Kasonso v. Holder, Jr.

FILED
United States Court of Appeals
Tenth Circuit
October 20, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ARTHER DEYKE KASONSO,
Petitioner,
v. No. 10-9526
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and O’BRIEN, Circuit Judges.
Arther Deyke Kasonso petitions for review of a Board of Immigration
Appeals (BIA) order denying his motion for reconsideration. His petition raises a
single, narrow issue: whether the BIA abused its discretion in declining to apply
the “disfavored group analysis” adopted by some of the other circuits, to
determine whether Kasanso is entitled to restriction on removal. Exercising
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
jurisdiction under 8 U.S.C. § 1252, we find no abuse of discretion and deny the
petition.
Kasonso, a native and citizen of Indonesia, entered the United States in
1994 on a non-immigrant visa and overstayed his six-month authorization. He
received a notice to appear, conceded removability, and filed applications for
asylum, restriction on removal, 1 and relief under the Convention Against Torture.
He alleged past persecution and a well-founded fear of future persecution in
Indonesia because he is a Christian. After a hearing, an immigration judge denied
his applications for relief from removal, but granted him voluntary departure.
The BIA dismissed his appeal. Kasonso then filed a motion for reconsideration
and request to reopen his case. As relevant to this appeal, he wanted the BIA to
reconsider his application for restriction on removal and grant relief based upon
the disfavored-group approach. See Wakkary v. Holder, 558 F.3d 1049, 1062-66
(9th Cir. 2009). The BIA denied his motion, stating,
[T]he respondent seeks to have his applications for relief reviewed
with consideration given to . . . Wakkary v. Holder, 558 F.3d 1049(9th Cir. 2009) . . . . However, [that case] arose outside of the
jurisdiction of the United States Court of Appeals for the Tenth
Circuit, the jurisdiction in which these proceedings rest[], and
therefore [is] not controlling. We further note that the respondent
1
“Restriction on removal” was formerly known as “withholding of removal.”
See Ismaiel v. Mukasey, 516 F.3d 1198, 1200 n. 2 (10th Cir. 2008) (italics
omitted). Although the applicable regulations, as well as the IJ and the BIA in
this case, continue to refer to “withholding of removal,” this court uses the
current statutory term “restriction on removal.” Id. (italics omitted).
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has not made an individualized showing of possible persecution, as
required in Wakkary.
Admin. R. at 3. Kasonso filed a timely petition for review of the BIA’s order
denying his motion for reconsideration. 2
Restriction on removal prevents the Attorney General from “remov[ing] an
alien to a country if the Attorney General decides that the alien’s life or freedom
would be threatened in that country 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). The Attorney General has implemented this statutory
language in regulations setting forth the evidence required to establish entitlement
to restriction on removal. See 8 C.F.R. § 1208.16(b)(1)-(2). First, if an applicant
can show he suffered past persecution in the proposed country of removal on
account of one of the specified grounds, he is rebuttably presumed to be subject
to future persecution in that country. See id. § 1208.16(b)(1)(i). The Attorney
General may rebut that presumption by showing the applicant’s life or freedom
would not be threatened because of a fundamental change in circumstances in that
country, or by showing it would be reasonable for the applicant to relocate to
another part of the country in order to avoid such a threat. See id.
§ 1208.16(b)(1)(i)(A)-(B).
2
Kasonso separately petitioned for our review of the BIA’s removal order;
we dismissed that petition for failure to prosecute. See Appeal No. 09-9557.
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If an applicant is unable to show past persecution, he can qualify for
restriction on removal by establishing that it is more likely than not that he would
be persecuted in the country of removal on account of one of the specified
grounds (race, religion, nationality, membership in a particular social group, or
political opinion). See id. § 1208.16(b)(2). Under this standard an applicant must
demonstrate a “clear probability of persecution.” Elzour v. Ashcroft, 378 F.3d
1143, 1149 (10th Cir. 2004). The regulations provide two ways for an applicant
to do so. He can show there is a pattern or practice of persecution of a group of
people in the country of removal on account of one of the specified grounds and
that his inclusion in and identification with that group makes it more likely than
not that he would suffer persecution. See id. § 1208.16(b)(2)(i)-(ii).
Alternatively, he can demonstrate a clear probability of persecution by
“provid[ing] evidence that [he] would be singled out individually for such
persecution.” Id. § 1208.16(b)(2). 3
In Kasonso’s original appeal to the BIA it decided he failed to demonstrate
that he suffered treatment amounting to past persecution or that would give rise to
a well-founded fear of future persecution if he returns to Indonesia. 4
3
An applicant claiming a clear probability of persecution upon removal to a
country will not be entitled to relief if it would be reasonable for him to relocate
to another area of that country in order to avoid future persecution. See id.
§ 1208.16(b)(2).
4
A “well-founded fear of persecution” is the standard for establishing
(continued...)
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Additionally, the BIA concluded he had “not demonstrated a reasonable fear of
persecution based upon a pattern or practice of persecution of Christians in
Indonesia.” Id. Therefore, it decided he failed to establish eligibility for either
asylum or restriction on removal. 5 In his motion for reconsideration, Kasonso
asked the BIA to revisit its decision for the purpose of applying the
disfavored-group analysis 6 and grant him restriction on removal based on that
approach. See Wakkary, 558 F.3d at 1062-66.
