# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 18, 2008

Decided November 24, 2008

Before

JOEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 08

‐ 1534

ALFIE PASKE TOAR,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States,

Respondent. Petition for Review of an Order of the

Board of Immigration Appeals.

No. A97 149 785

O R D E R

Alfie Paske Toar, a native and citizen of Indonesia, came to the United States in 2001

to study at a school of ministry in Iowa. Two years later he filed an application for

withholding of removal and protection under the Convention Against Torture, citing a fear

of persecution and torture on account of his religion (Christianity). An immigration judge

considered Toar’s claims in light of an incident in 2000 in which Toar was attacked by

Muslims for proselytizing and converting two Muslims to Christianity. But that incident

alone, the IJ concluded, did not amount to past persecution, even though Toar lost a tooth in

the melee. Moreover, the IJ continued, Toar never reported the incident to the authorities,

and therefore he could not establish that the Indonesian government was somehow complicit

in his mistreatment. Toar appealed to the Board of Immigration Appeals to no avail. Now

he argues before this court that, contrary to the IJ and the BIA’s determinations, he is a victim NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 1534 Page 2

1 Unfortunately, the record does not provide any further detail about the threats.

2 The record does not indicate whether it was the fall or the blows that caused Toar’s

tooth to fall out. of past persecution. Yet the lone incident cited by Toar, however troubling, does not rise to

the level of persecution. Accordingly, we deny the petition for review.

Toar, a Christian all his life, lived in a predominantly Muslim neighborhood in the

Minahasa region of Indonesia until 2001. Christians are a minority in Indonesia, which is

86% Muslim. See http://www.state.gov/r/pa/ei/bgn/2748.htm. In November 2000 Toar

approached two of his Muslim classmates and asked them to visit his church. They agreed,

and on three separate occasions Toar attended services with them. Toar’s proselytization

efforts garnered the attention of other Muslims, though, and a group of ten to fifteen

Muslims threatened him on three different occasions in December 2000, essentially

demanding that he stop going to church. 1 Later that month the same group confronted Toar

on the road to his church, and he attempted to flee. But the mob caught up with him and hit

him from behind, causing him to fall to the ground and break a tooth. 2 Following the

incident Toar left his hometown and sought refuge fifteen miles away. He stayed away for

three months after learning that the mob was looking for him at his parents’ house. Toar did

not, however, see a doctor about his injuries, nor did he report the incident to the police on

the belief that they would not help him because he is a Christian.

Toar arrived in the United States in August 2001 on a nonimmigrant student visa.

Two years later he sought asylum, withholding of removal, and CAT relief. At a hearing

before an IJ, Toar conceded that his asylum application was untimely but nevertheless

pursued his remaining claims. But the IJ concluded that Toar had not experienced past

persecution, much less anything approaching torture. Furthermore, the IJ did not agree with

Toar that it was more likely than not that he would suffer persecution upon removal:

He doesn’t know the fate or the whereabouts or the circumstances or even the

history of the two people whom he claims to have converted. And vague

threats which he claims his parent’s [sic] have received is not sufficiently

compelling to conclude that there is a clear probability

. . . that he is going to

be mistreated or persecuted upon return to Indonesia.

As for the CAT claim, the IJ continued, even putting aside the nature of the harm, “[t]here’s

no indication in this case that the government of Indonesia has ever been involved in anyNo. 08

‐ 1534 Page 3

mistreatment of the respondent. He claims only that he could not rely upon them for

protection, although he has admitted that he never sought the police’s assistance.”

Toar appealed to the BIA, arguing, as relevant here, that he had in fact suffered past

persecution. The BIA rejected that argument as well: “The respondent’s appellate citations to

various decisions published by the United States Court of Appeals for the Seventh Circuit

and this Board do not convince us that the single beating that the respondent experienced in

Indonesia at the hands of unidentified individuals, in conjunction with several vaguely

described threats, rose to the requisite level.”

Toar pursues two arguments before this court. First, he contends that he is a victim of

past persecution because, he says, the harm he suffered, albeit only once, is so severe as to

amount to persecution. Second, he asserts that the IJ improperly required a showing of

direct governmental responsibility for the abuse he suffered. If the BIA issues its own

opinion, as it did here, instead of supplementing or adopting the IJ’s decision, we will review

only the BIA’s decision. Moab v. Gonzales

, 500 F.3d 656, 659 (7th Cir. 2007). And we will

uphold the agency’s decision so long as substantial evidence supports the decision to deny

Toar’s applications. See INS v. Elias

‐ Zacarias

, 502 U.S. 478, 481 (1992); Moab

, 500 F.3d at 660

.

