                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2007

Keyrupyan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1330




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                                                                  NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 06-1330

                                     ____________

                         CYNTHIA PATRICIA KEYRUPYAN,
                                            Petitioner
                                       v.

          ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                      Respondent
                            ____________

             On Petition for Review from the Board of Immigration Appeals

                                   (File A95-369-629)

                  Immigration Judge: Honorable Charles M. Honeyman
                                       ______

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 16, 2007

           Before: FUENTES, GREENBERG, and LOURIE, * Circuit Judges.

                                 (Filed March 28, 2007)
                                     ____________

                               OPINION OF THE COURT
                                    ____________




      *
         Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.
LOURIE, Circuit Judge.

       Cynthia Patricia Keyrupyan (“Keyrupyan”) petitions for review of a decision and

order of the Board of Immigration Appeals (the “Board”) affirming without opinion the

decision by the Immigration Judge (“IJ”) that denied Keyrupyan’s application for asylum,

withholding of removal, and relief under the Convention Against Torture.              Because

substantial evidence supports the IJ’s determination, we will deny the petition for review.

       Keyrupyan was born in Indonesia in 1974 and is a Christian of Chinese ethnicity. She

entered the United States at San Francisco, California, on or about September 10, 2001 as a

B-1 non-immigrant visitor. She submitted an application for asylum on December 26, 2001.

She remains in the United States and is not currently detained.

       The IJ held hearings on Keyrupyan’s claim on January 22, 2003 and April 19, 2004,

and Keyrupyan was the only witness. In support of her claim of past persecution and fear of

future persecution based upon her religion and ethnicity, Keyrupyan testified as to three

incidents. First, she testified that she had been punched while taking public transportation

home from school as a child, as well as suffering other incidents due to her Chinese ethnicity.

Second, Keyrupyan described an incident at her church in Indonesia on Christmas Eve in

1998. As a number of the worshipers were leaving the church to go to dinner together, a

bomb that had been placed in the car of her mother’s friend exploded. As a result of the

injuries from the bomb, the friend’s legs had to be amputated. Keyrupyan was originally

supposed to ride in that same car but decided to ride with others and so avoided injury.



                                              2
Third, she stated that in January of 2000, a native Indonesian motorcyclist in Jakarta had hit

her while she was crossing the street, causing injuries to her legs that required treatment at

a hospital. The motorcyclist only laughed and insulted her rather than offering assistance.

She also testified that her fear reached its height at the time of the riots in 1998, and that she

believes that the same people who caused the riots continue to commit violence now. Her

parents and two siblings remain in Indonesia.

       The IJ issued an oral decision on April 19, 2004. The IJ determined that Keyrupyan

was a credible witness.      However, the IJ determined that the incidents described by

Keyrupyan were not sufficient to establish past persecution. The IJ also determined that

Keyrupyan had not established a likelihood that she would be singled out for future

persecution or that the level of violence against Chinese Christians rose to the level of a

general pattern or pervasive practice of persecution. The IJ relied upon statements indicating

improvement in the relations between Christians and Muslims in Indonesia in the Country

Report on Human Rights Practices for 2003. The IJ concluded that Keyrupyan did not have

a basis for a well-founded fear of future persecution.

       Having found that Keyrupyan did not meet the burden of proof for asylum, the IJ

concluded that she could not meet the stricter standard for withholding of removal. The IJ

also found that Keyrupyan had not met the burden of proof for relief under the Convention

Against Torture.

       The Board affirmed the IJ’s decision without opinion on December 28, 2005, making



                                                3
the IJ’s decision the final agency determination. Keyrupyan timely appealed, and we have

jurisdiction pursuant to 8 U.S.C. § 1252.

       When the Board affirms the IJ’s decision without opinion, the Court reviews the IJ’s

decision directly. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). “[T]he

administrative 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).      This Court has

interpreted this provision to mean that the agency must support its findings with substantial

evidence. Dia, 353 F.3d at 247. “If a reasonable fact finder could make a particular finding

on the administrative record, then the finding is supported by substantial evidence.

Conversely, if no reasonable fact finder could make that finding on the administrative record,

the finding is not supported by substantial evidence.” Id. at 249.

