Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric J. *

Holder has been substituted for former Attorney General Michael B.

Mukasey.

United States Court of Appeals

For the First Circuit

No. 06-2389

MAC ARTHUR PAKASI, ET AL,

Petitioner,

v.

ERIC J. HOLDER, Attorney General, *

Respondent.

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Selya and Howard,

Circuit Judges.

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

Peter D. Keisler, Assistant Attorney General, Civil Division,

Richard M. Evans, Assistant Director, and Paul Fiorino, Trial

Attorney, Office of Immigration Litigation, Civil Division, United

States Department of Justice, on brief for respondent.

August 18, 2009
Petitioner Mac Arthur Pakisi's name appears variously as 1

"MacArthur" and "Mac Arthur." We adopt the spelling as it appears

in the decisions of the Immigration Judge and Board of Immigration

Appeals.

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HOWARD, Circuit Judge. Mac Arthur Pakasi (Mac Arthur)1

and his son, Hiskiah, hailing from Sulawesi Island in Indonesia,

are ethnic Manadonese and Christians seeking review of a final

order from the Board of Immigration Appeals (BIA). Because no

record evidence compels a different result than that espoused by

the Immigration Court and upheld by the BIA, and because no

procedural violations or errors of law were made, the petition for

review is denied.

I. History

Mac Arthur Pakasi entered the United States in March 1992

as a non-immigrant visitor. Hiskiah followed in July 1994, with

the same status and authorization to remain in the country until

January 1995. After remaining in the United States years longer

than permitted, they both were charged with being subject to

removal pursuant to 8 U.S.C. § 1227(a)(1)(B). The petitioners

conceded removability, but on December 19, 2003 -- eleven years

after Mac Arthur's arrival in the United States -- they sought

asylum, withholding of removal, and relief under the Convention

Against Torture (CAT). Both petitioners testified in support of

their applications before an Immigration Judge (IJ), as did Mac

Arthur's spouse and Hiskiah's mother Ethmy Pakasi.
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Collectively, the petitioners and Ethmy Pakasi testified

that in 1990 Mac Arthur was beaten because of is involvement with

a Christian church building committee, and that Mac Arthur informed

the police of the beating. A construction permit sought by the

building committee was denied, Mac Arthur believed, because the

government did not want to inflame the local Muslim community.

Additionally, the Pakasi family's home was stoned on several

occasions. These experiences resulted in Mac Arthur abandoning the

family home in favor of a different residence in Jakarta, and later

fleeing to the United States.

On one occasion, Ethmy was accosted by two Muslims. As

one brandished a knife, the other burned Ethmy on her hand with a

cigarette, allegedly because she was wearing a cross. 

For his part, Hiskiah was treated differently from other

children due to his religion and appearance. Hiskiah also

testified that since his arrival in the United States, conditions

were getting worse in Indonesia and that "he heard of church

burnings and the killing of Christians."

Mac Arthur ultimately left Indonesia in 1992. His wife

and child remained at the family home in Indonesia for two years,

attending weekly church services.

The IJ denied the applications, and the BIA subsequently

dismissed the petitioners' timely appeal in an August 31, 2006

order that affirmed and adopted the IJ's decision. The BIA agreed
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with the IJ that the petitioners' asylum claims were time-barred,

having been filed many years beyond the one-year deadlines, and

that the petitioners had failed to establish changed circumstances

such as would excuse the late filings. The BIA also concluded that

the petitioners had "failed to meet the burdens of proof" relevant

to their claims of persecution and torture.

In its order, the BIA noted that it declined to rely on

descriptions of recent violence included in six newspaper articles

that the petitioners had submitted, and also held that the newly

submitted information did not warrant a remand for consideration by

the IJ. See Matter of S-H, 23 I&N Dec. 462 (BIA 2002).

II. Discussion

The petitioners do not seek review of the determination

that their asylum claims are time-barred, nor do they make any

argument under the CAT. Those claims are thus abandoned. As for

their challenge to the denial of withholding of removal, the

petitioners advance a spate of arguments, most prominently

emphasizing that the IJ and BIA failed adequately to take into

account country conditions as outlined in State Department reports

and erroneously concluded that conditions were improving in 2000 -

2002; that the IJ did not take into account evidence that the

Indonesian government discourages the construction of Christian

churches; and that the IJ and BIA failed to consider the "totality"

of the petitioners' circumstances in light of country conditions.
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According to the petitioners, these alleged derelictions resulted

in the petitioners' cases not being evaluated under the correct

legal standards and require remand for further proceedings.

The petitioners' main arguments are related in that they

assert that the IJ and BIA did not fairly assess the record and

explain the results. In support, the petitioners invoke Gomes v.

Gonzales, 473 F.3d 746 (7th Cir. 2007). This case, however, bears

little resemblance to Gomes; the IJ here did not selectively read

the record, as the Seventh Circuit concluded had occurred in Gomes.

Rather, the IJ viewed the record as a whole - taking into account

both the State Department country conditions reports and other

record evidence. See Waweau v. Gonzales, 437 f.3d 199, 202, n.1

(lst Cir. 2006) (the decision maker is to consider both country

conditions reports and record evidence contradicting those

reports).

