Adrian v. Gonzales ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 31, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DA NI AD RIAN and EVI SARLITA
SIH O M PIN G ,
No. 06-9597
Petitioners,
v. (Agency Nos. A97 186 475/476)
ALBERTO GONZALES, United (Petition for Review)
States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Petitioners Dani Adrian and Evi Sarlita Sihomping, both citizens of
Indonesia, seek review of a decision of the Bureau of Immigration Appeals (B IA )
affirming the immigration judge’s (IJ) decision denying their applications for
asylum and withholding of removal. Exercising jurisdiction under 8 U.S.C. §
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1252(a)(1), we deny the petition for review because we agree that petitioners have
not met their burden of showing past persecution or a credible threat of future
persecution in Indonesia.
I. Background
Petitioners are natives and citizens of Indonesia. M r. Adrian was admitted
to the United States on November 26, 1999 as a non-immigrant visitor w ith
authorization to remain until December 25, 1999. M s. Sihomping was admitted to
the United States on July 21, 2001 as a non-immigrant visitor with authorization
to remain until January 21, 2002. Both remained in the United States beyond
their authorized stays. Petitioners met and were married in the United States and
have one daughter, w ho is a United States citizen.
Petitioners are both Christians who claim to have suffered past persecution
by Indonesian M uslims on account of their religious faith. M r. Adrian submitted
an application for asylum to the Department of Homeland Security (DHS) on
M arch 4, 2003, and included M s. Sihomping as a derivative relative. DHS denied
the application because Petitioners failed to seek asylum within the first year of
their arrival in the United States as required by statute and, instead, ordered
Petitioners to appear before the Denver Immigration Court for removal
proceedings.
Removal Proceedings. DHS charged both Petitioners as removable under 8
U.S.C. § 1227(a)(1)(B) for remaining in the United States longer than permitted.
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At a hearing on September 30, 2003, Petitioners conceded proper service of the
Notices to Appear, admitted to the factual allegations contained therein, and
conceded removability as charged. As relief from removal, Petitioners renewed
the application for asylum, and also sought withholding of removal, protection
under the Convention against Torture (CAT) and voluntary departure.
Petitioners testified in support of their applications at a merits hearing on
October 20, 2005. M r. Adrian testified that, during his childhood, his family
were the only Christians in the community and M uslims discriminated against
him, calling him “infidel” and other names. He also testified that someone from a
neighboring military complex shot and killed his dog. On June 27, 1986, M r.
Adrian was in the parking lot of a restaurant when six men attacked and beat him.
One allegedly held up a knife and threatened to kill M r. Adrian. W hen he asked
why they were attacking him, they said “because you are Chinese!” A.R. 92, 253.
The men apparently departed after M r. A drian assured them he was not Chinese.
M r. Adrian did not require hospitalization after the attack.
M s. Sihomping, in turn, testified that she was traumatized when she
witnessed a police station being burned and cars overturned during a riot which
broke out as she was riding a city bus in 1998. During the incident, her bag was
stolen and she was forced to walk seven miles home. She claims another
terrifying experience on December 24, 2000, when she learned that the church
where she was planning to attend services that evening had been bombed.
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Petitioners’ daughter was born in the U nited States in November 2002. M r.
Adrian testified that he especially feared she would be targeted by radical
M uslims if the family was forced to return to Indonesia.
Decision of the Immigration Judge. On October 20, 2005, the IJ rendered
an oral decision denying Petitioners’ requests for relief from removal. He
reiterated that on the basis of the evidence of record, Petitioners had overstayed
their visas and were subject to removal as charged. The IJ further found that M r.
Adrian did not qualify for asylum because he did not show that he was excused
from filing his application within one year of his arrival in the United States,
specifically concluding that M r. Adrian’s asserted defense of a lack of knowledge
regarding the asylum process did not constitute an “extraordinary circumstance”
that could excuse untimely filing. A.R. at 62–63.
The IJ further found that Petitioners did not qualify for withholding of
removal because they did not sustain their burden of showing that it was more
likely than not that they would be persecuted in Indonesia because of their
Christian faith. Finally, the IJ denied Petitioners’ protection under the CAT on
the basis of his view that they had not established that it was more likely than not
they would be tortured by, or with the acquiescence of, the Indonesian
government. As a result, the IJ denied Petitioners’ applications for relief and
ordered them removed to Indonesia w ith an alternative grant of voluntary
departure.
