Esfandiary v. Gonzales

FILED
United States Court of Appeals
Tenth Circuit
May 12, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
REINZIE FELIX ESFANDIARY,
Petitioner,
v. No. 07-9535
(Petition for Review)
MICHAEL B. MUKASEY, *
Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Reinzie Felix Esfandiary seeks review of a final order of removal issued by
the Board of Immigration Appeals (BIA), adopting and affirming an Immigration
Judge’s (IJ’s) denial of Mr. Esfandiary’s applications for asylum, restriction on
*
Pursuant to Fed. R. App. P. 43(c)(2), Michael B. Mukasey is substituted for
Alberto R. Gonzales as the respondent in this appeal.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
removal, and relief under the Convention Against Torture (CAT). For the reasons
set forth below, the petition for review is dismissed in part and denied in part.
I. Background
Mr. Esfandiary is a native and citizen of Indonesia. He entered the United
States in July 1993 as a non-immigrant visitor and remained in this country
beyond the six-month period authorized by his visa. In April 2003, the
Department of Homeland Security served him with a Notice to Appear. In
removal proceedings, Mr. Esfandiary conceded he was removable as charged and
filed for relief in the form of asylum, restriction on removal, and protection under
the CAT.
In 2005, Mr. Esfandiary received a hearing on the merits. At the outset, the
IJ denied Mr. Esfandiary’s request for a continuance to allow him to attempt to
establish eligibility for cancellation of removal. The IJ then invited
Mr. Esfandiary to testify. Mr. Esfandiary stated that he was a practicing Catholic
in Indonesia, but he has since become a Seventh Day Adventist. He had attended
Catholic school as a child and said he was fearful attending such a school because
Christian schools were rare and his school was surrounded by Muslim schools.
He explained that those attending Catholic school were not “free in [their]
movements” and were not “free in [their] speech.” Admin. R. at 73. He was
forbidden from celebrating Christmas and was forced to study Arabic. He
testified that he had seen in the newspaper and on the Internet that Muslims kill
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Christians. But he conceded that he had never suffered physical harm on account
of his religion. He believes that the situation for Christians in Indonesia has
worsened since he left. And his fear of returning to Indonesia has increased since
the birth of his infant son, who has a disability associated with his spinal cord and
kidneys. Mr. Esfandiary stated that if his son does not receive good medical
treatment like he does in the United States, “he will die.” Id. at 78. He also
stated that the disabled are discriminated against in Indonesia: they “can’t do
anything,” they are not “able to work,” and they “have to stay at home.”
Id. at 84. Finally, he indicated that if he returned to Indonesia, he would
continue to be a Seventh Day Adventist.
The IJ issued an oral decision denying the relief sought. The IJ found
Mr. Esfandiary’s 2003 asylum application was not filed within the one-year
statutory time limit and he failed to show extraordinary or changed circumstances
sufficient to excuse his untimely filing. The IJ further found that Mr. Esfandiary
“would be able to find an area in Indonesia to live [where] the possibilities of
harm are very slight” and concluded that he did not meet his burden of proving
eligibility for restriction on removal or protection under the CAT. Id. at 43.
The BIA adopted and affirmed the IJ’s decision and dismissed the appeal.
Specifically, after determining that the record supported the IJ’s finding that
Mr. Esfandiary was not eligible for asylum, the BIA “agree[d] with the
Immigration Judge that [Mr. Esfandiary] failed to demonstrate that he would more
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likely than not face persecution on account of a protected ground or torture for
any reason upon return to Indonesia.” Id. at 2. The BIA then observed that
Mr. Esfandiary, in his brief to the BIA, had argued only one issue: that the IJ
“abused his discretion by denying [Mr. Esfandiary’s] motion for a continuance.”
Id. at 3. The BIA disagreed, noting that it is a matter of prosecutorial discretion
whether and when to commence removal proceedings and that Mr. Esfandiary had
failed to show good cause to warrant a continuance.
In this court, Mr. Esfandiary asserts that he met his burden of showing he is
eligible for restriction on removal and CAT relief, and it is therefore “not
reasonable” for him “to relocate internally in Indonesia.” Pet’r Br. at 4. He also
attempts, as far as we can tell, to raise a claim that there exists a pattern or
practice of persecution against Christians in Indonesia.
