              United States Court of Appeals
                         For the First Circuit

No. 08-2178

                           MAYA CENDRAWASIH,

                              Petitioner,

                                   v.

                 ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,

                              Respondent.


                   ON PETITION FOR REVIEW OF AN ORDER
                  OF THE BOARD OF IMMIGRATION APPEALS


                                 Before
                     Boudin, Tashima,** and Howard,
                            Circuit Judges.


     Randall A. Drew and Wiggin & Nourie, P.A. on brief for
petitioner.
     Greg D. Mack, Senior Litigation Counsel, Department of
Justice, Civil Division, Office of Immigration Litigation, and
Michael F. Hertz, Deputy Assistant Attorney General, Civil
Division, on brief for respondent.



                              July 2, 2009




    *
      Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as respondent.
     **
          Of the Ninth Circuit, sitting by designation.
            BOUDIN, Circuit Judge.       Maya Cendrawasih, a native and

citizen of Indonesia, seeks review of the Board of Immigration

Appeals ("BIA")'s denial of her asylum application.           Cendrawasih

left Indonesia on September 26, 2001, entering the United States on

a non-immigrant visitor's visa that expired on March 24, 2002. She

sought asylum, withholding of removal, and relief pursuant to the

Convention    Against   Torture   ("CAT")   in   November   2002.      After

deportation proceedings were initiated, a hearing was scheduled to

consider her applications for all three forms of relief.

            Cendrawasih testified that she is both Christian and

ethnic Chinese.    She recounted an incident where her brother was

attacked and robbed by a group of Muslims, as well as incidents

where a friend's relatives were raped and stabbed.          She personally

felt threatened when, in 1998, a group of Muslims--one carrying a

knife--approached her on a bus, although she escaped by leaping off

the bus.     In June 2001, a Muslim taxi driver sexually assaulted

Cendrawasih, but she managed to escape without physical injury;

the driver called out after her: "Chinese girl, where are you

running to?"

            Cendrawasih also testified that toward the end of her

time in Indonesia, she became afraid to attend church due to

bombings.     Since coming to the United States, she has been an

active member of her church. Cendrawasih married an Indonesian man

in December 2003; the two have a young, U.S. citizen son.           Although


                                   -2-
her father remained in Indonesia at the time of her initial

hearing, both of Cendrawasih's parents are now lawful permanent

residents of the United States.

            After the hearing, the IJ denied her relief save for

granting her voluntary departure; the IJ did not consider her

asylum    application,   finding   it   time-barred,   but   resolved   the

withholding and CAT claims on the merits.       Cendrawasih appealed to

the BIA; the BIA initially dismissed her appeal but on motion to

reconsider, remanded the asylum claim for resolution on the merits.

The IJ--relying on the testimony from the first hearing--denied

relief; the BIA then dismissed Cendrawasih's second appeal.             She

now seeks review in this court, challenging only the denial of

asylum.

            To obtain asylum, Cendrawasih had to establish a well-

founded fear of future persecution on account of race, religion,

nationality, membership in a social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A) (2006); 8 C.F.R. § 208.13(b) (2009).           A

showing of past persecution gives rise to a rebuttable presumption

of future persecution.     8 C.F.R. § 208.13(b)(1).     In addition, the

applicant must establish that the persecution is a result of

government or government-supported action, or the government's

inability or unwillingness to control private actors.          Budiono v.

Mukasey, 548 F.3d 44, 48 (1st Cir. 2008).




                                   -3-
              The IJ found Cendrawasih to be credible, but denied

relief because she had failed to establish that her fear of future

persecution was well-founded. The IJ determined that Cendrawasih's

testimony seeking to show past persecution established only a few

isolated incidents, and her fear of future persecution--while

genuine--was not objectively reasonable, particularly in light of

improved country conditions.            On review, the BIA agreed that

Cendrawasih failed to meet her burden of proof to qualify for

asylum; it also denied her request to consolidate her proceedings

with her husband's application.

