Indonesia.
Wiratama now challenges the IJ's adverse credibility
determination. We agree with Wiratama that the IJ's adverse
credibility determination does not find substantial support in the
record and was not accompanied by cogent reasoning. In fact, we
believe that portions of Wiratama's testimony have been
mischaracterized both by the IJ and by the government. We deny
Wiratama's petition, however, because even if his testimony had
been fully credited, he would have failed to establish that he had
a reasonable fear of persecution.

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I.
Wiratama is Roman Catholic; his ancestry is Chinese.
Both of these attributes make him a minority in Muslim-dominated
Indonesia. Wiratama fled Indonesia because he feared persecution
on account of his race and religion. He entered the United States
on March 8, 2001 as a non-immigrant visitor authorized to remain in
the United States until September 7, 2001. On March 28, 2003, the
Department of Homeland Security issued him a Notice to Appear,
charging him with removability because he had stayed longer than
permitted. On April 20, 2005, Wiratama applied for asylum,
withholding of removal, protection under the Convention Against
Torture and, in the alternative, voluntary departure.
Wiratama's removal hearing was held on May 23, 2005. He
testified that he had been subject to discrimination since his
youth. It was apparently common for both classmates and teachers
to play "cruel jokes" on him and to make "ethnic slurs" in front of
the entire class. He was frequently subjected to physical abuse by
his classmates; school officials looked the other way. The
situation became so bad that his parents were forced to place him
in a private, Catholic school from 1992 to 1993. His parents then
sent him to study in Australia from 1994 to 1996.
Wiratama returned to Indonesia in 1997. In January 1998,
Wiramata claims that he was stopped in traffic when a group of men,
shouting racial epiteths, smashed his car window and pulled him

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from his car. The men beat Wiramata with their fists, tore his
clothing, and "slashed" him on his right hand with a knife. The
men then took his money and his cell phone and left Wiratama lying
on the side of the road. Wiratama got back in his car and went to
pick up his girlfriend at school; he then drove to this house,
where his mother treated him with traditional Chinese medicines.
Wiratama never went to the hospital.
In May 1998, Wiratama was working at a jewelry store when
a riot erupted outside the building. Cars were being set ablaze,
and a mob of young native Indonesians was robbing and beating any
ethnic Chinese they encountered. Wiratama was instructed to flee
the building. He hid behind buildings and cars but he was
eventually spotted and chased by the mob. They tried to grab
Wiratama but he managed to get away.
In October 1998, Wiratama was a passenger in a car that
was involved in a traffic accident. A native Indonesian police
officer present at the scene approached Wiratama and confiscated
his driver's license. The officer demanded that he pay both the
officer and the driver of the other car before allowing him to
leave. Wiratama believes the officer hassled him because he was
ethnic Chinese.
Wiratama's wife, Milian Martami, also testified at
Wiratama's hearing. She testified that, when Wiratama picked her
up in January 1998, his car window was broken and he was "bleeding

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badly." It looked "like somebody stabbed him."
On June 14, 2005, the IJ denied Wiratama's applications
for withholding of removal and protection under the Convention but
granted him voluntary departure. The IJ first ruled that
Wiratama's asylum application was untimely; the IJ then denied his
application for withholding of removal, finding that he had failed
to present "credible evidence" that he would be subject to
persecution. The IJ also denied Wiratama's application for
protection under the Convention but granted his application for
voluntary departure. The Board adopted and affirmed the IJ's
decision in a brief order.
II.
Wiratama concedes that his asylum application was
untimely, so our review is limited to his applications for
withholding of removal and protection under the Convention Against
Torture. Where, as here, the Board affirms and adds some of its
own reasoning, we review the Board's reasoning and the underlying
IJ decision. See Lin v. Gonzáles, 503 F.3d 4, 6-7 (1st Cir. 2007).
Withholding of removal is available if "the alien's life
or freedom would be threatened in [the destination] country because
of the alien's race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C. §
1231(b)(3)(A). The "threat to life or freedom" under withholding
of removal is identical to "persecution" under asylum, although the

