Raja Sipayung v. ALBERTO GONZALES, Attorney General of the United States

Of the District of Puerto Rico, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 06-2305
RAJA SIPAYUNG,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lynch, Circuit Judges,
and Fusté, District Judge. *
H. Raymond Fasano and Madeo & Fasano on brief for petitioner.
Kathryn L. Moore, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, M. Jocelyn
Lopez Wright, Senior Litigation Counsel, and Peter D. Keisler,
Assistant Attorney General, Civil Division, on brief for
respondent.
June 27, 2007

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LYNCH, Circuit Judge. Raja Sipayung of Indonesia was
admitted to the United States on August 4, 1997 on an F-1 student
visa to attend Southern Nevada Community College. He never
attended the school, but worked instead. His removal proceedings
began with a Notice to Appear dated November 29, 2002. He conceded
removability and on June 25, 2003, applied for asylum, withholding
of removal, and protection under the Convention Against Torture
(CAT).
On March 23, 2005, an Immigration Judge (IJ) found that
Sipayung had not met the one-year limitation period for asylum
applications under 8 U.S.C. § 1158(a)(2)(B) and that he did not
fall within an exception under 8 U.S.C. § 1158(a)(2)(D), and so
denied asylum. The IJ also found that Sipayung had not met his
burden for either withholding of removal or CAT relief.
Sipayung's claim was that as a practicing Christian,
indeed as an ordained minister, he would suffer religious
persecution if he were returned to Indonesia. The IJ accepted
Sipayung's testimony as credible, but held that he had not shown it
was more likely than not he would be persecuted on his return. The
IJ noted that Sipayung's parents and relatives continued to live
and practice their Christian faith in Indonesia. The IJ also
considered the 2003 and 2004 United States State Department
Religious Freedom Reports for Indonesia, which indicated that while
Islamic fundamentalism had been spreading in many areas, the

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government was making efforts to combat terrorism. These reports
undercut Sipayung's claims of future persecution.
On August 11, 2006, the Board of Immigration Appeals
(BIA) affirmed the IJ's decision. It also rejected Sipayung's
argument that the IJ had erred in declining to accept evidence
Sipayung had offered late under the local rules. The BIA also
noted that this evidence did not in any event demonstrate
Sipayung's eligibility for relief from removal, and that he had
therefore suffered no prejudice from the purported error.
Sipayung's timely petition for review in this court
challenges both the denial of asylum and the denial of withholding
of removal. No mention is made of the CAT claim.
We have no jurisdiction to review the agency's
determination that the asylum claim was untimely. See 8 U.S.C.
§ 1158(a)(3); Silva v. Gonzales, 463 F.3d 68, 71-72 (1st Cir.
2006); Hayek v. Gonzales, 445 F.3d 501, 506-07 (1st Cir. 2006) (per
curiam).
This leaves only the denial of withholding of removal.
We review the BIA's factual determinations under the substantial
evidence standard; that is, we must uphold those determinations if
they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Sharari v.
Gonzales, 407 F.3d 467, 473 (1st Cir. 2005) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal quotation marks

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omitted). We reverse such a determination only when a "reasonable
adjudicator would be compelled to conclude to the contrary."
8 U.S.C. § 1252(b)(4)(B).
To qualify for withholding of removal, Sipayung needed to
show either (1) that he had suffered past persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion, thus creating a rebuttable presumption
that he would suffer future persecution, or (2) that it was more
likely than not that he would face persecution on account of a
protected ground upon his return to Indonesia. Da Silva v.
Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005). The "more likely than
not" standard is a higher threshold than the standard for
establishing eligibility for asylum. Id. at 4 n.5.
Sipayung makes both an argument that the record compels
the conclusion that he has established past persecution and an
argument that based on changed country conditions, there is a clear
probability of future persecution.
Substantial evidence supports the conclusion that the
incidents complained of did not amount to past persecution.
Sipayung was subjected to name calling at school and to "weird
looks" when he carried his Bible in public, and people once threw
stones at the door of the home of a fellow church member while he
was there to worship. These sporadic incidents, over the course of
several years, do not amount to persecution, even considered

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cumulatively. See Awad v. Gonzales, 463 F.3d 73, 76-77 (1st Cir.
2006) (describing cases in which occasional physical abuse did not
amount to persecution).
As to future persecution, the IJ accepted that Sipayung
had a subjectively genuine fear, but rejected the notion that any
such fear was objectively reasonable, for two reasons. First,
Sipayung's parents had returned to Indonesia from the United States
in December 2003; they and other relatives continued to practice
their religion, and none of them had ever been harmed. Second, as
documented by the State Department reports, conditions started to
improve for Christians in Indonesia in 2003. These are rational
bases on which to find that Sipayung failed to show that he would
more likely than not face future persecution in Indonesia. See
Nikijuluw v. Gonzales, 427 F.3d 115, 122 (1st Cir. 2005).
Sipayung responds that the IJ wrongly stressed the more
optimistic portions of the State Department reports over the less
rosy parts. We cannot say the IJ's reading of the State Department
reports was unreasonable, especially in light of the experience of
Sipayung's family, all of whom practiced Christianity in Indonesia
without persecution. See Pan v. Gonzales, No. 06-2166, 2007 U.S.
App. LEXIS 13159, at *19 n.6 (1st Cir. June 7, 2007) (deferring to
the IJ's "reasonable" choice to rely on an "unfavorable passage"
from a State Department report over a passage "more favorable" to
the petitioner). Sipayung suggests that his situation differs from

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that of his relatives because he is a minister, but he points to no
evidence to counter the IJ's conclusion that "the conditions simply
do not establish that it is more likely than not [that] a Christian
minister would suffer harm on account of his practicing his
religion, or leading religious services."
Sipayung also argues that the IJ miscalibrated the test.
He argues the evidence establishes "a pattern or practice of
persecution," such that Sipayung need not show that he personally
would be singled out for persecution. See 8 C.F.R. § 208.16(b)(2).
The evidence in the record, particularly in light of the 2003 and
2004 State Department reports, does not compel the conclusion that
there is a pattern or practice of persecuting Christians in
Indonesia such that Sipayung's identity as a Christian is enough to
make it more likely than not that he would face persecution. See
Tolego v. Gonzales, 452 F.3d 763, 766 (8th Cir. 2006). Rather,
substantial evidence supports the IJ's determination that although
"[t]here do continue to be incidents of violence against
Christians," the government in Indonesia "is making significant
efforts to curtail any terrorist activity." See Susanto v.
Gonzales, 439 F.3d 57, 60-61 (1st Cir. 2006).
Finally, to the extent Sipayung also makes a claim of
procedural error, decrying the IJ's refusal to consider certain
late-filed documents, the claim is without merit. See Sulaiman v.
Gonzales, 429 F.3d 347, 351 (1st Cir. 2005).

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We deny the petition for review.

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