Pasaribu v. Mukasey , 301 F. App'x 795 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
December 9, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
TIALOM SAMARIA PASARIBU;
MARIA IGNATIA RONAULI,
Petitioners,
No. 08-9521
v. (Petition for Review)
MICHAEL B. MUKASEY,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.
Petitioners Tialom Samaria Pasaribu and Maria Ignatia Ronauli, mother and
daughter, challenge an order of the Board of Immigration Appeals (BIA)
upholding an Immigration Judge’s (IJ’s) denial of their application for asylum,
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
restriction on removal, and relief under the Convention Against Torture (CAT). 1
Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition.
I. Background
Petitioners are natives and citizens of Indonesia. In 1997, Ms. Pasaribu
entered the United States on a student visa. She was accompanied by her
daughter. In 2003, Ms. Pasaribu filed an application for asylum and restriction on
removal, claiming that if she returned to Indonesia, she would be persecuted on
account of her Christian religion. The application was referred to an IJ, and each
petitioner was served with a notice to appear. The notices charged petitioners as
removable for overstaying their visas. Admin. R. at 309, 332.
Before an IJ, petitioners, through counsel, conceded removability but
renewed the asylum and restriction on removal application, requested protection
under the CAT, and sought voluntary departure. In support, Ms. Pasaribu
testified that she is afraid to return to Indonesia, a predominantly Muslim country,
because she fears religious persecution and she fears violence at the hands of her
ex-husband.
She stated that she was teased and harassed in public elementary school by
Muslim classmates, and in third grade a Muslim classmate poked her in the eye
with a pencil. A teacher provided her with a band-aid but no action was taken
1
Miss Ronauli is a derivative applicant of her mother’s claims for relief.
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against the student. Similar events occurred in middle school and high school.
She was refused admission to school organizations because she is Christian.
After high school she attended academy; there, she had more Christian classmates
but was still harassed quite a bit.
In 1998, after she had left Indonesia, her mother’s automobile repair shop
was destroyed in a fire. The arson occurred during Muslim riots, and
Ms. Pasaribu contended her mother’s shop was targeted because it was known to
be owned by Christians. Nobody was arrested, however, “because [they] didn’t
know who burned [it] for sure.” Id. at 106. It was not rebuilt because “[t]here
was no money.” Id.
In 2003, Ms. Pasaribu’s brother returned to Indonesia from the United
States. She stated that he later died “because he was very stressed” from not
being able to find employment in Indonesia commensurate with his education
since “they mostly . . . hire Muslims as opposed to Christians.” Id. at 108-09.
When she learned of her brother’s death she wanted to return to Indonesia but her
family discouraged her, telling her it was not safe for Christians in Indonesia.
She acquiesced, and testified that she fears returning to Indonesia because of the
possibility of riots.
She also stated that she began enduring daily beatings two weeks into her
1993 marriage because she was unable to convert to Catholicism, her
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ex-husband’s denomination, as quickly as he would have liked her to convert.
She never told anyone about the beatings and claimed she was unable to obtain
police assistance because domestic violence is common in Indonesia and the
police “don’t really want to know about it.” Id. at 115. The couple’s daughter
was born in 1994 and Ms. Pasaribu left her husband shortly thereafter. When she
rebuffed his attempts to reconcile he “threatened that he was going to do
something.” Id. at 118. She speculated that “he was going to kill [her].” Id. She
said she could not safely relocate to Indonesia because he could readily find her
and because there were no safe places for her to live in Indonesia as a Christian.
But she also testified that after her divorce, and before she left Indonesia, she
avoided her ex-husband for over a year. During this time period she would leave
her daughter with her sister and “he didn’t know where that was.” Id. at 133.
The IJ issued an oral decision denying the relief sought. He found
Ms. Pasaribu ineligible for asylum because she failed to file her asylum
application within one year of arriving in the United States, and she failed to
show changed or extraordinary circumstances sufficient to excuse the untimely
filing. He further found that the harassment she testified about was behavior not
rising to the level of persecution; the burning of her mother’s shop “appear[ed] to
be the result of civil unrest, and not a form of persecution directed specifically [at
her] because of her religion”; and relocation within Indonesia would be a viable
option. Id. at 50. The IJ acknowledged Ms. Pasaribu was “mistreat[ed]” by her
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ex-husband, but found the threat about which she testified too vague to qualify as
persecution. Id. The IJ also found that Ms. Pasaribu had not established the
Indonesian government was unwilling or unable to protect her from her
ex-husband. The IJ concluded Ms. Pasaribu “ha[d] not shown eligibility for
withholding of removal [restriction on removal] either under the Immigration and
Nationality Act or under the United Nations Convention against Torture.” Id. at
51. He did, however, grant petitioners’ request for voluntary departure.
Petitioners appealed.
The BIA dismissed petitioners’ appeal. It agreed with the IJ that
Ms. Pasaribu’s application for asylum was untimely and that she had failed to
demonstrate qualification for an exception from the filing deadline. It also
considered the requests for restriction on removal and CAT protection but agreed
with the IJ that petitioners were not entitled to either form of relief. This timely
petition for review followed.
II. Discussion
Because the BIA issued its decision by a brief order signed by a single
board member, 8 C.F.R. § 1003.1(e)(5), we review the BIA’s decision as the final
order of removal but “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). “Our duty is to guarantee that factual determinations are supported by
reasonable, substantial and probative evidence considering the record as a whole.
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Agency findings of fact are conclusive unless the record demonstrates that any
reasonable adjudicator would be compelled to conclude to the contrary.” Id. at
788-89 (citation, quotations, and brackets omitted). We review the agency’s legal
conclusions de novo. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.
