Soewarsono v. Holder, Jr.

FILED
United States Court of Appeals
Tenth Circuit
November 13, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
SIGIT DJOKO SOEWARSONO,
Petitioner,
v. No. 09-9509
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent .
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.
An immigration judge (IJ) ordered Petitioner Sigit Djoko Soewarsono
removed to Indonesia following the denial of his application for asylum,
restriction on removal, 1 and relief under the United Nations Convention Against
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 refer to “withholding of removal,” we use the current
terminology. Razkane v. Holder, 562 F.3d 1283, 1285 n.1 (10th Cir. 2009).
Torture (CAT). After the Board of Immigration Appeals (BIA) dismissed
Mr. Soewarsono’s appeal from the IJ’s decision, he petitioned this court for
review of the BIA’s decision. We deny the petition for review.
The IJ found Mr. Soewarsono credible and the BIA did not question that
finding, holding only that his factual allegations did not justify the relief sought.
We therefore accept “at face value” his version of the operative facts, Witjaksono
v. Holder, 573 F.3d 968, 977 & n.9 (10th Cir. 2009), set out in his testimony
before the IJ. See generally Transcript of April 23, 2007 Hearing (Tr.) at 34-60.
Mr. Soewarsono is a citizen of Indonesia. He was raised by Muslim parents but
became a Christian in 1986 at age twenty-one. He came to the United States in
2002 to escape tensions between the Muslim majority and Christian minority in
Indonesia. He has two Christian children who still live in Indonesia with his
ex-wife’s family.
Mr. Soewarsono described three personal incidents that he claims reflect
past religious persecution by Muslim extremists whom the government will not or
cannot control. See Hayrapetyan v. Mukasey, 534 F.3d 1330, 1337 (10th Cir.
2008) (“[P]ersecution may be inflicted by . . . a non-governmental group that the
government is unwilling or unable to control.” (quotation omitted)). In 1996, he
and some twenty fellow Christians were holding a fellowship/prayer meeting at
his parents’ home in Kediri, when three Muslim neighbors threw stones at the
house and chanted for them to stop singing Christian gospel. Following this
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incident, the group’s pastor insisted that such meetings be held at the church
rather than at members’ homes, and no other violence directed at prayer meetings
was alleged. Two years later, Muslim neighbors told him to leave the country or
he and his family “would be finished.” Tr. at 53. He stayed three more months in
Kediri to save money and then moved to Sidoardjo, which he later learned also
had a significant Muslim-extremist presence. But the only incident he reported as
to the four years he lived there involved a scratch to his car that he attributed to
anti-Christian sentiment.
Within a year of his arrival in the Untied States, Mr. Soewarsono applied
for asylum, restriction on removal, and relief under the CAT. In addition to the
past incidents outlined above involving him personally, he claimed more broadly
that conflict between Muslims and Christians in Indonesia had escalated to the
point that he feared persecution should he return to the country. After a number
of delays, his case came on for hearing. At the conclusion of the hearing, the IJ
found that the incidents outlined above did not constitute past persecution (or
torture under the CAT) and that Mr. Soewarsono had not shown a reasonable fear
or likelihood of future persecution based on broader country conditions. The BIA
agreed with the IJ and dismissed Mr. Soewarsono’s appeal in a short decision
issued by a single member. This petition for review timely followed.
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Denial of Asylum and Restriction on Removal 2
The BIA’s single-member decision dismissing Mr. Soewarsono’s agency
appeal “constitutes a final order of removal which we review pursuant to 8 U.S.C.
§ 1252(a)(1) and (b)(2).” Witjaksonso, 573 F.3d at 973. We consider “the BIA’s
legal determinations de novo, and findings of fact under a substantial-evidence
standard.” Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). While the
immediate object of our review is the BIA’s order, we may consult those parts of
the IJ’s oral decision that the BIA relied on or incorporated. Id.; Witjaksono,
573 F.3d at 973. Our analysis begins and ends with the asylum claim, since
“[h]aving failed to establish that he is entitled to discretionary consideration for
asylum, Mr. [Soewarsono] has perforce failed to establish that he is entitled to
mandatory [restriction on removal], which, we have acknowledged, requires a
petitioner to meet a higher standard than that for asylum.” Ustyan v. Ashcroft,
367 F.3d 1215, 1218 (10th Cir. 2004) (quotation omitted); see Chaib v. Ashcroft,
397 F.3d 1273, 1277 (10th Cir. 2005) (“Asylum requires proof of a well-founded
fear of persecution whereas restriction requires proof that persecution is more
likely than not.” (quotation omitted)).