The disfavored-group approach is merely a gloss on the evidence an
applicant must submit to establish he will be singled out individually for
persecution. Under that approach, if an applicant for asylum or restriction on
removal is unable to show past persecution or a pattern or practice of persecution
4
(...continued)
eligibility for asylum. 8 U.S.C. § 1101(a)(42)(A) (defining who is a “refugee”);
see also 8 U.S.C. § 1158(b)(1)(A) (providing an alien determined to be a refugee
may be granted asylum). As with restriction on removal, an asylum applicant can
rely on evidence of past persecution or a pattern or practice of persecution, or he
can show he would be singled out for persecution. See 8 C.F.R.
§ 208.13(b)(1)-(2).
5
See Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir. 2006) (holding
applicant who cannot establish well-founded fear under asylum standard
necessarily fails to meet higher burden of proof required for restriction on
removal). A key distinction between asylum and restriction on removal is the
burden of proof. While an asylum applicant need only show a “reasonable
possibility” of future persecution, id. at § 208.13(b)(2)(i)(B), an applicant for
restriction on removal must show a clear probability of persecution, see Elzour,
378 F.3d at 1149.
6
The motion for reconsideration related to several matters but the only one
germane to this petition for review related to the disfavored-group approach.
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in the country of removal, he may establish eligibility for relief by “prov[ing] that
[]he is a member of a ‘disfavored group’ coupled with a showing that []he, in
particular, is likely to be targeted as a member of that group.” Sael v. Ashcroft,
386 F.3d 922, 925 (9th Cir. 2004) (applying this standard in asylum case);
see also Wakkary, 558 F.3d at 1065 (holding same standard applicable to
restriction-on-removal claims). “[O]nce an applicant establishes that he is a
member of a group that is broadly disfavored, the more egregious the showing of
group persecution–the greater the risk to all members of the group–the less
evidence of individualized persecution must be adduced to meet the objective
prong of a well-founded fear showing.” Wakkary, 558 F.3d at 1063 (quotation
omitted). An applicant for restriction on removal still must show it is more likely
than not that he will be persecuted in the country of removal. See id. at 1065.
Accordingly, the Ninth Circuit has cautioned that “the impact of the disfavored
group mode of analysis is likely to be of considerably less significance in
[restriction on removal] than in asylum cases, due to the different standards of
proof for these two forms of relief.” Id. at 1062. In Tampubolon v. Holder,
610 F.3d 1056, 1062 (9th Cir. 2010), the Ninth Circuit held for the first time “that
Christian Indonesians are a disfavored group.”
The BIA declined to reconsider Kasonso’s application for restriction on
removal and grant him relief based on the disfavored-group approach. We review
the BIA’s denial of Kasonso’s motion for reconsideration for an abuse of
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discretion. See Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003).
“The BIA abuses its discretion when its decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Mickeviciute v. INS, 327 F.3d
1159, 1162 (10th Cir. 2003) (quotations omitted). “[A]ny error of law is
presumptively an abuse of discretion,” S. Utah Wilderness Alliance v. Bureau of
Land Mgmt., 425 F.3d 735, 750 (10th Cir. 2005), and we review the BIA’s legal
determinations de novo, see Lockett v. INS, 245 F.3d 1126, 1128 (10th Cir. 2001).
The sole issue we consider is whether the BIA abused its discretion when it
declined to apply the disfavored-group analysis. The gist of Kasonso’s argument
is that the BIA was required to reconsider his application for restriction on
removal based on that approach. But the BIA has “historically followed a court’s
precedent in cases arising in that circuit.” Matter of Anselmo, 20 I. & N. Dec. 25,
31 (BIA 1989). As the BIA correctly observed, this court has neither adopted nor
rejected the disfavored-group analysis. 7 Kasonso does not argue the BIA failed to
7
Nor is there an unchallenged tide of support for the Ninth Circuit’s
approach in our sister circuits. Some courts have criticized the approach as
lowering the threshold for proof of individualized risk. See Ingmantoro v.
Mukasey, 550 F.3d 646, 651 n.7 (7th Cir. 2008) (“This circuit has not recognized
a lower threshold of proof based on membership in a ‘disfavored group.’”
(quotation omitted)); Lie v. Ashcroft, 396 F.3d 530, 538 n.4 (3d Cir. 2005) (“We
disagree with the Ninth Circuit’s use of a lower standard for individualized fear
absent a ‘pattern or practice’ of persecution and, similarly, we reject the
establishment of a ‘disfavored group’ category.”). Two have agreed with the
(continued...)
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follow its established policy to apply Tenth Circuit precedent or misapplied that
law in his case. Nor does he provide any other basis for us to conclude that the
BIA abused its discretion in denying his motion for reconsideration.
The petition for review is DENIED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
7
(...continued)
Ninth Circuit and one is, so far, agnostic. Chen v. INS, 195 F.3d 198, 203-04
(4th Cir. 1999) (citing with approval Ninth Circuit’s analysis requiring less
evidence of individualized persecution where there is a showing of egregious
group persecution); Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995) (citing
with approval Ninth Circuit’s application of disfavored-group analysis); see
Sugiarto v. Holder, 586 F.3d 90, 97 (1st Cir. 2009) (declining to decide whether
disfavored-group approach is consistent with the First Circuit’s rule “that
evidence short of a pattern or practice of persecution will enhance an
individualized showing of likelihood of a future threat” (quotation and brackets
omitted)).
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