NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0669n.06 No. 09-4430 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

FRANS SETI AWAN, P etitioner ,
v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ON P ETIT ION FOR REVI EW OF A DECI SI ON OF THE BOARD OF I MMI GRATI ON APPEAL S OP INION

BEFORE: NORR IS, GIBBONS, an d GRIF F IN, Circ uit Jud ges. ALAN E. N OR

R I S, Circuit Judge. Petitioner Fr ans Setiawan, a citizen of I ndonesia, seeks revie w of the denial of his application for asy lum, withholding of remova l, and protec tion under the United Nations Convention Ag ainst T o rture (“CAT” ). An immigra tion judge found petitioner “basic ally cre dible” but conclude d that he had failed to meet his burden of showing that he had either suffe red past perse cution or had a well-founde d fea r of future perse cution. The immigra tion judge also deter mined that petitioner had failed to establish that he would more likely than not be subject
to torture if repatriated to I ndonesia. The Boa rd of I mmigra

tion Appea ls (“the Boa

rd”) ag ree d with that rea soning and dismiss ed the appea l. Petitioner contends that those decisions wer e not supported by substantial evidence

. I.No. 09-4430

Setiawan v. Holder Petitioner filed two applications for asy lum. T h e s ec o n d, which is befor e us on appea l, includes a leng thy persona l statement, the s ubstance of which was reiter ated during petitioner’s hear ing testi m o n y . Be cause the immigra tion judge found petitioner’s testimony cre dible in most respe cts, the following narr ative is draw n from the pe rsonal stateme nt and the hea ring testimony

. P etitioner was born in I ndonesia in 1972. He is the son of a retire d army colonel an d attended T risakti University from which he g raduated in 1996. He is also ethnica lly J avane se. He ba ses his claims of past per secution on these inc idents: 1. University

Rioti ng I n 1998, petitioner lost his job due to a monetary crisis. The adverse economic c onditions spawne d protests ag ainst the reg ime of then-Preside nt Suharto. On May 13, 1998 a friend contac ted petitioner and told him that there would be a protest marc h on the university campus. Petitioner attended the demonstration and made a brie f spee ch in support of the pr otesters. There afte r, he joined a marc h to the parliame nt building. The police urg ed the demonstrators
to return to the campus; they ref used. A larg e explos ion cause d the demonstrators to dispe rs e. Police then opened fire on them. Petitioner tried to f lee and, as he was running awa y , a policeman h i t him with a long s tick. He eventually made his way home. Acc ording to his stat em en t , “I h ad nasty bruises on my upper body , my arms, back and head.” Newspa pers the following day repor ted that five students had be en killed. 2. Slipi J ay a Mall F irebombing Two day s later, petitioner went to a local mall to buy some clothes. Someone firebombed the mall while petitioner wa s shopping. Petitioner wa s not injured. - 2 -No. 09-4430

Setiawan v. Holder 3. Neig hborhood Attac k Petitioner’s family lived in a milit ary resident i al encla ve in J akar

ta. Not long afte r the university riot, one of petitioner’s acqua intances rec eived a threa t from a strang er who said that mobs

wer e massing to attack the neig hborhood. The residents called the police and milit ary for help to no avail. Petitioner g rabbe d a wooden club and his fathe r a sword. Along with other residents the pair heade d for the compound’s entra nce. The protester s arr ived and, acc ording to petitioner, “ra n at us with their wea

pons, they thought they could scar e us.” The residents re s i s t ed , h o we ver, and the attacke rs ra

n awa y . 4. The Tr ansmig ration De partment I n 1999, petitioner beg an working for the Transmig ration and For est Deve lopment Ag ency (“TF DA”)

. The g overnme ntal ag ency ’s mission was to reloc ate individuals from densely populated parts of the country to less densely settled are as. Most of those who volunteere d to be reloc ated wer e poor and homeless individuals of the Madura ethnic g ro up. Acc ording to petitioner, “[t] he transmig rants

. . . wer e g iven some land, a house, some livestock and means to far m with a few y ear s of super vised instruction, in area s inhabited by other unc ooperative ethnic native g roups.” When he applied, petitioner thought that his position would be cler ical sinecure in J akar ta. I nstead, he was told – afte r signing an employ ment contra ct – that he would be sent to K alimantan Selatan (the I ndonesian portion of Bor neo). He was shocked by the assig nment – he had no jungle skills or training that wo u l d p repa re him for field work. Howeve r, he believed that he would be jailed if he br oke his contra ct.