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The BIA affirmed the decision of the IJ on November 28, 2006, and this
appeal followed.
II. Discussion
W e review the BIA’s legal conclusions de novo, and any factual findings
for substantial evidence. Under the substantial evidence test, “our duty is to
guarantee that factual determinations are supported by reasonable, substantial and
probative evidence considering the record as a whole.” Diallo v. Gonzales, 447
F.3d 1274, 1279 (10th Cir. 2006).
A. Asylum
This court’s jurisdiction to review determinations related to the timeliness
of an asylum application after a final order of removal has been entered is limited
to constitutional claims and questions of law. See 8 U.S.C. § 1158(a)(3); Diallo,
447 F.3d at 1281. Here, Petitioners entered the United States in 1999 and 2001,
respectively, but did not file for asylum until 2003. The IJ found, and the B IA
agreed, that Petitioners’ asylum application was untimely, without any
extraordinary circumstances justifying their failure to file w ithin the statutory
period of one year.
Petitioners concede on appeal that their asylum application was untimely,
and do not attempt to identify any constitutional claims or legal questions
germane to the timeliness of their application.” W e therefore turn to the BIA's
denial of their application for w ithholding of removal.
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B. W ithholding of Removal
To be eligible for withholding of removal, an alien must show that it is
more likely than not that his life or freedom w ould be threatened by persecution
in the country of removal on account of his race, religion, nationality,
membership in a particular social group, or political affiliation. 8 U.S.C. §
1231(b)(3)(A); Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005). A n
alien satisfies this burden by showing that he suffered past persecution on account
of any of these five enumerated factors, 8 C.F.R. § 1208.16(b)(1), or by showing
that it is “more likely than not” that he will suffer future persecution if returned to
the country of removal, INS v. Stevic, 467 U.S. 407, 429–30 (1984); 8 C.F.R. §
1208.16(b)(2).
1. Petitioners failed to establish past persecution
Petitioners’ separate claims of past persecution were based on the following
incidents: (1) the 1986 attack on M r. Adrian purportedly because of his Chinese
appearance; (2) the killing of M r. Adrian’s childhood dog; (3) discrimination and
name-calling endured by M r. Adrian as a child; (4) the bombing of a church M s.
Sihomping was planning to attend on December 24, 2000; and (5) M s.
Sihomping’s witnessing of a riot in 1998. A.R. at 92–94, 105–08, 253–54.
“Persecution is the infliction of suffering or harm upon those who differ (in
race, religion, or political opinion) in a way regarded as offensive and requires
more than just restrictions or threats to life and liberty.” Chaib v. Ashcroft,
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397 F.3d 1273, 1277 (10th Cir. 2005) (internal quotation omitted). It is “an
extreme concept that does not include every sort of treatment our society regards
as offensive.” Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (internal
quotation omitted). “Persecution may be found by cumulative, specific instances
of violence and harassment,” id., but “generalized lawlessness and violence
between diverse populations” is generally insufficient to satisfy the standard,
Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998).
Here, Petitioners have not experienced treatment that rises to the level of
past persecution. M r. Adrian’s solitary assault in 1986, though unfortunate, does
not rise to the level of persecution. See Kapcia v. INS, 944 F.2d 702, 704–05, 708
(10th Cir. 1991) (sustaining finding of no past persecution where aliens were
detained and beaten in home country on multiple occasions). M oreover, while
M r. Adrian’s claim to future persecution is based on his Christian faith, he
testified that he was beaten because of his alleged resemblance to an ethnically
Chinese person. Pet. Brief at 9. The beating in 1986 cannot, therefore, rationally
support his fear of persecution based on the fact that he is a Christian. M s.
Sihomping’s position is similarly unpersuasive. The single incidence of violence
between Christians and M uslims in Indonesia which she observed was generalized
and had little direct impact on her. The fact that the riots she witnessed and
church bombing she heard about caused her anxiety is not sufficient to establish
past persecution.
