SENLY SUGIARTO, JEMMY KOROMPIS, and JEISY VANYA KOROMPIS v. Eric H. Holder, Jr., Attorney General of the United States

Of the Federal Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 08-2502
SENLY SUGIARTO, JEMMY KOROMPIS, and JEISY VANYA KOROMPIS,
Petitioners,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Dyk,*
Circuit Judges.
Armin A. Skalmowski, on brief for petitioners.
Julia J. Tyler, Trial Attorney, Office of Immigration
Litigation, Civil Division, Tony West, Assistant Attorney General,
Civil Division, and Barry J. Pettinato, Assistant Director, on
brief for respondent.
November 10, 2009

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Sugiarto's husband and daughter were derivative applicants on 1
her asylum petition, and, thus, also petitioners here.
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TORRUELLA, Circuit Judge. Petitioner, Senly Sugiarto, a
practicing Christian of Indonesian nationality, seeks review of a
decision by the Board of Immigration Appeals ("BIA") affirming the
denial by the Immigration Judge ("IJ") of her applications for
asylum, withholding of removal under § 241(b)(3) of the Immigration
and Nationality Act ("INA"), and relief under the Convention
Against Torture ("CAT"). Sugiarto advances no argument on appeal
with respect to her withholding of removal or CAT claims, and as a
result, these claims are waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). Sugiarto does argue that the BIA's
denial of her asylum claim, which was based on past persecution and
a well-founded fear of future persecution on account of her
Christian religion, was not supported by substantial evidence.
After careful consideration, finding the BIA's decision adequately
supported, we deny the instant petition for review.
I. Background
A. Facts
Petitioner, Sugiarto, is a native and citizen of
Indonesia, as is her husband, Jemmy Korompis, and their 10-year-old
daughter, Jeisy. Sugiarto, was raised as a Protestant Christian 1
in Tinoor, Manado, where she was a member of the local church and
the treasurer of the church's women's group. She reports that the

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demographics of Manado have shifted in recent years: while the
majority used to be Christian, 99% of residents are now Muslim.
Sugiarto asserted that she had problems in Indonesia on account of
her identity as a Christian, and attributed the following incidents
to her religious status.
First, Sugiarto describes an incident that occurred on
September 15, 2003 while she was employed as the treasurer of a
company called PI Pelni. Sugiarto was traveling with a security
guard and a driver to a bank to pick up money for her company. At
the bank, Sugiarto withdrew $99,000, which she held in her lap
while returning to the office. While en route to her office, two
men on a motorcycle blocked the road and broke the back window of
the car, attempting to force open the back door near where Sugiarto
was sitting. Although the men were unable to steal the money,
Sugiarto's arms were cut from the broken glass, causing her to seek
medical treatment at the hospital. The petitioner asserts that
these men were members of a Muslim terrorist group because that was
the kind of behavior these groups engaged in. Although Sugiarto
had a current U.S. visitor's visa when this incident occurred, she
decided to remain in Indonesia because she "had a good job."
Second, Sugiarto recounts an incident that took place on
December 16, 2004. On that day Sugiarto and her family were forced
to rush out of a mall in Manado when a bomb threat warning was
issued. She reports that it was very difficult to breathe amidst

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the fleeing crowds. Neither Sugiarto nor her husband or daughter
required medical treatment after the incident. Sugiarto did not
know specifically who caused the bomb threat, but reasoned that,
because Manado is 99% Muslim and this event took place shortly
before Christmas, those responsible were likely Muslim.
Sugiarto reported that she felt threatened as a Christian
minority living in Manado due to both of these events and also
because of bombings of houses, churches and various public places
that were taking place in her surrounding area. She explained that
these attacks often targeted church leaders and others with special
duties in the church. Her fear of religious violence sometimes
prevented her from attending church. Sugiarto also explained that
her daughter, Jeisy, who was born with a leg condition that causes
her to limp, suffered ridicule and harassment by her classmates in
Indonesia because of her condition.
Sugiarto and Jeisy arrived in the United States on
January 16, 2005 on a visitor's visa. Sugiarto's husband,
Korompis, arrived in June of that year, also on a visitor's visa.
The petitioner explains that her daughter has felt more comfortable
with herself since coming to the United States. Doctors in both
Indonesia and the United States have indicated that Jeisy can
undergo surgery once her bones develop further, which will enable
her to walk normally. Since arriving in the United States,
petitioner's family has joined and regularly attended services at