- 3 -No. 09-4430

Setiawan v. Holder Much of Bor

neo is inha

bited by the Day ak people who are traditional hunter g ather ers, not far mers, and have a reputa tion for being fierc e fig hters. When he arr ived in Bor neo, he was assig ned
to work for a Transmig ration Settlement Unit. As part of his duties, he and a co-w orker wer e instructed to visit a settlement in Galam Raba h. The trip into the jung le was a rduous. W hen they

arr ived, they discovere d many of the houses unoccupie d. These residenc es wer e essentially shelters built on st ilts t o keep out “ orang utans, biawak hug e Komodo-like lizards, and snakes.” For tunately fo r p et i t i o ner, befor e he left for Bor neo his fathe r g ave him a ring that he had

rec eived from a fellow soldi er wh o happene d to be a Day ak. After his arr ival in Galam Rabah, petitioner encounte red an older Day ak who t o o k n o te of the ring and was sy mpathetic. The pair
returne d to the settlement wher e petitioner rea liz ed th at h i s s u p er v i sor had fled out of fea r of the Day ak. Worse y et, t he co-worke r who had accompanie d petitioner t o Galam Rabah had al s o l eft, leaving him stranded. He stay ed over night in the of

fice

. During the night Day ak men arr ived and threa tened to kill him. They all car ried the mandau, a traditional curve d sword. They char g ed the

o ff i ce an d petitioner ran awa y . On t he run he encountere d the ol der Day ak whom he had met th e previous af

ternoon. The elder

calmed his c ountry

men by pointing to the Da

y ak ring

. Petitioner descr ibes a dy sfunctional settlement prog ram. The Dayaks re s en ted the introduction of a fore ign ethnic g roup into their territory , as well as the taking of the jungle land for far ming. The y

reje cted the g overnme nt’s invitation to participate in the prog ram. After sever al miserable day s in the settlement, which included f inding a n orang utan inside his office , petitioner made his way back to Ba njarmasin, the reg ional capital wher e h e was

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Setiawan v. Holder perma nently stat i o n ed

. Other than the one threa t by the Day aks, which resulted in no injury to petitioner, he w as unhar

med. After his return to Ba

njarmasin, petitioner rec eived sever al assig nments that involved trave l
t o other settlements. At one point he was attacke d at a bus stop by two Day aks becau s e h e wa s

wea ring a TFD A uniform. He esca ped though he suffe red a cut hand that require d “a couple stitch

on my fing er cause they tried to attack me with a knife.” Whil e these assig nment s h ad s o me hardships, they did not otherwise result in signific ant phy sical harm. Petitioner’s persona l statement dwells on the dy sfunction of the prog ram as a whole rathe r than his own “per secution.” To highlig ht the state of the prog ram, petitioner rec ounts that in Fe bruar y 2001 a “Da

y ak-Ma dura slaug hter

occur red in transmig ration [settl ements] neig hboring my assig ned are a.” He wa s n o t direc tly aff ecte d, howeve r. 5. Manpowe r Ministry I n 2000, the Transmig ration and Manpowe r (L abor) Ministries merged

. P et i tioner was transfe rre d to the latter. He was assig ned t o the Training and Productivity Depa rtment. His job included checking out new businesse s t o assess their elig ibilit y for a g overnme nt permit to open. I n the course of this job, he rea liz ed the prog ram was riddled with corr uption. When he repor

ted this state of a ffa irs to his superior, he wa s told that there wa s nothing to be done

. I n September 2001, petitioner was working when protestors broke into the office looking for
t h e d ep ar t m ental chief

. When they failed to find him, they ransa cked the office s. Petitioner hi d under his desk a

nd eventua lly

esca ped.

