Satriawan v. Gonzales ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 16, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ISH A K SA TR IA WA N ,
Petitioner,
v. No. 06-9541
(No. A97-188-515)
ALBERTO R. GONZA LES, (Petition for Review)
Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.
Ishak Satriawan is a native and citizen of Indonesia. He petitions for
review of an order of the Board of Immigration Appeals (BIA) affirming the
denial by the immigration judge (IJ) of his request for asylum, restriction on
removal, 1 and protection under the Convention Against Torture (CAT).
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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
Although the parties and the agency refer to “withholding of removal,”
this language was changed to “restriction on removal” with the enactment of
(continued...)
M r. Satriaw an asserts that the IJ erred in finding that he had not established his
eligibility for restriction on removal. He does not raise any other challenges to
the BIA or IJ decisions. 2 The BIA adopted and affirmed the IJ’s decision in a
single-member brief order. See 8 C.F.R. § 1003.1(e)(5). The BIA’s decision
noted that it was affirming the restriction on removal claim for the reasons stated
in the IJ’s decision. In these circumstances, the B IA’s decision is the final order,
but we may consult the IJ’s decision when it provides a more complete
explanation of the grounds for the decision. See Uanreroro v. Gonzales, 443 F.3d
1197, 1204 (10th Cir. 2006). Because the BIA adopted the IJ’s decision without
providing any additional reasoning on the restriction on removal claim, we will
rely on the grounds stated in the IJ’s decision for the purposes of our review.
See id. W e deny the petition for review.
1
(...continued)
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
Because this claim was filed after IIRIRA’s effective date, we w ill use the term
“restriction on removal.” See Yan v. Gonzales, 438 F.3d 1249, 1251 n.1
(10th Cir. 2006).
2
M r. Satriawan did not appeal the denial of his asylum claim because, as he
noted in his brief, this court lacks jurisdiction to review the BIA’s decision that
his asylum application was untimely. See Diallo v. Gonzales, 447 F.3d 1274,
1281 (10th Cir. 2006). M r. Satriawan has waived any challenge to the denial of
his CAT claim because he did not raise any argument regarding this claim on
appeal. See Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002).
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I.
“W e review the BIA’s legal determinations de novo, and its findings of fact
under a substantial-evidence standard.” Niang v. Gonzales, 422 F.3d 1187, 1196
(10th Cir. 2005). “The BIA’s findings of fact are conclusive unless the record
demonstrates that any reasonable adjudicator would be compelled to conclude to
the contrary.” Id. (quotation omitted).
M r. Satriawan bears the burden of establishing that he is eligible for
restriction on removal by demonstrating that he suffered past persecution or that
there is a “clear probability of persecution” if he were returned to Indonesia. Id.
at 1195 (quotation omitted); 8 C.F.R. § 1208.16(b)(1)(iii) (“the applicant bears
the burden of establishing that it is more likely than not that he or she would
suffer [persecution]”). “[P]ersecution requires 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.”
Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004) (quotations omitted).
M r. Satriaw an testified that he was persecuted in Indonesia based on his
Chinese ethnicity. Specifically, he recalled occasions when his schoolmates beat
him, money was extorted from him while he was a shop owner, his brother and
his brother’s wife were harassed, his brother was injured after he was pulled off a
motorcycle, and he was hit by M uslims after leaving a wedding. He also testified
that he w as caught in the 1998 riots in Jakarta and that his shop was burned. H e
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argues that these incidents constituted past persecution and also support his claim
of a clear probability of future persecution.
II.
M r. Satriawan may establish his eligibility for restriction on removal by
showing that he has suffered past persecution. See Niang, 422 F.3d at 1195(explaining that both asylum applicants and those seeking restriction on removal
may establish a presumptive entitlement to relief based on past persecution);
8 C.F.R. § 1208.16(b)(1). To establish past persecution, M r. Satriawan must
show: “(1) an incident, or incidents, that rise to the level of persecution; (2) that
is on account of one of the statutorily-protected grounds; and (3) is committed by
the government or forces the government is either unable or unwilling to control.”
Niang, 422 F.3d at 1194-95 (quotation omitted) (describing past persecution
standard for asylum).
The IJ noted that “[M r. Satriawan] did suffer harassment and discrimination
growing up as a Chinese person in Indonesia.” Admin. R. at 54. He concluded,
however, that none of the incidents described by M r. Satriawan amounted to past
persecution. The IJ did note that being caught in the 1998 Jakarta riots and losing
his business when his shop was burned down might be considered persecution, if
M r. Satriawan could show that the government was unable or unwilling to control
the rioters. Id. Because the IJ ultimately determined that M r. Satriawan had not
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met this burden, the IJ concluded that he was not entitled to restriction on
removal. Substantial evidence in the record supports this determination.