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Wiratama also testified that he was harassed at school as1
a child, that he was harassed by a police officer in October 1998,
and that his friends and neighbors have suffered persecution.
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burden placed on the petitioner is higher. See Attia v. Gonzáles,
477 F.3d 21, 23 (1st Cir. 2007). Persecution "is defined as
mistreatment that . . . extend[s] beyond harassment,
unpleasantness, and basic suffering." Id. Thus, to qualify for
withholding, Wiratama "must demonstrate either that [he] has
suffered past persecution on account of a protected ground (thus
creating a rebuttable presumption that [he] may suffer future
persecution) or that it is more likely than not that [he] will be
persecuted on account of a protected ground if sent to the
destination country." Heng, 493 F.3d at 48. These two methods of
proof are commonly referred to as past and future persecution.
Wiratama premised his withholding claim on the fact that
he had been subject to past persecution on account of his religion
and ethnicity. He relied heavily on two violent episodes that he
experienced in 1998: the January 1998 beating and the May 1998
riot. While Wiratama also offered evidence of other alleged
incidents of persecution, these two events formed the core of his 1
withholding claim.
The IJ concluded, however, that Wiratama had not
presented "credible evidence" to support his claims. The IJ stated
that it was "incredible to believe that he was stabbed . . . and
did not go to the hospital[;] that he went to his home[] because

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his home was closer than the hospital[,] and his mother treated him
with Chinese medicines for a stab wound." A.R. 50. The IJ also
stated that it was "incredible to believe that if [Wiratama] had
experienced what he claims to have experienced in Indonesia, he
would have gone back to Indonesia, without fearing for his life."
A.R. 49. The IJ added that neither Wiratama's siblings or parents
have encountered "any difficulties" in Indonesia. A.R. 49-50. The
IJ did not discuss the May 1998 riot, the October 1998
confrontation with the police officer or any of the other evidence
offered by Wiratama. The IJ denied Wiratama's application, and the
Board affirmed in a brief order.
Although the IJ did not point to any contradictions,
discrepancies or omissions in Wiratama's testimony, the parties
agree that the IJ had made at least an implicit finding that
Wiratama was not credible. The adverse credibility determination
appears to have rested entirely on the implausibility of Wiratama's
suffering a stab wound but not seeking treatment in a hospital.
We treat credibility determinations "with great respect,"
and we will not overturn them unless we are compelled to do so.
Ang v. Gonzáles, 430 F.3d 50, 57 (1st Cir. 2005). At the same
time, "[t]he fact that an IJ considers a petitioner not to be
credible constitutes the beginning not the end of our inquiry."
Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990). Adverse
credibility determinations must have "sturdy roots in the

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administrative record." Aguilar-Solis v. INS, 168 F.3d 565, 571
(1st Cir. 1999). The IJ must also provide "specific and cogent
reasons" why an inconsistency, or a series of inconsistencies,
render the alien's testimony not credible. Hoxha v. Gonzáles, 446
F.3d 210, 214 (1st Cir. 2006). These inconsistencies must pertain
to material facts that are central to the merits of the alien's
claims, "not merely to peripheral or trivial matters." See
Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir. 1999).
Finally, where credibility determinations rest "on an analysis of
the petitioner's testimony and not her demeanor, the finding may
receive less than usual deference." Heng v. Gonzáles, 493 F.3d 46,
48 (1st Cir. 2007).
After reviewing the record in this case, we are compelled
to find that the IJ's adverse credibility determination was not
supported by substantial evidence or by cogent reasoning. The
supposedly "implausible" testimony did not come from Wiratama, and
the dispute over whether Wiratama was "slashed" or "stabbed" was
too peripheral to Wiratama's claim to discredit his entire
testimony.
First, the IJ's credibility determination was not
adequately supported by record evidence. The determination was
premised upon the fact that "[Wiratama] testified in these
proceedings" that he had been stabbed but did not go to the
hospital. A.R.50. It was this alleged testimony that appears to