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Setiawan v. Holder He finally resig ned from the Manpowe r M i n istry in Fe bruar y 2002. He returne d to his fathe r’s home wher e he lear ned that “strang ers” from Bor neo had been to the house looking for him. He de scribed his situation in these terms: When I came back to J akar ta, I knew I couldn’t stay long for my safe ty

. I felt like a prison g uard in a political prison who quits. Those that I g uarde d hated me and tried to kill me beca

use I tore them awa

y from their old homes and sent them into exil e in the wild jungle s to survive in primitive co n d i t i o n s, the Madura

. Those that I was try ing to protec t from [si c] hated me and tried to kill me beca use I broug ht outsiders who stole their land and broug ht the m “J avane sation,” the Day ak. And those that I worke d for place d m e wi t h o ut protec tion wher e I could g et killed, the J ava g overnme nt, beca

use I was a Trisakti g raduate from a

n older military

family

. (A.R. 222). Acc ording to petitioner, even afte r he came to the United States, Day aks continued to g o to his father ’s neig hborhood in sear ch of him. II. Petitioner enter ed the United States on a tourist visa on Fe bruar y 25, 20 0 2

. There afte r, petitioner filed his fi rs t asy lum application. On Aug ust 2, 2003, he was serve d with a Notice to Appea r (“ NTA” ), which c harg ed him with being a re movable non-immig rant. On Dec ember 23, 2003, petitioner appea red befor e an i m m i gra tion judge and conce ded

remova bility

. Another hear ing was held on Aug ust 8, 2005. Petitione r h ad n ew counsel and inform ed the immigra tion judge that his orig inal asy lum application was untrue. I t had been prepa red by the Chinese I ndonesian Americ an Society , a g roup u n d e r c r im in a l in

v e s tig ation for filing false asy lum applications. Acc ording to counsel, petitioner had trusted these individuals and did not speak Eng lish at the time.

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Setiawan v. Holder Petitioner was allowed to file a new asy lum application. He did so on J une 28, 2007. That application conta ins the alleg ations, later r eiterated at the a sy lum hearing , rec ounted above

. The immigra tion judge rende red an oral decision on J u l y 1 0 , 2007. Wit h respe ct to

cre dibilit y , the immigra

t i o n j udg e conclude d: “Althoug h the responde nt did submit a false application under oath and did testify under oath falsely to the office r, it is the opinion of the Court that his testimony today in Court is basica lly cre dible.” (A.R. 8). Howeve r, he included one cave at: “The only portions of his testimony that I would find to be not cre dible was his testimony that his pare nts, e ven afte r he came to the United States, rec eived threa ts f rom Madura or Diac [si c] e thnic individuals, as he was also vag ue with respe ct to the threa ts that he stated he rec eived afte r he arr ived in J akar ta.” Id

. Despite the favor able cre dibilit y deter mination, the immigra tion judge found that petitioner failed to e stablish past perse cution or t hat he had a well-founde d fea r of f uture pe rsec ution. After

rec ounting por

tions of the testimony , the immigra tion judge w ent on to state: Certainly t h e att acks by the Diacs [si c] and even by Madura s would not amount to p erse cution under the law. They wer e not part of the I ndonesian g overnme nt. And it is the opinion of the Court that althoug h it was a very dang erous situation there , that there is no evidence p re s en ted t hat t he I ndonesian gove rnment wo u l d n o t have aided the responde nt who was a member of an ag ency of t h at g overnme nt. Wit h respe ct to the other incidents, the May 13, 1998 incident wher e he was in a demonstration that was broken up by police, it is the opi n i o n o f the C ourt that that would not have amounted to pe rsec ution[ :] he was hit with a stick on the back, there wer e no injuries to t he respondent, and that would not have amounted to past perse cution and there is no evidenc e of any fea r from the I n d o n es ian g overnme nt, which is a new g overnme nt at this time, beca use he participa ted with Trisakti protests that he would suff

er a ny future pe rsec ution.

