NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 11a0669n.06

No. 09-4430

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANS SETIAWAN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

)

)

)

)

)

)

)

)

)

ON PETITION FOR REVIEW

OF A DECISION OF THE

BOARD OF IMMIGRATION

APPEALS

OPINION

BEFORE: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.

ALAN E.NORRIS, Circuit Judge. Petitioner Frans Setiawan, a citizen of Indonesia, seeks

review of the denial of his application for asylum, withholding of removal, and protection under the

United Nations Convention Against Torture (“CAT”). An immigration judge found petitioner

“basically credible” but concluded that he had failed to meet his burden of showing that he had either

suffered past persecution or had a well-founded fear of future persecution. The immigration judge

also determined that petitioner had failed to establish that he would more likely than not be subject

to torture if repatriated to Indonesia. The Board of Immigration Appeals (“the Board”) agreed with

that reasoning and dismissed the appeal. Petitioner contends that those decisions were not supported

by substantial evidence.

I.
No. 09-4430

Setiawan v. Holder

Petitioner filed two applications for asylum. The second, which is before us on appeal,

includes a lengthy personal statement, the substance of which was reiterated during petitioner’s

hearing testimony. Because the immigration judge found petitioner’s testimony credible in most

respects, the following narrative is drawn from the personal statement and the hearing testimony.

Petitioner was born in Indonesia in 1972. He is the son of a retired army colonel and

attended Trisakti University from which he graduated in 1996. He is also ethnically Javanese.

He bases his claims of past persecution on these incidents:

1. University Rioting

In 1998, petitioner lost his job due to a monetary crisis. The adverse economic conditions

spawned protests against the regime of then-President Suharto. On May 13, 1998 a friend contacted

petitioner and told him that there would be a protest march on the university campus. Petitioner

attended the demonstration and made a brief speech in support of the protesters.

Thereafter, he joined a march to the parliament building. The police urged the demonstrators

to return to the campus; they refused. A large explosion caused the demonstrators to disperse. 

Police then opened fire on them. Petitioner tried to flee and, as he was running away, a policeman

hit him with a long stick. He eventually made his way home. According to his statement, “I had

nasty bruises on my upper body, my arms, back and head.” Newspapers the following day reported

that five students had been killed.

2. Slipi Jaya Mall Firebombing

Two days later, petitioner went to a local mall to buy some clothes. Someone firebombed

the mall while petitioner was shopping. Petitioner was not injured.

- 2 -
No. 09-4430

Setiawan v. Holder

3. Neighborhood Attack

Petitioner’s family lived in a military residential enclave in Jakarta. Not long after the

university riot, one of petitioner’s acquaintances received a threat from a stranger who said that mobs

were massing to attack the neighborhood. The residents called the police and military for help to no

avail. Petitioner grabbed a wooden club and his father a sword. Along with other residents the pair

headed for the compound’s entrance. The protesters arrived and, according to petitioner, “ran at us

with their weapons, they thought they could scare us.” The residents resisted, however, and the

attackers ran away.

4. The Transmigration Department

In 1999, petitioner began working for the Transmigration and Forest Development Agency

(“TFDA”). The governmental agency’s mission was to relocate individuals from densely populated

parts of the country to less densely settled areas. Most of those who volunteered to be relocated were

poor and homeless individuals of the Madura ethnic group. According to petitioner, “[t]he

transmigrants . . . were given some land, a house, some livestock and means to farm with a few years

of supervised instruction, in areas inhabited by other uncooperative ethnic native groups.” 

When he applied, petitioner thought that his position would be clerical sinecure in Jakarta. 

Instead, he was told – after signing an employment contract – that he would be sent to Kalimantan

Selatan (the Indonesian portion of Borneo). He was shocked by the assignment – he had no jungle

skills or training that would prepare him for field work. However, he believed that he would be

jailed if he broke his contract.

