Sitompul v. Mukasey , 272 F. App'x 696 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 4, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BARENYONO SITOMPUL,
Petitioner,
v. No. 07-9533
(Petition for Review)
MICHAEL B. MUKASEY,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO and PORFILIO, Circuit Judges, BRORBY, Senior Circuit
Judge.
Barenyono Sitompul petitions for review of a final order of removal in
which the Bureau of Immigration Appeals (BIA) affirmed an Immigration Judge’s
(IJ) denial of his applications for asylum, restriction on removal, 1 protection
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
Restriction on removal was known as withholding of removal
before amendment to the [Immigration and Nationality Act] made by
(continued...)
under the Convention Against Torture (CAT), and cancellation of removal. On
appeal, Mr. Sitompul does not challenge the denial of asylum. He petitions for
our review of only the denials of restriction on removal, protection under the
CAT, and cancellation of removal. Exercising jurisdiction under 8 U.S.C.
§ 1252(a)(1), we dismiss for lack of jurisdiction Mr. Sitompul’s argument
concerning cancellation of removal and deny his petition for review in all other
respects.
BACKGROUND
Mr. Sitompul is a native and citizen of Indonesia, a predominantly Muslim
nation. He is an ethnic Batak and a Christian, who is a member of the Seventh
Day Adventist Church. He was admitted to the United States in July 1991 as a
tourist with permission to stay until January 1992. In 2003, the Department of
Homeland Security began removal proceedings against Mr. Sitompul under
8 U.S.C. § 1227(a)(1)(B). He conceded removability, but sought asylum,
withholding of removal, CAT protection, and cancellation of removal.
1
(...continued)
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 . . . , Pub. L. No. 104-208, 100 Stat. 3009. The regulations
under the INA, however, retain the former term withholding of
removal, see, e.g., 8 C.F.R. § 208.16(b), and both the IJ and the BIA
have referred to withholding of removal. Nevertheless, we use the
statutory term restriction on removal.
Ismaiel v. Mukasey, 516 F.3d 1198, 1200 n.2 (10th Cir. 2008).
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At the hearing before the IJ, Mr. Sitompul testified that Muslims in his
neighborhood in Indonesia taunted his family based on their being Christians and
Bataks. He also testified that he attended a Christian school in Indonesia and was
harassed and taunted by Muslims at his bus stop. On one occasion, he was
punched and kicked by Muslim students until police arrived. After the incident,
he was treated at a hospital for cuts to his hand and lips. If he is returned to
Indonesia, Mr. Sitompul stated that he fears being kidnaped or killed because he
is a Christian and because he is returning to Indonesia from the United States. He
believes it would be unsafe for him to live anywhere in Indonesia.
Mr. Sitompul’s pastor testified that although it is generally dangerous to openly
practice Christianity and to build Christian churches in Indonesia, there are
Christian-majority areas that are safe for Christians to openly practice their
religion. In addition to presenting testimony at the hearing, Mr. Sitompul also
presented news reports and government documents indicating there is religious
turmoil in Indonesia.
The IJ denied asylum, withholding of removal, protection under the CAT,
and cancellation of removal and ordered Mr. Sitompul removed to Indonesia. The
IJ recognized that Christians occasionally are abused and authorities occasionally
fail to respond to that abuse. But, based on the entire record, the IJ rejected
Mr. Sitompul’s claim of a likelihood of persecution based on his Christian beliefs.
Instead, the IJ found that Mr. Sitompul could relocate within Indonesia to avoid
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harm due to his religion. In accordance with these findings, the IJ denied
Mr. Sitompul’s claim for withholding of removal. Additionally, the IJ denied the
CAT claim, because the record evidence was insufficient to show a likelihood that
the Indonesian government would torture Mr. Sitompul or acquiesce in such
behavior against him if he was returned to Indonesia. With respect to
cancellation of removal, the IJ found that Mr. Sitompul’s mother would suffer
some hardship if he were returned to Indonesia, but that hardship would not be
exceptional or extremely unusual since her other children, who live in the United
States, could care for her and she could stay in touch with Mr. Sitompul since she
regularly visits Indonesia.
Adopting and affirming the IJ’s decision, the BIA agreed with the IJ that
Mr. Sitompul did not meet his burden of showing he would be persecuted if he
returned to Indonesia, he did not prove Christians of Batak ethnicity are subject to
a pattern or practice of persecution that the Indonesian government is unable or
unwilling to control, CAT protection was not warranted because he did not prove
that it was more likely than not that he would be tortured, he was unable to prove
he could not relocate within Indonesia, and he was unable to show that his mother
would suffer exceptional and extreme hardship if he was removed.
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DISCUSSION
A. Cancellation of Removal
Mr. Sitompul contends that the IJ abused his discretion and denied
Mr. Sitompul due process by failing to consider the record evidence before
denying cancellation of removal. We do not have jurisdiction to review an
agency’s discretionary decision to deny cancellation of removal. See 8 U.S.C.
§ 1252(a)(2)(B)(I); Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148 (10th Cir.
2005). But we do have jurisdiction to review a constitutional claim asserting
denial of due process. See 8 U.S.C. § 1252(a)(2)(D); Torres de la Cruz v.
Maurer, 483 F.3d 1013, 1020 (10th Cir. 2007) (“While the cancellation of
removal is not a liberty or property interest, aliens challenging eligibility for the
cancellation of removal are entitled to an opportunity to be heard at a meaningful
time and in a meaningful manner.”) (quotation omitted). Mr. Sitompul’s due
process argument, however, merely disputes the IJ’s findings and therefore is not
a colorable constitutional challenge capable of avoiding the jurisdictional bar.
See Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007) (“An alien does
not present a colorable constitutional claim capable of avoiding the jurisdictional
bar by arguing that the evidence was incorrectly weighed, insufficiently
considered, or supports a different outcome.”). Accordingly, we dismiss this
claim for lack of jurisdiction.
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B. Restriction on Removal and CAT
1. Scope and Standard of Review
The BIA issued its per curiam decision in a brief order signed by a single
board member. See 8 C.F.R. § 1003.1(e)(5). We therefore review that decision
as the final order of removal, but “we may consult the IJ’s opinion to the extent
that the BIA relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790
(10th Cir. 2007). We review the BIA’s decision to determine whether its factual
findings are supported by reasonable, substantial, and probative evidence based
on the entire record. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.
2006). “We do not weigh the evidence . . . .” Sidabutar v. Gonzales, 503 F.3d
1116, 1122 (10th Cir. 2007) (quotation omitted). For Mr. Sitompul to prevail on
appeal, we must be convinced that “the evidence not only supports [reversal], but
compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
2. Restriction on Removal
Mr. Sitompul argues that the agency should not have denied restriction on
removal because the agency’s finding that he would not suffer religious
persecution upon return to Indonesia is not supported by substantial evidence.
For restriction on removal, Mr. Sitompul must show that his “life or freedom
would be threatened” in Indonesia because of his Christian religion or Batak
ethnicity. 8 U.S.C. § 1231(b)(3)(A). He can satisfy this by “showing that ‘it is
more likely than not that [he] would be subject to persecution . . .’ upon returning
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to” Indonesia. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005)
(quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)).
Mr. Sitompul concedes that he has not been subject to past persecution, but
he argues that he has “a well-founded fear of persecution.” 8 C.F.R.
§ 1208.13(b)(2)(I). He, however, “does not have a well-founded fear of
persecution if [he] could avoid persecution by relocating to another part of”
Indonesia, “if under all the circumstances it would be reasonable to expect [him]
to do so.” Id. § 1208.13(b)(2)(ii); see id. § 1208.16(b)(2), (3). Because
Mr. Sitompul “has not shown past persecution and the alleged future persecution”
is by Muslims and “is not by a government or a government-sponsored group,
[he] bears the burden of establishing that relocation would be unreasonable.” 2
Tulengkey, 425 F.3d at 1281.
In adopting the IJ’s decision, the BIA, in summary, found that
Mr. Sitompul did not meet his burden to show that he would be unable to relocate
within Indonesia. More specifically, the IJ found that relocation would be
possible, based on State Department reports indicating that some Christians have
moved to parts of Indonesia where they generally experience little religious
2
Although the IJ and BIA rejected Mr. Sitompul’s claim of future
persecution on relocation and other grounds, we need only address the issue of
relocation. See Tulengkey, 425 F.3d at 1281.
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discrimination and based on Mr. Sitompul’s pastor’s testimony identifying places
in Indonesia where Christians can safely live.
Our review of the record does not compel us to conclude otherwise. The
State Department reports indicate that Christians predominate and Muslims are a
minority in certain parts of Indonesia. Mr. Sitompul does not present evidence
showing why he cannot relocate to those areas. Instead, he incorrectly argues that
the IJ erred in relying on only one piece of evidence when finding that he could
safely relocate in Indonesia. The IJ, however, considered the entire record,
including State Department reports and the pastor’s testimony. See Admin. R. at
59-60, 63-64. In addition, the remainder of Mr. Sitompul’s arguments–that the IJ
erred in relying on his pastor’s testimony when the pastor was not qualified as an
expert and that the IJ did not make a proper relocation determination because the
IJ did not consider the length of time he has been away from Indonesia, the
present conditions in Indonesia, whether the islands mentioned for relocation
could be reasonably relocated to, and whether he has any family ties in Indonesia
that make relocation reasonable–also are not sufficient to convince us to overturn
the relocation findings. See Tulengkey, 425 F.3d at 1282 (upholding denial of
restriction on removal when “the IJ found relocation to be possible and petitioners
point[ed] to no evidence that relocation would be unreasonable”). We therefore
hold that the agency’s determination that Mr. Sitompul failed to show a likelihood
of future persecution because of his ability to relocate within Indonesia is
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supported by substantial evidence. Indeed, nothing in the record compels a
conclusion that Mr. Sitompul cannot relocate.
3. Convention Against Torture
We also agree with the BIA’s rejection of Mr. Sitompul’s argument that he
is entitled to protection under the CAT because he “is more likely than not to be
tortured” if removed to Indonesia. 8 C.F.R. § 1208.16(c)(4); see id.§ 1208.16(c)(2). Mr. Sitompul’s cursory treatment of his CAT claim in his
appellate brief provides no reason for concluding that he would be tortured by or
with the consent or acquiescence of any public official, as the CAT requires. See
id. § 1208.18(a)(1). Furthermore, no evidence in the record suggests that he has
ever been harmed by the Indonesian government or that it is more likely than not
that torture bearing the necessary nexus to persons acting in an official capacity
would occur if he were returned to Indonesia. We therefore are compelled to
conclude that the BIA’s denial of CAT protection was supported by substantial
evidence.
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CONCLUSION
We DISMISS for lack of jurisdiction the claim concerning cancellation of
removal, and we DENY the remainder of the petition for review.
Entered for the Court
John C. Porfilio
Circuit Judge
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