              Where a challenge is to factual determinations, we must

uphold   IJ    and   BIA   decisions    when   "supported   by   reasonable,

substantial, and probative evidence on the record considered as a

whole," INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citation

omitted), reversing only if a reasonable fact-finder would be

compelled to conclude relief was warranted, id. at 483-84 (codified

at Immigration and Nationality Act § 242(b)(4)(B), 8 U.S.C. §

1252(b)(4)(B)). There may, of course, be other flaws in a decision

beside raw infirmities in fact-finding.

              Cendrawasih's main argument in this court is that her

case should be remanded because the IJ and the BIA did not consider

the impact of her brother's successful application for asylum on

her claims. She argues that a well-founded fear of persecution can

be based on the experiences of others who are similarly situated,


                                       -4-
and her brother is similarly situated to her. Her husband obtained

a remand from an adverse ruling, Ticoalu v. Gonzales, 472 F.3d 8

(1st Cir. 2006), based in part on his brother's successful asylum

application, and on remand, her husband was granted withholding of

removal.1

            We said in Ticoalu that the BIA should explicitly have

considered whether the order granting Ticoalu's brother asylum was

material to Ticoalu's own claim; the court said that it was "likely

that either the IJ in the instant case or the IJ who issued

Ticoalu's brother's order has erred in assessing the extent of

inter-religious   violence   in   Indonesia   and,   in   particular,   in

Sulawesi."   Id. at 12.   However, there is no such tension in this

case and Ticoalu's reasoning does not apply: after Cendrawasih

filed her petition, the BIA reversed the IJ's grant of asylum to

her brother.

            The IJ and BIA here appropriately relied on country

condition reports, Budiono, 548 F.3d at 49, and found that, while

there is still religious tension in Indonesia, "conditions . . .

appear to be improving."      The problems faced by Christian and

ethnic Chinese individuals in Indonesia have been addressed by this

court on numerous occasions, and we have upheld this determination,


     1
      Ordinarily, a spouse's successful asylum application would
allow him to obtain derivative status for the other spouse.      8
U.S.C. § 1158(b)(3); 8 C.F.R. § 1208.21. But because her husband's
asylum claim was time-barred and he obtained only withholding of
removal, the derivative route is not available to Cendrawasih.

                                  -5-
finding   that   there    is   "no    ongoing      pattern      or   practice    of

persecution against ethnic Chinese or              Christians in Indonesia,"

Kho v. Keisler, 505 F.3d 50, 54 (1st Cir. 2007), and that thus

country   conditions     without     more   do     not   qualify     a    Christian

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

2008).

            The individual difficulties Cendrawasih has faced, while

thoroughly unpleasant, are a series of isolated incidents, Budiono,

548 F.3d at 49, no greater than those faced by other Indonesian

Christians that this court has found insufficient to warrant

asylum. Susanto v. Gonzales, 439 F.3d 57 (1st Cir. 2006); Budiono,

548 F.3d at 46, 49-50.             An individual singled out and more

seriously   threatened     than    normal     on    account     of   a    protected

characteristic    may     still    satisfy       the     statutory       test;   but

Cendrawasih does not meet this standard--or at least the IJ and BIA

supportably so found.

            Cendrawasih    also      claims      that     the    BIA     erred    in

distinguishing her case from her husband's based on her ability to

relocate to Jakarta, which has experienced less religious tension

than her husband's native Sulawesi.              Federal regulations provide

that an asylum application may be denied if it is demonstrated by

a preponderance of the evidence that "[t]he applicant could avoid

future persecution by relocating to another part of the applicant's

country . . . and under all the circumstances, it would                           be


                                      -6-
reasonable to expect the applicant to do so." Tendean v. Gonzales,

503   F.3d     8,   11   (1st     Cir.   2007)   (quoting     8   C.F.R.   §

1208.13(b)(1)(i)(B)).

             It is not easy to sustain an order expelling Cendrawasih-

-the parent of a young son--while her husband is entitled to remain

in this country.     But the problem is not that there exists proof of

a well-founded threat to Cendrawasih's safety: it is that Congress

does not allow derivative status to the spouse of one who himself

qualifies     for   withholding    of    removal,   compare   8   U.S.C.   §

1158(b)(3); 8 C.F.R. § 1208.21, even though this could result in

the break-up of a family.          Congress can alter this policy; we

cannot.

             The petition for review is denied.




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