- 3 -
No. 09-4430

Setiawan v. Holder

Much of Borneo is inhabited by the Dayak people who are traditional hunter gatherers, not

farmers, and have a reputation for being fierce fighters. When he arrived in Borneo, he was assigned

to work for a Transmigration Settlement Unit. As part of his duties, he and a co-worker were

instructed to visit a settlement in Galam Rabah. The trip into the jungle was arduous. When they

arrived, they discovered many of the houses unoccupied. These residences were essentially shelters

built on stilts to keep out “orangutans, biawak huge Komodo-like lizards, and snakes.” 

Fortunately for petitioner, before he left for Borneo his father gave him a ring that he had

received from a fellow soldier who happened to be a Dayak. After his arrival in Galam Rabah,

petitioner encountered an older Dayak who took note of the ring and was sympathetic. The pair

returned to the settlement where petitioner realized that his supervisor had fled out of fear of the

Dayak. Worse yet, the co-worker who had accompanied petitioner to Galam Rabah had also left,

leaving him stranded. He stayed overnight in the office. During the night Dayak men arrived and

threatened to kill him. They all carried the mandau, a traditional curved sword. They charged the

office and petitioner ran away. On the run he encountered the older Dayak whom he had met the

previous afternoon. The elder calmed his countrymen by pointing to the Dayak ring.

Petitioner describes a dysfunctional settlement program. The Dayaks resented the

introduction of a foreign ethnic group into their territory, as well as the taking of the jungle land for

farming. They rejected the government’s invitation to participate in the program.

After several miserable days in the settlement, which included finding an orangutan inside

his office, petitioner made his way back to Banjarmasin, the regional capital where he was

- 4 -
No. 09-4430

Setiawan v. Holder

permanently stationed. Other than the one threat by the Dayaks, which resulted in no injury to

petitioner, he was unharmed.

After his return to Banjarmasin, petitioner received several assignments that involved travel

to other settlements. At one point he was attacked at a bus stop by two Dayaks because he was

wearing a TFDA uniform. He escaped though he suffered a cut hand that required “a couple stitch

on my finger cause they tried to attack me with a knife.” While these assignments had some

hardships, they did not otherwise result in significant physical harm. Petitioner’s personal statement

dwells on the dysfunction of the program as a whole rather than his own “persecution.” To highlight

the state of the program, petitioner recounts that in February 2001 a “Dayak-Madura slaughter

occurred in transmigration [settlements] neighboring my assigned area.” He was not directly

affected, however.

5. Manpower Ministry

In 2000, the Transmigration and Manpower (Labor) Ministries merged. Petitioner was

transferred to the latter. He was assigned to the Training and Productivity Department. His job

included checking out new businesses to assess their eligibility for a government permit to open. 

In the course of this job, he realized the program was riddled with corruption. When he reported this

state of affairs to his superior, he was told that there was nothing to be done.

In September 2001, petitioner was working when protestors broke into the office looking for

the departmental chief. When they failed to find him, they ransacked the offices. Petitioner hid

under his desk and eventually escaped.

- 5 -
No. 09-4430

Setiawan v. Holder

He finally resigned from the Manpower Ministry in February 2002. He returned to his

father’s home where he learned that “strangers” from Borneo had been to the house looking for him. 

He described his situation in these terms:

When I came back to Jakarta, I knew I couldn’t stay long for my safety. I felt like a

prison guard in a political prison who quits. Those that I guarded hated me and tried

to kill me because I tore them away from their old homes and sent them into exile in

the wild jungles to survive in primitive conditions, the Madura. Those that I was

trying to protect from [sic] hated me and tried to kill me because I brought outsiders

who stole their land and brought them “Javanesation,” the Dayak. And those that I

worked for placed me without protection where I could get killed, the Java

government, because I was a Trisakti graduate from an older military family.

(A.R. 222).

According to petitioner, even after he came to the United States, Dayaks continued to go to

his father’s neighborhood in search of him. 

II.

Petitioner entered the United States on a tourist visa on February 25, 2002. Thereafter,

petitioner filed his first asylum application. On August 2, 2003, he was served with a Notice to

Appear (“NTA”), which charged him with being a removable non-immigrant. 

On December 23, 2003, petitioner appeared before an immigration judge and conceded

removability. Another hearing was held on August 8, 2005. Petitioner had new counsel and

informed the immigration judge that his original asylum application was untrue. It had been

prepared bythe Chinese Indonesian American Society, a group under criminal investigation for filing

false asylum applications. According to counsel, petitioner had trusted these individuals and did not

speak English at the time. 

