* Of the Ninth Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 07-1996

NOFITA FEBRIYANA DATAU,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Chief Judge,

Tashima, and Lipez, Circuit Judges. *

Jeanette Kain, Jeremiah Friedman, and Kaplan, O'Sullivan &

Friedman for petitioner.

Kristin A. Moresi, Trial Attorney, U.S. Department of Justice,

Office of Immigration Litigation, Peter D. Keisler, Assistant

Attorney General, Civil Division, and Barry J. Pettinato, Assistant

Director, for respondent.

August 27, 2008
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LIPEZ, Circuit Judge. Petitioner Nofita Febriyana Datau,

a native and citizen of Indonesia, sought asylum, withholding of

removal, and protection under the Convention Against Torture

("CAT"), claiming that she experienced persecution based on her

Christian beliefs and the incorrect perception that she is

ethnically Chinese. Both of these minority groups have repeatedly

been victims of violent attacks in Indonesia. An Immigration Judge

("IJ") denied Datau’s application for relief, expressing doubts

about her credibility, and holding that, even if credible, she had

proven neither past persecution nor a well-founded fear of future

persecution. The Board of Immigration Appeals ("BIA") adopted and

affirmed the IJ's decision, noting that "the discrimination

suffered by the respondent does not rise to the level of

persecution." Datau petitioned for review of the BIA order; we

deny the petition.

I.

Datau lawfully entered the United States in New York in

September 2001 as a non-immigrant visitor. She was authorized to

remain in the country through March 8, 2002, but overstayed her

visa. In her application for asylum and in later testimony before

the IJ, Datau claimed that she left Indonesia because of incidents

of harassment that caused her to feel threatened and unsafe there.

Datau is a lifelong Protestant Christian and has facial features

that make her appear to be ethnically Chinese, although she is not.
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She stated that the tensions in Indonesia between the Muslim

majority and the Christian and Chinese minorities, together with

the episodes of violence and harassment experienced by her family

and friends, led her to conclude that she would face persecution if

she returned to that country.

Datau reported that she was an active member of her

church, where her mother was a deacon and she served as a youth

leader. She testified that she experienced several incidents of

harassment due to her church membership and her faith in general.

In 1997, local Muslims played loud anti-Christian music during

worship, wrote obscene graffiti on the walls of the church, and

threw rocks through the windows during services. In 1999, after

her congregation had relocated, the Muslims set fire to the front

porch of the building that Datau’s church was sharing with another

congregation. When church members met in private homes, the

Muslims continued to play music, stoned the buildings, and knocked

on the door to order them to cease their worship. Datau claims

that the local authorities ignored reports of all these events.

She also testified that her mother had recently told her that

people continued to throw rocks at her church and hang around

outside the building.

Datau offered evidence of additional harassment that she

attributed to her religion, gender, and perceived ethnicity. On

one mission trip to help the homeless in their area, members of
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Datau’s church group were threatened with knives and told not to

return or they would be killed. Datau was not present when this

happened, but was in the vicinity. She also experienced unwanted

sexual advances from Muslim men, who "looked down on her" because

of her Chinese appearance. She reported that she was approached by

Muslim men several times on the bus; on one occasion, a Muslim male

took her by the hand, told her she was beautiful, and stated that

they should go for a walk together. Datau also feared that she

would be raped because her friend, who was ethnically Chinese, was

raped at her workplace after local riots in 1998. Finally, Datau

claimed that she and seven of her Christian friends who also

appeared ethnically Chinese consistently received failing grades at

her university, which, because they were all good students, she

speculated was part of a pattern of discrimination.

In September 2002, almost a year after arriving in the

United States and several months past the deadline on her visa,

Datau filed for asylum, withholding of removal, and protection

under the CAT. In a Notice to Appear dated December 9, 2003, the

Department of Homeland Security initiated removal proceedings.

After a hearing, the IJ denied Datau’s application for relief in an

oral decision, questioning Datau's credibility and finding that the

harassment she alleged "did not rise to the level of persecution."

The IJ also found that Datau was unable to prove that "the

government in Indonesia is unwilling or unable to protect those of
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Christian faith in Indonesia." The BIA affirmed this decision

without a separate opinion.

II.

When the BIA adopts the IJ’s decision, "we review the

relevant portion of the IJ’s opinion as though it were the decision

of the BIA." Guillaume v. Gonzales, 504 F.3d 68, 72 (1st Cir.

2007). The IJ’s factual determinations are reviewed only to

determine if they are "supported by reasonable, substantial, and

probative evidence on the record considered as a whole." Tum v.

Gonzales, 503 F.3d 159, 161 (1st Cir. 2007) (quoting INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal quotation marks

omitted). This highly deferential standard requires findings of

fact to be upheld "unless any reasonable adjudicator would be

compelled to conclude to the contrary." Ortiz-Araniba v. Keisler,

505 F.3d 39, 42 (1st Cir. 2007)(internal quotation marks omitted);

8 U.S.C. § 1252(b)(4)(B).

Asylum is available to an alien who is "unable or

unwilling to return to . . . [her] 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). The alien seeking asylum

bears the burden of proving that she is eligible. Bocova v.

Gonzales, 412 F.3d 257, 262 (1st Cir. 2005). This burden can be

met by proving past persecution, which gives rise to a rebuttable
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presumption of future persecution, or by directly proving a wellfounded fear of persecution on one of the statutory grounds.

Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005); Guzman v.

INS, 327 F.3d 11, 16 (1st Cir. 2003). The latter showing includes

both subjective and objective components. Guzman, 327 F.3d at 16.