2
Mr. Soewarsono has effectively abandoned his claim for relief under the
CAT. While he makes a passing, isolated reference to the CAT in the last
paragraph of his brief, it is not included in the issues designated and argued. In
any event, we would uphold the BIA’s denial of relief under the CAT for much
the same reasons expressed above for upholding its denial of asylum and
restriction on removal.
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An alien may establish the refugee status required for consideration of
asylum in three ways:
(1) by showing a well-founded fear of future persecution; (2) by
showing past persecution sufficient to give rise to a presumption that
[he] has a well-founded fear of future persecution; or (3) by showing
past persecution so severe that it supports an unwillingness to return
to the country where the persecution occurred. In cases in which an
applicant has demonstrated past persecution, [he] shall also be
presumed to have a well-founded fear of persecution on the basis of
the original claim, unless the government can prove by a
preponderance of the evidence that either there has been a
fundamental change in circumstances such that the applicant no
longer has a well-founded fear of persecution in the applicant’s
country of nationality or that the applicant could avoid future
persecution by relocating to another part of the applicant’s country of
nationality[.]
Hayrapetyan, 534 F.3d at 1335-36 (quotations, citations, and alterations omitted).
The critical determinations here, whether Mr. Soewarsono demonstrated past
persecution and/or established a well-founded fear of future persecution, are
matters of fact governed by the substantial-evidence standard. See Witjaksono,
573 F.3d at 977; Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008).
Thus, we must uphold the BIA’s decision “‘unless any reasonable adjudicator
would be compelled to conclude to the contrary, . . . even if the underlying factual
circumstances are not in dispute and the only issue is whether those circumstances
qualify as persecution.’” Witjakasono, 573 F.3d at 977 (quoting Vicente-Elias,
532 F.3d at 1091).
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The BIA found that the instances of harassment related by Mr. Soewarsono
did not amount to persecution. This finding is fully in line with the precedent of
this circuit. “Persecution is the infliction of suffering or harm in a way regarded
as offensive and involving more than just restrictions or threats to life and
liberty.” Ba v. Mukasey, 539 F.3d 1265, 1270 (10th Cir. 2008) (quotation and
alterations omitted). This must be distinguished from discrimination, which, “as
morally reprehensible as it may be, does not ordinarily amount to persecution.”
Id. (quotation omitted). Thus, we have recognized that taunts and harassment
comparable to, indeed in some instances considerably worse than, events here do
not constitute persecution. See, e.g., Wijaksono, 573 F.3d at 972, 977; Sidabutar
v. Ashcroft, 503 F.3d 1116, 1124 (10th Cir. 2007); Vatulev v. Ashcroft, 354 F.3d
1207, 1210 (10th Cir. 2003). While the threat to Mr. Soewarsono in 1998 was
potentially serious, “[t]hreats alone generally do not constitute actual persecution;
only rarely, when they are so immediate and menacing as to cause significant
suffering or harm in themselves, do threats per se qualify as persecution.”
Vatulev, 354 F.3d at 1210. And his continued stay in Kediri, without further
incident, for three months after the threat undercuts the claim that the threat in
itself rose to the level of persecution. In sum, we cannot say that the record
compels a finding contrary to the BIA’s determination that Mr. Soewarono did not
establish past persecution.
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The same is true for the BIA’s determination that Mr. Soewarsono has not
demonstrated a well-founded fear of future persecution. The BIA concluded that
the State Department reports in the record undermined rather than supported his
claim that conditions for Christians had worsened since he left Indonesia in 2002.
