Of the Seventh Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

____________________

No. 07-1149

SONNY WIRATAMA,

Petitioner,

v.

MICHAEL B. MUKASEY,

Attorney General of the United States,

Respondent.

____________________

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OR IMMIGRATION APPEALS

____________________

Before

Lynch, Chief Judge,

Cudahy, Senior Circuit Judge, *

and Torruella, Circuit Judge.

____________________

Damon M. D’Ambrosio on brief for the petitioner. 

Jeffrey S. Bucholtz, Acting Assistant Attorney General,

Michelle E. Gorden Latour and Kohsei Ugumori on brief for the

respondent.

____________________

July 9, 2008

____________________
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CUDAHY, Senior Circuit Judge. Petitioner Sonny Wiratama,

a native and citizen of Indonesia, appeals from a final order of

the Board of Immigration Appeals (the Board), denying his

applications for asylum, withholding of removal and protection

under the Convention Against Torture (the Convention). In a brief

order, the Board largely affirmed and adopted the decision of the

immigration judge (IJ). The IJ had dismissed Wiratama’s asylum

application as untimely and dismissed his applications for

withholding of removal and protection under the Convention as

without merit after finding that Wiratama had failed to present

"credible evidence" that he would likely suffer persecution if

returned to Indonesia.

Wiratama now challenges the IJ's adverse credibility

determination. We agree with Wiratama that the IJ's adverse

credibility determination does not find substantial support in the

record and was not accompanied by cogent reasoning. In fact, we

believe that portions of Wiratama's testimony have been

mischaracterized both by the IJ and by the government. We deny

Wiratama's petition, however, because even if his testimony had

been fully credited, he would have failed to establish that he had

a reasonable fear of persecution.
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I.

Wiratama is Roman Catholic; his ancestry is Chinese.

Both of these attributes make him a minority in Muslim-dominated

Indonesia. Wiratama fled Indonesia because he feared persecution

on account of his race and religion. He entered the United States

on March 8, 2001 as a non-immigrant visitor authorized to remain in

the United States until September 7, 2001. On March 28, 2003, the

Department of Homeland Security issued him a Notice to Appear,

charging him with removability because he had stayed longer than

permitted. On April 20, 2005, Wiratama applied for asylum,

withholding of removal, protection under the Convention Against

Torture and, in the alternative, voluntary departure.

Wiratama's removal hearing was held on May 23, 2005. He

testified that he had been subject to discrimination since his

youth. It was apparently common for both classmates and teachers

to play "cruel jokes" on him and to make "ethnic slurs" in front of

the entire class. He was frequently subjected to physical abuse by

his classmates; school officials looked the other way. The

situation became so bad that his parents were forced to place him

in a private, Catholic school from 1992 to 1993. His parents then

sent him to study in Australia from 1994 to 1996.

Wiratama returned to Indonesia in 1997. In January 1998,

Wiramata claims that he was stopped in traffic when a group of men,

shouting racial epiteths, smashed his car window and pulled him
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from his car. The men beat Wiramata with their fists, tore his

clothing, and "slashed" him on his right hand with a knife. The

men then took his money and his cell phone and left Wiratama lying

on the side of the road. Wiratama got back in his car and went to

pick up his girlfriend at school; he then drove to this house,

where his mother treated him with traditional Chinese medicines.

Wiratama never went to the hospital. 

In May 1998, Wiratama was working at a jewelry store when

a riot erupted outside the building. Cars were being set ablaze,

and a mob of young native Indonesians was robbing and beating any

ethnic Chinese they encountered. Wiratama was instructed to flee

the building. He hid behind buildings and cars but he was

eventually spotted and chased by the mob. They tried to grab

Wiratama but he managed to get away. 

 In October 1998, Wiratama was a passenger in a car that

was involved in a traffic accident. A native Indonesian police

officer present at the scene approached Wiratama and confiscated

his driver's license. The officer demanded that he pay both the

officer and the driver of the other car before allowing him to

leave. Wiratama believes the officer hassled him because he was

ethnic Chinese. 

Wiratama's wife, Milian Martami, also testified at

Wiratama's hearing. She testified that, when Wiratama picked her

up in January 1998, his car window was broken and he was "bleeding
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badly." It looked "like somebody stabbed him."

