Marpaung v. Holder, Jr.

FILED
United States Court of Appeals
Tenth Circuit
March 16, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MERY JULIANA MARPAUNG;
SAIBUN SIMANJUNTAK,
Petitioners,
No. 09-9545
v. (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
Petitioners Mery Juliana Marpaung and Saibun Simanjuntak, natives and
citizens of Indonesia, petition for review of the Board of Immigration Appeals’
(BIA) decision affirming the immigration judge’s (IJ) denial of Ms. Marpaung’s
applications for asylum, restriction on removal, and relief under the Convention
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Against Torture (CAT). 1 We have jurisdiction to consider the petition under
8 U.S.C. § 1252(a). For the following reasons, we deny the petition.
I. BACKGROUND
Ms. Marpaung is of Batak ethnicity and is Christian. She sought asylum
based on her religion, but she also described her fear of persecution based on her
Chinese-like appearance. In her asylum application and at her hearing, she
described the incidents that formed the basis for her asylum claim. When she was
in elementary school she attended a Christian school. She recalled an incident in
1974 when she was in an inter-school competition and her team won a game of
tug-of-war. The losing students were “native Indonesians” and they accused
Ms. Marpaung’s team of cheating because they were Christian. Admin. R. at 491.
The losing students then got angry and threw rocks at Ms. Marpaung and the
other Christian students.
On May 13, 1998, she was at work for a Chinese business when an
anti-Chinese riot started. She was scared because her facial features look Chinese
and she was afraid to be mistaken for a Chinese woman. Ms. Marpaung hid
during the riot but she was able to see the rioters looting and destroying the
buildings around where she was hiding. She returned home safely later that night.
1
Ms. Marpaung was the lead respondent in the immigration proceedings and
her husband, Mr. Simanjuntak, was treated as a derivative beneficiary of her
application.
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In November of that year, her church was attacked as she was working with a
group of children in preparation for a Christmas pageant. Her friend was badly
injured but she was able to escape safely with the children. Two years later, on
December 24, 2000, Ms. Marpaung was injured when a bomb exploded in the
parking lot of the church where she was attending services. She cut her hands on
shards of broken glass and she had to receive medical treatment. In addition, her
car was destroyed because it was parked next to the car that exploded.
The IJ concluded that Ms. Marpaung’s testimony was credible, but he
determined that her experiences were not sufficient to constitute past persecution
or a well-founded fear of future persecution. He also stated that Ms. Marpaung
and her husband could relocate to a predominantly Christian area of Indonesia and
that Ms. Marpaung’s mother and siblings had all remained in Indonesia without
harm. Finally, the court noted that Ms. Marpaung had failed to show that the
government had acquiesced in her alleged persecution. Accordingly, the IJ
denied asylum, restriction on removal, and relief under the CAT.
On appeal, the BIA affirmed the IJ’s finding that Ms. Marpaung had not
shown past persecution or a well-founded fear of future persecution. The BIA
also concluded that Ms. Marpaung “could reasonably avoid future persecution by
living in parts of Indonesia where there is minimal risk of attacks against
Christians.” Admin. R. at 4. Finally, the BIA affirmed the IJ’s determination that
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Ms. Marpaung was not entitled to restriction on removal or relief under the CAT.
Petitioners now seek review of the BIA’s decision.
II. ANALYSIS
A. Standard of Review
The BIA affirmed the IJ’s decision in a single-member brief order. See
Admin. R. at 2-5; 8 C.F.R. § 1003.1(e)(5). In these circumstances, the BIA’s
decision is the final order under review. See Uanreroro v. Gonzales, 443 F.3d
1197, 1204 (10th Cir. 2006). “We 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). “In this
circuit, the ultimate determination whether an alien has demonstrated persecution
is a question of fact, even if the underlying factual circumstances are not in
dispute and the only issue is whether those circumstances qualify as persecution.”
Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (quotation
omitted).
B. Asylum and Restriction on Removal
In order to be eligible for the discretionary relief of asylum, Ms. Marpaung
must show that she suffered past persecution or she has a well-founded fear of
future persecution on account of her race, religion, nationality, membership in a
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particular social group, or political opinion. See 8 C.F.R. § 1208.13(b)(1),(2). In
order to be eligible for restriction on removal, Ms. Marpaung must show that she
suffered past persecution or that it is more likely than not that she will be subject
to persecution if she returns to her native country. Id. § 1208.16(b)(1),(2).