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The Government's brief contains the following inaccurate2
statement: "Wiratama later changed his claim to ‘Not stab, but
scratch . . . [h]e tried to stab me.' (A.R. 114)." As we have
explained, the record does not reflect that Wiratama ever testified
that he had been stabbed, so he could not have changed his story.
Further, the portion of the record cited by the Government actually
demonstrates that Wiratama resisted characterizing the attack as a
stabbing even when this characterization was pressed upon him:
Q. Did the men stab you any where [sic] with this knife,
sir?
A. He tried to stab me, but I tried to avoid it. []
Q. But did he stab you, sir. Did you receive stab wounds?
A. Not stab, but scratch.
Q. So, no stab wounds, it [sic] that correct, sir?
A. He tried to stab me.
Q. But you had no stab wounds, other than the scratch on the
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have formed the sole basis for the IJ's adverse credibility
decision. Wiratama, however, never testified that he had been
"stabbed." Wiratama consistently maintained that one of the
attackers had "tried to attack [him] with a knife." A.R.92; see
also A.R.114 ("He tried to stab me."). In an attempt to shield
himself from the attack, Wiratama "tried to cover [his] eyes, [and]
muffle [his] face." A.R.92; see also A.R.113 ("I just tried to
cover my face . . . it's better than if they have to scratch my
face."). The attacker then "slashed" at him and cut his right
hand. A.R.194. Wiratama consistently referred to the resulting
injury as a "slash" or a "scratch" that left a "scar on [his] right
hand." A.R.113, 114. Not once did Wiratama refer to this event as
a "stabbing" or to his injury as a "stab wound." The Government's
claim that Wiratama had "changed" his testimony, see Respondent's
Br.22 & n.6, is unsupported. Wiratama's testimony at the removal 2

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wrist, is that correct?
A. No, just that.
A.R.114; see also, infra, n.4.
Indeed, when Wiratama was asked why he did not go to the3
hospital, he stated that he did not seek treatment at a hospital
"[b]ecause it's just like a small scratch." A.R.113.
The Government also conflates Wiratama's testimony and4
Martami's testimony. Its brief contains a highly misleading
statement: "Wiratama and his wife had testified that Wiratama drove
his car to pick up his then-fiancee from school after he was
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hearing was not only internally consistent, but also consistent
with the statement in his I-589 form. See A.R.194. The only
possible conclusion to be drawn from Wiratama's testimony is that
his attackers "slashed" at him with a knife and, while shielding
his face from the attack, he sustained a cut on his right wrist or
hand. (Of course, he also suffered bruises and swelling from the
beating itself.) Wiratama himself downplayed the seriousness of
the incident, so it is difficult to say that his testimony was
implausible.3
In fact, the only person who mentioned that Wiratama may
have been "stabbed" was his wife, Milian Martami. She testified
that when Wiratama came to pick her up he was bruised and it looked
"like somebody stabbed him." See A.R. 46-50. Martami never
testified that she was present at the scene of the attack; she only
described the events that unfolded after Wiritama picked her up.
It is apparent that the IJ conflated Wiratama's testimony with
Martami's testimony. Even if Martami's testimony could be 4