On June 14, 2005, the IJ denied Wiratama's applications

for withholding of removal and protection under the Convention but

granted him voluntary departure. The IJ first ruled that

Wiratama's asylum application was untimely; the IJ then denied his

application for withholding of removal, finding that he had failed

to present "credible evidence" that he would be subject to

persecution. The IJ also denied Wiratama's application for

protection under the Convention but granted his application for

voluntary departure. The Board adopted and affirmed the IJ's

decision in a brief order. 

II.

Wiratama concedes that his asylum application was

untimely, so our review is limited to his applications for

withholding of removal and protection under the Convention Against

Torture. Where, as here, the Board affirms and adds some of its

own reasoning, we review the Board's reasoning and the underlying

IJ decision. See Lin v. Gonzáles, 503 F.3d 4, 6-7 (1st Cir. 2007).

Withholding of removal is available if "the alien's life

or freedom would be threatened in [the destination] country because

of the alien's race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C. §

1231(b)(3)(A). The "threat to life or freedom" under withholding

of removal is identical to "persecution" under asylum, although the
Wiratama also testified that he was harassed at school as 1

a child, that he was harassed by a police officer in October 1998,

and that his friends and neighbors have suffered persecution. 

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burden placed on the petitioner is higher. See Attia v. Gonzáles,

477 F.3d 21, 23 (1st Cir. 2007). Persecution "is defined as

mistreatment that . . . extend[s] beyond harassment,

unpleasantness, and basic suffering." Id. Thus, to qualify for

withholding, Wiratama "must demonstrate either that [he] has

suffered past persecution on account of a protected ground (thus

creating a rebuttable presumption that [he] may suffer future

persecution) or that it is more likely than not that [he] will be

persecuted on account of a protected ground if sent to the

destination country." Heng, 493 F.3d at 48. These two methods of

proof are commonly referred to as past and future persecution.

Wiratama premised his withholding claim on the fact that

he had been subject to past persecution on account of his religion

and ethnicity. He relied heavily on two violent episodes that he

experienced in 1998: the January 1998 beating and the May 1998

riot. While Wiratama also offered evidence of other alleged

incidents of persecution, these two events formed the core of his 1

withholding claim.

The IJ concluded, however, that Wiratama had not

presented "credible evidence" to support his claims. The IJ stated

that it was "incredible to believe that he was stabbed . . . and

did not go to the hospital[;] that he went to his home[] because
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his home was closer than the hospital[,] and his mother treated him

with Chinese medicines for a stab wound." A.R. 50. The IJ also

stated that it was "incredible to believe that if [Wiratama] had

experienced what he claims to have experienced in Indonesia, he

would have gone back to Indonesia, without fearing for his life."

A.R. 49. The IJ added that neither Wiratama's siblings or parents

have encountered "any difficulties" in Indonesia. A.R. 49-50. The

IJ did not discuss the May 1998 riot, the October 1998

confrontation with the police officer or any of the other evidence

offered by Wiratama. The IJ denied Wiratama's application, and the

Board affirmed in a brief order. 

Although the IJ did not point to any contradictions,

discrepancies or omissions in Wiratama's testimony, the parties

agree that the IJ had made at least an implicit finding that

Wiratama was not credible. The adverse credibility determination

appears to have rested entirely on the implausibility of Wiratama's

suffering a stab wound but not seeking treatment in a hospital. 

We treat credibility determinations "with great respect,"

and we will not overturn them unless we are compelled to do so.

Ang v. Gonzáles, 430 F.3d 50, 57 (1st Cir. 2005). At the same

time, "[t]he fact that an IJ considers a petitioner not to be

credible constitutes the beginning not the end of our inquiry."

Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990). Adverse

credibility determinations must have "sturdy roots in the
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administrative record." Aguilar-Solis v. INS, 168 F.3d 565, 571

(1st Cir. 1999). The IJ must also provide "specific and cogent

reasons" why an inconsistency, or a series of inconsistencies,

render the alien's testimony not credible. Hoxha v. Gonzáles, 446

F.3d 210, 214 (1st Cir. 2006). These inconsistencies must pertain

to material facts that are central to the merits of the alien's

claims, "not merely to peripheral or trivial matters." See

Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir. 1999).