Absent some compelling inconsistency between the factual content of the reports
and the BIA’s assessment thereof, which Mr. Soewarsono has not even remotely
demonstrated, we are not in a position to reweigh this evidence. See Sidabutar,
503 F.3d at 1125 (upholding rejection of future-persecution claim of Indonesian
Christian based on BIA’s reliance on 2004 country reports). The BIA further
noted that Christian members of Mr. Soewarsono’s family live in Indonesia—a
circumstance we have repeatedly recognized as undermining a fear of persecution
when, as here, there is no evidence indicating that the family members have faced
any persecution. See, e.g., Maphilindo v. Holder, 323 F. App’x 659, 665
(10th Cir. 2009); Butarbutar v. Mukasey, 295 F. App’x 295, 297 (10th Cir. 2008);
Fnu v. Mukasey, 274 F. App’x 662, 667 (10th Cir. 2008). We conclude that the
BIA’s determination is supported by substantial evidence.
In the absence of a compelling demonstration of either past persecution or a
well-founded fear of future persecution, we affirm the BIA’s denial of asylum and
restriction on removal. There is, however, one more issue of a procedural nature
raised by Mr. Soewarsono that we must address before finally disposing of the
petition for review.
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Failure to Admit into Evidence Documents Attached to Application
At the evidentiary hearing, the IJ made it clear that he would “not accept[]
matters that are not bate stamped unless they are referred to and we discuss them
in court,” so the government “can make an objection at that time if they’re not
properly translated . . . [o]r not properly certified.” Transcript of April 23, 2007
Hearing at 33. Thereafter, the IJ twice asked Mr. Soewarsono’s counsel whether
he wished to add any material to the record, and counsel unequivocally declined.
Id. at 60, 62. Accordingly, when summarizing the evidence of record in the
course of his oral decision, the IJ explained that attachments to Mr. Soewarsono’s
application would not be considered
due to the fact that those attachments were not appropriately marked
and identified into the record or into the evidence, and as suggested
by the [government], the evidence in many instances do[es] not
contain the appropriate certificates of translation.
Accordingly, the Court proffered to [Mr. Seowarsono’s]
counsel that in the event he intended to introduce any of the evidence
which was attached to the asylum application, that [he] so identif[y]
that document in the record. . . . Since none of this took place and
was not done at the hearing, the Court therefore considers only that
part of the application which has been identified in the record.
Oral Decision of IJ, April 23, 2007 at 7. Mr. Soewarsono claims that this violated
his right to due process. Pet. Opening Br. at 18-19.
We have held in several contexts that judicial intervention in immigration
proceedings on due-process grounds is unwarranted absent a showing of
prejudice. See Witjaksono, 573 F.3d at 974-75 (rejecting objection regarding
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inadequate transcript of IJ hearing); Michelson v. INS, 897 F.2d 465, 468
(10th Cir. 1990) (rejecting objection regarding lack of appointed counsel in
removal proceeding); Gonzales-Garcia v. INS, No. 95-9508, 1995 WL 684250, at
**3 (10th Cir. Nov. 17, 1995) (unpub.) (rejecting objection regarding IJ’s
admission of unfavorable information about alien). Thus, without implying any
impropriety in the IJ’s exclusion of the attachments to Mr Soewarsono’s
application, the simplest answer to Mr. Soewarsono’s objection is that he has
utterly failed to demonstrate prejudice. He makes no effort whatsoever to
describe the relevant contents of the attachments, much less to explain how they
would have materially bolstered his claims and potentially altered the outcome of
the proceedings. See Witjaksono 573 F.3d at 975 (noting materiality and
outcome-alteration as “foundational principles” guiding prejudice analysis in this
context). And there is no prejudice readily discernible on the face of the
materials. Other than basic background and identification documents confirming
facts that are not in dispute, the attachments are the same sort of general news
articles he presented without any success to the BIA, which dismissed them as
“not material because, although they report tensions between Muslims and
Christians, they are general stories that do not address [Mr. Soewarsono] and his
situation.” BIA Decision dated Dec. 15, 2008, at 1. Mr. Soewarsono has not
made out a viable due-process objection here.
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The Petition for Review is DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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