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Setiawan v. Holder

The incident in which the bomb exploded, which just amounted to a criminal act and g ener al harm, and he was not targ eted in that bomb attack, so that would not amount to persec ution under the law

. Also, the responde nt did not leave I ndonesia until Fe bruar y 2 5 , 2 0 02. He rec eived no harm from either Madura ns or Diac [si c] indiviuduals prior to that time, and the phone calls would not have amounted to perse cution, even if they did occur

. . . . Wit h respe ct to the issue that the responde nt could not resig n from his job at the Transmig ration Enforc ed Deve lopment Ag ency , it is the opinion of the Court that he has not met his burden of proof that he could not resig n from that ag ency beca use when that ag ency did merg e with the L abor Depa rtment and it beca

me part o f the Manpowe r Ag ency

. . . he wa s able to re sign f rom that ag ency . . . .

. . . . Wit h respe ct t o relief under the provisions of Article 3, the Uni t ed Na t i o n s Convention Ag ainst Torture , there has been no evidenc e prese nted that members of the I ndonesian g overnme nt would be seeking the responde nt out to torture him if he is returne d to I ndonesia . . . . (A.R. 11-13). The Boa rd dismiss ed petitioner’s appea l in a two-pag e decision. I t ag ree d that petitioner had failed to establish past perse cution: “The alleg ed phy sical encounte rs and threa ts experience d by the petitioner do not rise to the level of past perse cution and wer e not motivated by a protec ted g round.” (A.R. 4). Nor, in the Boa rd’s view, does “[t] he rec ord

. . . contain sufficie nt e vidence to show that the persons who mistreated the petitioner continue to ha ve a prese nt inter est in ha rming him today for a ny rea son.” Id. III. 1. Petitioner’s Asy lum Cl aim

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Setiawan v. Holder Asy lum is limit ed to those individuals who are ref ug ees, which is define d by the I NA as “any person who is outside any country of such pe rson’s nationality

. . . and who is una

ble or unwilling
to r eturn to, a

nd is unable or unwilling to avail himself or he rself of the protec tion of

, that country beca use of perse cution or a well-founde d fea r of perse cution on acc ount of rac e, relig ion, nationality , membe rship in a particular social group , or political opinion.

. . .” 8 U.S.C. § 1101(a) (42)( A) (empha sis added)

. I n this case , the immigra tion judge looked to a Boa rd decision, Matter of

Fuentes , 19 I

. & N. Dec

. 658 (1988), and conclude d t h at petitioner’s employ ment with the Transmigration and For est Deve lopment Ag ency qualified as “member ship in a particula r social g roup” for purposes of establishing ref

ug ee sta tus. 1 As we have rece ntly observe d, “the ‘on acc ount of’ languag e in § 1101(a) (42)( A) requires

a link betwee n the acts of perse cution and the petitioner’s protec ted-group identity .” Stserba v. Holder , __ F.3d __, 2011 WL 1901546 at *5 (6 t h Cir. May 20, 2011). Petitioner must have been perse cuted beca

use of a statutorily protec ted g round – here , membership in a particula r social g roup – and not mere ly

have be en the victim of “ indiscriminate mistreatment” or a “random crime.” Id. (quoti n g Gi laj v. Gonzales , 408 F.3d 275, 285 (6th Cir. 2005)). Where an alien can show past perse cution, he is a ccor ded a rebuttable presumption of a well-founde d fea r of future perse cution. 8 C.F.R. § 208.13(b)( 1). More over, the alien’s testim ony , if cre dible, may be suff icient to sustain the burden of proof. 8 C.F.R. § 208.13(a)

. Where, as here , the immigra tion judge deeme d petitioner

Whil e we do not rea d Matter of Fuentes as broadly as did the immigra tion judge , we will 1 assume that petitioner established his membership in a particula r social g roup beca

use we base our holding on his failure to show past perse cution or a well-founde d fea r of future perse cution. - 9 -No. 09-4430