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‘slashed' and ‘like . . . stabbed.' (See A.R. 46, 91-93, 107-108,
113-14, 194)." The construction of this sentence and the citations
used to support it suggest that both Wiratama and his wife
testified that he had been stabbed. In fact, Wiratama testified
only that he had been "slashed," see A.R.91-93, 107-108, 113-14,
194, while Wiratama's wife testified that it looked "like someone
stabbed him," see A.R.46. This is particularly disturbing because
whether Wiratama testified that he was "stabbed" is a central issue
here.
The IJ's summary of Martami's testimony also briefly5
suggests that Wiratama had told Martami immediately after the
incident that he had been stabbed. See A.R.46. Because Martami's
testimony is not in the record, we do not know if the words used
were hers. Further, the IJ never suggests that Wiratama had any
reason to lie about the incident.
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interpreted to constitute a material inconsistency, there is no
reason why this inconsistency should be attributed to Wiratama or
should impugn Wiratama's credibility. Wiratama insisted that he 5
was never stabbed, so his testimony is not implausible. Because
this testimony was the sole basis for the IJ's adverse credibility
determination, that determination has no firm support in the
record. See Gailius, 147 F.3d at 44 (citing Universal Camera Corp.
v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 95 L. Ed. 456).
We also do not believe that the IJ provided a "cogent
reason" for dismissing all of Wiratama's testimony. Hoxha, 446
F.3d at 214. Specifically, the IJ leapt from the conclusion that
there was no credible evidence of a "stabbing" (something Wiratama
himself does not deny) to the conclusion that there was no credible
evidence that Wiratama had ever been "attacked." A.R. 50. This is
simply not tenable. Wiratama testified at length that much of the

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harm suffered from the attack came from the beating; his clothing
was torn, his face was swollen and he was left lying by the side of
the road. His wife corroborated his testimony in all respects
except in the one instance when she mentioned that it looked "like
somebody stabbed him."
The disagreement over whether Wiratama had been stabbed
or merely slashed is also too immaterial to support a finding that
no attack occurred at all. See Bojorques-Villanueva, 194 F.3d at
16. And it certainly does not support a broad credibility
determination that would exclude the evidence involving the May
1998 riot, the October 1998 confrontation with the police officer
and other events. In sum, our review of the record "compels" the
conclusion that the IJ's adverse credibility determination was
unfounded.
III.
The next question, then, is whether the IJ's decision can
be affirmed on alternate grounds. See Gailius, 147 F.3d at 44. Of
course, we cannot provide these alternate grounds ourselves; they
must issue from the agency itself and not from the reviewing court.
See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L.
Ed. 1995 (1947). We have held, however, that such grounds may be
implicit in the IJ's decision. See Pulisir v. Mukasey, 524 F.3d
302, 308 (1st Cir. 2008); Rotinsulu, 515 F.3d at 72-73. While the
IJ explicitly stated that Wiratama had not demonstrated a well-

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founded fear of persecution, the IJ did not make specific findings
regarding Wiratama's evidence of past persecution. As we have
previously explained, the failure to make specific findings as to
past persecution "unnecessarily complicates our review." Yatskin
v. INS, 255 F.3d 5, 9 (1st Cir. 2001). While it is clear in this
case that the IJ implicitly rejected the evidence of past
persecution, it is less clear whether this decision was based
solely on the adverse credibility determination or whether the IJ
also found that the mistreatment alleged did not amount to
"persecution" under the statute. Nevertheless, upon closer
examination, we believe that the IJ made an implicit alternate
finding that, even if Wiratama's testimony were deemed credible,
the evidence he presented did not support a finding of past
persecution.
The IJ acknowledged that Wiratama's central fear was that
he would be subjected to "robbery" and "beatings" upon return to
Indonesia. A.R.48. The reference to "robbery" and "beatings" is
almost certainly a reference to the January 1998 beating (during
which Wiratama was robbed) and the May 1998 riot (during which
Wiratama was almost beaten). The IJ also acknowledged that
"Christians have been discriminated against and persecuted in
Indonesia." A.R.51. This is almost certainly a reference to the
documentary evidence, provided by Wiratama, on general conditions
in Indonesia. More importantly, the IJ noted that, "[a]ssuming

