Of the District of Puerto Rico, sitting by designation. *

Not For Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-2167

MARUHUM MAROJAHAN SIAHAAN, et al.

Petitioners,

v.

MICHAEL B. MUKASEY,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Selya, Circuit Judges,

and Domínguez, District Judge. *

William A. Hahn, on brief for petitioners.

Nicole M. Nurley, Attorney, U.S. Department of Justice, Civil

Division, Office of Immigration Litigation, Jeffrey S. Bucholtz,

Acting Assistant Attorney General, Civil Division, and James A.

Hunolt, Senior Litigation Counsel, on brief for respondent.

October 17, 2008
Mr. Siahaan did not testify during the immigration proceedings 1

and, as he is a rider on his wife's application, his request for

asylum depends in the first instance on the facts adduced by Mrs.

Siahaan.

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TORRUELLA, Circuit Judge. Petitioners Willy M. Siahaan

("Mrs. Siahaan") and her husband, Maruhum M. Siahaan ("Mr.

Siahaan") (collectively, "Petitioners"), are natives and citizens

of Indonesia. The Department of Homeland Security charged

Petitioners with removability due to overstayed visas pursuant to

section 237(a)(1)(B) of the Immigration and Nationality Act

("INA"), 8 U.S.C. § 1227(a)(1)(B). Thereafter, Petitioners filed

separate applications for asylum alleging religious persecution.

They also requested withholding of removal and protection under the

Convention Against Torture ("CAT"). Their applications were

consolidated and denied by an immigration judge ("IJ") who found

them to be removable as charged. The Board of Immigration Appeals

("BIA") summarily affirmed this decision. After careful

consideration, we deny their petition for review.

I. Background1

We summarize the facts as presented by Mrs. Siahaan in

her hearing testimony and asylum application. See Sok v. Mukasey,

526 F.3d 48, (1st Cir. 2008). Petitioners were born in Indonesia

and married in Jakarta; they have four grown children who still

live there. Mr. Siahaan last came to the United States in August

2002, and Mrs. Siahaan in April 2004. They are Protestant and,
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while in Indonesia, they attended the Nazareth Church in Jakarta.

Petitioners now attend the Holy Trinity Indonesian Church in New

Hampshire.

The Petitioners' claims of persecution are predicated on

their religious beliefs. Mrs. Siahaan testified that she and her

husband encountered problems attending church in Indonesia because

of bombing incidents. She described bomb threats during the

Christmas holidays in 1998, 1999, and 2000. Although none of these

threats were leveled against the Petitioners' church, the

congregation's fears resulted in the church being guarded.

Mrs. Siahaan also testified that in the early afternoon

on May 14, 1998, while at a shopping mall, she heard a bomb

explode. She saw some shops on fire and people running and crying.

As she exited the mall, Mrs. Siahaan was pushed to the ground by

three individuals who she assumed to be Muslim -- based on

appearance and attire -- and who asked her if she was Christian.

Mrs. Siahaan contends that they identified her as Christian due to

her Chinese appearance and because she was wearing a cross. The

individuals kept pushing Mrs. Siahaan, but she was able to reach an

exit and escape. That same night, Petitioners were warned by

neighbors to leave their home because rioters targeting Christians

were headed toward the area; the rioters never arrived because they

were told that everyone living in the Petitioners' residential

complex was native Indonesian.
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In another incident in 2003, Mrs. Siahaan was at home

with her daughter when she heard someone throwing rocks at their

house. Mrs. Siahaan contends that the people throwing rocks were

Muslims trying to terrorize her for being Christian. When asked at

the hearing how they knew she was Christian, Mrs. Siahaan surmised

that some neighbors must have told them.

Mrs. Siahaan further testified that from 1997 to 2004 she

traveled multiple times between Indonesia and the United States.

Despite being in possession of a valid United States visa and

Indonesian passport during the 1998 riots, for example, Mrs.

Siahaan chose to stay in Indonesia because she testified she needed

time to get her affairs in order. In August 2003 Mrs. Siahaan also

returned to Indonesia on an extended visit to receive follow-up

care on a medical operation she had undergone the year before; she

stayed for seven months. In April 2004, Mrs. Siahaan traveled back

to the United States and has remained since then.

