Poppy N. Sombah v. Michael B. Mukasey, United States Attorney General

United States Court of Appeals
For the First Circuit
No. 07-1481
POPPY N. SOMBAH et al.,
Petitioners,
v.
MICHAEL B. MUKASEY,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
William A. Hahn and Hahn & Matkov on brief for petitioners.
Don G. Scroggin, Trial Attorney, Jeffrey S. Bucholtz, Acting
Assistant Attorney General, and Linda S. Wendtland, Assistant
Director, U.S. Department of Justice, on brief for respondent.
June 17, 2008

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LYNCH, Chief Judge. Poppy Sombah, her husband Freddy,
and her minor son, all natives and citizens of Indonesia, petition
for review of a decision by the Board of Immigration Appeals
("BIA") denying their applications for asylum, withholding of
removal, and relief under the Convention Against Torture ("CAT").
We deny the petition.
Sombah and her son entered the United States on November
3, 2003 with non-immigrant visitor visas which authorized them to
remain until May 2, 2004. They overstayed. Sombah's husband had
entered on a non-immigrant visa on September 3, 2003. That visa
expired on October 3, 2003, and he overstayed. On April 26, 2004,
Sombah filed an application for asylum with the Department of
Homeland Security ("DHS") on behalf of herself as well as her son
and husband as derivative applicants.
Immigration and Customs Enforcement ("ICE") initiated
removal proceedings against the Sombah family by filing Notices to
Appear ("NTA") on July 13, 2004. The agency charged the Sombahs
with removability for having overstayed their visas; the Sombahs
conceded removability.
In her testimony before an Immigration Judge ("IJ") and
in affidavits accompanying her application for asylum, Sombah
described several incidents in support of her claim of persecution
on account of her religion. Although born into a Muslim family in
Jakarta, Sombah converted to Christianity in 1981 and married a

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Christian man. Sombah's Muslim family disowned her, "terrorized"
Freddy at work, and threatened to kidnap their three children.
Sombah has not received any such threats from her family since
1986.
Sombah testified to having experienced other forms of
harassment due to her Christian faith. Between 1994 and 2000, the
Sombahs held monthly prayer meetings at their home with other
members of their church. Attendees at these meetings found, upon
leaving, that their cars had been vandalized. In 1999, the
Sombahs' church was burned, presumably by Muslims. The church had
been erected without government approval, and the government did
not allow the church to be rebuilt. In 2001, Freddy Sombah was
riding a bus when a group of thugs boarded and robbed the
passengers. The robbers made threatening comments to Freddy,
referencing his Christian faith. Also in 2001, the Sombahs
traveled to Sulawesi, a separate island from their home island of
Java, and attended a prayer meeting that was disrupted by a violent
group. The Sombahs were not injured in this incident.
Sombah additionally testified that Muslim neighbors
killed her dog, that a neighbor blocked a pipe in order to cause
sewage to flow onto her property rather than the neighbor's own,
that her son was asked to vacate his apartment in a predominantly
Muslim neighborhood, and that her granddaughter received a

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disparaging letter from classmates at her predominantly Muslim
school.
On July 26, 2005, the IJ denied Sombah's asylum
application. The IJ described the threats directed at Sombah by
her family as "a private matter" and stressed that they ceased in
1986. The IJ acknowledged the other incidents of harassment in
detail and concluded that they did not qualify Sombah for asylum.
In finding that Sombah had not established a well-founded fear of
persecution were she to return to Indonesia, the IJ noted that
Sombah's grown son and daughter, both Christians, continue to live
there. The IJ also found it significant that before traveling to
the United States, Sombah previously visited Europe for two months,
including a visit to her sister residing in Germany. Sombah
returned to Indonesia without seeking asylum in Europe. When
Sombah later obtained a visa to visit the United States, she waited
nine months before departing Indonesia, during which time she and
her family suffered no harm.
The BIA affirmed the denial of relief on February 28,
2007. The BIA reiterated the incidents described in Sombah's
testimony, then concluded that they did not "singly or
accumulatively[] rise to the level of persecution." The BIA agreed
with the IJ that because Sombah had failed to meet the requirements
for asylum, she could not establish the high standards for
withholding of removal or relief under the CAT.

