Omega H. Sinurat v. Michael B. Mukasey, Attorney General

United States Court of Appeals
For the First Circuit
No. 07-2230
OMEGA H. SINURAT,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
William A. Hahn and Hahn & Matkov on brief for petitioner.
Kathleen J. Kelly, Trial Attorney, Office of Immigration
Litigation, Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Civil Division, and Mary Jane Candaux, Assistant Director, U.S.
Department of Justice, Office of Immigration Litigation, on brief
for respondent.
August 8, 2008

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LYNCH, Chief Judge. Omega H. Sinurat, a native and
citizen of Indonesia, petitions for review of a decision by the
Board of Immigration Appeals ("BIA") denying his application for
asylum, withholding of removal, and relief under the Convention
Against Torture ("CAT"). We deny the petition.
Sinurat entered the United States on April 25, 2003 using
a passport that he obtained under an assumed name. He applied for
asylum on July 2, 2004. The Department of Homeland Security
("DHS") issued a Notice to Appear to Sinurat on September 9, 2004,
charging him as removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as
an alien not in possession of a valid entry document as required by
the Immigration and Nationality Act. Sinurat conceded his
removability, but applied for asylum, withholding of removal, and
protection under the CAT. A hearing was held before an Immigration
Judge ("IJ") on December 6, 2005.
Sinurat testified that he is a Christian Protestant and
was persecuted in Indonesia on the basis of religion. In 1992,
more than ten years before he entered the United States, he was
beaten by three students from a rival, predominantly Muslim high
school. Sinurat testified they targeted him because he attended a
predominantly Christian school. Although he reported the incident
to local police, the police took no action. Sinurat was not
hospitalized for his injuries, and he returned to school the next
day.

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Although Sinurat testified that his family was attacked once, 1
and alluded to "incidents . . . in 1998," he never elaborated on
these events elsewhere in the record, and the IJ found that any
allegations were "merely anecdotal, unsubstantiated, and unreliable
testimony."
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Sinurat also described a second incident in 1992 in which
students from the rival Muslim high school stabbed his friend in
the back with a knife. Although his friend was taken to the
hospital, the police again did not take action. Sinurat testified
that he feared returning to Indonesia because of these incidents
and because of a series of church bomb threats in 2000, including
an attack on his family's church. He and his family feared
attending church because of these threats. After high school,
Sinurat attended a Catholic college for five years in Indonesia
without experiencing any threats to his safety. The rest of his 1
family remains in Indonesia today.
Sinurat further testified that he tried to obtain a visa
in his own name, but after being rejected three times, he obtained
a visa under a false name, Dotte Damawan, in February 2001. He
left for the United States in April 2003. Sinurat testified that
he waited to leave Indonesia because he was working and saving
money to come to the United States, and because he was waiting for
permission from his parents to leave.
The IJ rejected Sinurat's claims for asylum, withholding
of removal, and protection under the CAT, and found him removable
as charged. Although he found Sinurat credible, the IJ found that

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it was unclear whether Sinurat had been targeted in 1992 because of
his religion or because he was a student at a rival high school.
Regardless, the IJ determined that the harm Sinurat experienced
only amounted to "sporadic private discrimination" and that there
was no evidence that such discrimination was "sponsored, supported,
or condoned by the government." Moreover, the IJ concluded that
such sporadic discrimination could not give Sinurat an objectively
reasonable fear of future persecution because Sinurat had not
suffered problems while attending college in Indonesia, and because
he delayed his departure for two years after receiving a visa.
Further, the IJ emphasized that Sinurat's family continued to live
unharmed in Indonesia, and Sinurat had not provided evidence of
threats against them. The IJ granted Sinurat voluntary departure.
Sinurat appealed the IJ's decision to the BIA on January
3, 2006. The BIA dismissed Sinurat's appeal on July 10, 2007. The
BIA agreed with the IJ's opinion, finding no clear factual error in
the IJ's determination that Sinurat's high school incident did not
rise to the level of persecution. The BIA agreed with the IJ that
even if Sinurat could establish a genuine fear of persecution, his
fear was not objectively reasonable. The BIA further concluded
that Sinurat had also failed to satisfy the higher standard for
withholding of removal and that he had failed to provide any
evidence that he would be subjected to torture if returned to
Indonesia. Sinurat timely petitioned this court for review.