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the Naturia Presbyterian Church in Rochester, New Hampshire, where,
in March 2006, Sugiarto was elected deacon. The record contains
evidence documenting her active participation in the church.
Sugiarto reported that she could not go back to Indonesia
out of fear of religious violence. She explained that since her
departure from Indonesia, two of her siblings have also left
Indonesia and moved to Korea out of fear of religious persecution.
Some of her family members who remain in Indonesia no longer attend
church because they are afraid. She has submitted, on the record,
country reports and articles, including U.S. State Department
Religious Freedom Reports, documenting inter-religious violence in
Indonesia and acts of terrorism against Christians by extremist
groups.
B. Procedural History
Petitioner and her family remained in the United States
without legal status after the expiration of their visitor visas.
On January 3, 2006, Sugiarto filed a timely Form I-589 application
for asylum, accompanied by applications for withholding of removal,
protection under the CAT, and voluntary departure. Sugiarto listed
Korompis and Jeisy as beneficiaries on her application. The
Department of Homeland Security ("DHS") placed the petitioner and
her family in removal proceedings on February 21, 2006. Petitioner
conceded removability.

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Korompis was ordered removed to Indonesia. 2
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On May 18, 2007, the IJ held a hearing on the merits of
Sugiarto's application. In an oral decision issued that day, the
IJ found that petitioner testified credibly but that her testimony
as to the attempted robbery and the bomb threat in Indonesia failed
to establish harm sufficiently severe as to rise to the level of
"past persecution." Moreover, the IJ found that nothing in the
record established a nexus between these incidents and petitioner's
status as a Christian. The IJ further found that petitioner failed
to show a well-founded fear of future persecution in that
petitioner has not shown that she and her family were specifically
singled out on account of their religion, nor that there is a
"pattern or practice" of persecution against Christians in
Indonesia. The IJ thus denied the petitioner's applications for
asylum, withholding, and CAT relief, but granted voluntary
departure to Sugiarto and Jeisy.2
Sugiarto timely appealed to the BIA, which, in an order
issued October 20, 2008, affirmed the IJ's reasoning and decision,
and dismissed the appeal. This petition for review followed.
II. Discussion
A. Standard of Review
This court has appellate jurisdiction over petitions for
judicial review from the BIA under 8 U.S.C. § 1252. "Review of
legal rulings is de novo but is deferential as to findings of fact

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and the determination as to whether the facts support a claim of
persecution." Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir. 2008).
We review fact-based determinations under a "substantial evidence"
standard, which requires that we must affirm provided that the
BIA's decision is "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." Bocova v.
Gonzáles, 412 F.3d 257, 262 (1st Cir. 2005) (quoting INS v. Elías-
Zacarías, 502 U.S. 478, 481 (1992)); see also 8 U.S.C. § 1252
(b)(4)(B). Unless the record compels a contrary conclusion,
evidence in the record supporting a conclusion contrary to that
reached by the BIA is not enough to upset the agency's
determination. See Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.
2008) (quoting López de Hincapié v. Gonzáles, 494 F.3d 213, 218
(1st Cir. 2007)). In other words, we must uphold the BIA's
determination unless the record "points unerringly in the opposite
direction." Hincapié, 494 F.3d at 220 (quoting Laurent v.
Ashcroft, 359 F.3d 59, 69 (1st Cir. 2004)).
"Usually, this court confines its review to the BIA's
order that is being challenged by the petitioner." Lumataw v.
Holder, ___ F.3d ___, 2009 WL 2871884, at *4 (1st Cir. 2009)
(internal quotation marks omitted). "However, when as here, the
BIA adopts the decision of the IJ, and provides some analysis of
its own, the Court reviews both decisions." Id.

