Simbolon v. Gonzales ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 26, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
D ED Y SIM B OLO N ;
LU K IN ER NA PITU PU LU ,
Petitioners,
v. No. 06-9579
(Nos. A 97-190-912 &
ALBERTO R. GONZA LES, A 97-190-913)
United States A ttorney General, (Petition for Review)
Respondent.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, M U RPH Y, and HO LM ES, Circuit Judges.
Dedy Simbolon, as lead petitioner (petitioner), together with his wife,
Lukiner N apitupulu, seeks review of a final order of removal issued by the B oard
of Immigration Appeals (BIA) affirming the denial of his applications for
withholding of removal under the Immigration and Nationality Act and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
under the United Nations Convention Against Torture (CAT). Our jurisdiction
arises under 8 U.S.C. § 1252(a), Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235
(10th Cir. 2003), and we affirm.
Petitioner, who admits removability, argued to the Immigration Judge (IJ)
that, as an Indonesian Christian, he has faced persecution in his homeland and
should be granted relief. 1 The IJ denied withholding of removal and relief under
the CAT, finding that petitioner had failed to show that he would face a
likelihood of persecution or torture should he return to Indonesia. Admin. R. at
58-59. Petitioner appealed to the B IA which adopted and affirmed the IJ’s
disposition in a brief written opinion. W e thus review the BIA’s decision,
consulting the IJ’s explanation if necessary. See, e.g., Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006).
On appeal, we review the agency’s legal decisions de novo,
Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 884 (10th Cir. 2005), and the factual
determination of w hether petitioner has demonstrated past persecution or a
well-founded fear of future persecution for substantial evidence, see INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). In order for petitioner to prevail, this
court must be convinced that “the evidence not only supports [reversal] but
com pels it.” Elias-Zacarias, 502 U.S. at 481 n.1.
1
Petitioner’s asylum application was denied as untimely, a decision not
challenged in the instant petition and one beyond our review. Tsevegmid v.
Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir. 2003).
-2-
Petitioner makes tw o arguments. First, he argues that the IJ failed to
determine whether he suffered past persecution, and whether internal relocation to
another part of Indonesia w as possible, thus rendering erroneous the BIA’s
subsequent affirmance of these grounds. Second, petitioner contends that he was
the victim of past persecution and that both he and his wife are thus eligible for
withholding of removal or, alternatively, that they should be granted relief
pursuant to the CAT. W e conclude that petitioner forfeited the first argument by
not presenting it to the BIA and that petitioner’s second argument is legally
inadequate to justify the requested relief.
In order to preserve issues for review by this court, petitioner was required
to raise his contentions to the BIA or risk having them dismissed for lack of
jurisdiction based on a failure to exhaust administrative remedies. See Nguyen v.
INS, 991 F.2d 621, 623 n.3 (10th Cir. 1993). Because petitioner failed to raise the
issues reflected in his first argument before the BIA, he is barred from raising
them here.
Petitioner’s “appellate brief” to the BIA consists of only two pages of
general allegations and is virtually devoid of any factual references to petitioner’s
case. Admin. R. at 20-21. 2 Before the BIA, petitioner argued that 1) the IJ’s
2
Based on the record, petitioner did not submit a separate appellate brief to
the BIA . W e conclude, as did Respondent, that the “Reasons for A ppeal”
attached to his notice of appeal constitutes petitioner’s BIA appellate brief. See
Br. for Resp’t at 20 (citing petitioner’s notice of appeal in reference to the
(continued...)
-3-
denial of his applications was clearly erroneous; 2) his testimony should have
been given great weight; 3) the IJ failed to adequately consider the record;
4) petitioner had proven past persecution or, in the alternative, future persecution;
and 5) the IJ’s errors were cumulative. Id. Nowhere in his “brief” did petitioner
challenge the IJ’s purported failure to make determinations regarding past
persecution or relocation. Petitioner, citing Dulane v. INS, 46 F.3d 988 (10th Cir.
1995), argues that, because the BIA addressed the past persecution issue as w ell
as the relocation issue, this court has jurisdiction to review those arguments. W e
disagree.
As a general matter, this court will not entertain arguments that have not
been presented to and ruled upon by the BIA . Dulane, 46 F.3d at 996. In Dulane,
we allowed the petitioner to specifically argue on appeal that he was entitled to
asylum because both the IJ and the BIA had ruled on that precise form of relief.