M r. Satriaw an argues that the IJ erred because he established economic
past persecution based on the extortion money that he had to pay to the M uslim
gangs to keep his shop open. “Potential job loss or generalized economic
disadvantage, however, does not equal persecution.” Baka v. INS, 963 F.2d 1376,
1379 (10th Cir. 1992). Economic persecution has been defined as the “deliberate
imposition of substantial economic disadvantage.” Liao v. United States Dep’t of
Justice, 293 F.3d 61, 70 (2d Cir. 2002) (quotation omitted); Borca v. INS, 77 F.3d
210, 216 (7th Cir. 1996). M r. Satriawan has not satisfied this standard.
Although M r. Satriaw an testified that he had to close his first shop in
M edan because he was not able to make a profit after he paid out the extortion
money, the record shows that he was able to continue working and earn a living
through other pursuits. After he closed his shop, he went to work for a fellow
Chinese shop owner in a fabric shop. Later, he moved to Jakarta and opened a
second shop. He did not testify about having to pay any extortion money when he
was working in his photography shop in Jakarta. After M r. Satriawan’s shop was
burned in the riots in 1998, he did not leave Indonesia. He stayed there for
another three years, and there is no testimony that he suffered any further
economic disadvantage. M oreover, he testified that when he came to the United
States in 2001, he had no intention of staying here.
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M r. Satriaw an’s family, w hich includes his parents, three brothers, and tw o
sisters, continues to live in Indonesia. His mother owns a noodle shop and his
father used to make and sell Buddhist trinkets. He testified that his family “ha[s]
adjusted to life in Indonesia,” although “[y]ou have to pay to be safe.”
Admin. R. at 123. During cross-examination, he agreed with the statement that
the ethnic Chinese in Indonesia own many of the businesses, estimating the
percentage of Chinese-owned businesses to be seventy percent. Id. at 114-15.
The Country Reports on H uman Rights Practices from 2004 (Country Reports)
noted that the ethnic Chinese “played a major role in the [Indonesian] economy.”
Id. at 172. Given these overall circumstances, M r. Satriawan’s decision to close
his first shop because of the extortion payments is not a substantial economic
disadvantage and does not rise to the level of economic persecution. See, e.g.,
Capric v. Ashcroft, 355 F.3d 1075, 1092-93 (7th Cir. 2004) (explaining that the
termination of petitioner’s job did not constitute economic persecution given the
overall financial circumstances of his family, his failure to look for another job,
and the harsh generalized economic conditions in the area at the time).
M r. Satriawan also argues that the IJ erred in determining that he had failed
to show that the government was unable or unwilling to control the 1998 Jakarta
rioters. Although the IJ noted that the government could not prevent the riots, he
concluded that no government can provide absolute protection for its citizens and
that the government has taken steps to protect the Chinese minority in Indonesia.
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In making this determination, the IJ relied on the Country Reports on Human
Rights Practices from 2004. That report states:
[T]he government officially promotes racial and ethnic tolerance.
Ethnic Chinese accounted for approximately 3 percent of the
population, by far the largest nonindigenous minority group, and
played a major role in the economy. Instances of discrimination and
harassment of ethnic C hinese Indonesians declined compared with
previous years.
Admin. R. at 172. This evidence supports the IJ’s conclusion that the government
is able and willing to protect the Chinese minority in Indonesia. M r. Satriawan
has failed to show that the IJ erred in determining that he had not established past
persecution.
III.
M r. Satriawan may also establish eligibility for restriction on removal by
showing that “it is more likely than not” that he will be persecuted if he is
returned to Indonesia. 8 C.F.R. § 1208.16(b)(1)(iii). M r. Satriawan asserts that
the IJ erred in concluding that he had not met this standard. In reaching this
conclusion, the IJ noted that M r. Satriawan’s family remained in Indonesia, that
they had “learned to live in the imperfect security situation of Indonesia,” and
that they appeared to be “relatively unharmed in recent years.” Admin. R. at 55.
M r. Satriawan argues that his family has to pay to be safe and that he will be
subject to this same economic persecution if he returns to Indonesia. As
discussed above, the record evidence shows that M r. Satriaw an and his family are
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not suffering from the “deliberate imposition of substantial economic
disadvantage.” Borca, 77 F.3d at 216. The IJ did not err in concluding that
M r. Satriaw an had not established a clear probability of persecution if he is
returned to Indonesia.
The petition for review is D ENIED. M r. Satriaw an’s motion to file his
reply brief out of time is G RA N TED.
Entered for the Court
Robert H. Henry
Circuit Judge
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