Cynthia Patricia Keyrupyan v. Attorney General of the United States of America

Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,*
sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-1330
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CYNTHIA PATRICIA KEYRUPYAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
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On Petition for Review from the Board of Immigration Appeals
(File A95-369-629)
Immigration Judge: Honorable Charles M. Honeyman
______
Submitted Under Third Circuit LAR 34.1(a)
March 16, 2007
Before: FUENTES, GREENBERG, and LOURIE, Circuit Judges.*
(Filed March 28, 2007)
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OPINION OF THE COURT
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LOURIE, Circuit Judge.
Cynthia Patricia Keyrupyan (“Keyrupyan”) petitions for review of a decision and
order of the Board of Immigration Appeals (the “Board”) affirming without opinion the
decision by the Immigration Judge (“IJ”) that denied Keyrupyan’s application for asylum,
withholding of removal, and relief under the Convention Against Torture. Because
substantial evidence supports the IJ’s determination, we will deny the petition for review.
Keyrupyan was born in Indonesia in 1974 and is a Christian of Chinese ethnicity. She
entered the United States at San Francisco, California, on or about September 10, 2001 as a
B-1 non-immigrant visitor. She submitted an application for asylum on December 26, 2001.
She remains in the United States and is not currently detained.
The IJ held hearings on Keyrupyan’s claim on January 22, 2003 and April 19, 2004,
and Keyrupyan was the only witness. In support of her claim of past persecution and fear of
future persecution based upon her religion and ethnicity, Keyrupyan testified as to three
incidents. First, she testified that she had been punched while taking public transportation
home from school as a child, as well as suffering other incidents due to her Chinese ethnicity.
Second, Keyrupyan described an incident at her church in Indonesia on Christmas Eve in
1998. As a number of the worshipers were leaving the church to go to dinner together, a
bomb that had been placed in the car of her mother’s friend exploded. As a result of the
injuries from the bomb, the friend’s legs had to be amputated. Keyrupyan was originally
supposed to ride in that same car but decided to ride with others and so avoided injury.

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Third, she stated that in January of 2000, a native Indonesian motorcyclist in Jakarta had hit
her while she was crossing the street, causing injuries to her legs that required treatment at
a hospital. The motorcyclist only laughed and insulted her rather than offering assistance.
She also testified that her fear reached its height at the time of the riots in 1998, and that she
believes that the same people who caused the riots continue to commit violence now. Her
parents and two siblings remain in Indonesia.
The IJ issued an oral decision on April 19, 2004. The IJ determined that Keyrupyan
was a credible witness. However, the IJ determined that the incidents described by
Keyrupyan were not sufficient to establish past persecution. The IJ also determined that
Keyrupyan had not established a likelihood that she would be singled out for future
persecution or that the level of violence against Chinese Christians rose to the level of a
general pattern or pervasive practice of persecution. The IJ relied upon statements indicating
improvement in the relations between Christians and Muslims in Indonesia in the Country
Report on Human Rights Practices for 2003. The IJ concluded that Keyrupyan did not have
a basis for a well-founded fear of future persecution.
Having found that Keyrupyan did not meet the burden of proof for asylum, the IJ
concluded that she could not meet the stricter standard for withholding of removal. The IJ
also found that Keyrupyan had not met the burden of proof for relief under the Convention
Against Torture.
The Board affirmed the IJ’s decision without opinion on December 28, 2005, making

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the IJ’s decision the final agency determination. Keyrupyan timely appealed, and we have
jurisdiction pursuant to 8 U.S.C. § 1252.
When the Board affirms the IJ’s decision without opinion, the Court reviews the IJ’s
decision directly. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). “[T]he
administrative findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). This Court has
interpreted this provision to mean that the agency must support its findings with substantial
evidence. Dia, 353 F.3d at 247. “If a reasonable fact finder could make a particular finding
on the administrative record, then the finding is supported by substantial evidence.
Conversely, if no reasonable fact finder could make that finding on the administrative record,
the finding is not supported by substantial evidence.” Id. at 249.
The Attorney General has the power to grant asylum to a person who qualifies as a
refugee. 8 U.S.C. § 1158(b)(1). A refugee is “any person who is outside any country of such
person’s nationality . . . and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of that 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). “The applicant
may qualify as a refugee either because he or she has suffered past persecution or because
he or she has a well-founded fear of future persecution,” and establishing past persecution
entitles the applicant to a presumption of a well-founded fear of future persecution. 8 C.F.R.