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B. Applicable Law
"To establish eligibility for asylum, an alien must prove
either past persecution, which gives rise to an inference of future
persecution, or establish a well founded fear of future persecution
on account of her race, religion, nationality, membership in a
social group, or political opinion." Lumataw, 2009 WL 2871884, at
*3 (internal quotation marks omitted); see also 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b).
If an applicant establishes past persecution, there is a
presumption of a well-founded fear of future persecution, and the
burden shifts to the Government to rebut this presumption. 8
C.F.R. § 1208.13(b)(1); see also Jorgji, 514 F.3d at 57. But even
if the applicant cannot establish past persecution, she can
nevertheless establish eligibility for asylum based on a
"well-founded fear of future persecution" based on a protected
ground. 8 C.F.R. § 1208.13(b). An applicant has a "well-founded
fear of persecution" in her country if she can establish that her
fear is both (1) subjectively genuine and (2) objectively
reasonable, meaning that a reasonable person in the applicant's
circumstances would fear persecution. Castillo-Díaz v. Holder, 562
F.3d 23, 26 (1st Cir. 2009); see also 8 C.F.R. § 1208.13(b)(2).
The regulations further provide that:
[i]n evaluating whether the applicant has
sustained the burden of proving that he or she
has a well-founded fear of persecution, the
. . . [IJ] shall not require the applicant to

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provide evidence that there is a reasonable
possibility he or she would be singled out
individually for persecution if . . . [t]he
applicant establishes 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; and . . . the applicant
establishes his or her own inclusion in, and
identification with, such group of persons
such that his or her fear of persecution upon
return is reasonable.
8 C.F.R. § 1208.13(b)(2)(iii).
Finally, to establish a "well-founded fear" of future
persecution an asylum applicant need not show that return to his
home country will "probably" or "more likely than not" result in
persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 440-49 (1987)
(emphasis added) (internal quotation marks omitted). It is enough
that persecution on account of one of the five aforementioned
protected grounds is a "reasonable possibility." Id. at 440; see
also Pan v. Gonzáles, 489 F.3d 80, 85 n.4 (1st Cir. 2007).
"Reasonable possibility" has been defined to include, in some
circumstances, even a ten percent possibility of future
persecution. See Cardoza-Fonseca, 480 U.S. at 440.
C. Petition for Review
1. Past Persecution
Sugiarto argues that the record compels the conclusion
that she suffered past persecution in Indonesia on account of her
Christian religion, and is thus entitled to a presumption of well

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founded fear of future persecution. As evidence of past
persecution, Sugiarto points to her credible testimony regarding
the attempted robbery and the bomb threat at the mall in Manado,
both of which she claims were directed against her by
anti-Christian extremist groups. The IJ and BIA found that these
experiences did not amount to past persecution both because the
harm she experienced did not rise to the level of "persecution" as
that term is defined for immigration purposes and because Sugiarto
failed to establish that these incidents bore a nexus to a
protected ground.
In order to establish past persecution, Sugiarto must
produce "convincing evidence of a causal connection" between the
harm she endured and a statutorily protected ground, in this case,
her religion. Amouri v. Holder, 572 F.3d 29, 33 (1st Cir. 2009);
see also Elías-Zacarías, 502 U.S. at 483-84. She must show that
her protected religious status was "at least one central reason"
for why she was harmed. 8 U.S.C. § 1158(b)(1)(B)(i). Based on our
review of the record, we conclude that the BIA's finding that
Sugiarto failed to establish the requisite nexus between the
obviously traumatic incidents she recounts and her status as a
Christian was supported by substantial evidence on the record.
As for the 2003 robbery, Sugiarto admits not knowing who
attacked the car. Although we have held that a petitioner who was
attacked was "not required to identify her antagonists with

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absolute certainty," in order to establish nexus, "she was
required, in the absence of a positive identification, to furnish
some credible evidence of the motivation underlying the threats."
Hincapié, 494 F.3d at 219 (denying petition for review where
petitioner, a Colombian woman, had not proffered sufficient
evidence that the threats she received from men she assumed to be
paramilitaries were actually paramilitaries rather than common
criminals). Sugiarto's sole basis for concluding that the
perpetrators of the attack were Islamic terrorists, rather than
common thieves, was her belief that Christians "wouldn't have done
such a thing" and that, based on her Internet research, an anti-
Christian terrorist group was present in the area. These
statements reflect little more than petitioner's conjecture about
the identity of her attackers, which, even if established rather
than assumed, would not compel a conclusion that the attack was
religiously motivated. See Amouri, 572 F.3d at 34 (concluding that
"the mere fact that extortionists were associated with an extremist
group does not compel" a conclusion that extortion was politically
motivated, as "fanaticism and a love of money are not mutually
exclusive"). Sugiarto's testimony was thus reasonably found
insufficient to meet petitioner's burden of establishing a causal
nexus between the robbery and her religion.
As for the 2004 incident involving the bomb threat in the
mall in Manado, petitioner argues that her credible testimony that