The IJ adequately addressed the country conditions,

noting that conditions were "tense" with ongoing incidents of

"religious violence." Further, the IJ indicated clearly that

country conditions "did, in fact deteriorate in approximately late

1997 and 1998" and "that there were spikes in violence between 1998

and 2000." The IJ also noted, however, that Mac Arthur did not

file his application for protection from persecution during these

troubled times.
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Additionally, the IJ considered the 2002 State Department

report on country conditions that, while acknowledging sectarian

violence, also states that in 2001 the Indonesian government sent

thousands of elite soldiers and police officers to Sulawasi to stem

the violence. This direct action, according to the report, greatly

reduced the violence that had been ongoing since 1998.

Petitioners emphasize the restrictions on construction

and expansion of houses of worship, but these policies applied to

all religious groups and they did not prevent either petitioner or

many Christians in Indonesia from practicing their religion.

Moreover, according to their own testimony, the petitioners were

able to practice their religion regularly and freely. Ethmy

testified that she attended church every Sunday even after her

reported attacks. No testimony was given that the government of

Indonesia banned the petitioners' practices.

In Gomes, relied on by the petitioners, the court held

that the IJ had leaned too heavily on country conditions reports,

to the exclusion of other evidence, including specific evidence of

possible persecution against the petitioners in that case. 473

F.3d at 756. Here, the petitioners have not presented evidence

that would compel a finding of past persecution. Although Hiskiah

testified that he was treated differently than others, he remained

in Indonesia after his father's departure and attended Catholic

school. No evidence came before the IJ indicating Hiskiah was
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beaten, arrested, detained or suffered torture in any manner at any

time. To establish past persecution, the petitioners must prove

something more than "harassment or annoyance," Aguilar-Solis v.

INS, 168 F.3d 565, 570 (lst Cir. 1999), and we have held that

"discrimination in Indonesia does not, without more, qualify a

Christian Indonesian national for [relief]." Sombah v. Mukasey,

529 F.3d 49, 51 (1st Cir. 2008).

Ethmy's lone experience, involving a cigarette burn to

her hand and a brandished knife, does not rise to the level of

persecution. "To qualify as persecution, a person's experience

must rise above unpleasantness, harassment or even basic

suffering." Nelson v. INS, 232 F. 3d 258, 263 (lst Cir. 2000).

Mac Arthur presents a history of episodic incidents. He

was beaten, his house was stoned, and his church building permit

was denied. But "mistreatment must ordinarily entail more than

sporadic abuse in order to constitute persecution." Bocova v.

Gonzales, 412 F.3d 257, 263 (1st Cir. 2005).

As the petitioners have not shown past persecution, they

do not benefit from a presumption that they are susceptible to

future persecution, and thus they must demonstrate that it is

nevertheless more likely than not that their lives or freedom will

be threatened if they return to Indonesia. Sharari v. Gonzales,

407 F.3d. 467, 474 (1st Cir. 2005). On this score, in addition to

the country conditions reports relied on by the IJ, the record
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reflects that Mac Arthur's wife and child remained in Indonesia for

two years, without harm, after his departure. Mac Arthur himself

had traveled to Singapore for a number of days and voluntarily

returned to Indonesia. These facts undermine claims of a clear

probability of persecution or a fear of persecution. Jean v.

Gonzales, 461 F.3d. 87, 91 (lst Cir. 2006); Aguilar-Solis, 168 F.3d

at 573. Moreover, although the petitioners assert that there is a

pattern or practice of persecuting Christians in Indonesia, we

"have repeatedly affirmed the BIA's determinations...that there is

no ongoing pattern or practice of persecution against...Christians

in Indonesia," Kho v. Keisler, 505 F.3d 50, 54 (lst Cir. 2007),

and the IJ and BIA were not required to conclude differently on

this record.

The petitioners also urge us to reverse the BIA's ruling

because the administrative tribunal declined to remand in light of

new country conditions evidence. We review the BIA's decision on

a motion to remand for abuse of discretion. Zhang v. Ashcroft, 348

F.3d 289, 293 (1st Cir. 2003) (citing Nascimento v. INS, 274 F.3d

26, 28 (1st Cir. 2001)). Abuse of discretion exists only where the

denial was made “without a ‘rational explanation, inexplicably

departed from the established policies, or rested on an

impermissible basis.’" Id. (quoting Nascimento, 274 F.3d at 28).

The news articles submitted by the petitioners to the

BIA, which post-date the last hearing before the IJ, do not
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demonstrate that the BIA abused its discretion in declining to

remand. The BIA did consider the evidence and concluded that it

failed to establish a substantial likelihood of a different result

upon remand. The BIA did not abuse its discretion in concluding

that the news articles were insufficiently related to the

petitioners' claims such that the outcome would be altered on

remand. See Bhanot v. Chertoff, 474 F.3d 71, 74 (2d Cir. 2007).

See also Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007).

Finally, the petitioners argue that the IJ and BIA failed

to take into account the totality of the record evidence and the

petitioners' circumstances. As evidenced by the above discussion,

the record belies that claim. While the IJ may not have

specifically discussed each piece of evidence, she clearly did

consider the country conditions reports and the testimony of each

witness. There is no requirement that every single piece of

evidence be discussed in an IJ's decision. Morales v. INS, 208

F.3d 323, 328 (1st Cir. 2000). 

The petition for review is denied.