Darwin Theodore v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARWIN THEODORE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-70834
Agency No. A099-905-732
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2016
Pasadena, California
Before: BERZON and OWENS, Circuit Judges and MARBLEY,** District Judge.
Darwin Theodore, an Indonesian citizen of Chinese ancestry and Christian
faith, seeks review of an order of the Board of Immigration Appeals (“BIA”) that
FILED
FEB 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Algenon L. Marbley, District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.

-- 1 of 7 --

dismissed his appeal from an immigration judge’s (“IJ”) denial of his application for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and review the BIA’s
legal determinations de novo and its factual findings for substantial evidence.
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). For the reasons that
follow, we deny the petition for review.
To qualify for asylum, Theodore must establish that he is a refugee within the
meaning of 8 U.S.C. § 1101(a)(42)(A). See Castro-Martinez v. Holder, 674 F.3d
1073, 1080 (9th Cir. 2011). Theodore thus bears the burden of proving that he is
unable or unwilling to return to Indonesia “because of [past] persecution or a well-
founded fear of [future] persecution on account of” a protected ground. Id. (citing
8 U.S.C. § 1101(a)(42)(A)). Substantial evidence does not compel a finding that
Theodore qualifies as a refugee under either prong.
As a threshold matter, substantial evidence supports the BIA’s determination
that Theodore had not suffered past persecution despite several incidents of
regrettable discrimination and petty violence. See Wakkary, 558 F.3d at 1059-60;
Halim v. Holder, 590 F.3d 971, 975-76 (9th Cir. 2009). Theodore credibly testified
that, over the course of a decade, he suffered several incidents of schoolyard
2

-- 2 of 7 --

bullying, harassment, and violence, including witnessing his father assaulted by a
machete-wielding native Indonesian who was unwilling to pay a business debt;
staying inside for a week due to fear of anti-Chinese looting during the May 1998
Jakarta rioting; getting chased and beaten by native Indonesians while visiting a
beach in Bali one New Year’s Eve; and fearing that his church might be bombed
after several Christian churches throughout Indonesia received bomb threats in the
wake of an actual bombing in Bali. As in Wakkary and Halim, however, these
incidents of discrimination do not rise to the level of past persecution.
Moreover, the BIA did not fail to consider Theodore’s experiences or
suffering as an adolescent in rejecting his claim of past persecution. See generally
Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007). Instead, the BIA
properly distinguished Theodore’s experiences as a teenager from the horrific events
experienced firsthand by the far-younger asylum applicants in Hernandez-Ortiz. Id.
at 1044 (describing nine- and seven-year old Mayan brothers who had their family
and lives shattered by the Guatemalan Army).
Substantial evidence likewise supports the BIA’s determination that
Theodore’s fear of future persecution is not objectively reasonable. Theodore did
not challenge the BIA’s finding that he failed to show a pattern or practice of
3

-- 3 of 7 --

persecution against ethnic Chinese and/or Christians in Indonesia. Even under a
disfavored-group analysis, Theodore failed to show a sufficient individualized risk
to establish a well-founded fear of future persecution. See Halim, 590 F.3d at 977-
80. As in Halim, Theodore’s exposure to individual incidents of discrimination had
ceased entirely for a significant period of time before his immigration to the United
States. Compare id. at 979 (“After [the final incident], Halim continued to work and
attend his university for another fifteen months without incident before he traveled
to the United States.”), with Administrative Record at 150, 203 (conceding that
Theodore had not experienced any discrimination in over four years before traveling
to the United States). See Castillo v. INS, 951 F.2d 1117, 1122 (9th Cir. 1991)
(“When determining the objective reasonableness of an alien’s claim of well-founded
fear of persecution[,] the BIA may properly consider as significant a petitioner’s
continued safe and undisturbed residence in his homeland after the occurrence of the
event which is alleged to have induced his fear.”). Moreover, as in Halim,
Theodore’s family remained in Indonesia after his departure, and Theodore “has not
presented any evidence that they have been targeted” in the years since, further
undermining his asylum bid. See Halim, 590 F.3d at 979; see also Hakeem v. INS,
273 F.3d 812, 816 (9th Cir. 2001) (“An applicant’s claim of persecution . . . is
weakened, even undercut, when similarly-situated family members continue to live
4

-- 4 of 7 --

in the country without incident . . . .”), superseded by statute on other grounds as
stated in Ritonga v. Holder, 633 F.3d 971, 977 (10th Cir. 2011). In sum, Theodore’s
asylum claim fails because he did not demonstrate “refugee” status under either the
past-persecution prong or the well-founded-fear-of-future-persecution prong.
To qualify for withholding of removal, Theodore must demonstrate a “clear
probability” that, if removed to Indonesia, his “life or freedom would be threatened
in that country because of [his] race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Jiang v. Holder, 754
F.3d 733, 740 (9th Cir. 2014). As we have explained, this standard “is more
stringent than the well-founded fear standard for asylum.” Jiang, 754 F.3d at 740
(citation omitted). Consequently, “because [Theodore’s] asylum claim fails, [his]
withholding of removal claim also fails.” Id.
Finally, to qualify for protection under the CAT, Theodore must show “that
he would more likely than not be tortured by or with the acquiescence of the
[Indonesian] government if he is removed to [Indonesia].” Bringas-Rodriguez v.
Lynch, 805 F.3d 1171, 1184 (9th Cir. 2015). Here again, the BIA’s denial of relief
under the CAT was supported by substantial evidence. As with Theodore’s asylum
and withholding-of-removal claims, the record does not compel a finding that
5

-- 5 of 7 --

Theodore “more likely than not” will be tortured upon his return to Indonesia with
the government’s consent or acquiescence. Theodore relies on the same evidence
to support his CAT claim as he does his other claims for relief: some hand-selected
portions of State Department Country Condition Reports for Indonesia as well as his
testimony and supporting declaration from his removal proceedings. The IJ
expressly considered all of this evidence before denying Theodore’s CAT claim, and
the BIA essentially adopted the IJ’s findings. Where, as here, a petitioner “points to
no other evidence that he could claim the BIA should have considered in making its
determination under the Convention Against Torture,” the BIA may rely on its prior
findings in the asylum context to deny relief. Farah v. Ashcroft, 348 F.3d 1153,
1157 (9th Cir. 2003).
Theodore’s attack on the IJ’s legal analysis, which the BIA adopted, also
misses the mark. Theodore argues that the IJ considered only torture at the hands of
the Indonesian government—not torture from others to which the government might
turn a blind eye. In making this argument, however, Theodore misreads the IJ’s
decision. The IJ ruled as follows: “The Court finds that the respondent has not
shown on this record that it is more likely than not that he will be tortured by the
6

-- 6 of 7 --

Indonesian government within the meaning of the regulations upon his return . . . .”
(Emphasis added). By adding the modifier “within the meaning of the regulations,”
the IJ expressly incorporated the full expanse of applicable regulations, including
8 C.F.R. § 1208.18(a)(1), which, in defining “torture,” explains that the torture may
be inflicted “by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.” (Emphasis added). In
short, the IJ did exactly what Theodore contends was required—she considered all
the evidence of possible torture from the Indonesian government itself or from other
individuals to whom the government might turn a blind eye; she merely did so by
referencing the regulation defining “torture” instead of quoting that passage in full.
This alone does not constitute reversible error.
PETITION DENIED.
7

-- 7 of 7 --