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We review the BIA's factual findings under the
deferential substantial evidence standard. Kechichian v. Mukasey,
No. 07-1584, ___ F.3d. ___, 2008 WL 2814789, at *3 (1st Cir. July
23, 2008). "When the BIA adopts the IJ's opinion and discusses
some of the bases for the IJ's opinion, we have authority to review
both the IJ's and the BIA's opinions." Ouk v. Gonzales, 464 F.3d
108, 110 (1st Cir. 2006). We uphold the BIA's findings 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 omitted). We reverse
only if "any reasonable adjudicator would be compelled to conclude
to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also, e.g.,
Chikkeur v. Mukasey, 514 F.3d 1381, 1382-83 (1st Cir. 2008).
To qualify for asylum, Sinurat bears the burden of
proving that he has suffered past persecution or has a well-founded
fear of future persecution based on his religion. See Chikkeur,
514 F.3d at 1382. To qualify as persecution, the harm to the
petitioner must exceed "unpleasantness, harassment, and even basic
suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000).
Substantial evidence supports the BIA's determination that the
harms Sinurat suffered in Indonesia did not constitute persecution.
Sinurat claims that de novo review is required because
the IJ stated that it was "unclear" whether the students attacked

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Sinurat because he was a Christian or because of the schools'
rivalry, rather than making an explicit finding. This argument has
no merit. See Pulisir v. Mukasey, 524 F.3d 302, 310 (1st Cir.
2008) ("[It] does [not] matter that the BIA and IJ did not dissect
every scrap of proof."). Both the IJ and the BIA concluded that
regardless of the students' motives, the harm Sinurat experienced
in this one-time incident did not amount to past persecution.
Sinurat also argues, with regard to his claim of future
persecution, that the IJ erred by relying on the more positive
sections of the State Department reports, which were less favorable
to his case, instead of relying on the sections describing a more
negative outlook for Indonesian Christians. The IJ's assessment of
the reports was not unreasonable. See Pan v. Gonzales, 489 F.3d 80,
87 n.6 (1st Cir. 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); see also
Sipayung v. Gonzales, 491 F.3d 18, 21 (1st Cir. 2007) ("We cannot
say the IJ's reading of the State Department reports was
unreasonable, especially in light of the experience of [the
petitioner's] family, all of whom practiced Christianity in
Indonesia without persecution.").
Sinurat also argues that the IJ erred by finding that
Sinurat had not shown that the Indonesian government actively
discriminates against and persecutes Christians. The IJ, and

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ultimately the BIA, reasonably found no connection between the
Indonesian government's treatment of Christians generally and the
isolated attack on Sinurat. See Kho v. Keisler, 505 F.3d 50, 54
(1st Cir. 2007) ("We have repeatedly affirmed the BIA's
determinations . . . that there is no ongoing pattern or practice
of persecution against . . . Christians in Indonesia."); see also
Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir. 2008) ("Discrimination
in Indonesia does not, without more, qualify a Christian Indonesian
national for asylum.").
The BIA also correctly found that Sinurat failed to
satisfy the requirements for withholding of removal. If the
applicant cannot meet the lower burden of proof for establishing his
eligibility for asylum, he therefore cannot satisfy the more
stringent standard for withholding of removal. See Makhoul v.
Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004).
Lastly, because Sinurat does not make any arguments in
either his petition or his brief before the BIA regarding relief
under the CAT, that claim is waived. See Sombah, 529 F.3d at 52;
Zeru v. Gonzales, 503 F.3d 59, 66 n.4 (1st Cir. 2007).
We deny the petition for review.

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