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Sombah timely petitioned to this court for review. We
uphold the agency's determinations if they are "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (quoting 8 U.S.C. § 1105a(a)(4)) (internal quotation marks
omitted). The agency's 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). "We review legal issues de
novo, granting appropriate deference to the agency's interpretation
of the statutes they are charged with enforcing." Kho v. Keisler,
505 F.3d 50, 53-54 (1st Cir. 2007).
In order to qualify for asylum, Sombah bears the burden
of proving that she suffered past persecution or has a well-founded
fear of future persecution based on her religion. Chikkeur v.
Mukasey, 514 F.3d 1381, 1382 (1st Cir. 2008); see also 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A).
There is substantial evidence in the record to sustain
the BIA's conclusion that Sombah's experiences in Indonesia did not
rise to the level of persecution. "Persecution," as the term is
used in the immigration law, surpasses "unpleasantness, harassment,
and even basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st
Cir. 2000). We cannot say that the BIA erred in concluding that
the intermittent harassment described by Sombah did not constitute
persecution warranting asylum.

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Sombah argues that in denying the existence of past
persecution, the IJ erred by failing to take into account the
"totality of the circumstances," including the country conditions
in Indonesia. That argument fails. The IJ's decision discussed
Department of State Country Condition Reports in the record, and
the IJ even supplemented the record by introducing, sua sponte, the
Department's 2005 Issue Paper regarding Christians in Indonesia.
The IJ acknowledged that these sources confirm the existence of
discrimination against Christians in Muslim-majority Indonesia,
even at the level of national and local government. However, these
background facts do not relate in any specific way to Sombah's
individual claim for asylum. Discrimination in Indonesia does not,
without more, qualify a Christian Indonesian national for asylum.
See, e.g., Pulisir v. Mukasey, 524 F.3d 302, 308-09 (1st Cir.
2008); Kho, 505 F.3d at 58; Susanto v. Gonzales, 439 F.3d 57, 59-61
(1st Cir. 2006).
Sombah also argues that the agency committed legal error
in finding that Sombah failed to establish a well-founded fear of
future persecution. Sombah argues that the IJ found that the
Indonesian government was involved in Sombah's harassment and, from
this, that agency regulations put the burden on the DHS to show
that it would be reasonable for Sombah to avoid persecution by
relocating to a different location within Indonesia. See 8 C.F.R.
§§ 208.13(b)(2)(ii), (3). Sombah argues that the IJ failed to

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place this evidentiary burden on the DHS, and that the DHS did not
meet it.
Sombah's argument fails on its premise. The IJ did not
make a finding that the Indonesian government was complicit or
acquiescent in private actors' mistreatment of Sombah. As noted
above, the IJ made comments in her decision concerning evidence --
taken from State Department reports -- that "there continue to be
certain levels of discrimination, apparently in Indonesia, both
locally and nationally with respect to the treatment of
Christians." Nowhere does the IJ state that the government was
involved in any of the incidents that Sombah relied on for her
asylum claim. Neither does the record support the suggestion that
Sombah's is a case "in which the persecutor is a government or is
government-sponsored." Id. § 208.13(b)(3)(ii).
In a final argument relating to the agency's
determination of the asylum issue, Sombah argues that the IJ's
finding of discrimination by the Indonesian government triggers
"heightened scrutiny" of her claims. We need not consider the
argument because Sombah failed to present it to the BIA. See Butt
v. Keisler, 506 F.3d 86, 90 (1st Cir. 2007); see also 8 U.S.C.
§ 1252(d)(1).
Because Sombah does not meet the requirements for
establishing eligibility for asylum, neither can she satisfy the

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more stringent standard for withholding of removal. See Makhoul v.
Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004).
Lastly, because Sombah does not make any arguments in her
petition regarding relief under the CAT, those claims are waived.
See Zeru v. Gonzales, 503 F.3d 59, 66 n.4 (1st Cir. 2007).
The petition is denied.

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