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This infirmity of proof with respect to nexus alone forecloses 3
Sugiarto's eligibility for asylum on the basis of past persecution.
See Elías-Zacarías, 502 U.S. at 483-84. We therefore need not
decide whether the degree of harm that she endured was necessarily
of requisite severity to support such a claim. See Nelson v. INS,
232 F.3d 258, 263 (1st Cir. 2000) (explaining that to qualify as
persecution, applicant must show that her experiences "rise above
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anti-Christian extremist groups were responsible for the attack
compels a finding of past persecution. But no matter how credible
a belief petitioner may hold about the perpetrator's motives, she
must nevertheless provide some objective basis for that belief in
order to meet her burden. See Akinfolarin v. Gonzáles, 423 F.3d
39, 44 (1st Cir. 2005); see also Hincapié, 494 F.3d at 217-18
(explaining that an alien must do more than merely express a belief
that incidents were due to a statutorily protected ground in order
to establish a proper nexus). Beyond noting that the incident
occurred a few weeks prior to Christmas, Sugiarto offered no
objective support for her belief that the bomb threat was
perpetuated by terrorists targeting Christians. Moreover, as the
BIA pointed out, given Sugiarto's testimony that the mall was
located in a town that is 99% Muslim, the contention that this bomb
threat in a public place was motivated by a desire to target
Christians is even less persuasive.
We thus find that the BIA's conclusion that Sugiarto
failed to meet her burden of demonstrating that the incidents she
relies on to establish past persecution bore a nexus to a protected
ground is amply supported by the record.3

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unpleasantness, harassment, and even basic suffering").
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2. Well-founded Fear of Future Persecution
Even absent past persecution, Sugiarto contends that the
record compels the conclusion that she is entitled to asylum based
on a well-founded fear of future persecution. As part of her
argument, she urges us to analyze her "well-founded fear" claim
through the lens of the Ninth Circuit's "disfavored group"
analysis. See, e.g., Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir.
2004) (explaining that an asylum applicant can establish well-
founded fear of future persecution by "prov[ing] she is a member of
a 'disfavored group' coupled with a showing that she, in
particular, is likely to be targeted as a member of that group").
In doing so, petitioner asks us to revisit our decision in Kho v.
Keisler, 505 F.3d 50, 55 (1st Cir. 2007), rejecting the Ninth
Circuit's approach, in light of the Ninth Circuit's recent
clarification of that standard. See Wakkary v. Holder, 558 F.3d
1049, 1063-64 (9th Cir. 2009). For the reasons set forth below, we
conclude that the agency's decision denying Sugiarto's claim for
asylum on the basis of well-founded fear of future persecution was
supported by substantial evidence, and thus, we do not disturb that
decision.
As explained infra, "well-founded fear" has both a
subjective and an objective component. The objective component is
an inquiry into whether "'a reasonable person in [the applicant's]

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circumstances would fear persecution on account of a statutorily
protected ground,'" Castillo-Díaz, 562 F.3d at 26 (quoting Romilus
v. Ashcroft, 385 F.3d 1, 7 (1st Cir. 2004)), which rests on whether
persecution on such ground is a "reasonable possibility." See
Cardoza-Fonseca, 480 U.S. at 440.
To this effect, the regulations provide that an applicant
need not provide evidence of a "reasonable possibility" of being
"singled out individually for persecution" in the event that the
applicant establishes "a pattern or practice" in her country of
persecution of "a group of persons similarly situated to the
applicant" on account of a protected ground. 8 C.F.R.
§ 1208.13(b)(2)(iii)(A); see also Pieterson v. Ashcroft, 364 F.3d
38, 43-44 (1st Cir. 2004). Our case law has narrowly defined
"pattern or practice" to encompass only the systematic or pervasive
persecution of a particular group based on a protected ground,
rather than generalized civil conflict or a pattern of
discrimination. See, e.g., Banturino v. Holder, 576 F.3d 10, 14
(1st Cir. 2009); see also In re A-M-, 23 I & N. Dec. 737, 741 (BIA
2005) (quoting Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005)
for the proposition that "'pattern or practice' means persecution
of a group that is 'systemic, pervasive, or organized'"). The idea
behind the "pattern or practice" exception to the individualized
proof requirement is that, where the persecution of a group on the
basis of a protected ground is sufficiently widespread, a

