Sherly Ferdinandus; Berty Lumentut v. ALBERTO GONZALES, Attorney General

United States Court of Appeals
For the First Circuit
No. 07-1166
SHERLY FERDINANDUS;
BERTY LUMENTUT,
Petitioners,
v.
ALBERTO GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Howard, Circuit Judges.
Randall A. Drew for petitioner.
Kohsei Ugumori, Trial Attorney, Office of Immigration
Litigation, Peter Keisler, Assistant Attorney General, and Michelle
Gorden Latour, Assistant Director, for respondent.
September 27, 2007

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LYNCH, Circuit Judge. Petitioners Sherly Ferdinandus and
Berty Lumentut, both natives and citizens of Indonesia, seek review
of the denial of Ferdinandus's application for asylum and
withholding of removal. We deny the petition for review.
Ferdinandus and Lumentut, who married and had four
children in Indonesia, entered the United States on Indonesian
passports on August 26, 2000. Their visitor visas expired on
February 25, 2001. Lumentut was served with a Notice to Appear in
April 2003; Ferdinandus received her Notice to Appear that August.
Both conceded all allegations against them, but Ferdinandus filed
an application for asylum and withholding of removal, claiming
religious persecution, with her husband listed as a derivative
beneficiary.
Ferdinandus and Lumentut have been active Christians,
both in Indonesia and in the United States. Ferdinandus claimed
persecution based on her experience in the May 1998 Jakarta riots
and the ongoing targeting of churches in Indonesia by Muslim
extremists. In her asylum application, Ferdinandus described how
she watched the riots unfold on television. In her hearing before
the Immigration Judge ("IJ") on November 2, 2005, Ferdinandus
testified that when she ventured out of her house, rioters stopped
her car and asked "very rude and very angry" questions. She
believed she was stopped because a sticker on her car read, "Jesus
is the way of life." She was allowed to leave, however, after one

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of her sons gave the men money. Additionally, Ferdinandus
testified about witnessing looting, beatings, and the burning of
buildings. She also testified, however, that while in Indonesia,
she had always been able to go to church to worship and that she
had been a leader of her church's women's group. She testified
that she feared returning to Indonesia because extremists continue
to burn churches, and she does not believe the government will
provide adequate protection against such attacks.
The IJ issued his decision the same day, ruling that
Ferdinandus's asylum application was time-barred and that she had
not presented changed or extraordinary circumstances excusing her
delay. See 8 U.S.C. § 1158(a)(2). He also determined that
Ferdinandus did not qualify for withholding of removal, finding
that she had demonstrated neither past incidents of persecution nor
a likelihood of future persecution. He did grant voluntary
departure.
The Board of Immigration Appeals ("BIA") affirmed the
IJ's decision in a December 29, 2006, per curiam opinion. It
agreed that Ferdinandus's asylum application was time-barred, that
her experience during the Jakarta riots did not rise to the level
of persecution, and that the fact that Ferdinandus's children still
lived and worshiped safely in Indonesia indicated that Ferdinandus
would not suffer persecution upon her return.

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Establishing past persecution does not by itself justify 1
withholding of removal, but creates a rebuttable presumption of
future persecution, which is the required showing. 8 C.F.R.
§ 208.16(1).
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In her petition for review before this court, Ferdinandus
challenges the timeliness finding and the finding that there is no
"pattern or practice of persecution" of other Christians in
Indonesia sufficient to establish a likelihood that Ferdinandus
will be persecuted. See 8 C.F.R. § 208.16(b)(2).
As a preliminary matter, we lack jurisdiction over
Ferdinandus's asylum application because the BIA's timeliness
determination is not reviewable. 8 U.S.C. § 1158(a)(3); Awad v.
Gonzales, 463 F.3d 73, 76 (1st Cir. 2006).
As for the withholding of removal claim, we review the
BIA's decision in addition to those portions of the IJ's decision
to which the BIA deferred. Chahid Hayek v. Gonzales, 445 F.3d 501,
506 (1st Cir. 2006). We accept the BIA's factual findings "unless
any reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C. § 1252(b)(4)(B). To qualify for withholding
of removal, Ferdinandus must establish either that she suffered
past persecution on account of her religion or that it is more 1
likely than not that she will suffer such persecution upon her
return to Indonesia. 8 C.F.R. § 208.16(b); Chahid Hayek, 445 F.3d
at 507.

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The BIA reasonably concluded that Ferdinandus's
experience during the Jakarta riots did not constitute persecution.
It was an isolated incident without violence or detention. See,
e.g., Awad, 463 F.3d at 76 (persecution is more than "mere
harassment or annoyance" (quoting Aguilar-Solis v. INS, 168 F.3d
565, 570 (1st Cir. 1999)) (internal quotation mark omitted));
Sharari v. Gonzales, 407 F.3d 467, 474 (1st Cir. 2005). As the IJ
noted, "the petitioner ha[d] never been arrested, detained,
threatened, or put in harm's way by the Indonesian government or
any of its agents on account of her religious beliefs." See
Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir. 2005)
(persecution must be the result of the government's actions or
inactions); Pieterson v. Ashcroft, 364 F.3d 38, 45 (1st Cir. 2004)
(petitioner who was never "physically harmed, detained, or
arrested" failed to demonstrate persecution). The IJ also noted
that it was unclear whether Ferdinandus's car was stopped because
of the sticker referring to Jesus or simply because the rioters
wanted money. See Toloza-Jimenez v. Gonzales, 457 F.3d 155, 160
(1st Cir. 2006) (petitioner failed to establish past persecution
when she did not show that her mistreatment was politically
motivated); Pieterson, 364 F.3d at 44 ("[T]here was no proven nexus
between the violence in Sierra Leone and Pieterson's ethnicity and

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Ferdinandus claimed in her original application and 2
affidavit that her daughter was raped and that the rape was also an
incident of past persecution. This argument was not made before
the IJ or BIA, but it would have failed for the same reasons: the
alleged rape was private conduct not clearly connected to the
family's religion.
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political beliefs."). Ferdinandus herself described the Jakarta
riots as primarily targeting ethnic Chinese.2
The BIA also reasonably concluded that it was not "more
likely than not" that Ferdinandus would be persecuted upon her
return to Indonesia. 8 C.F.R. § 208.16(b)(2). It permissibly
reasoned that the safety of Ferdinandus's children, who still live
and attend church in Indonesia, undercuts Ferdinandus's argument
that she will suffer persecution. See, e.g., Melhem v. Gonzales,
___ F.3d ___, 2007 WL 2404479, at *3 (1st Cir. Aug. 24, 2007); Ouk
v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006); Chahid Hayek, 445
F.3d at 509. Further, the IJ noted that the Indonesian government
is working to diffuse religious tensions and that the targeting of
churches has been on the decline. There was thus no indication of
a "pattern or practice of persecution" sufficient to establish any
likelihood that Ferdinandus will be targeted upon her return.
The petition is denied.

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