Finally, where credibility determinations rest "on an analysis of

the petitioner's testimony and not her demeanor, the finding may

receive less than usual deference." Heng v. Gonzáles, 493 F.3d 46,

48 (1st Cir. 2007).

After reviewing the record in this case, we are compelled

to find that the IJ's adverse credibility determination was not

supported by substantial evidence or by cogent reasoning. The

supposedly "implausible" testimony did not come from Wiratama, and

the dispute over whether Wiratama was "slashed" or "stabbed" was

too peripheral to Wiratama's claim to discredit his entire

testimony. 

First, the IJ's credibility determination was not

adequately supported by record evidence. The determination was

premised upon the fact that "[Wiratama] testified in these

proceedings" that he had been stabbed but did not go to the

hospital. A.R.50. It was this alleged testimony that appears to
The Government's brief contains the following inaccurate 2

statement: "Wiratama later changed his claim to ‘Not stab, but

scratch . . . [h]e tried to stab me.' (A.R. 114)." As we have

explained, the record does not reflect that Wiratama ever testified

that he had been stabbed, so he could not have changed his story.

Further, the portion of the record cited by the Government actually

demonstrates that Wiratama resisted characterizing the attack as a

stabbing even when this characterization was pressed upon him:

Q. Did the men stab you any where [sic] with this knife,

sir?

A. He tried to stab me, but I tried to avoid it. []

Q. But did he stab you, sir. Did you receive stab wounds?

A. Not stab, but scratch.

Q. So, no stab wounds, it [sic] that correct, sir?

A. He tried to stab me.

Q. But you had no stab wounds, other than the scratch on the

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have formed the sole basis for the IJ's adverse credibility

decision. Wiratama, however, never testified that he had been

"stabbed." Wiratama consistently maintained that one of the

attackers had "tried to attack [him] with a knife." A.R.92; see

also A.R.114 ("He tried to stab me."). In an attempt to shield

himself from the attack, Wiratama "tried to cover [his] eyes, [and]

muffle [his] face." A.R.92; see also A.R.113 ("I just tried to

cover my face . . . it's better than if they have to scratch my

face."). The attacker then "slashed" at him and cut his right

hand. A.R.194. Wiratama consistently referred to the resulting

injury as a "slash" or a "scratch" that left a "scar on [his] right

hand." A.R.113, 114. Not once did Wiratama refer to this event as

a "stabbing" or to his injury as a "stab wound." The Government's

claim that Wiratama had "changed" his testimony, see Respondent's

Br.22 & n.6, is unsupported. Wiratama's testimony at the removal 2
wrist, is that correct?

A. No, just that. 

A.R.114; see also, infra, n.4.

Indeed, when Wiratama was asked why he did not go to the 3

hospital, he stated that he did not seek treatment at a hospital

"[b]ecause it's just like a small scratch." A.R.113.

The Government also conflates Wiratama's testimony and 4

Martami's testimony. Its brief contains a highly misleading

statement: "Wiratama and his wife had testified that Wiratama drove

his car to pick up his then-fiancee from school after he was

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hearing was not only internally consistent, but also consistent

with the statement in his I-589 form. See A.R.194. The only

possible conclusion to be drawn from Wiratama's testimony is that

his attackers "slashed" at him with a knife and, while shielding

his face from the attack, he sustained a cut on his right wrist or

hand. (Of course, he also suffered bruises and swelling from the

beating itself.) Wiratama himself downplayed the seriousness of

the incident, so it is difficult to say that his testimony was

implausible.3

In fact, the only person who mentioned that Wiratama may

have been "stabbed" was his wife, Milian Martami. She testified

that when Wiratama came to pick her up he was bruised and it looked

"like somebody stabbed him." See A.R. 46-50. Martami never

testified that she was present at the scene of the attack; she only

described the events that unfolded after Wiritama picked her up.

It is apparent that the IJ conflated Wiratama's testimony with

Martami's testimony. Even if Martami's testimony could be 4
‘slashed' and ‘like . . . stabbed.' (See A.R. 46, 91-93, 107-108,

113-14, 194)." The construction of this sentence and the citations

used to support it suggest that both Wiratama and his wife

testified that he had been stabbed. In fact, Wiratama testified

only that he had been "slashed," see A.R.91-93, 107-108, 113-14,

194, while Wiratama's wife testified that it looked "like someone

stabbed him," see A.R.46. This is particularly disturbing because

whether Wiratama testified that he was "stabbed" is a central issue

here. 