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"reasonable possibility" of persecution is evident and evidence of
individualized targeting becomes unnecessary. See Chen v. INS, 195
F.3d 198, 203 (4th Cir. 1999) ("Certainly, it would not have been
necessary for each individual Jew to await a personal visit to his
door by Nazi storm troopers in order to show a well-founded fear of
persecution." (quoting Kotasz v. INS, 31 F.3d 847, 852 (9th Cir.
1994))). Our circuit has repeatedly affirmed the BIA's
determinations that persecution against Christians in Indonesia
does not rise to the level of a "pattern or practice." See, e.g,
Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 2009); Kho, 505 F.3d at
54. Absent a pattern or practice, the regulations are clear that
some evidence of individualized risk on account of a protected
ground must be shown. See 8 C.F.R. § 1208.13(b)(2)(iii); see also
Cendrawasih v. Holder, 572 F.3d 128, 131 (1st Cir. 2009);
Pieterson, 364 F.3d at 43-44.
However, our Court has always taken the position,
articulated in Kho, that "evidence short of a pattern or practice
[of persecution] will enhance an individualized showing of
likelihood of a future threat to an applicant's life or freedom."
505 F.3d at 55; see also Pulisir v. Mukasey, 524 F.3d 302, 308-09
(1st Cir. 2008) (describing it as a matter of "[c]ommon sense" that
"larger social, cultural, and political forces can lend valuable
context to the particular incidents and thus, can influence the
weight that a fact-finder may assign to those incidents"). We

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suggested in Kho that this concept was distinct from the disfavored
group analysis, id., but the Ninth Circuit, responding explicitly
to this statement in Wakkary, explained that "in fact th[is] fairly
obvious evidentiary point is the essence of [its] disfavored group
cases." 558 F.3d at 1064 (emphasis added). "In other words, when
asking how likely it is that an individual applicant will be
'singled out' in the future on the basis of his group membership"
the court explained, "it is indisputably relevant (though of course
not dispositive) how others in his group are treated." Id.
In Banturino we decided not to consider "whether the
'sliding scale' or 'disfavored group' approach suggested in Singh
v. INS, 94 F.3d 1353 (9th Cir. 1996), and revisited in Wakkary v.
Holder, 558 F.3d 1049 (9th Cir. 2009), is consistent with our own
precedents" because "[a]doption of that approach would not [have]
change[d] the outcome in th[at] case . . . ." 576 F.3d at 15; see
also Pulisir, 524 F.3d at 308-09. The same approach is appropriate
here.
Sugiarto concedes that she must show individualized
targeting to satisfy her burden, as our Court "has repeatedly
affirmed the BIA's determinations that there is no ongoing pattern
or practice of persecution against ethnic Chinese or Christians in
Indonesia." See, e.g., Sipayung v. González, 491 F.3d 18, 21 (1st
Cir. 2007). The BIA found accordingly here, and there is nothing
on this record that would "compel" a contrary result. Instead of

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a "pattern or practice" of persecution approach, Sugiarto relies on
the disfavored group theory, arguing that she need only show a
"comparatively low" level of individualized risk because Christians
of Chinese ethnicity are a "disfavored group" in Indonesia.
It is relevant in this context that country conditions
evidence on the record, namely, State Department Human Rights
Reports, do indicate some degree of continuing violence against
Christians perpetrated by terrorist groups in Indonesia, even if a
pattern or practice is not established. See, e.g., Budiono v.
Mukasey, 548 F.3d 44, 49 (1st Cir. 2008) (recognizing that "IJ
should look at an individual's claim in the context of country
condition reports"). But as previously discussed, the IJ and BIA
reasonably concluded that Sugiarto failed to show any evidence that
she was individually targeted because of her religion during either
the robbery or the bomb threat in Indonesia. To this end, Sugiarto
also suggests that her family in Indonesia is afraid to go to
church and that being a regular and faithful churchgoer puts her at
risk of being singled out individually. But as found by the BIA,
"[Sugiarto] did not report that [her family in Indonesia] or even
that she or either of the other two [petitioners], were
individually attacked or otherwise harmed by any person or group
because of their religion." This is so despite Sugiarto's
testimony that she had always been active in her church in
Indonesia. Without evidence of individual targeting based on a

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protected ground, Sugiarto could not establish a well founded-fear
of future persecution. We therefore must allow the rejection of
her asylum claim to stand.
III. Conclusion
Because the BIA's denial of petitioner's asylum claim is
supported by substantial evidence in the record, the petition for
review is denied.
Denied.

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