Mrs. Siahaan's siblings, daughters, and sons, all of whom

are Christian, remain in Jakarta without incident to this day.

Mrs. Siahaan testified that her younger brother was beaten by

Muslims in the 1970s for being Christian. As a result of the

beating, Mrs. Siahaan's brother suffered brain damage and has had

to take medication to this day. On further inquiry, Mrs. Siahaan

also testified that the individuals who assaulted her brother were

morphine addicts.
We consider only Petitioners' asylum claim as they failed to 2

raise their withholding of removal and CAT claims on this petition

for judicial review. See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990).

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After hearing Mrs. Siahaan's testimony, the IJ denied the

Petitioners' application for asylum, withholding of removal, and

protection under the CAT, and found Petitioners to be removable as

charged. The IJ found that although Mrs. Siahaan's testimony "was,

at all times, credible," he could not find that the Petitioners had

experienced past persecution because the 1998 riot incident was

"isolated violence rather than persecution directed at [Mrs.

Siahaan] . . . due to [her] religious faith." The IJ found

similarly regarding the rock-throwing incident in 2003, describing

the incident as "a random act." On June 27, 2007, the BIA affirmed

the IJ's decision in its entirety, and dismissed Petitioners'

appeal. Petitioners now seek judicial review. They argue that 2

the IJ erred in finding that they suffered no past persecution.

II. Discussion

A. Standard of Review

While we normally review decisions of the BIA and not

those of IJs, to the extent that the BIA has adopted and affirmed

the IJ's decision, we review the adopted portion of the IJ's

decision. See Mewengkang v. Gonzáles, 486 F.3d 737, 739 (1st Cir.

2007); accord Vásquez v. I.N.S., 177 F.3d 62, 64 (1st Cir. 1999).
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Thus, as the BIA summarily affirmed the IJ's decision, our review

focuses on the IJ's factual findings and legal conclusions.

The IJ's factual findings are reviewed under the

"substantial evidence" standard; they may only be reversed if the

evidence on the record would compel a reasonable factfinder to make

a contrary determination. Sok, 526 F.3d at 52-53. Findings

regarding eligibility for asylum are treated as factual findings

under the "substantial evidence" standard. See I.N.S. v. ElíasZacarías, 502 U.S. 478, 483 (1992) (applying this standard). The

IJ's legal conclusions are reviewed de novo, granting the necessary

appropriate deference to the agency's reasonable interpretation of

the INA or any other statute or regulation within its purview. See

Kechichian v. Mukasey, 535 F.3d 15, 21 (1st Cir. 2008) (quoting

Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)).

B. Applicable Law

Asylum applicants have the burden of establishing that

they are eligible for asylum by providing credible evidence

showing: (1) that the applicant has a fear of persecution; (2) that

such fear is based on past persecution or a well-founded fear of

future persecution; (3) that the persecution is on account of race,

religion, nationality, membership in a particular social group, or

political opinion; and (4) that the applicant is unable or

unwilling to avail herself of the protection of her country of
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provenance because of such persecution. 8 C.F.R. § 208.13 (a)-(b);

Galicia v. Ashcroft, 396 F.3d 446, 448 (1st Cir. 2005).

If the court were to find that the applicant suffered

past persecution, then it presumes there is a well-founded fear of

future persecution. 8 C.F.R. § 208.13(b)(1); Phal v. Mukasey, 524

F.3d 85, 90 (1st Cir. 2008). The burden then shifts to the

Government to show that the conditions in the applicant's country

of provenance have sufficiently changed to rebut this presumption

or that the applicant could avoid future persecution by relocating

to a different part of the country. 8 C.F.R. § 208.13(b)(1)(i)(A)-

(B); Orelien v. Gonzáles, 467 F.3d 67, 71 (1st Cir. 2006).

If a court were to find that there was no past

persecution, however, an asylum applicant may still be eligible for

asylum based on a well-founded fear of future persecution. See 8

C.F.R. § 208.13(b)(1); Toloza-Jiménez v. Gonzáles, 457 F.3d 155,

160-61 (1st Cir. 2006) (quoting 8 U.S.C. § 1101(a)(42)(A)). In

order to show a well-founded fear of future persecution an

applicant must not only harbor a genuine subjective fear of future

persecution, but she must also show, on an objective basis, that a

reasonable person in her circumstances would fear persecution upon

removal. See Toloza-Jiménez, 457 F.3d at 161 (quoting Laurent v.