The IJ's summary of Martami's testimony also briefly 5

suggests that Wiratama had told Martami immediately after the

incident that he had been stabbed. See A.R.46. Because Martami's

testimony is not in the record, we do not know if the words used

were hers. Further, the IJ never suggests that Wiratama had any

reason to lie about the incident. 

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interpreted to constitute a material inconsistency, there is no

reason why this inconsistency should be attributed to Wiratama or

should impugn Wiratama's credibility. Wiratama insisted that he 5

was never stabbed, so his testimony is not implausible. Because

this testimony was the sole basis for the IJ's adverse credibility

determination, that determination has no firm support in the

record. See Gailius, 147 F.3d at 44 (citing Universal Camera Corp.

v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 95 L. Ed. 456).

We also do not believe that the IJ provided a "cogent

reason" for dismissing all of Wiratama's testimony. Hoxha, 446

F.3d at 214. Specifically, the IJ leapt from the conclusion that

there was no credible evidence of a "stabbing" (something Wiratama

himself does not deny) to the conclusion that there was no credible

evidence that Wiratama had ever been "attacked." A.R. 50. This is

simply not tenable. Wiratama testified at length that much of the
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harm suffered from the attack came from the beating; his clothing

was torn, his face was swollen and he was left lying by the side of

the road. His wife corroborated his testimony in all respects

except in the one instance when she mentioned that it looked "like

somebody stabbed him." 

The disagreement over whether Wiratama had been stabbed

or merely slashed is also too immaterial to support a finding that

no attack occurred at all. See Bojorques-Villanueva, 194 F.3d at

16. And it certainly does not support a broad credibility

determination that would exclude the evidence involving the May

1998 riot, the October 1998 confrontation with the police officer

and other events. In sum, our review of the record "compels" the

conclusion that the IJ's adverse credibility determination was

unfounded.

III.

The next question, then, is whether the IJ's decision can

be affirmed on alternate grounds. See Gailius, 147 F.3d at 44. Of

course, we cannot provide these alternate grounds ourselves; they

must issue from the agency itself and not from the reviewing court.

See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L.

Ed. 1995 (1947). We have held, however, that such grounds may be

implicit in the IJ's decision. See Pulisir v. Mukasey, 524 F.3d

302, 308 (1st Cir. 2008); Rotinsulu, 515 F.3d at 72-73. While the

IJ explicitly stated that Wiratama had not demonstrated a well-
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founded fear of persecution, the IJ did not make specific findings

regarding Wiratama's evidence of past persecution. As we have

previously explained, the failure to make specific findings as to

past persecution "unnecessarily complicates our review." Yatskin

v. INS, 255 F.3d 5, 9 (1st Cir. 2001). While it is clear in this

case that the IJ implicitly rejected the evidence of past

persecution, it is less clear whether this decision was based

solely on the adverse credibility determination or whether the IJ

also found that the mistreatment alleged did not amount to

"persecution" under the statute. Nevertheless, upon closer

examination, we believe that the IJ made an implicit alternate

finding that, even if Wiratama's testimony were deemed credible,

the evidence he presented did not support a finding of past

persecution.

The IJ acknowledged that Wiratama's central fear was that

he would be subjected to "robbery" and "beatings" upon return to

Indonesia. A.R.48. The reference to "robbery" and "beatings" is

almost certainly a reference to the January 1998 beating (during

which Wiratama was robbed) and the May 1998 riot (during which

Wiratama was almost beaten). The IJ also acknowledged that

"Christians have been discriminated against and persecuted in

Indonesia." A.R.51. This is almost certainly a reference to the

documentary evidence, provided by Wiratama, on general conditions

in Indonesia. More importantly, the IJ noted that, "[a]ssuming
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that what he stated is true, . . . [Wiratama] would not be in

danger, in that his life or freedom would not be threatened,

because he is ethnic Chinese and Roman Catholic." A.R.48-49. The

IJ does not use the term "past persecution." But Wiratama

presented no independent evidence of a probability of future

persecution; his application rested almost entirely on evidence of

past persecution. In this context, we believe that the IJ's

statement fairly "subsumes the question of past persecution."