- 6 -
No. 09-4430

Setiawan v. Holder

Petitioner was allowed to file a new asylum application. He did so on June 28, 2007. That

application contains the allegations, later reiterated at the asylum hearing, recounted above.

The immigration judge rendered an oral decision on July 10, 2007. With respect to

credibility, the immigration judge concluded: “Although the respondent did submit a false

application under oath and did testify under oath falsely to the officer, it is the opinion of the Court

that his testimony today in Court is basically credible.” (A.R. 8). However, he included one caveat:

“The only portions of his testimony that I would find to be not credible was his testimony that his

parents, even after he came to the United States, received threats from Madura or Diac [sic] ethnic

individuals, as he was also vague with respect to the threats that he stated he received after he arrived

in Jakarta.” Id.

Despite the favorable credibility determination, the immigration judge found that petitioner

failed to establish past persecution or that he had a well-founded fear of future persecution. After

recounting portions of the testimony, the immigration judge went on to state:

Certainly the attacks by the Diacs [sic] and even by Maduras would not

amount to persecution under the law. They were not part of the Indonesian

government. And it is the opinion of the Court that although it was a very dangerous

situation there, that there is no evidence presented that the Indonesian government

would not have aided the respondent who was a member of an agency of that

government.

With respect to the other incidents, the May 13, 1998 incident where he was

in a demonstration that was broken up by police, it is the opinion of the Court that

that would not have amounted to persecution[:] he was hit with a stick on the back,

there were no injuries to the respondent, and that would not have amounted to past

persecution and there is no evidence of any fear from the Indonesian government,

which is a new government at this time, because he participated with Trisakti protests

that he would suffer any future persecution.

- 7 -
No. 09-4430

Setiawan v. Holder

The incident in which the bomb exploded, which just amounted to a criminal

act and general harm, and he was not targeted in that bomb attack, so that would not

amount to persecution under the law.

Also, the respondent did not leave Indonesia until February 25, 2002. He

received no harm from either Madurans or Diac [sic] indiviuduals prior to that time,

and the phone calls would not have amounted to persecution, even if they did occur

. . . .

With respect to the issue that the respondent could not resign from his job at

the Transmigration Enforced Development Agency, it is the opinion of the Court that

he has not met his burden of proof that he could not resign from that agency because

when that agency did merge with the Labor Department and it became part of the

Manpower Agency . . . he was able to resign from that agency. . . .

. . . .

With respect to relief under the provisions of Article 3, the United Nations

Convention Against Torture, there has been no evidence presented that members of

the Indonesian government would be seeking the respondent out to torture him if he

is returned to Indonesia . . . .

(A.R. 11-13).

The Board dismissed petitioner’s appeal in a two-page decision. It agreed that petitioner had

failed to establish past persecution: “The alleged physical encounters and threats experienced by the

petitioner do not rise to the level of past persecution and were not motivated by a protected ground.” 

(A.R. 4). Nor, in the Board’s view, does “[t]he record . . . contain sufficient evidence to show that

the persons who mistreated the petitioner continue to have a present interest in harming him today

for any reason.” Id.

III.

1. Petitioner’s Asylum Claim

- 8 -
No. 09-4430

Setiawan v. Holder

Asylum is limited to those individuals who are refugees, which is defined by the INA as “any

person who is outside any country of such person’s nationality . . . and who is unable or unwilling

to return to, and is unable or unwilling to avail himself or herself of the protection of, that country

because of persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion. . . .” 8 U.S.C. § 1101(a)(42)(A)

(emphasis added). In this case, the immigration judge looked to a Board decision, Matter of Fuentes,

19 I. & N. Dec. 658 (1988), and concluded that petitioner’s employment with the Transmigration

and Forest Development Agencyqualified as “membership in a particular social group” for purposes

of establishing refugee status.1

As we have recently observed, “the ‘on account of’ language in § 1101(a)(42)(A) requires

a link between the acts of persecution and the petitioner’s protected-group identity.” Stserba v.