1. Past Persecution
To establish eligibility for asylum or restriction on removal based on past
persecution, an applicant must show: (1) an incident or incidents 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 unable to control.
Niang, 422 F.3d at 1194-95. The BIA determined that
the incidents [Ms. Marpaung] described—including having rocks
thrown at her after winning a game in school, witnessing the riots
against ethnic Chinese Indonesians in May 1998, cutting her hands
on glass after a bomb was set in a car outside her church, and
witnessing vandalism and an attack on her friend at her church—are
insufficient to constitute past persecution.
Admin. R. at 3 (record citations omitted). Ms. Marpaung argues that the BIA
erred in making this determination because the cumulative effect of the incidents
she described is sufficient to show past persecution on account of her religion and
her physical appearance. In support of her argument, Ms. Marpaung relies on
Korablina v. I.N.S, 158 F.3d 1038, 1045 (9th Cir. 1998), a case in which the
Ninth Circuit reversed the BIA’s decision because “[c]umulatively, the
experiences suffered by Korablina compel the conclusion that she suffered
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persecution.” First, we are not bound by a decision from the Ninth Circuit. But,
more importantly, the incidents described in Korablina were much more severe
than those described by Ms. Marpaung, and the petitioner in that case was the
victim of a violent attack targeted at her specifically. Id. at 1044-1045
(describing incidents where the petitioner witnessed violence against fellow Jews,
including her boss who “disappeared” after he was beaten and the office was
repeatedly ransacked; and where the petitioner was attacked, tied to a chair with a
noose around her neck, and threatened with death).
“[W]e have held that a finding of persecution requires the infliction of
suffering or harm upon those who differ (in race, religion, or political opinion) in
a way regarded as offensive and must entail more than just restrictions or threats
to life and liberty.” Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007)
(quotation omitted). Because we cannot conclude that a reasonable factfinder
would be compelled to find persecution based on the incidents Ms. Marpaung
described, we must uphold the BIA’s determination that Ms. Marpaung failed to
establish past persecution. See Hayrapetyan, 534 F.3d at 1335.
2. Future Persecution
Ms. Marpaung next argues that she is entitled to asylum and restriction on
removal because she has demonstrated a well-founded fear of future persecution
and that it is more likely than not that she will be subject to future persecution.
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The BIA found that Ms. Marpaung had not established a well-founded fear of
future persecution because although
[t]he United States Department of State’s Country Reports on Human
Rights Practices for Indonesia for 2004, and the United States
Department of State’s 2006 International Religious Freedom Report
for Indonesia indicate that some religious violence continues, [the]
incidents are sporadic and limited to specific parts of Indonesia such
as central Sulawesi and the Malukus [sic].
Admin. R. at 4. The BIA noted that Ms. Marpaung had submitted “[a] few
documents [that] identify harassment of Christians or isolated incidents of
violence, but the record does not document ongoing widespread mistreatment of
Christians.” Id.
Ms. Marpaung asserts that the BIA erred in its assessment of the Country
Reports and the Religious Freedom Report and that she would be subject to
persecution on the basis of her religion throughout Indonesia. 2 We disagree. The
Country Reports advised that the Indonesian Constitution continued to provide for
religious freedom, that the government generally respected that constitutional
provision, and that Christianity (i.e., Catholicism and Protestantism) continued to
enjoy recognition as one of the five official religions in Indonesia. See Admin. R.
2
As part of this argument, Ms. Marpaung appears to assert a claim that
Indonesian Christians are subject to a pattern and practice of persecution, see
Pet’r Br. at 22-23, but this claim was not presented to the BIA, see Admin. R. at
48-54, 77-78. Accordingly, we cannot consider it because Ms. Marpaung failed
to exhaust her administrative remedies with respect to this claim. See Ribas v.
Mukasey, 545 F.3d 922, 930-31 (10th Cir. 2008).
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at 238. The Country Reports indicated also that there was a “sharp drop” in
violence between Christians and Muslims in Central Sulawesi and the Moluccas,
and “inter-religious tolerance and cooperation improved during the year.” Id. at
238. While Ms. Marpaung claims that the Country Reports “show[ed] that church
bombings occurred with alarming frequency,” Pet’r Br. at 20, the Reports actually
showed a significant drop in church bombings from the year before, see Admin.
R. at 238 (noting that there were 7 church attacks nationwide in 2003, down from
20 in 2002).
