Rumajar v. Gonzales , 233 F. App'x 870 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 24, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ESTHER M ARTHA RUM AJAR,
Petitioner,
v. No. 06-9561
(No. A79-286-688)
ALBERTO R. GONZALES, United (Petition for Review)
States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.
Petitioner Esther M artha Rumajar is a native and citizen of Indonesia. She
challenges an order of the Board of Immigration Appeals (BIA) summarily
affirming the decision of an Immigration Judge (IJ) denying her application for
asylum. She challenges the IJ’s findings that she did not suffer past persecution
in Indonesia; that she does not have a well-founded fear of future persecution if
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
returned to Indonesia; and that she could escape persecution if returned to
Indonesia by safely relocating to the city of M anado, where she grew up and
where her parents still live. She further argues that the IJ erred in failing to
consider whether the government, while “willing” to control violence against
Chinese Christians in Indonesia, is “unable” to do so. W e have jurisdiction under
8 U .S.C . § 1252(a), and w e deny the petition for review.
I. Background
M s. Rumajar was admitted to the United States on January 29, 2001, on a
nonimmigrant visa, with authorization to remain for six months. She overstayed
her visa, married an Indonesian also present in the United States and had a child
by him. 1
On M ay 4, 2001, she submitted an application for asylum, restriction on
removal, and CAT relief. In the application, she identified herself as a Christian
of Chinese descent. According to M s. Rumajar, these two characteristics place
her at the risk of severe persecution at the hands of M uslim Indonesians. She
related a number of incidents in which she, members of her family, and other
Chinese Christians in Indonesia experienced religious and ethnic animosity,
including assaults, robberies, rapes, murders, and church-burnings.
1
Her husband is not included in her application and it appears that he has
filed a separate application for asylum.
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On December 19, 2003, M s. Rumajar was issued a notice to appear before
an IJ to show cause why she should not be removed from the United States for
overstaying her visa. She conceded the charge, and a hearing was scheduled on
her asylum application. At the hearing, held M arch 14, 2005, she presented
testimony concerning incidents of religious and ethnic violence she and other
Chinese Christians had suffered in recent years in Indonesia, along with numerous
news reports and government documents concerning ethnic and religious turmoil
in that country. The IJ obtained and reviewed the most recent State Department
report on human rights practices in Indonesia.
In his oral decision, the IJ denied M s. Rumajar’s application and ordered
her removed to Indonesia. Although he found her testimony credible, he noted
that the “outbreak of ethnic and religious violence in the late 1990s . . . has
calmed down considerably” and that “instances of discrimination and harassment
of ethnic Chinese Indonesians [has] declined compared with previous years.”
Admin. R. at 72 (quotation omitted). The IJ stated that although the Indonesian
government does not persecute Chinese Christians, the background material
M s. Rumajar submitted supported her contention that “the police have been
mostly ineffective in trying to protect the Chinese population in Indonesia” from
their M uslim persecutors. Id. He did not, however, find that she had alleged
facts which amounted to past persecution. Even if she had, the IJ further
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determined that she could relocate internally in Indonesia to the city of M anado
and thereby avoid persecution, and that it w as reasonable for her to do so.
M s. Rumajar appealed to the BIA, which affirmed without opinion. She
then petitioned this court for review. She seeks review only of the agency’s
determination on asylum and does not challenge its denial of her applications for
restriction on removal, CAT protection, and voluntary departure. See Aplt. Br. at
12.
II. Discussion
The BIA’s summary affirmance of the IJ’s decision makes the IJ’s decision
the final agency determination for purposes of our review. Tulengkey v.
Gonzales, 425 F.3d 1277, 1279 (10th Cir. 2005). W e review the IJ’s factual
findings for substantial evidence. Estrada-Escobar v. Ashcroft, 376 F.3d 1042,
1046 (10th Cir. 2004). His factual findings “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). W e review the IJ’s legal conclusions de novo. Hadjimehdigholi
v. INS, 49 F.3d 642, 647 (10th Cir. 1995).
“To be eligible for asylum, an alien must show that she has suffered past
persecution or has ‘a well-founded fear of [future] persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.’ 8 U.S.C. § 1101(a)(42)(A).” Tulengkey, 425 F.3d at 1280. The
showing of past persecution “establishes a presumption of well-founded fear of
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future persecution on the same basis as established for the original persecution.”
Niang v. Gonzales, 422 F.3d 1187, 1195 (10th Cir. 2005).
Even if we assume that the incidents related by M s. Rumajar constituted
past persecution, a finding of past persecution only creates a presumption that the
alien would be subject to further persecution if returned to her country of
nationality. See id. at 1194. The agency may rebut this presumption by proving
that the alien could avoid future persecution by relocating to another part of her
country of nationality, and that it w ould be reasonable for her to do so. Id. at
1195. 2 Also, regardless of past persecution, “an alien does not have a
well-founded fear of [future] persecution if the applicant could avoid persecution
by relocating to another party of the applicant’s country of nationality . . . [and] if
under all the circumstances it would be reasonable to expect the applicant to do
so.” 8 C.F.R. § 1208.13(b)(2)(ii).
2
Specifically, the applicable regulation provides that an IJ
in the exercise of his or her discretion, shall deny the asylum
application of an alien found to be a refugee on the basis of past
persecution if [he finds] by a preponderance of the evidence [that]:
[. . .]
(B) The applicant could avoid further persecution by relocating
to another part of the applicant’s country of nationality . . . and under
all the circumstances, it would be reasonable to expect the applicant
to do so.
8 C.F.R. § 1208.13(b)(i)(B).
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In her appellate brief in this court, M s. Rumajar attacks the IJ’s findings
that she could safely relocate to M anado and that it would be reasonable for her to
do so. Aplt. Br. at 17-22. But she did not challenge the IJ’s findings on these
issues before the BIA . See Admin. R. at 13-27. W e therefore cannot consider her
challenge here. See Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991)
(“Judicial review does not extend to points the alien could have made before the
Board but did not.”). Failure to mount an effective challenge to an IJ’s relocation
finding forstalls an asylum claim based either on past persecution, see Niang,
422 F.3d at 1195, or on a well-founded fear of future persecution, see
Tulengkey, 425 F.3d at 1282. W e must therefore affirm the IJ’s denial of asylum.
The petition for review is DENIED.
Entered for the Court
M ichael W . M cConnell
Circuit Judge
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