Rotinsulu, 515 F.3d at 72. We now review this alternate holding

for substantial evidence. See Gailius, 147 F.3d at 44.

We find that Wiratama has failed to show that he suffered

from past persecution and thus failed to show a clear probability

that he would be subject to persecution upon return to Indonesia.

Most of the incidents cited by Wiratama in support of his claim

require little discussion. His maltreatment at school, which

included being the target of name-calling and being roughed up by

fellow students, may be discriminatory but it does not rise to the

level of persecution. See Kho v. Keisler, 505 F.3d 50, 58 (1st

Cir. 2007). Wiratama's confrontation with the police officer,

during which Wiratama was apparently forced to pay a bribe, may be

a classic example of harassment but it is not persecution. See

Bocova v. Gonzáles, 412 F.3d 257, 263 (1st Cir. 2005). Wiratama's

experiences during the May 1998 riots were certainly frightening

but he did not suffer any physical harm. See Susanto v. Gonzáles,
The IJ's treatment of the issue is internally 6

inconsistent. Compare A.R.36 ("[Wiratama" has siblings, [a] sister

in Singapore and a brother in Australia") with A.R.48 ("[Wiratama]

has siblings, living in Indonesia"). The Government makes the same

mistake. Compare Respondent's Br.9 ("Wiratama also testified that

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439 F.3d 57, 60 (1st Cir. 2006). Finally, while the January 1998

beating was severe, it did not require hospitalization. More

importantly, we have held that isolated beatings, even when rather

severe, do not establish the systematic mistreatment needed to show

persecution. See Journal v. Keisler, 507 F.3d 9, 12 (1st Cir.

2007); Attia, 477 F.3d at 23-24; Topalli v. Gonzáles, 417 F.3d 128,

132 (1st Cir. 2005); Bocova, 412 F.3d at 263. These incidents,

even when taken together, do not rise to the level of persecution

under our case law. Wiratama thus failed to show past persecution.

Finally, as the Board noted in its brief order, the

evidence also undercuts any finding that Wiratama has a reasonable

fear of future persecution,. See Aguilar-Solis, 168 F.3d at 572.

Both the IJ and the Board correctly emphasized the fact that

Wiratama's parents continue to live safely in Indonesia; this fact

undermines the reasonableness of his fear of persecution. See,

e.g., Nikijuluw v. Gonzáles, 427 F.3d 115, 122 (1st Cir. 2005);

Zheng v. Gonzáles, 416 F.3d 97, 101 (1st Cir. 2005).

Unfortunately, we again note a factual error. The IJ stated that

Wiratama's parents and siblings continue to remain unharmed in

Indonesia. See A.R. 49-50. Actually, Wiratama's sister now lives

in Singapore, and his brother lives in Australia. Nevertheless, 6
his siblings no longer live in Indonesia") with Respondent's Br.25

("Wiratama's . . . siblings have continued to live unharmed in

Indonesia"). 

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it clear that Wiratama's mother and father still live in Indonesia.

While this fact is "[not] enough, by itself, to render a fear of

persecution unreasonable," it does undermine the reasonableness of

Wiratama's fear. See Eduard v. Ashcroft, 379 F.3d 182, 193 & n.12

(5th Cir. 2004).

Both the IJ and the Board also noted that,

"notwithstanding the incidents that he encountered in Indonesia,

[Wiratama] left Indonesia and returned to Indonesia." A.R.49.

Again, such facts can "undermine" the reasonableness of an alien's

fear of persecution. See Jean v. Gonzáles, 461 F.3d 87, 91 (1st

Cir. 2006). The record makes clear that even if Wiratama's

testimony were taken to be entirely credible, he has failed to

establish that he was a victim of past persecution or that he is

likely to be persecuted upon return to Indonesia. His claim for

withholding of removal thus fails. We also note that Wiratama's

claim for relief under the Convention is underdeveloped and without

merit. See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004);

Aguilar-Solis, 168 F.3d at 574.

IV.

For the reasons discussed above, the petition for review

is denied.