Siahaan v. Mukasey

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 4, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOHNY JATILUHUT SIAHAAN,
Petitioner,
v. No. 08-9508
(Petition for Review)
MICHAEL B. MUKASEY, United
States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.
Johny Jatiluhut Siahaan seeks review of a Board of Immigration Appeals
(BIA) decision affirming an Immigration Judge’s (IJ) denial of asylum, restriction
on removal, and relief under the Convention Against Torture (CAT). Mr. Siahaan
does not contest the denial of asylum, but argues that his credible testimony alone
satisfied the standards for restriction on removal and CAT protection, and thus 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(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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
IJ erred in requiring corroborating evidence to establish his entitlement to relief.
We deny the petition for review.
I
Mr. Siahaan is a native and citizen of Indonesia; he is also a member of the
Batak Tribe and a practicing Seventh Day Adventist. He entered the United
States in 1992 on a B-2 visitor visa but overstayed his visit. Consequently, in
2003, the government charged him with remaining in this country beyond his
authorized time. See 8 U.S.C. § 1227(a)(1)(B). Mr. Siahaan conceded the charge
but filed for asylum, restriction on removal, and CAT relief. An IJ held a hearing
and concluded that Mr. Siahaan’s asylum application was untimely because he
failed to file it within one year of his last entry into the United States.
Alternatively, the IJ found that Mr. Siahaan’s testimony was “believable and
consistent” but “not enough to establish his eligibility for asylum without
corroborating evidence.” Admin. R. at 49. Since Mr. Siahaan failed to satisfy the
asylum standard, the IJ found that he necessarily failed to satisfy the more
onerous standards for restriction on removal and CAT relief. On appeal to the
BIA, a single member of the Board adopted and affirmed the IJ’s decision, noting
that Mr. Siahaan’s asylum claim was time-barred, his documentary evidence had
been considered, and he failed to demonstrate that his past experiences rose to the
level of persecution.
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Mr. Siahaan now challenges the BIA’s decision, arguing that since the IJ
found him credible, his testimony alone ought to have established his entitlement
to relief without corroborating evidence. To support this position, Mr. Siahaan
cites our rule that lack of corroborating evidence cannot be a basis for an adverse
credibility finding. And from this premise, he concludes that the IJ’s favorable
credibility finding required that the IJ find him entitled to restriction on removal
and CAT protection. As we explain, however, Mr. Siahaan’s conclusion does not
follow from the premise he relies upon.
II
We review the BIA’s decision as the final order of removal but “consult the
IJ’s opinion to the extent the BIA relied upon or incorporated it.” Sarr v.
Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). “Our duty is to guarantee that
factual determinations are supported by reasonable, substantial and probative
evidence considering the record as a whole.” Sidabutar v. Gonzales, 503 F.3d
1116, 1122 (10th Cir. 2007) (quotation and brackets omitted). Credibility
findings are among those determinations subject to the substantial evidence test.
Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).
The problem in this case stems from the IJ’s reference to the need for
corroborating evidence. Mr. Siahaan’s premise is correct: an IJ cannot make an
adverse credibility finding based on a lack of corroborating evidence, see
Solomon v. Gonzales, 454 F.3d 1160, 1165 (10th Cir. 2006). But that is not what
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happened here. Rather, the IJ explicitly found Mr. Siahaan’s testimony
“believable and consistent.” Admin. R. at 49. Moreover, the BIA recognized that
the IJ also considered Mr. Siahaan’s documentary evidence. Because the IJ did
not make an adverse credibility finding and considered Mr. Siahaan’s
documentary evidence, our rule prohibiting adverse credibility findings based on
a lack of corroborating evidence is inapposite and Mr. Siahaan’s reliance on it is
misplaced.
What Mr. Siahaan is really challenging is the IJ’s conclusion that his
testimony alone, though credible, was insufficient to satisfy the asylum standard.
Indeed, he plainly argues that since the IJ found him to be credible, his testimony
should have been sufficient to meet his burden of proof. See Pet’r Br. at 5. But
the IJ understood that an alien’s testimony “can suffice [to establish his eligibility
for relief] where the testimony is both believable, consistent and sufficiently
detailed to provide a plausible and coherent account of the basis for the alien’s
fears.” Admin. R. at 45. And again, the IJ found Mr. Siahaan’s testimony
“believable and consistent.” Id. at 49. Nevertheless, this favorable credibility
finding did not require the IJ to conclude that Mr. Siahaan satisfied his burden of
proof.
“The testimony of the applicant, if credible, may be sufficient to sustain the
burden of proof without corroboration,” but such a finding is not mandatory. See
8 C.F.R. §§ 208.13(a), 208.16(b), and 208.16(c)(2) (emphasis added); see also
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Uanreroro, 443 F.3d at 1204 (“an alien’s testimony alone may support an
application for [restriction on] removal or asylum”) (emphasis added). The
“testimony must also be found ‘credible’ and ‘persuasive,’ and refer to ‘specific
facts sufficient to demonstrate that the applicant’” meets his burden of proof. Id.
at 1205 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)); cf. Solomon, 454 F.3d at 1165
(“otherwise credible testimony constitutes sufficient evidence to support an
application”). In determining whether an alien satisfies his burden of proof, “the
trier of fact may weigh the credible testimony along with other evidence of
record.” 8 U.S.C. § 1158(b)(1)(B)(ii).
