United States Court of Appeals

For the First Circuit

No. 07-1481

POPPY N. SOMBAH et al.,

Petitioners,

v.

MICHAEL B. MUKASEY,

UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Chief Judge, 

Torruella and Lipez, Circuit Judges.

William A. Hahn and Hahn & Matkov on brief for petitioners.

Don G. Scroggin, Trial Attorney, Jeffrey S. Bucholtz, Acting

Assistant Attorney General, and Linda S. Wendtland, Assistant

Director, U.S. Department of Justice, on brief for respondent.

June 17, 2008
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LYNCH, Chief Judge. Poppy Sombah, her husband Freddy,

and her minor son, all natives and citizens of Indonesia, petition

for review of a decision by the Board of Immigration Appeals

("BIA") denying their applications for asylum, withholding of

removal, and relief under the Convention Against Torture ("CAT").

We deny the petition.

Sombah and her son entered the United States on November

3, 2003 with non-immigrant visitor visas which authorized them to

remain until May 2, 2004. They overstayed. Sombah's husband had

entered on a non-immigrant visa on September 3, 2003. That visa

expired on October 3, 2003, and he overstayed. On April 26, 2004,

Sombah filed an application for asylum with the Department of

Homeland Security ("DHS") on behalf of herself as well as her son

and husband as derivative applicants. 

Immigration and Customs Enforcement ("ICE") initiated

removal proceedings against the Sombah family by filing Notices to

Appear ("NTA") on July 13, 2004. The agency charged the Sombahs

with removability for having overstayed their visas; the Sombahs

conceded removability.

In her testimony before an Immigration Judge ("IJ") and

in affidavits accompanying her application for asylum, Sombah

described several incidents in support of her claim of persecution

on account of her religion. Although born into a Muslim family in

Jakarta, Sombah converted to Christianity in 1981 and married a
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Christian man. Sombah's Muslim family disowned her, "terrorized"

Freddy at work, and threatened to kidnap their three children.

Sombah has not received any such threats from her family since

1986.

Sombah testified to having experienced other forms of

harassment due to her Christian faith. Between 1994 and 2000, the

Sombahs held monthly prayer meetings at their home with other

members of their church. Attendees at these meetings found, upon

leaving, that their cars had been vandalized. In 1999, the

Sombahs' church was burned, presumably by Muslims. The church had

been erected without government approval, and the government did

not allow the church to be rebuilt. In 2001, Freddy Sombah was

riding a bus when a group of thugs boarded and robbed the

passengers. The robbers made threatening comments to Freddy,

referencing his Christian faith. Also in 2001, the Sombahs

traveled to Sulawesi, a separate island from their home island of

Java, and attended a prayer meeting that was disrupted by a violent

group. The Sombahs were not injured in this incident.

Sombah additionally testified that Muslim neighbors

killed her dog, that a neighbor blocked a pipe in order to cause

sewage to flow onto her property rather than the neighbor's own,

that her son was asked to vacate his apartment in a predominantly

Muslim neighborhood, and that her granddaughter received a
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disparaging letter from classmates at her predominantly Muslim

school.

On July 26, 2005, the IJ denied Sombah's asylum

application. The IJ described the threats directed at Sombah by

her family as "a private matter" and stressed that they ceased in

1986. The IJ acknowledged the other incidents of harassment in

detail and concluded that they did not qualify Sombah for asylum.

In finding that Sombah had not established a well-founded fear of

persecution were she to return to Indonesia, the IJ noted that

Sombah's grown son and daughter, both Christians, continue to live

there. The IJ also found it significant that before traveling to

the United States, Sombah previously visited Europe for two months,

including a visit to her sister residing in Germany. Sombah

returned to Indonesia without seeking asylum in Europe. When

Sombah later obtained a visa to visit the United States, she waited

nine months before departing Indonesia, during which time she and

her family suffered no harm.