Ashcroft, 359 F.3d 59, 65 (1st Cir. 2004)).
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C. Asylum Claim

Petitioners state two main contentions regarding the 1998

riot and 2003 rock-throwing incidents experienced by Mrs. Siahaan.

First, they argue that the IJ erred in finding that such incidents

did not amount to persecution. Second, they assert that because

the IJ found Mrs. Siahaan's testimony to be credible, he was

"required to accept her testimony as true." Lukwago v. Ashcroft,

329 F.3d 157, 164 (3d Cir. 2003) (internal quotation marks

omitted).

Under the substantial evidence standard, the question

before us is whether the evidence on the record would compel a

reasonable factfinder to make a determination contrary to that of

the IJ; i.e., that the 1998 riot and 2003 rock-throwing incidents

amount to past persecution. Our review of the record leads to the

conclusion that the evidence does not necessarily compel such a

finding. While it is clear that the incidents at issue took place

during widespread civil unrest, there is no evidence that they

amounted to targeted persecution of Mrs. Siahaan. See Journal v.

Keisler, 507 F.3d 9, 12 (1st Cir. 2007) ("In determining whether

alleged incidents rise to the level of persecution, one important

factor is whether 'the mistreatment can be said to be systematic

rather than reflective of a series of isolated incidents.'"

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

The IJ properly evaluated the incidents, stating that 
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[w]hile [Petitioners] may suffer from some

unease and concern that [the] unrest and

friction [in Indonesia] may erupt into

violence, and they may be in the line of fire,

there has been no evidence presented in this

case that any such violence or any activity

rising to the level of persecution has been

directed at the respondents.

We agree and find that the evidence on the record supports the IJ's

holding. As traumatic as her experiences may have been, Mrs.

Siahaan only experienced two unfortunate incidents of violence

during a period of civil unrest; she was not a specifically

targeted victim of persecution. See Sela v. Mukasey, 520 F.3d 44,

46 (1st Cir. 2008).

The IJ was also justified in finding that, although

Petitioners may have a genuine subjective fear of returning, the

record does not compel a finding that a reasonable person in their

situation would, on an objective basis, have a well-founded fear of

persecution upon removal. Petitioners made several trips to

Indonesia after the incidents that form the basis for their asylum

claim, and have family members living in Indonesia who have not

suffered any persecution. See Journal, 507 F.3d at 12 (finding

that the petitioner's family's ability to relocate and continue to

live in Haiti safely and without harassment significantly undercuts

the petitioner's claimed fear of persecution) (citing Nikijuluw v.

Gonzáles, 427 F.3d 115, 122 (1st Cir. 2005)). These facts

undermine Petitioners' claims of fear of future persecution.
 As we find that the 1998 riot and 2003 rock-throwing incidents 3

do not rise to the level of persecution, we refuse to entertain the

Petitioners' argument that the IJ failed to engage in a proper

"mixed motives" analysis regarding the motivation behind such

incidents.

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With respect to Petitioner's argument that the IJ was

required to accept Mrs. Siahaan's testimony as true because he

found her to be credible, we find such argument to be meritless.

We have previously upheld an IJ's conclusions on the basis that,

while a petitioner may testify credibly as to his genuinely felt

fear, the petitioner may fail to meet the objective test that

"'requires a showing by credible and specific evidence that [such]

fear is reasonable.'" Journal, 507 F.3d at 12 (quoting Mukamusoni

v. Ashcroft, 390 F.3d 110, 120 (1st Cir. 2004)); see also Phal, 524

F.3d at 90 (affirming BIA's and IJ's conclusion "that regardless of

whether [petitioner] had testified credibly, she failed to

establish a well-founded fear of future persecution"). As such,

the IJ was not required to make a finding of past persecution

because, even accepting all of Mrs. Siahaan's factual testimony as

true, the evidence on the record does not necessarily compel such

a finding.3

III. Conclusion

For the foregoing reasons, we deny the petition for

judicial review.

DENIED.