As for the Religious Freedom Report, it advised that the Indonesian
government and the public generally respected religious freedom. Id. at 158.
But, as the BIA recognized, the report noted continued religious violence in two
areas of Indonesia, the Moluccas and Central Sulawesi. The report explained that
“[r]eligiously-motivated violence and vigilante acts in Maluku and North Maluku
[collectively, “the Moluccas”] declined significantly, although, as in past years,
Central Sulawesi experienced sporadic bombings, shootings and other violence
despite efforts to restore security and promote reconciliation.” Id. The report
further stated that “[g]overnment officials worked with Muslim and Christian
community leaders to diffuse tensions in conflict areas, particularly in Central
Sulawesi and the Moluccas.” Id. We agree with the BIA that the sporadic and
relatively isolated incidences of violence described in the Country Reports and
the Religious Freedom report are not enough to establish that Ms. Marpaung
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would be subject to persecution throughout Indonesia. Central Sulawesi and the
Moluccas are islands far removed from where Ms. Marpaung used to live in
Jakarta. See id. at 266. As the BIA noted, “the localized nature of harm to
Christians indicates that the [petitioners] could reasonably avoid future
persecution by living in parts of Indonesia where there is minimal risk of attacks
against Christians.” Id. at 4.
The BIA’s decision is also supported by other evidence in the record. First,
the record shows that the Indonesian government responded promptly to the
church bombing in 2000 that Ms. Marpaung described. The government
confirmed that there had been a series of church bombings on Christmas Eve 2000
by unknown terrorists and it formed a special interagency team to investigate the
bombings, which led to the successful prosecution of one of the terrorists. See id.
at 588. Second, Ms. Marpaung lived safely in Indonesia from December 25,
2000, until her departure in October 2002. Finally, Ms. Marpaung’s mother and
six siblings, all Christians, continue to live without harm in Indonesia. See Decky
v. Holder, 587 F.3d 104, 112-13 (1st Cir. 2009) (upholding finding that petitioner
did not have a well-founded fear of persecution in Indonesia when his siblings
remained there “without significant mistreatment”). Accordingly, we conclude
the BIA did not err in its assessment of the country conditions in Indonesia and
substantial evidence supports the BIA’s decision that Ms. Marpaung failed to
establish a well-founded fear of future persecution.
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Because Ms. Marpaung failed to meet the asylum standard of showing a
well-founded fear of persecution, she necessarily failed to meet the higher
standard for restriction on removal. See Ba v. Mukasey, 539 F.3d 1265, 1271
(10th Cir. 2008). We therefore affirm the BIA’s conclusion that Ms. Marpaung
failed to establish her eligibility for restriction on removal.
C. Relief Under the CAT
“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 (quotation omitted). Ms. Marpaung contends that the BIA erred by
improperly conflating the requirements for asylum relief with those for
withholding of removal under the CAT. We recently considered and rejected a
similar argument in Witjaksono v. Holder, 573 F.3d 968, 978 (10th Cir. 2009).
Here, the BIA’s decision states:
Because the [petitioners] have not established eligibility for asylum,
it follows that they have failed to satisfy the higher clear probability
standard of eligibility required for withholding of removal.
Similarly, the [petitioners] have not established that it is more likely
than not that they will be tortured upon return to Indonesia.
Admin. R. at 4 (citations omitted). As in Witjaksono, although the BIA’s analysis
of the CAT claim is “sparse,” the BIA correctly stated the legal standards
applicable to the two different claims. 573 F.3d at 978. And, as we explained in
Witjaksono, the BIA “has no duty to write an exegesis on every contention,” as
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long as the decision is announced in terms sufficient to enable this court to review
it. Id. (quotation omitted). The BIA’s decision on Ms. Marpaung’s CAT claim is
sufficient for our review. Ms. Marpaung relied on the same incidents for her
CAT claim as she did for her claim of persecution, and, as the BIA correctly
concluded, that evidence does not indicate that the Indonesian government will
torture her or acquiesce in her torture if she returns to Indonesia. See also
Sidabutar, 503 F.3d at 1125-26 (“Since we affirmed the BIA’s finding that it is
unlikely that [petitioner] would face future persecution at the hands of the
government or a non-governmental group that ‘the government is unwilling or
unable to control,’ it is likewise against the odds that [petitioner] would be
tortured by the government or a proxy for the government.”).
III. CONCLUSION
The petition for review is DENIED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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