The petitioner can satisfy her burden by proving a genuine fear of

persecution against her personally, relying on credible and

specific evidence. Id. Future persecution can also be proven with

evidence that a pattern or practice of discrimination exists in the

petitioner's country of origin against a group of persons similarly

situated to her. 8 C.F.R. § 1208.13(b)(2)(iii). Additionally, the

petitioner must establish that the persecution stems from

government action or inaction. Ortiz-Araniba, 505 F.3d at 41.

A. Credibility

Datau argues that the BIA’s decision lacks support

because it is based, in part, on the IJ’s unclear credibility

judgments. The IJ found fault with Datau’s testimony because

"material points of her story," including the death threats to her

companions on the mission trip and the rocks thrown through the

church windows, were not included in either her original

application materials or in her direct testimony. Instead, these

facts were mentioned only during her redirect examination. The IJ

also found that Datau was, "at times, evasive, vague, and nonresponsive" in her answers.
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Here, however, we need not dwell on the IJ’s credibility

assessment. The IJ did not expressly find the petitioner to lack

credibility, noting only that the judge had "concerns" about

Datau’s truthfulness. In fact, the IJ specifically noted that the

decision "ultimately d[id] not turn on" Datau's credibility,

instead ruling that, even accepting all of her testimony, the

events she described fell short of proving either past persecution

or a well-founded fear of future persecution. Accordingly, we turn

to the persecution finding.

B. Persecution

Datau argues that she presented substantial evidence of

both past persecution and the likelihood that she would be subject

to future persecution if forced to return to Indonesia. We cannot

agree. Her allegations of past persecution are in material

respects equivalent to those in Susanto v. Gonzales, 439 F.3d 57,

59-60 (1st Cir. 2006), which we found inadequate to establish the

requisite level of harsh treatment. In Susanto, an ethnic Chinese

Christian from Indonesia claimed that she had been harassed and

threatened by Muslims as she tried to worship, that she was mugged

at knifepoint and told "You Chinese, you die" on a bus, and that

she was groped and insulted by Muslim men. Id. at 59. She further

pointed to riots and injuries of other Christians, as well as the

rape of a neighbor’s daughter. Id. We concluded that harassment

of this quality and degree "simply does not compel a finding of
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persecution," relying on multiple decisions reaching the same

outcome in cases involving similar hardships. Id. In light of our

conclusion in Susanto, we cannot conclude that the IJ in this case

was compelled to find that Datau's experiences in Indonesia

amounted to persecution.

Datau's inability to demonstrate that the harassment she

suffered in Indonesia amounted to persecution also dooms her effort

to show a well-founded fear of future persecution. To make such a

showing, a person must "not only harbor a genuine fear of future

persecution, but also must establish an objectively reasonable

basis for that fear." Laurent v. Ashcroft, 359 F.3d 59, 65 (1st

Cir. 2004). However, Datau offers no evidence of likely harassment

upon her return to Indonesia that would be more oppressive than the

incidents she encountered in the past. We already have upheld the

IJ's determination that such experiences do not constitute

persecution, and we have repeatedly held that "discrimination in

Indonesia does not, without more, qualify a Christian Indonesian

national for asylum." Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir.

2008); see also Pulisir v. Mukasey, 524 F.3d 302, 308-09 (1st Cir.

2008); Kho v. Keisler, 505 F.3d 50, 58 (1st Cir. 2007).

Moreover, findings in the U.S. Department of State's

International Religious Freedom Report for 2005, which were cited

by the IJ, affirm that advances in inter-religious tolerance and

cooperation have resulted from efforts by the Indonesian government
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to encourage collaboration between Muslim and Christian community

leaders. This evidence indicates that some improvement has

occurred in conditions for the Christian minority, and Datau offers

no evidence refuting the accuracy of the Report's findings. Nor

does she offer evidence that her Chinese appearance on its own

places her in particular jeopardy. Thus, the record suggests that

Indonesia is now a more hospitable place for petitioner than it was

when she left the country.

Indeed, Datau’s assertion that she fears future

persecution is also weakened by the fact that her family continues

to live in her home area. "The fact that close relatives continue

to live peacefully in the alien’s homeland undercuts the alien’s

claim that persecution awaits [her] return." Ly, 524 F.3d at 133

(quoting Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999)).

Datau’s father, mother, and brother all continue to live in

Indonesia. Although family members have reported that rocks are

still thrown at their church, no members of her family have been

subject to any treatment that approaches the severity of

persecution.

In addition, to establish persecution Datau would need

to show that it was the "direct result of government action or

government-supported action, or there must be some showing that the

persecution is due to the government’s unwillingness or inability

to control the conduct of private actors." Jorgji v. Mukasey, 514
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F.3d 53, 57 (1st Cir. 2008). Datau does not contend that the

government was involved in the harassment against her. Rather, she

argues that when her church was stoned and later burned, the

authorities ignored the congregation's reports of the attacks. She

claims that the government's unwillingness to respond and its

inability to protect her provides support for her fear of future

persecution.

This argument fails for two reasons. First, the State

Department Report indicates an increased willingness on the part of

the Indonesian government to address the problems of the Christian

minority. Second, even if the government were not fully effective

in its response to complaints such as those made by Datau, her

claim of persecution would be unavailing because – as we have

explained – the incidents to which she points were not so severe

that the IJ was compelled to characterize them as persecution.

We therefore uphold the BIA's denial of petitioner's

asylum claim.

III.

Datau also seeks withholding of removal and protection

under the CAT. The standard of proof for these additional claims

is more stringent than for asylum. Withholding of removal requires

a showing that an alien is "more likely than not" to face

persecution, while protection under the CAT requires a showing that
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it is "more likely than not" that the alien would be tortured if

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

Because Datau fails to establish her eligibility for asylum, her

claim for withholding of removal and protection under the CAT

necessarily fail as well.

Petition denied.