Rachmat v. Gonzales, (2nd Cir. 2007)

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06-2874

Rachmat v. Gonzales

BIA

Jankun, IJ

A95 240 729

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

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P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

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D A T A B A S E AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 18th day of April, two thousand seven.

PRESENT:

H O N . SONIA SOTOMAYOR,

HON. ROBERT A. KATZMANN,

H O N . RICHARD C. WESLEY,

C i r c u i t Judges.

Y V O N N E KURNIATI RACHMAT, CHANDRA

MIHARDJA, RUTH MARTHA, HANNAH REGINA,

LUCAS NEHEMIAH,

Petitioners,

v. 06-2874-ag

NAC

ALBERTO R. GONZALES,

Respondent.

F O R PETITIONERS: J a y Ho Lee, New York, New York.

F O R RESPONDENT: P e t e r D. Keisler, Assistant Attorney General, Cindy Ferrier, Senior L i t i g a t i o n Counsel, R. Alexander G o r i n g , Attorney, Office of I m m i g r a t i o n Litigation, Washington, D i s t r i c t of Columbia.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is GRANTED.

P e t i t i o n e r s Yvonne Kurniati Rachmat, Chandra Mihardja, R u t h Martha, Hannah Regina, and Lucas Nehemiah, citizens of I n d o n e s i a , seek review of the May 22, 2006 order of the BIA a f f i r m i n g the November 18, 2004 decision of Immigration J u d g e ("IJ") William F. Jankun denying their application for a s y l u m , withholding of removal, and relief under the C o n v e n t i o n Against Torture ("CAT"). In re Yvonne Kurniati R a c h m a t , et al., No. A95 240 729 (B.I.A. May 22, 2006), a f f ' g No. A95 240 729 (Immig. Ct. N.Y. City Nov. 18, 2004).

We assume the parties' familiarity with the underlying facts a n d procedural history of the case.

W h e n , as here, the BIA does not adopt the decision of t h e IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review de novo questions of law and the a p p l i c a t i o n of law to undisputed fact. See Secaida-Rosales v . INS, 331 F.3d 297, 307 (2d Cir. 2003). We review the a g e n c y ' s factual findings under the substantial evidence s t a n d a r d . 8U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Z h a n g v. INS, 386 F.3d 66, 73 & n.7 (2d Cir. 2004).

However, we will vacate and remand for new findings if the a g e n c y ' s reasoning or fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 4 0 6 (2d Cir. 2005). Because the BIA assumed Rachmat's c r e d i b i l i t y , we will also assume, but not determine, her credibility. Cf. Yan Chen, 417 F.3d at 271-72.

In her brief submitted to the BIA, Rachmat did not c h a l l e n g e any of the IJ's findings with respect to past p e r s e c u t i o n , therefore her arguments to that effect before t h i s Court are not exhausted and we decline to consider them. See generally Gill v. INS, 420 F.3d 82 (2d Cir. 2 0 0 5 ) ; see also Steevenez v. Gonzales, 476 F.3d 114, 118 (2d C i r . 2007). (per curiam) B e c a u s e Rachmat did not establish past persecution, she w a s not entitled to the presumption that her fear of future p e r s e c u t i o n was well-founded. See 8 C.F.R. § 208.13(b)(1).

C o n t r a r y to Rachmat's arguments, the BIA did not engage in i m p r o p e r fact-finding by examining country reports in the r e c o r d to determine whether or not her fear of persecution w a s well-founded, see Yan Chen, 417 F.3d at 272-75, a d e t e r m i n a t i o n that included an examination of the p o s s i b i l i t y of relocation, see 8 C.F.R. § 208.13(b)(2)(ii), (b)(3). It was the BIA's duty to consider information in t h e record relative to conditions in Indonesia. See Yan C h e n , 417 F.3d at 272-73. Moreover, although the IJ did not m a k e specific findings with respect to whether it was r e a s o n a b l e for Rachmat to relocate in Indonesia, the BIA c o u l d consider the matter. See Hong Ying Gao v. Gonzales, 4 4 0 F.3d 62, 71-72 (2d Cir. 2006) (directing the BIA to e x a m i n e whether petitioner could avoid persecution by r e l o c a t i n g , and whether it would be reasonable for p e t i t i o n e r to do so) (citing 8 C.F.R. § 208.13(b)(2)(ii)).

