Aritonang v. Gonzales

F IL E D
United States Court of Appeals
Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S
June 4, 2007
FO R T H E T E N T H C IR C U IT
Elisabeth A. Shumaker
Clerk of Court
PA RLIN D U N GA N A RITO N A NG;
R ON A U LI SIM A TU PA N G ,
Petitioners,
v. No. 06-9551
(Ag. Nos. A97-186-460
ALBERTO R. GONZA LES, and A97-186-461)
Attorney General, (Petition for Review)
Respondent.
O R D E R A N D JU D G M E N T *
Before M cC O N N E L L , PO R FILIO , and B A L D O C K , Circuit Judges.
In this petition for review , Parlindungan Aritonang and Ronauli
Simatupang, a married couple, challenge the decision of the Board of Immigration
Appeals (BIA) to deny their application for asylum, restriction on removal, and
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
protection under the Convention Against Torture. W e dismiss their claim
concerning asylum for lack of jurisdiction and deny the petition for review of the
BIA ’s remaining decisions.
I.
Petitioners are Indonesian citizens and practicing Christians who claim that
they will be persecuted on account of their religious beliefs if returned to
Indonesia. Although petitioner Aritonang himself has never been injured, he
claims he has been threatened by M uslim extremists, some “carry[ing] signs
saying ‘Kill the Christians.’” Aplt. Br. at 2. He also states that he “survived
some near misses” when the extremists threw stones at his church building,
shattering glass and causing “head wounds, bruises and other injuries to the
church members.” Id. M r. Aritonang also felt discriminated against in work
opportunities. He believes the situation has worsened since he left Indonesia, as
exemplified by the 2002 Bali bombings of locations frequented by foreign
tourists. Petitioner Simatupang, a nurse, treated many Christian victims for
injuries inflicted by the extremists and felt traumatized by her experience.
M r. Aritonang arrived in the United States on a six-month tourist visa in
1994; petitioner Simatupang arrived on a six-month tourist visa in 2000. Both
petitioners overstayed their visas. The parties married in 2001.
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M ore than eight years after the expiration of his visa, M r. Aritonang filed
an application for asylum, restriction on removal, and protection under the United
Nations Convention Against Torture (CAT) for himself and M s. Simatupang. The
Immigration Judge (IJ) denied the asylum application because it was not filed
within the statutory one-year time-limit and M r. Aritonang did not show changed
or extraordinary circumstances excusing the tardiness. Turning to the requested
withholding of removal and CAT relief, the IJ recognized that “the situation for
Christians in Indonesia is not ideal.” Admin. R. at 45. The IJ determined,
however, that aspects of M r. Aritonang’s testimony were not credible, that the
harm described by petitioners did not rise to the level of persecution, and that
background material indicated that conditions w ere improving for Christians in
Indonesia. The IJ therefore denied petitioners’ request for withholding of
removal and CAT relief. On administrative appeal, the Board of Immigration
Appeals adopted and affirmed the IJ’s findings and conclusions on the substantive
issues.
II.
Petitioners admit that their asylum application was not “filed within 1 year
after the date of [their] arrival in the U nited States,” 8 U.S.C. § 1158(a)(2)(B),
but argue that they are entitled to an exception to the time limit based on
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“changed circumstances which materially affect [their] eligibility for asylum” and
“extraordinary circumstances relating to the delay in filing,” id. § 1158(a)(2)(D).
They ask this court “to consider the facts of their case.” A plt. Br. at 8. The IJ’s
factual determination related to timeliness is “outside the scope of judicial
review.” Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006). Accordingly,
we lack jurisdiction to review petitioners’ challenge to the denial of asylum.
III.
W e are not, however, precluded from reviewing the denial of restriction on
removal or relief under the CAT. See Tsevegmid v. Ashcroft, 336 F.3d 1231,
1235 (10th Cir. 2003), superseded by statute on related grounds, REAL ID Act
of 2005, Pub. L. No. 109-13, 119 Stat. 231, §106(a)(1)(A)(iii), as recognized in
Diallo, 447 F.3d at 1281. When the BIA summarily affirms an IJ’s decision, w e
review the IJ’s decision as the final agency determination. Elzour v. Ashcroft,
378 F.3d 1143, 1150 (10th Cir. 2004). Our review is circumscribed by 8 U.S.C.
§ 1252(b)(4)(B), which provides “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” W e also keep in mind that petitioners bear the burden to prove their
claims. 8 U.S.C. §1231(b)(3)(C) (applicable to restriction on removal); 8 C.F.R.
§ 208.16(c)(2) (applicable to CAT).
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Restriction on removal prohibits the removal of “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 . . . religion.” 8 U.S.C. § 1231(b)(3)(A).
Petitioners must establish eligibility for the relief by demonstrating that there is a
clear probability of persecution if returned to Indonesia. Niang v. Gonzales,
422 F.3d 1187, 1195 (10th Cir. 2005) “[P]ersecution requires the infliction of
suffering or harm upon those who differ (in race, religion, or political opinion) in
a way regarded as offensive and requires more than just restrictions or threats to
life and liberty.” Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004)
(quotations omitted).
Petitioners argue that the IJ erred in failing to find that their cumulative
experiences demonstrate past persecution at the hands of M uslim extremists in
Indonesia. They also assert that the IJ failed to recognize a probability of
persecution on their return to Indonesia, since they would be targeted as both
Christians and individuals who had lived in the United States. Our review of the
record, however, reveals substantial evidence in the record to support the IJ’s
finding that petitioners failed to establish either past persecution or a well-
founded fear of persecution upon their return to Indonesia.
C onvention A gainst T orture
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To satisfy requirements under the CAT, petitioners m ust demonstrate that it
is more likely than not that they would be tortured if returned to Indonesia. See
8 C.F.R. § 208.16(22)(c)(4). A showing of entitlement to CAT relief includes
evidence that the government in the proposed country of removal either inflicts
torture or acquiesces in torture against persons similarly situated to petitioners.
See Ferry v. Gonzales, 457 F.3d 1117, 1130-31 (10th Cir. 2006).
The IJ denied relief based on his finding that petitioners had failed to
produce any evidence that the Indonesian government promoted torture or turned
a willfully blind eye to torture. Admin. R. at 46. To the contrary, the IJ found
“[t]he background material indicate[s] that the government is officially comm itted
to the protection of Christians in Indonesia.” Id. Substantial evidence supports
the IJ’s CAT decision.
IV.
The petition for review as to the asylum claim is DISM ISSED for lack of
jurisdiction. As to the withholding of removal claims under the INA and the
C AT, the petition is D EN IED .
Entered for the Court
Bobby R. Baldock
Circuit Judge
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