Here, the IJ considered Mr. Siahaan’s credible testimony and other record
evidence but found that he did not satisfy his burden of proof. The IJ made no
adverse credibility finding based on a lack of corroborating evidence, nor was IJ
obligated to find that Mr. Siahaan satisfied his burden of proof merely because he
testified credibly. Consequently, the only real question is whether the IJ’s finding
that Mr. Siahaan failed to satisfy his burden of proof is supported by substantial
evidence. We conclude it is.
To obtain restriction on removal, Mr. Siahaan must to show that his “life or
freedom would be threatened in [Indonesia] on account of [his] race, religion,
nationality, membership in a particular social group, or political opinion.” See
8 C.F.R. § 1208.16(b); Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008).
He may satisfy this standard by showing “past persecution” or that “it is more
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likely than not” he will be persecuted in the future. 8 C.F.R. § 1208.16(b)(1)-(2);
Sidabutar, 503 F.3d at 1123-24. Failure to meet the standard for restriction on
removal indicates that he has not, and probably will not, be tortured, and thus
cannot satisfy the standard for CAT relief. See 8 C.F.R. § 1208.16(c)(2); Ismaiel,
516 F.3d at 1206.
Mr. Siahaan claimed past persecution on account of his religion and
ethnicity. He had been beaten several times throughout his school years, recalling
a fight with a Muslim when he was sixteen or seventeen years old. Both he and
the Muslim were taken to a police station, where he was treated for bruises, but
no charges were filed, and they were both released. He also recalled that during
his school years, Muslims instigated fights, saying that Christian Bataks eat pork
and dogs. They also taunted him on his way to church and challenged his belief
in the Holy Trinity, stating, “there is only one God.” Admin. R. at 96. And he
remembered that the worst thing he was ever called was a “Bata[]k.” Id.
After graduating from a private Christian university, Mr. Siahaan worked
for a foreign-investment firm in Jakarta. He had no difficulty getting hired and
experienced no mistreatment based on his religion or ethnicity. His brother,
however, who remains in Indonesia, was attacked by someone wielding a sword.
The trauma left his brother with a personality-changing brain injury that forced
him to retire. Although the incident was reported to police, and his brother
identified his attacker, the police took no action.
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This testimony is insufficient to establish that Mr. Siahaan was persecuted.
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.” Wiransane v. Aschroft,
366 F.3d 889, 893 (10th Cir. 2004) (quotation omitted). Although the
mistreatment Mr. Siahaan experienced in school was unfortunate, the IJ
recognized that it was more akin to discrimination than persecution. Yet
“[d]iscrimination on the basis of race or religion, as morally reprehensible as it
may be, does not ordinarily amount to persecution . . . .” Ba v. Mukasey,
539 F.3d 1265, 1270 (10th Cir. 2008) (quotation omitted). Moreover, the worst
verbal abuse Mr. Siahaan endured was being called a member of his own tribe,
while the most severe injuries he sustained were bruises from a fight he engaged
in as a boy. This is not persecution. Cf. Kapcia v. INS, 944 F.2d 702, 704-05
(10th Cir. 1991) (finding no past persecution where aliens had been harassed,
imprisoned, beaten, interrogated, and conscripted into the military).
Nor has Mr. Siahaan demonstrated a clear probability of persecution upon
removal. He suggests that the cumulative impact from his past experiences
creates a presumption of future persecution, but because he failed to show past
persecution, he is not entitled to this presumption. See 8 C.F.R. § 1208.16(b)(2).
Instead, he must affirmatively demonstrate that he would be singled out
personally for persecution or that he has “a reasonable fear of persecution because
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of [his] membership in a group subject to a pattern or practice of persecution.”
See Woldemeskel v. INS, 257 F.3d 1185, 1190-91 (10th Cir. 2001) (quotation
omitted). And on this score, although his brother was seriously injured in an
attack believed to be perpetrated by a Muslim, nothing indicates that Mr. Siahaan
himself faces an individualized risk of persecution. See id. at 1191. Nor does the
record disclose a pattern or practice of persecution against Christian Bataks. A
pattern or practice of persecution entails “something on the order of organized or
systematic or pervasive persecution.” Id. (quotation omitted). To be sure, the
record reflects religious violence between Christians and Muslims in Indonesia,
but it also indicates that relations between the two groups have improved,
particularly since the government began efforts to curb inter-religious violence.
Further, despite his claim of ethnic persecution, Mr. Siahaan fails to point to any
evidence of organized or systematic persecution against ethnic Bataks.
Consequently, we cannot say he faces a clear probability of persecution upon
removal. It follows, then, that he is entitled to neither restriction on removal, nor
protection under the CAT. See Ismaiel, 516 F.3d at 1206.
The petition for review is DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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