The BIA had the authority to consider the possibility o f relocation and its effect on Rachmat's fear of p e r s e c u t i o n on account of her religion; however, the BIA's a n a l y s i s was nevertheless defective in two respects. First, w h i l e it is clear that the BIA considered parts of the State D e p a r t m e n t ' s International Religious Freedom Report d i s c u s s i n g violence against Christians in certain provinces i n Indonesia, Rachmat points to other passages in the same r e p o r t that the BIA did not consider and that discuss v i o l e n c e and destruction of churches very near to her home i n Bogor, which is about 30 miles from Jakarta, in the p r o v i n c e of West Java. This evidence corroborated her s u b j e c t i v e fear of persecution and provided a basis for a s s e r t i n g that this fear was objectively reasonable. See Y a n Chen, 417 F.3d at 272, 274. Evidence of violence a g a i n s t Christians and destruction of churches in or near R a c h m a t ' s hometown in Indonesia was not "a factor . . . too i n s i g n i f i c a n t to merit discussion" and should have been e x a m i n e d by the BIA. Id. at 273 (internal quotation marks omitted).

Furthermore, the BIA's decision was defective in that, w h i l e the BIA examined whether Rachmat could avoid p e r s e c u t i o n in Indonesia, it did not examine whether r e l o c a t i o n within Indonesia would be reasonable for someone i n her particular circumstances, as required by 8 C.F.R. § 208.13(b)(2)(ii). Hong Ying Gao, 440 F.3d at 71-72.

Moreover, the aforementioned problems are intertwined with o n e another as an evaluation of whether or not it is r e a s o n a b l e for Rachmat to relocate must be done in light of a complete picture of the current conditions facing C h r i s t i a n s in Indonesia. Such an analysis must include an e v a l u a t i o n of the conditions in her home region of West J a v a , where the BIA apparently assumed she could live safely. Accordingly, we remand on the limited issues of w h e t h e r , after a complete analysis of the record, it is r e a s o n a b l e to expect Rachmat to relocate within Indonesia, a n d whether her fear of persecution on account of her r e l i g i o u s beliefs is well-founded. 1 B e c a u s e the BIA assumed Rachmat's testimony that she is a Christian, the only other factor that must be established w i t h respect to her withholding of removal claim is whether, i f returned to Indonesia, "[s]he would likely be persecuted o n the basis of her religious beliefs." Paul v. Gonzales, 4 4 4 F.3d 148, 157 (2d Cir. 2006). Evidence of violence a g a i n s t Christians and of destruction of churches near R a c h m a t ' s hometown in Indonesia "would clearly bear on this o b j e c t i v e inquiry." Id. Thus, we also remand Rachmat's w i t h h o l d i n g claim as it pertains to threats to her life or f r e e d o m on account of her religion.

R a c h m a t failed to sufficiently argue her claim for CAT r e l i e f in her brief to this Court, and because addressing t h i s argument does not appear to be necessary to avoid m a n i f e s t injustice, it is deemed waived. Yueqing Zhang v. G o n z a l e s , 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

For the foregoing reasons, the petition for review is GRANTED. The stay of removal that the Court previously g r a n t e d in this petition is VACATED.

FOR THE COURT: Thomas Asreen, Acting Clerk By:

1 R e g a r d i n g the BIA's finding that Rachmat's fear of future persecution o n account of her Chinese ethnicity was not well-founded, the country r e p o r t s in the record support the conclusion that although incidents of d i s c r i m i n a t i o n occur, there is no evidence of persecution. Because this f i n d i n g was supported by substantial evidence, it will not be disturbed. See Zhou Yun Zhang, 386 F.3d at 73 & n.7.

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