II. Jurisdiction
As a preliminary matter, we must determine whether we have jurisdiction
to review the issues raised by Mr. Esfandiary. See Diallo v. Gonzales, 447 F.3d
1274, 1281 (10th Cir. 2006). Our jurisdiction to review a final order of removal
arises under 8 U.S.C. § 1252(a), but it is not unlimited. Here, it is unclear
whether Mr. Esfandiary intends to challenge the BIA’s denial of asylum. He
takes issue with the BIA’s finding that his asylum application was untimely in his
petition for review, but he does not address the timeliness of his asylum
application in his opening brief; instead, he makes passing references to asylum,
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see Pet’r Br. at 5. Generally, arguments not raised or inadequately presented in
an opening brief 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). But even
assuming he did not waive the argument, we do not have jurisdiction to review
the BIA’s timeliness determination because Mr. Esfandiary does not raise “a
constitutional claim or question of law.” Diallo, 447 F.3d at 1281.
Further, Mr. Esfandiary failed to raise on appeal to the BIA his
pattern-or-practice claim. See Sidabutar v. Gonzales, 503 F.3d 1116, 1118
(10th Cir. 2007) (“[W]e generally assert jurisdiction only over those arguments
that a petitioner properly presents to the BIA.”); 8 U.S.C. § 1252(d)(1). Nor did
the BIA take up the issue on its own and rule on it. Cf. Sidabutar, 503 F.3d at
1122 (finding no failure to exhaust administrative remedies where the BIA
sufficiently considered claim, even though claim had not been raised before the
BIA on appeal). Thus, to the extent he raises a pattern-or-practice claim in this
court, we are without jurisdiction to review it.
III. Remaining Claims
We do, however, possess jurisdiction to review Mr. Esfandiary’s restriction
on removal and CAT claims—even though he did not brief those claims before
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the BIA—because the BIA considered and ruled on them. See id. This court
reviews
a BIA decision . . . for substantial evidence supporting the agency’s
decision. [O]ur duty is to guarantee that factual determinations are
supported by reasonable, substantial and probative evidence
considering the record as a whole. Agency findings of fact are
conclusive unless the record demonstrates that any reasonable
adjudicator would be compelled to conclude to the contrary. We do
not weigh the evidence or . . . evaluate the witnesses’ credibility.
Id. (citations and quotations omitted). Because a single member of the BIA
affirmed the IJ’s decision in a brief order, see 8 C.F.R. § 1003.1(e)(5), we review
the BIA’s opinion rather than the IJ’s decision. See Sidabutar, 503 F.3d at 1123.
However, “when seeking to understand the grounds provided by the BIA, we are
not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Id. (quotations omitted). “In other words, because an (e)(5) affirmance
is, by definition, a truncated process which can rest on what has been said below,
we 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).
To be eligible for restriction on removal, Mr. Esfandiary must establish that
his “life or freedom would be threatened in [Indonesia] because of [his] race,
religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). That is, he “must establish a clear
probability of persecution on account of one of the statutorily protected grounds
listed above.” Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir. 2006)
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(quotations omitted). “A clear probability means the persecution is more likely
than not to occur upon return.” Id. (quotations omitted).
“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).
Mr. Esfandiary contends that the BIA erroneously agreed with the IJ’s
determination (1) that he is ineligible for restriction on removal because he “has
demonstrated that it is more likely than not that he would suffer from religious
persecution” if he returns to Indonesia, Pet’r Br. at 6, and (2) that he is ineligible
for CAT relief because his “credible testimony regarding his future fears”
demonstrated that “it is more likely than not that he would be tortured if removed
to Indonesia.” Id. at 9. These cursory assertions fall far short of demonstrating
that, based on the record, “any reasonable adjudicator would be compelled to
conclude” that Mr. Esfandiary is entitled to restriction on removal or CAT relief.
Sidabutar, 503 F.3d at 1122. Rather, substantial evidence in the record supports
the agency’s determinations that Mr. Esfandiary failed to demonstrate he would
more likely than not face persecution or torture if he returned to Indonesia.
Likewise, Mr. Esfandiary’s contention that it is unreasonable for him to relocate
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internally in Indonesia is without merit. The IJ’s findings are clearly supported
by substantial evidence in the record and Mr. Esfandiary does no more than
summarily assert fear of persecution by Muslims in Indonesia.
IV. Conclusion
The petition for review is DISMISSED for want of jurisdiction as to
Mr. Esfandiary’s asylum and pattern-or-practice claims, and it is DENIED as to
his restriction on removal and CAT claims.
Entered for the Court
John C. Porfilio
Circuit Judge
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