Holder, __ F.3d __, 2011 WL 1901546 at *5 (6th Cir. May 20, 2011). Petitioner must have been

persecuted because of a statutorily protected ground – here, membership in a particular social group

– and not merely have been the victim of “indiscriminate mistreatment” or a “random crime.” Id.

(quoting Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005)). Where an alien can show past

persecution, he is accorded a rebuttable presumption of a well-founded fear of future persecution. 

8 C.F.R. § 208.13(b)(1). Moreover, the alien’s testimony, if credible, may be sufficient to sustain

the burden of proof. 8 C.F.R. § 208.13(a). Where, as here, the immigration judge deemed petitioner

While we do not read Matter of Fuentes as broadly as did the immigration judge, we will 1

assume that petitioner established his membership in a particular social group because we base

our holding on his failure to show past persecution or a well-founded fear of future persecution.

- 9 -
No. 09-4430

Setiawan v. Holder

to be largely credible, we must accept the representations made by the petitioner as true. Stserba,

2011 WL 1901546 at *4.

We have established that physical harm is not required to establish past persecution:

It is well established . . . that physical harm is not an essential feature of persecution. 

[Haider v. Holder, 595 F.3d 276, 286 (6th Cir. 2010).] Nonphysical persecution can

take various forms, including “‘the deliberate imposition of severe economic

disadvantage or the deprivation of liberty, food, housing, employment[,] or other

essentials of life.’” In re T–Z–, 24 I. & N. Dec. 163, 171 (B.I.A. 2007) (quoting

H.R.Rep. No. 95–1452). Persecution requires “more than a few isolated incidents

of verbal harassment or intimidation, unaccompanied by any physical punishment,

infliction of harm, or significant deprivation of liberty.” Ouda v. INS, 324 F.3d 445,

452 (6th Cir. 2003) (internal quotation marks omitted). “Typically, . . . the types of

actions that might cross the line from harassment to persecution include: detention,

arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of

property, surveillance, beatings, or torture.” Haider, 595 F.3d at 286–87 (internal

quotation marks and alteration marks omitted). Although persecution is an “extreme

concept,” persecution does not require “a total deprivation of livelihood or a total

withdrawal of all economic opportunity.” In re T–Z–, 24 I. & N. at 172–73. “The

IJ (and this court) must evaluate [evidence of] past persecution . . . in the aggregate,

as a collection of harmful events” because, “even though [the events] may not qualify

individually as persecution,” theymay qualify as persecution when “taken together.”

Haider, 595 F.3d at 287 (internal quotation marks omitted).

Stserba, 2011 WL 1901546 at *4. However, even if we consider petitioner’s hardships through this

less demanding lens, his effort to establish past persecution still comes up short of those hallmarks

of persecution listed in Stserba: he was never detained, arrested, interrogated, beaten, denied food,

housing, or employment. The instances petitioner relies upon to establish past persecution even in

the aggregate, are not compelling: he was hit by a stick at the student demonstration of 1998; he

was placed in danger during the course of his employment with TEDA; he was attacked by two

Dayak men at a bus stop; and, according to him, he had to live in “deplorable” conditions.

- 10 -
No. 09-4430

Setiawan v. Holder

Simply put, even though we credit petitioner’s testimony, he has failed to show that he either

suffered past persecution or has a well-founded fear of future persecution.

2. Withholding of Removal

Because an applicant seeking withholding of removal faces a more stringent burden than an

applicant for asylum, this claim fails. See Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir. 2005).

3. Relief under the CAT

To establish relief, petitioner must establish that “it is more likely than not that he or she

would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). We

have denied relief under the CAT to individuals who have suffered far greater indignities than

petitioner. See Haider, 595 F.3d at 289 (ruling that police did not torture individual when they

detained him several times, spit in his face, sexually assaulted him with a firearm, punched him in

the head, and subjected him to invasive searches).

We agree with the conclusion of the immigration judge that petitioner has failed to come

forward with any evidence that he would be subject to torture by members of the Indonesian

government if he is repatriated.

IV.

For the reasons outlined above, the petition for review is denied.

- 11 -