2005).
Petitioners do not appeal the denial of their asylum application, apparently
recognizing its untimeliness. They do, however, appeal the decisions not to grant
restriction on removal or CAT relief. Pet’r Br. 7-16.
A. Restriction on Removal
An alien is entitled to restriction on removal if “the alien’s life or freedom
would be threatened in th[e] country [of removal] because of the alien’s race,
religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A).
An alien may create a rebuttable presumption of eligibility for
restriction on removal by either (1) demonstrating “past persecution”
in the proposed country of removal on account of one of the
protected grounds,. . . ; or (2) showing that “it is more likely than not
that the alien would be subject to persecution on one of the specified
grounds” upon returning to the proposed country of removal.
Sidabutar v. Gonzales, 503 F.3d 1116, 1123-24 (10th Cir. 2007) (citations and
quotations omitted). “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.”
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Tulengkey, 425 F.3d at 1280 (quotations omitted). Whether “an alien has
demonstrated persecution is a question of fact.” Hayrapetyan v. Mukasey,
534 F.3d 1330, 1335 (10th Cir. 2008).
Ms. Pasaribu first takes issue with the conclusion that she did not suffer
past persecution, citing her credible testimony about the arson and the harassment
she endured. “[A]t the very least,” she claims, “[my] experiences in the
cumulative . . . equate [to] past persecution.” Pet’r Br. at 9. The BIA specifically
rejected this argument and substantial record evidence supports its conclusion.
Expanding on the IJ’s decision, the BIA concluded that the harassment and
discrimination Ms. Pasaribu testified to, the incident involving the pencil, and the
arson—even if considered in the aggregate—did “not rise to the level of past
persecution.” Admin. R. at 3. In so holding the BIA also noted Ms. Pasaribu’s
failure to prove persecution based on any alleged economic impact of the arson,
and determined that she had failed to demonstrate the shop was burned on account
of her or her family’s Christian religion.
Ms. Pasaribu also challenges the conclusion that relocation within
Indonesia is a viable option, contending she credibly testified “that she would not
be able to find any safe area to live in Indonesia.” Pet’r Br. at 10. The BIA
concluded otherwise; it stated that petitioners did not meet “their burden of
establishing that relocation to any other part of Indonesia to avoid persecution on
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account of their Christian religion is unreasonable,” Admin. R. at 3-4, and our
review of the record reveals substantial evidence to support this conclusion.
Ms. Pasaribu also contends she faces a “clear probability” of persecution in
her home country based on her “Christian religion and . . . fear of her husband
which is also based on her failure to convert to Catholicism.” Pet’r Br. at 11.
These cursory assertions fall far short of demonstrating that “any reasonable
adjudicator would be compelled to conclude” she is entitled to restriction on
removal. Sarr, 474 F.3d at 788-89. Further, the mistreatment she suffered prior
to her divorce and the vague threat made by her ex-husband shortly after the
divorce does not entitle her to restriction on removal. As observed by the BIA
she did not, with respect to her “claim based on [her] ex-husband’s abuse,
. . . clearly articulate[] . . . the ‘particular social group’ to which she believes she
belongs.” Admin. R. at 4. But now, for the first time, she claims she belongs to a
particular social group of “women in Indonesia who have suffered persecution for
failing to convert to the religion or denomination of their husbands.” Pet’r Br. at
15. Generally, we are precluded from considering a claim that an alien failed to
exhaust. See Sidabutar, 503 F.3d at 1118-19. But even assuming this claim was
administratively exhausted, Ms. Pasaribu failed to demonstrate that the alleged
persecution she fears was “imposed by the government or by groups which the
government is unwilling or unable to control.” Vatulev v. Ashcroft, 354 F.3d
1207, 1209 (10th Cir. 2003) (quotations omitted). Indeed, as noted by the BIA
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and supported by substantial record evidence, Ms. Pasaribu’s “generalized claim
of inaction, without more, does not persuasively establish the Indonesian
government’s inability or unwillingness to protect [her] from her [ex-]husband’s
abuse.” Admin. R. at 4. Further, the BIA’s conclusion that petitioners are not
entitled to restriction on removal based on “past or prospective harm at the hands
of [Ms. Pasaribu’s] ex-husband,” is supported by substantial evidence in the
record. Id.
B. Convention Against Torture
“To receive the protections of the CAT, an alien must demonstrate that it is
more likely than not that he will be subject to torture by a public official, or at the
instigation or with the acquiescence of such an official.” Sidabutar, 503 F.3d
at 1125 (quotations omitted). A CAT claim differs from a restriction on removal
claim in that “there is no requirement that the petitioner[] show that torture will
occur on account of a statutorily protected ground.” Id. (quotations omitted).
Ms. Pasaribu asserts in conclusory fashion that she and her daughter qualify
for CAT relief for “the same reasons” that they are eligible for restriction on
removal. Pet’r Br. at 15. Generally, arguments that are inadequately briefed on
appeal are deemed waived. Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002). Even if not waived,
we, like the BIA, lack an “adequate basis to disturb the Immigration Judge’s
decision to deny [their] application[] for protection under the CAT.” Admin. R.
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at 5. “[T]hey have not established a clear probability of torture by or at the
instigation of or with the consent and acquiescence of the Indonesian
government.” Id.
III. Conclusion
The BIA did not err in dismissing Petitioners’ claims for restriction on
removal and CAT relief. The petition for review is therefore DENIED.
Entered for the Court
Michael W. McConnell
Circuit Judge
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