At issue w as not whether particular arguments in support of that form of relief
had been exhausted. Accordingly, we viewed it as being significant – and indeed
dispositive – that the BIA had taken the initiative and ruled on the form of relief
(i.e., asylum) that the petitioner allegedly forfeited by not raising it in his motion
to reopen.
2
(...continued)
arguments presented by petitioner to the BIA ).
-4-
In contrast, petitioner’s arguments are at issue here; there is no dispute
regarding the nature of the requested relief. W e must determine w hether those
arguments have been administratively exhausted. Petitioner advances a new
argument in this court for reversal that is premised upon the IJ’s alleged failure to
make determinations regarding past persecution and relocation. This argument
was neither raised before the BIA nor ruled on by it. Accordingly, this argument
is forfeited on appeal. Nguyen, 991 F.2d at 623 n.3.
As for Petitioner’s second argument regarding alleged past persecution, in
order to merit withholding of removal, an applicant must demonstrate that he
faces “the clear probability of persecution” because of his “race, religion,
nationality, membership in a particular social group, or political opinion” should
he be returned to a specified country outside of the United States. Tsevegmid,
336 F.3d at 1235; 8 C.F.R. § 1208.16(b). If an applicant can demonstrate that he
has suffered past persecution, a rebuttable presumption of future persecution
arises. The respondent can rebut this presumption by showing either that
circumstances in the proposed country of removal have fundamentally changed,
see id. § 1208.16(b)(1)(A), or that relocation to another part of the proposed
country would be reasonable, see id. § 1208.16(b)(1)(B).
In order to establish past persecution, the complained-of actions must be
extreme. See Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998)
(“Persecution is defined as an extreme concept that does not include every sort of
-5-
treatment that our society regards as offensive” (internal quotation marks
omitted)). The treatment must go beyond mere harassment, acts of personal
hostility, or criminal behavior. See Vatulev v. Ashcroft, 354 F.3d 1207, 1209-10
(10th Cir. 2003) (noting that “[t]hreats alone generally do not constitute actual
persecution,” and that “ethnic slurs and petty vandalism,” although “odius,” fell
“far short” of evidence that would compel a finding of persecution); Tam as-
M ercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000) (noting that “actions must rise
above the level of mere harassment to constitute persecution” (internal quotation
marks omitted)).
As evidence to support his claim of past persecution, petitioner asserts that,
on more than one occasion, M uslims threw rocks at his church while services
were in progress; that the congregation eventually was forced to meet in private
homes; that another Christian church in the area was attacked causing personal
injury and loss of life; and that his business had been attacked. 3 Petitioner
speculated that M uslims were responsible for the attacks. Admin. R. at 77-83.
The IJ concluded that petitioner had failed to show a religious motive for
the attack on his business, and that, while there continue to be outbreaks of
3
The attack on petitioner’s business occurred outside of business hours.
Petitioner did not know who wrecked his store other than to identify them as
“those young people,” and did not enter the business to assess the damage or to
determine whether robbery may have been the motive for the attack. Admin. R.
80-83, 96.
-6-
violence among Christians and M uslims in Indonesia, petitioner had failed to
show that the “lack of complete protection [by the Indonesian government for
Christians and their churches] would expose him to a likelihood of persecution or
torture upon return to Indonesia.” Admin. R. at 58. As mentioned above, the
BIA affirmed these conclusions.
W e conclude that petitioner’s evidence does not rise to the level required
for a showing of persecution but rather is an example of discrimination on the
basis of religion and thus is insufficient to establish entitlement to relief. See
Korablina, 158 F.3d at 1044. Substantial evidence in the record supports the
BIA’s withholding-of-removal determination. 4
In order to satisfy the CAT’s requirements, petitioner must establish that it
is more likely than not that he would be tortured if returned to Indonesia. See
Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006); 8 C.F.R. §
1208.16(c)(4). A claim of probable torture under the CAT is limited to “pain or
suffering [] inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.”
Ferry, 457 F.3d at 1130 (quoting 8 C.F.R. § 1208.18(a)(1) (emphasis omitted)).
There is no evidence in the record that petitioner has ever been harmed by the
4
Because petitioner failed to establish past persecution, it was unnecessary
for the BIA to discuss the possibility of relocation. Relocation is only an issue
after a petitioner establishes past persecution and is then the beneficiary of the
rebuttable presumption of future persecution. See 8 C.F.R. § 1208.16(b)(1)(B).
-7-
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 w ere
returned to Indonesia. The BIA’s decision as to the unavailability of CAT relief
is supported by substantial evidence in the record.
The petition for review is DENIED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
-8-