       The Attorney General has the power to grant asylum to a person who qualifies as a

refugee. 8 U.S.C. § 1158(b)(1). A refugee is “any person who is outside any country of such

person’s nationality . . . and who is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of that 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 applicant

may qualify as a refugee either because he or she has suffered past persecution or because

he or she has a well-founded fear of future persecution,” and establishing past persecution

entitles the applicant to a presumption of a well-founded fear of future persecution. 8 C.F.R.



                                              4
§ 1208.13(b).

       This Court has defined persecution as “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to life or freedom.” Lie v.

Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d

Cir. 1993)).

       To establish a well-founded fear of future persecution an applicant must first
       demonstrate a subjective fear of persecution through credible testimony that
       her fear is genuine. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003).
       Second, the applicant must show, objectively, that “a reasonable person in the
       alien's circumstances would fear persecution if returned to the country in
       question.” Id. To satisfy the objective prong, a petitioner must show she
       would be individually singled out for persecution or demonstrate that “there
       is a pattern or practice in his or her country of nationality ... of persecution of
       a group of persons similarly situated to the applicant on account of race,
       religion, nationality, membership in a particular social group, or political
       opinion . . . .” 8 C.F.R. § 208.13(b)(2)(iii)(A).

Id. at 536.

       On petition for review, Keyrupyan argues that her testimony established eligibility for

asylum based on past persecution on account of her ethnicity and religion. She also argues

that her testimony together with the most recent Country Report in the record for Indonesia

and other documentary evidence of record establishes a well-founded fear of future

persecution, especially in light of recent decisions in similar cases by other United States

Courts of Appeal.

       The government responds that substantial evidence supports the IJ’s decision. The

government argues that Keyrupyan was only subject to isolated harassment and assault rather



                                               5
than persecution that constituted a severe threat to life or freedom.1 Emphasizing the

standard of review, the government argues that the evidence does not compel a conclusion

different from that reached by the IJ.

       We agree with the government that substantial evidence supports the IJ’s

determinations. The standard for establishing past persecution is high, and we cannot state

that, on these facts, no reasonable fact finder could find that the incidents Keyrupyan

described do not reach the level of persecution as we have defined it. Similarly, given that

there is support in the Country Report for 2003 for improving relations between Christians

and Muslims in Indonesia and the lack of other objective rebuttal evidence, we cannot state

that no reasonable fact finder could find that Keyrupyan did not have a well-founded fear of

future persecution. Also, “when family members remain in petitioner’s native country

without meeting harm, and there is no individualized showing that petitioner would be

singled out for persecution, the reasonableness of a petitioner’s well-founded fear of future

persecution is diminished.” Lie, 396 F.3d at 537.

       Keyrupyan relies on Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), and Lolong v.

Gonzalez, 400 F.3d 1215 (9th Cir. 2005), which built upon Sael, to support a conclusion that

she has established a well-founded fear of future persecution. However, we have stated with



       1
              The government also argues that Keyrupyan failed to establish that the
incidents described in her testimony were on account of her ethnicity or religion. As the
IJ did not make findings about the motivation for the acts or rely on that ground to reach
his decision, we do not reach that question.


                                             6
respect to Sael that we “disagree with the Ninth Circuit’s use of a lower standard for

individualized fear absent a ‘pattern or practice’ of persecution and, similarly, we reject the

establishment of a ‘disfavored group’ category.” Lie, 396 F.3d at538, n.4. Further, we note

that the administrative record in those cases appears to have been far more substantial than

the record provided in this case.

       Finally, Keyrupyan also asks that we take judicial notice of the more recent 2005

Country Report for Indonesia because it is not a part of the record. We have acknowledged

the problem with “stale” Country Reports but decided that “courts reviewing the

determination of an administrative agency must approve or reject the agency’s action purely

on the basis of the reasons offered by, and the record compiled before, the agency itself.”

Kamara v. Att’y Gen., 420 F.3d 202, 218 (3d Cir. 2005) (quoting Berishaj v. Ashcroft, 378

F.3d 314, 330 (3d Cir. 2004)). Thus, we decline to take such judicial notice of material that

was not part of the record below.

       Because the applicant’s burdens of proof for withholding of removal and relief under

the Convention Against Torture are higher than those for asylum and Keyrupyan was unable

to meet the burden necessary to establish a claim for asylum, we need not separately address

those claims. Because substantial evidence supports the IJ’s conclusion that Keyrupyan did

not establish eligibility for asylum, withholding of removal, or relief under the Convention

Against Torture, we will deny the petition for review.




                                              7
