Sumual v. Mukasey

FILED
United States Court of Appeals
Tenth Circuit
July 7, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ROLLY SUMUAL,
Petitioner,
v. No. 07-9587
(Petition for Review)
MICHAEL B. MUKASEY,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.
Rolly Sumual, a Christian native and citizen of Indonesia, petitions for
review of the Board of Immigration Appeals’ (BIA) decision affirming the
immigration judge’s (IJ) denial of asylum, restriction on removal, and relief under
the Convention Against Torture (CAT). We have jurisdiction to consider the
*
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(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
petition under 8 U.S.C. § 1252(a). Because the BIA issued its own brief
single-member order, 1 its decision is the final agency decision that we review,
although “we are not precluded from consulting the IJ’s more complete
explanation” of the BIA’s grounds for denying relief. Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006).
Mr. Sumual arrived in the United States in July 2001. He filed for asylum
in August 2004, well after the statutory one-year limit for asylum applications.
See 8 U.S.C. § 1158(a)(2)(B). The BIA agreed with the IJ that there were no
changed circumstances in Indonesia or extraordinary circumstances related to the
delay in filing, see id. § 1158(a)(2)(D), and affirmed the denial of the application
as untimely. This court generally lacks jurisdiction to review an asylum claim
denied for being untimely. See id. § 1158(a)(3); Ferry v. Gonzales, 457 F.3d
1117, 1130 (10th Cir. 2006). Mr. Sumual does not present any constitutional
claims or questions of law that this court otherwise would have jurisdiction to
review. See 8 U.S.C. § 1252(a)(2)(D); Ferry, 457 F.3d at 1130. Accordingly,
this court does not have jurisdiction to review the denial of asylum, and this
portion of the petition is dismissed for lack of jurisdiction.
1
Mr. Sumual argues that the BIA’s affirmance without opinion violates due
process. We have rejected this argument, see Yuk v. Ashcroft, 355 F.3d 1222,
1229 (10th Cir. 2004), but in any event it is factually incorrect. The BIA did not
affirm without opinion; it issued its own brief single-member order pursuant to
8 C.F.R. § 1003.1(e)(5).
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We do retain jurisdiction to review the denial of restriction on removal.
See Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003). 2 We review the
BIA’s decision for substantial evidence, meaning “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.” Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)
(citation and quotations omitted). Mr. Sumual must show that his “life or
freedom would be threatened” in Indonesia because of his Christian religion. 3
8 U.S.C. § 1231(b)(3)(A). He can satisfy this standard by showing that he
experienced “past persecution” or that “it is more likely than not” that he would
be persecuted in the future. 8 C.F.R. § 1208.16(b)(1)-(2); Sidabutar, 503 F.3d at
1123-24.
Mr. Sumual primarily relied on three events to support his application: a
2000 incident in which he was beaten and injured after a group of people stopped
a bus on which he was riding and, upon checking his identification, refused to let
2
Mr. Sumual mentions his CAT claim in passing, but does not present any
argument regarding that claim. Thus, the issue is waived. See Becker v. Kroll,
494 F.3d 904, 913 n.6 (10th Cir. 2007).
3
Mr. Sumual argues that the IJ improperly found him incredible and rejected
his claim of being a Christian. This is incorrect. Neither the BIA nor the IJ
decided that Mr. Sumual is not a Christian or otherwise indicated doubt about this
aspect of his petition.
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him reboard; an April 2001 incident during a family outing in which a group of
people carrying pipes and a sword beat on his car at a red light; and a June 2001
incident in which a group of people stopped his car, asked if he and his family
were Christians, then surrounded the car and began hitting it. But persecution
“requires more than just restrictions or threats to life and liberty.” Tulengkey v.
Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (quotation omitted). It is “an
extreme concept that does not include every sort of treatment our society regards
as offensive.” Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (quotation
omitted). “We cannot conclude that every reasonable fact-finder would be
compelled to find persecution” based on the incidents described by Mr. Sumual,
and therefore we will not disturb the agency’s decision. Tulengkey, 425 F.3d at
1281; see also Sidabutar, 503 F.3d at 1124 (holding that Indonesian Christian
petitioner’s experiences of being beaten by classmates and being confronted on
the street with a demand for money, allegedly by Muslims because they knew he
was a Christian, did not rise to the level of past persecution).
As for his claims of future persecution, Mr. Sumual fails to show a clear
probability of persecution. He argues that there is a “pattern or practice” of
persecuting Christians in Indonesia. See 8 C.F.R. § 1208.16(b)(2)(i)-(ii). A
pattern or practice of persecution entails “something on the order of organized or
systematic or pervasive persecution.” Woldemeskel v. INS, 257 F.3d 1185, 1191
(10th Cir. 2001) (quotation omitted). The record confirms that acts of violence
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and discrimination are directed at Christians in Indonesia, but it also shows that
the government has not abandoned its efforts to stop the violence. 4 The record
simply does not support the conclusion that Indonesian Christians suffer
organized, systematic, or pervasive persecution. Substantial evidence supports
the BIA’s conclusion that Mr. Sumual failed to establish that he faces a clear
probability of persecution in Indonesia. See also Sidabutar, 503 F.3d at 1125.
Mr. Sumual’s implied request to supplement the administrative record with
the documents attached to his opening brief is DENIED. The petition for review
is DISMISSED in part and DENIED in part.
Entered for the Court
Michael R. Murphy
Circuit Judge
4
Mr. Sumual’s opening brief attaches several articles documenting
anti-Christian activities in Indonesia in 2006 and 2007. Our review is confined to
the record before the BIA. See 8 U.S.C. § 1252(b)(4)(A). We have not
considered any documents presented on appeal that were not included in the
administrative record.
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