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These incidents, whether considered individually or together, cannot
establish past persecution. Therefore, the IJ properly required petitioners to show
that it would be “more likely than not” that they will suffer future persecution if
returned to Indonesia.
2. Petitioners failed to establish it was“more likely than not” they would
suffer future persecution
Because Petitioners did not suffer past persecution, they are not entitled to
a presumption of future persecution. 8 C.F.R. § 1208.16(b)(2). Rather, they must
affirmatively establish a clear probability of future persecution by demonstrating
(1) the likelihood of individualized persecution, or (2) a pattern or practice of
persecution against a group to which Petitioners belong (i.e., Indonesian
Christians) such that it is more likely than not that petitioners’ lives or freedom
would be threatened. Woldemeskel v. INS, 257 F.3d 1185, 1190–91 (10th Cir.
2001). W e agree that Petitioners have failed to satisfy this burden.
Petitioners allege three grounds to support their claim that “there is more
than 50% chance” they will suffer future persecution if forced to return to
Indonesia:
(1) the testimony of the petitioners regarding those terrible experiences
encountered by them due to their religion; (2) the D epartment of State’s
report on the country condition and religious freedom; (3) the m ost
recent incidents that had happened to three Christian w omen w hose
heads were cut off by extreme M uslims.
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Pet. Brief at 8. But these claims, without more, are insufficient to satisfy the
standard of proof. They neither show a likelihood of individualized persecution
nor a pattern or practice of persecution against a group to w hich Petitioners
belong.
Petitioners’ first point— that future persecution can be inferred from the
abuses they suffered in the past— is unpersuasive since we have already rejected
the notion that the past incidents amounted to persecution.
Petitioners’ second point, which attempts to establish a pattern or practice
of persecution against religious minorities in Indonesia, likewise fails. The State
Department reports are, at best, equivocal. On the one hand, they provide that
Indonesian government policy “provides for all persons the right to worship
according to his or her own religious belief.” A.R. at 119. On the other hand,
they note that the government “occasionally” tolerates discrimination by private
actors. Id. Nevertheless, the bottom line is that, “in most parts of Indonesia,
people are generally able to worship as they wish with no interference from the
state or their neighbors of other faiths.” Id. at 118.
W e agree with the government that these reports cannot compel a finding
that Petitioners are likely to suffer future persecution in Indonesia because of
their religion. In over a dozen opinions addressing similar facts, we have
declined to find Indonesian Christians have a well-founded fear of future
persecution on account of their religion. See, e.g., Tulengkey, 425 F.3d at
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1281–82 (substantial evidence supported IJ’s determination that petitioners did
not have a well-founded fear of persecution based on their Christian faith); M art
v. Gonzales, No. 06-9548, 2007 W L 466315 (10th Cir. Feb. 14, 2007) (“[T]he
evidence simply does not support the conclusion that Christians in Indonesia
suffer organized, systematic, or pervasive persecution.”); Bastian v. Gonzales,
187 F.App’x 891, 894 (10th Cir. 2006) (substantial evidence supported IJ’s
decision to deny asylum on basis that anti-Christian violence in Indonesia appears
to be decreasing); Sutanto v. Gonzales, 123 F.App’x 380, 383 (10th Cir. 2005)
(petitioner’s individual experience of anti-Christian hostility was “minor and
isolated” and he had also failed to demonstrate likelihood of future persecution
because he could choose to live in a predominantly Christian city).
Finally, Petitioners’ unsubstantiated reference to the killing of three
Christian women is also insufficient to satisfy the requirements for establishing
that future persecution is more likely than not. W ithout more, three deaths –
though tragic and senseless – are not a proxy for establishing a pattern or practice
of persecution against members of the Christian faith in a country of over 240
million people. “A pattern or practice of persecution has been defined as
‘som ething on the order of organized or systematic or pervasive persecution.’”
Woldemeskel, 257 F.3d at 1191 (internal quotation and citation omitted). The
evidence on the record here cannot satisfy this standard.
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In sum, the IJ’s decision is supported by substantial evidence in the record.
Nothing suggests that Petitioners face a clear probability of persecution upon
return to Indonesia and therefore their petitions for review must be denied.
III. Conclusion
For the reasons stated above, the petitions for review are DENIED.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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