An applicant seeking withholding of removal must demonstrate a clear probability

(“more likely than not”) of future persecution on account of his race, religion, nationality,

membership in a social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); Tariq v.

Keisler

, 505 F.3d 650, 656 (7th Cir. 2007). If the applicant can show past persecution, as Toar

tried to do here, he is entitled to a rebuttable presumption of future persecution. See Irasoc v.

Mukasey

, 522 F.3d 727, 730 (7th Cir. 2008).

Toar asserts that the beating he suffered, and the attendant loss of his tooth,

constitutes past persecution. We disagree. When determining whether physical abuse rises

to the level of persecution, this court considers the frequency and severity of the harm

inflicted. See Tarraf v. Gonzales

, 495 F.3d 525, 535 (7th Cir. 2007); Irasoc

, 522 F.3d at 730. And

while “[c]onduct can rise to the level of persecution without being life

‐ threatening,” Tarraf

,

495 F.3d at 535, a single incident of abuse can amount to past persecution only if the harm

inflicted is severe, see Irasoc

, 522 F.3d at 730. See also Zhu v. Gonzales, 465 F.3d 316, 319

‐ 20 (7th

Cir. 2006) (holding that evidence of single incident in which government officials beat

petitioner and struck his head with a brick, resulting in seven stitches, did not compel

finding of past persecution); Dandan v. Ashcroft

, 339 F.3d 567, 573

‐ 74 (7th Cir. 2004)

(upholding determination of no past persecution although petitioner was beaten until his

face swelled and held without food for three days). But see Vaduva v. INS

, 131 F.3d 689, 690

(7th Cir. 1997) (holding that a petitioner who “was punched, his face bruised, and his finger

broken” in retaliation for his political activities had suffered past persecution). Toar reliesNo. 08

‐ 1534 Page 4

heavily on Irasoc, in which this court suggested that a man who suffered multiple beatings

“by the police while he was cuffed in a jail cell over two days, rendering him unconscious

from the pain to his groin,” had suffered past persecution. 522 F.3d at 728

‐ 30. Toar also

compares his mistreatment to the situation detailed in Asani v. INS

, 154 F.3d 719 (7th Cir.

1998), where police arrested the petitioner, chained him to a radiator, deprived him of food

and water, and beat him with a police stick and their fists, knocking out two teeth and

leaving marks on his cheeks. Id. at 721. See also Tchemkou v. Gonzales

, 495 F.3d 785, 786

‐ 87,

790

‐ 94 (7th Cir. 2007) (concluding that petitioner who was imprisoned for three days without

food and water, forced to stand in her cell, and beaten on multiple occasions so severely as to

“loosen[] several teeth” had suffered past persecution).

No doubt Toar’s encounter is troubling, but it is not nearly as severe as the examples

cited. We know that Toar was beaten and that he lost a tooth. But the record provides no

further detail about the extent of his injuries. See Irasoc

, 522 F.3d at 730 (“injury must be

considered alongside specific details of the incident”) (citation omitted). The government

seizes on this defect as well, pointing out that “[t]he record is devoid of concrete and specific

evidence. Toar’s testimony provides no indication of the content of any threats or the

specifics of his encounter with a group of people.” Indeed, on this thin record there is simply

not enough to compel a finding of past persecution.

Toar also contends that in analyzing his CAT claim “the IJ misapplied the law by

stating the petitioner needed to demonstrate the persecutions suffered by Mr. Toar were

made by the hands of the government .” Toar never made this argument before the BIA,

however, and has therefore waived it. See 8 U.S.C. § 1252(d)(1); Zeqiri v. Mukasey

, 529 F.3d

364, 369

‐ 70 (7th Cir. 2008). In any event he misapprehends the IJ’s ruling. The IJ’s actual

words were:

There’s no indication in this case that the government of Indonesia has ever

been involved in any mistreatment of the respondent. He claims only that he

could not rely upon them for protection, although he has admitted that he

never sought the police’s assistance.

Toar proposes that by “involved” the IJ meant that the Indonesian government did not itself

perpetrate the abuse and therefore the claim could not succeed. That would be incorrect

because the regulations do not require torture at the hands of the government; torture

includes severe pain or suffering “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.” 8

C.F.R. § 208.18(a)(1) (emphasis added); Boci v. Gonzales

, 473 F.3d 762, 768 (7th Cir. 2007). But

the IJ’s decision makes clear that he appreciated both possibilities—that the Indonesian

government was directly responsible for Toar’s mistreatment or that it turned a blind eye toNo. 08

‐ 1534 Page 5

the incident. Toar did not allege the first scenario, so that theory was out. And without

approaching the authorities, the IJ reasoned, Toar could never know whether the

government was complicit in his mistreatment.

For these reasons, we DENY Toar’s petition.