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§ 1208.13(b).
This Court has defined persecution as “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom.” Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d
Cir. 1993)).
To establish a well-founded fear of future persecution an applicant must first
demonstrate a subjective fear of persecution through credible testimony that
her fear is genuine. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003).
Second, the applicant must show, objectively, that “a reasonable person in the
alien's circumstances would fear persecution if returned to the country in
question.” Id. To satisfy the objective prong, a petitioner must show she
would be individually singled out for persecution or demonstrate that “there
is a pattern or practice in his or her country of nationality ... of persecution of
a group of persons similarly situated to the applicant on account of race,
religion, nationality, membership in a particular social group, or political
opinion . . . .” 8 C.F.R. § 208.13(b)(2)(iii)(A).
Id. at 536.
On petition for review, Keyrupyan argues that her testimony established eligibility for
asylum based on past persecution on account of her ethnicity and religion. She also argues
that her testimony together with the most recent Country Report in the record for Indonesia
and other documentary evidence of record establishes a well-founded fear of future
persecution, especially in light of recent decisions in similar cases by other United States
Courts of Appeal.
The government responds that substantial evidence supports the IJ’s decision. The
government argues that Keyrupyan was only subject to isolated harassment and assault rather

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The government also argues that Keyrupyan failed to establish that the1
incidents described in her testimony were on account of her ethnicity or religion. As the
IJ did not make findings about the motivation for the acts or rely on that ground to reach
his decision, we do not reach that question.
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than persecution that constituted a severe threat to life or freedom. Emphasizing the1
standard of review, the government argues that the evidence does not compel a conclusion
different from that reached by the IJ.
We agree with the government that substantial evidence supports the IJ’s
determinations. The standard for establishing past persecution is high, and we cannot state
that, on these facts, no reasonable fact finder could find that the incidents Keyrupyan
described do not reach the level of persecution as we have defined it. Similarly, given that
there is support in the Country Report for 2003 for improving relations between Christians
and Muslims in Indonesia and the lack of other objective rebuttal evidence, we cannot state
that no reasonable fact finder could find that Keyrupyan did not have a well-founded fear of
future persecution. Also, “when family members remain in petitioner’s native country
without meeting harm, and there is no individualized showing that petitioner would be
singled out for persecution, the reasonableness of a petitioner’s well-founded fear of future
persecution is diminished.” Lie, 396 F.3d at 537.
Keyrupyan relies on Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), and Lolong v.
Gonzalez, 400 F.3d 1215 (9th Cir. 2005), which built upon Sael, to support a conclusion that
she has established a well-founded fear of future persecution. However, we have stated with

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respect to Sael that we “disagree with the Ninth Circuit’s use of a lower standard for
individualized fear absent a ‘pattern or practice’ of persecution and, similarly, we reject the
establishment of a ‘disfavored group’ category.” Lie, 396 F.3d at538, n.4. Further, we note
that the administrative record in those cases appears to have been far more substantial than
the record provided in this case.
Finally, Keyrupyan also asks that we take judicial notice of the more recent 2005
Country Report for Indonesia because it is not a part of the record. We have acknowledged
the problem with “stale” Country Reports but decided that “courts reviewing the
determination of an administrative agency must approve or reject the agency’s action purely
on the basis of the reasons offered by, and the record compiled before, the agency itself.”
Kamara v. Att’y Gen., 420 F.3d 202, 218 (3d Cir. 2005) (quoting Berishaj v. Ashcroft, 378
F.3d 314, 330 (3d Cir. 2004)). Thus, we decline to take such judicial notice of material that
was not part of the record below.
Because the applicant’s burdens of proof for withholding of removal and relief under
the Convention Against Torture are higher than those for asylum and Keyrupyan was unable
to meet the burden necessary to establish a claim for asylum, we need not separately address
those claims. Because substantial evidence supports the IJ’s conclusion that Keyrupyan did
not establish eligibility for asylum, withholding of removal, or relief under the Convention
Against Torture, we will deny the petition for review.

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