Setiawan v. Holder to be larg ely cre dible, we must acc ept t he represe ntations made by the petitioner a s true. Stserba , 2011 WL 1901546 at *4. We have e stablished that phy sical har m is not required to establish past per secution: I t is well established

. . . that phy sical harm is not an essential feature of perse cution. [ Haider v. Holder , 595 F.3d 276, 286 (6th Cir. 2010).] Nonphy sical perse cution can take various forms, including “‘the deliberate imposit ion of sever e economic d i s advanta g e or the depriva tion of liberty , food, housing, employ ment[,] or o t h er essentials of life.’” In re T–Z– , 2 4 I

. & N. Dec

. 163, 171 (B .I .A. 2007) (quoting H.R.Rep. No. 95–1452). Persec ution requires “ more than a fewisolated incidents of verbal harassment or i ntim idation, unacc ompanied by any phy sical puni shment, infliction of harm, or signific ant depriva tion of liberty .” Ouda v. INS , 324 F.3d 445, 452 (6th Cir. 2003) (interna l quotation marks omitted). “Ty pically , . . . the ty

pes of actions that might cross the line from hara ssment to perse cution include: detention, arrest, interrog ation, prosec ution, imprisonment, illega l sear ches, confisca tion of proper ty , surveillance , beating s, or torture.” Haider , 595 F.3d at 286–8 7 (interna l quotation marks and altera tion marks omitted). Although perse cution is an “extreme conce pt,” perse cution does not require “a total depriva ti o n o f livelihood or a total withdrawa l of all economic opportunity .” In re T–Z– , 24 I

. & N. at 172–73. “Th e I J (and this court) must evalua te [evidence of] past perse cution

. . . in the ag g reg ate, as a collection of harmful events” beca use, “eve n though [t he events] may not qualify individually as perse cution,” they may qualify as perse cution when “take n toge ther.” Haider , 595 F.3d a t 287 (internal quotation mar ks omitt ed). Stserba , 2011 WL 1901546 at *4. Howeve r, even if we consider petitioner’s hardships throug h this less demanding lens, his eff ort to establish past perse cution still comes up short of those hallmarks of perse cution listed in Stserba : he was never detained, arr ested, interrog ated, beate n, denied food, housing, or employ

ment. The instances petitioner relies upon to establish past perse cution even in
t h e ag g reg ate, are not compelling : he was hit by a st ick at the s tudent demonstration of 1998; he

was place d in dang er during the course of his employ ment wi th TEDA; he was attacke d by two Day ak men a t a bus stop; and, acc ording to him, he had to live in “deplora ble” c onditions.

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Setiawan v. Holder Simpl y put, even though we cre dit petitioner’s testimony , he has failed to show that he either suffe red pa st persec ution or has a we ll-founded f ear of future perse cution. 2. Wit hholding of

Removal Be cause an applicant seeking withholding of remova l fac es a more stringe nt burden than an applicant f

or asylum, this claim fa ils. See Liti v. Gonzales , 411 F.3d 631, 640- 41 (6th Cir. 2005). 3. Relief under

the CAT To establish relief

, petitioner must est ab l ish that “it is more likely than not that he or she would be tortured if remove d to the proposed country o f re m o v al

. ” 8 C.F.R. § 208.16(c) (2). We have denied relief under the CAT to indiv i d u al s who have suffe red far g reater indignities than petitioner. See Haider , 595 F.3d at 289 (ruling that police did not t o rt ure individual when they detained him se vera l times, spit in his fa ce, sexually assaulted him with a firea rm, punched him in the hea d, and subjec ted him to invasive sear ches)

. We ag ree with the conclusion of the immigra tion judge that peti tioner has failed to come forwa rd with any evi d en ce that he would be subject to torture by members of the I ndonesian g overnme nt if he is repatriated. IV. For the re asons outlined above, the petition for re view is denied.

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