The BIA affirmed the denial of relief on February 28,

2007. The BIA reiterated the incidents described in Sombah's

testimony, then concluded that they did not "singly or

accumulatively[] rise to the level of persecution." The BIA agreed

with the IJ that because Sombah had failed to meet the requirements

for asylum, she could not establish the high standards for

withholding of removal or relief under the CAT. 
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Sombah timely petitioned to this court for review. We

uphold the agency's determinations if they are "supported by

reasonable, substantial, and probative evidence on the record

considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (quoting 8 U.S.C. § 1105a(a)(4)) (internal quotation marks

omitted). The agency's findings of fact "are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary." 8 U.S.C. § 1252(b)(4)(B). "We review legal issues de

novo, granting appropriate deference to the agency's interpretation

of the statutes they are charged with enforcing." Kho v. Keisler,

505 F.3d 50, 53-54 (1st Cir. 2007).

In order to qualify for asylum, Sombah bears the burden

of proving that she suffered past persecution or has a well-founded

fear of future persecution based on her religion. Chikkeur v.

Mukasey, 514 F.3d 1381, 1382 (1st Cir. 2008); see also 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1)(A).

There is substantial evidence in the record to sustain

the BIA's conclusion that Sombah's experiences in Indonesia did not

rise to the level of persecution. "Persecution," as the term is

used in the immigration law, surpasses "unpleasantness, harassment,

and even basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st

Cir. 2000). We cannot say that the BIA erred in concluding that

the intermittent harassment described by Sombah did not constitute

persecution warranting asylum.
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Sombah argues that in denying the existence of past

persecution, the IJ erred by failing to take into account the

"totality of the circumstances," including the country conditions

in Indonesia. That argument fails. The IJ's decision discussed

Department of State Country Condition Reports in the record, and

the IJ even supplemented the record by introducing, sua sponte, the

Department's 2005 Issue Paper regarding Christians in Indonesia.

The IJ acknowledged that these sources confirm the existence of

discrimination against Christians in Muslim-majority Indonesia,

even at the level of national and local government. However, these

background facts do not relate in any specific way to Sombah's

individual claim for asylum. Discrimination in Indonesia does not,

without more, qualify a Christian Indonesian national for asylum.

See, e.g., Pulisir v. Mukasey, 524 F.3d 302, 308-09 (1st Cir.

2008); Kho, 505 F.3d at 58; Susanto v. Gonzales, 439 F.3d 57, 59-61

(1st Cir. 2006).

Sombah also argues that the agency committed legal error

in finding that Sombah failed to establish a well-founded fear of

future persecution. Sombah argues that the IJ found that the

Indonesian government was involved in Sombah's harassment and, from

this, that agency regulations put the burden on the DHS to show

that it would be reasonable for Sombah to avoid persecution by

relocating to a different location within Indonesia. See 8 C.F.R.

§§ 208.13(b)(2)(ii), (3). Sombah argues that the IJ failed to
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place this evidentiary burden on the DHS, and that the DHS did not

meet it.

Sombah's argument fails on its premise. The IJ did not

make a finding that the Indonesian government was complicit or

acquiescent in private actors' mistreatment of Sombah. As noted

above, the IJ made comments in her decision concerning evidence --

taken from State Department reports -- that "there continue to be

certain levels of discrimination, apparently in Indonesia, both

locally and nationally with respect to the treatment of

Christians." Nowhere does the IJ state that the government was

involved in any of the incidents that Sombah relied on for her

asylum claim. Neither does the record support the suggestion that

Sombah's is a case "in which the persecutor is a government or is

government-sponsored." Id. § 208.13(b)(3)(ii).

In a final argument relating to the agency's

determination of the asylum issue, Sombah argues that the IJ's

finding of discrimination by the Indonesian government triggers

"heightened scrutiny" of her claims. We need not consider the

argument because Sombah failed to present it to the BIA. See Butt

v. Keisler, 506 F.3d 86, 90 (1st Cir. 2007); see also 8 U.S.C.

§ 1252(d)(1).

Because Sombah does not meet the requirements for

establishing eligibility for asylum, neither can she satisfy the
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more stringent standard for withholding of removal. See Makhoul v.

Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004).

Lastly, because Sombah does not make any arguments in her

petition regarding relief under the CAT, those claims are waived.

See Zeru v. Gonzales, 503 F.3d 59, 66 n.4 (1st Cir. 2007).

The petition is denied.