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that what he stated is true, . . . [Wiratama] would not be in
danger, in that his life or freedom would not be threatened,
because he is ethnic Chinese and Roman Catholic." A.R.48-49. The
IJ does not use the term "past persecution." But Wiratama
presented no independent evidence of a probability of future
persecution; his application rested almost entirely on evidence of
past persecution. In this context, we believe that the IJ's
statement fairly "subsumes the question of past persecution."
Rotinsulu, 515 F.3d at 72. We now review this alternate holding
for substantial evidence. See Gailius, 147 F.3d at 44.
We find that Wiratama has failed to show that he suffered
from past persecution and thus failed to show a clear probability
that he would be subject to persecution upon return to Indonesia.
Most of the incidents cited by Wiratama in support of his claim
require little discussion. His maltreatment at school, which
included being the target of name-calling and being roughed up by
fellow students, may be discriminatory but it does not rise to the
level of persecution. See Kho v. Keisler, 505 F.3d 50, 58 (1st
Cir. 2007). Wiratama's confrontation with the police officer,
during which Wiratama was apparently forced to pay a bribe, may be
a classic example of harassment but it is not persecution. See
Bocova v. Gonzáles, 412 F.3d 257, 263 (1st Cir. 2005). Wiratama's
experiences during the May 1998 riots were certainly frightening
but he did not suffer any physical harm. See Susanto v. Gonzáles,

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The IJ's treatment of the issue is internally6
inconsistent. Compare A.R.36 ("[Wiratama" has siblings, [a] sister
in Singapore and a brother in Australia") with A.R.48 ("[Wiratama]
has siblings, living in Indonesia"). The Government makes the same
mistake. Compare Respondent's Br.9 ("Wiratama also testified that
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439 F.3d 57, 60 (1st Cir. 2006). Finally, while the January 1998
beating was severe, it did not require hospitalization. More
importantly, we have held that isolated beatings, even when rather
severe, do not establish the systematic mistreatment needed to show
persecution. See Journal v. Keisler, 507 F.3d 9, 12 (1st Cir.
2007); Attia, 477 F.3d at 23-24; Topalli v. Gonzáles, 417 F.3d 128,
132 (1st Cir. 2005); Bocova, 412 F.3d at 263. These incidents,
even when taken together, do not rise to the level of persecution
under our case law. Wiratama thus failed to show past persecution.
Finally, as the Board noted in its brief order, the
evidence also undercuts any finding that Wiratama has a reasonable
fear of future persecution,. See Aguilar-Solis, 168 F.3d at 572.
Both the IJ and the Board correctly emphasized the fact that
Wiratama's parents continue to live safely in Indonesia; this fact
undermines the reasonableness of his fear of persecution. See,
e.g., Nikijuluw v. Gonzáles, 427 F.3d 115, 122 (1st Cir. 2005);
Zheng v. Gonzáles, 416 F.3d 97, 101 (1st Cir. 2005).
Unfortunately, we again note a factual error. The IJ stated that
Wiratama's parents and siblings continue to remain unharmed in
Indonesia. See A.R. 49-50. Actually, Wiratama's sister now lives
in Singapore, and his brother lives in Australia. Nevertheless, 6

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his siblings no longer live in Indonesia") with Respondent's Br.25
("Wiratama's . . . siblings have continued to live unharmed in
Indonesia").
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it clear that Wiratama's mother and father still live in Indonesia.
While this fact is "[not] enough, by itself, to render a fear of
persecution unreasonable," it does undermine the reasonableness of
Wiratama's fear. See Eduard v. Ashcroft, 379 F.3d 182, 193 & n.12
(5th Cir. 2004).
Both the IJ and the Board also noted that,
"notwithstanding the incidents that he encountered in Indonesia,
[Wiratama] left Indonesia and returned to Indonesia." A.R.49.
Again, such facts can "undermine" the reasonableness of an alien's
fear of persecution. See Jean v. Gonzáles, 461 F.3d 87, 91 (1st
Cir. 2006). The record makes clear that even if Wiratama's
testimony were taken to be entirely credible, he has failed to
establish that he was a victim of past persecution or that he is
likely to be persecuted upon return to Indonesia. His claim for
withholding of removal thus fails. We also note that Wiratama's
claim for relief under the Convention is underdeveloped and without
merit. See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004);
Aguilar-Solis, 168 F.3d at 574.
IV.
For the reasons discussed above, the petition for review
is denied.

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