Silalahi v. Gonzales ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 6, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SAUR TUA SILALAHI,
Petitioner,
v. No. 06-9553
(No. A97-196-383)
ALBERTO R. GONZALES, (Petition for Review)
United States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.
Petitioner Saur Tua Silalahi is a native and citizen of Indonesia. He
entered the United States in 1994 on a student visa, but failed to depart upon
expiration of his visa. In removal proceedings, he conceded removablility but
sought asylum, restriction on removal, and relief under Article III of the United
Nations Convention Against Torture (CAT). An immigration judge (IJ) denied
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
his asylum application as untimely because it was filed over one year from his
entry into the United States. The IJ also found that M r. Silalahi did not qualify
for either of the two exceptions to the one-year time limit, “changed
circumstances” or “extraordinary circumstances,” found in 8 U.S.C.
§ 1158(a)(2)(D). The IJ then denied his applications for restriction on removal
and relief under Article III of the CAT. M r. Silalahi petitions for review of the
order of the B oard of Immigration Appeals (BIA) affirming the IJ’s denial. He
challenges the agency’s denial of his claim for restriction on removal and the
denial of his CAT claim.
I.
Although we review the B IA’s decision as the final order of removal, here
we may consult the IJ’s more complete analysis because the BIA relied on the IJ’s
rationale to reach its decision. See Uanreroro v. Gonzales, 443 F.3d 1197,
1203-04 (10th Cir. 2006). W e review the agency’s legal determinations de novo,
and its findings of fact under the substantial evidence standard. Elzour v.
Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004); see also 8 U.S.C.
§ 1252(b)(4)(B) (“[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”). Under
the substantial evidence test, we must determine w hether the factual findings “are
supported by reasonable, substantial and probative evidence considering the
record as a whole.” Elzour, 378 F.3d at 1150. Credibility determinations are
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subject to the substantial evidence test. Id. These credibility determinations w ill
be upheld if the IJ provides “specific, cogent reasons for an adverse credibility
finding.” Wiransane v. Ashcroft, 366 F.3d 889, 897 (10th Cir. 2004) (quotation
omitted).
II.
M r. Silalahi bears the burden of proof on his restriction on removal claim
and he must establish that “his . . . life or freedom w ould be threatened in the
proposed country of removal on the account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 C.F.R.
§ 1208.16(b). He may meet this burden by demonstrating that he suffered past
persecution or that there is a “clear probability” of future persecution on account
of one of the protected grounds enumerated above. Niang v. Gonzales, 422 F.3d
1187, 1195 (10th Cir. 2005). M r. Silalahi, who is Christian, sought to establish
his eligibility for restriction on removal primarily on the basis of several
incidents. First, he testified he was assaulted in December 1983 by pedestrians
who forced him out of a car after one pedestrian accused him of trying to hit him.
He said the pedestrians beat him, resulting in a head wound that required fourteen
stitches. M r. Silalahi testified that one of the attackers pulled his necklace off
and when he saw it w as a cross, stomped on it and said he hated Christians.
M r. Silalahi testified that he believes the pedestrians w ere M uslim. Next,
M r. Silalahi testified he was attacked as he w as leaving his church in August
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1984, by parking attendants who demanded money from him. W hen he refused,
he was hit w ith a piece of wood and stabbed, resulting in nine stitches.
M r. Silalahi testified these attackers w ere also M uslim. He also testified that in
July 1983, his family’s home was robbed while he was there, and his brother was
stabbed during the robbery. He did not know the religion of these robbers.
Finally, he testified that in 1980, another brother was cut by a broken beer bottle
when he refused to give robbers money.
The IJ found that these events were incidents of robbery, not religious
persecution. Further, the IJ found M r. Silalahi’s testimony was not sufficiently
detailed, consistent, or believable to provide a plausible and coherent account in
order to establish that the basis of his fear was religious persecution. In support
of this credibility finding, the IJ identified three inconsistencies in M r. Silalahi’s
reports: (1) his affidavit and asylum application submitted shortly before the
hearing did not mention the 1983 attack by pedestrians; (2) his asylum application
described the robbery and attack on his family’s home as having occurred in
1999, not 1983, and (3) his asylum application did not mention the robbery and
cutting of his brother in 1980, or that his brother w as stabbed during the robbery
of his family’s home. The IJ noted that M r. Silalahi did not come to the United
States until 1994, ten years after the last of these incidents, which happened more
than twenty-two years prior to the asylum application. The IJ further noted that
during that ten years between 1984 and 1994, M r. Silalahi had no problems once
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he moved into a brother’s home in a different neighborhood. Further, M r. Silalahi
still has twelve family members living in Indonesia.
The IJ gave specific, cogent reasons for its adverse credibility findings,
which w ere adopted and affirmed by the B IA. W e conclude that the BIA’s
decision affirming the IJ’s adverse credibility finding applies the correct legal
standards and is supported by substantial evidence in the record. W e further
conclude that M r. Silalahi has failed to present evidence demonstrating either past
persecution or that it is more likely than not that he would be persecuted upon his
return to Indonesia, and that substantial evidence in the record supports the
agency’s determination that petitioner did not met his burden of establishing
entitlement to restriction on removal. See Woldemeskel v. INS, 257 F.3d 1185,
1193 (10th Cir. 2001).
III.
In order to satisfy the requirements under the CAT, an applicant must
establish that it is more likely than not that he or she would be tortured if returned
to the proposed country of removal. 8 C.F.R. § 208.16(c)(2). The IJ concluded
that M r. Silalahi was ineligible for CAT relief because this provision requires the
petitioner to show at least acquiescence in torture by a government official, or
someone acting with official authority, and M r. Silalahi had failed to make any
such showing. The IJ correctly articulated the applicable legal standards, see
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Ferry v. Gonzales, 457 F.3d 1117, 1130-31 (10th Cir. 2006), and we conclude that
the agency’s decision is supported by substantial evidence in the record.
The petition for review is DENIED.
Entered for the Court
John C. Porfilio
Circuit Judge
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