Adrian v. Gonzales

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 31, 2007
• Docket: 06-9597
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS May 31, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

DA NI AD RIAN and EVI SARLITA SIH O M PIN G , No. 06-9597 Petitioners, v. (Agency Nos. A97 186 475/476) ALBERTO GONZALES, United (Petition for Review) States A ttorney General,

Respondent.

OR D ER AND JUDGM ENT *

Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **

Petitioners Dani Adrian and Evi Sarlita Sihomping, both citizens of

Indonesia, seek review of a decision of the Bureau of Immigration Appeals (B IA )

affirming the immigration judge’s (IJ) decision denying their applications for

asylum and withholding of removal. Exercising jurisdiction under 8 U.S.C. §

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. 1252(a)(1), we deny the petition for review because we agree that petitioners have

not met their burden of showing past persecution or a credible threat of future

persecution in Indonesia.

I. Background

Petitioners are natives and citizens of Indonesia. M r. Adrian was admitted

to the United States on November 26, 1999 as a non-immigrant visitor w ith

authorization to remain until December 25, 1999. M s. Sihomping was admitted to

the United States on July 21, 2001 as a non-immigrant visitor with authorization

to remain until January 21, 2002. Both remained in the United States beyond

their authorized stays. Petitioners met and were married in the United States and

have one daughter, w ho is a United States citizen.

Petitioners are both Christians who claim to have suffered past persecution

by Indonesian M uslims on account of their religious faith. M r. Adrian submitted

an application for asylum to the Department of Homeland Security (DHS) on

M arch 4, 2003, and included M s. Sihomping as a derivative relative. DHS denied

the application because Petitioners failed to seek asylum within the first year of

their arrival in the United States as required by statute and, instead, ordered

Petitioners to appear before the Denver Immigration Court for removal

proceedings.

Removal Proceedings. DHS charged both Petitioners as removable under 8

U.S.C. § 1227(a)(1)(B) for remaining in the United States longer than permitted.

-2- At a hearing on September 30, 2003, Petitioners conceded proper service of the

Notices to Appear, admitted to the factual allegations contained therein, and

conceded removability as charged. As relief from removal, Petitioners renewed

the application for asylum, and also sought withholding of removal, protection

under the Convention against Torture (CAT) and voluntary departure.

Petitioners testified in support of their applications at a merits hearing on

October 20, 2005. M r. Adrian testified that, during his childhood, his family

were the only Christians in the community and M uslims discriminated against

him, calling him “infidel” and other names. He also testified that someone from a

neighboring military complex shot and killed his dog. On June 27, 1986, M r.

Adrian was in the parking lot of a restaurant when six men attacked and beat him.

One allegedly held up a knife and threatened to kill M r. Adrian. W hen he asked

why they were attacking him, they said “because you are Chinese!” A.R. 92, 253.

The men apparently departed after M r. A drian assured them he was not Chinese.

M r. Adrian did not require hospitalization after the attack.

M s. Sihomping, in turn, testified that she was traumatized when she

witnessed a police station being burned and cars overturned during a riot which

broke out as she was riding a city bus in 1998. During the incident, her bag was

stolen and she was forced to walk seven miles home. She claims another

terrifying experience on December 24, 2000, when she learned that the church

where she was planning to attend services that evening had been bombed.

-3- Petitioners’ daughter was born in the U nited States in November 2002. M r.

Adrian testified that he especially feared she would be targeted by radical

M uslims if the family was forced to return to Indonesia.

Decision of the Immigration Judge. On October 20, 2005, the IJ rendered

an oral decision denying Petitioners’ requests for relief from removal. He

reiterated that on the basis of the evidence of record, Petitioners had overstayed

their visas and were subject to removal as charged. The IJ further found that M r.

Adrian did not qualify for asylum because he did not show that he was excused

from filing his application within one year of his arrival in the United States,

specifically concluding that M r. Adrian’s asserted defense of a lack of knowledge

regarding the asylum process did not constitute an “extraordinary circumstance”

that could excuse untimely filing. A.R. at 62–63.

The IJ further found that Petitioners did not qualify for withholding of

removal because they did not sustain their burden of showing that it was more

likely than not that they would be persecuted in Indonesia because of their

Christian faith. Finally, the IJ denied Petitioners’ protection under the CAT on

the basis of his view that they had not established that it was more likely than not

they would be tortured by, or with the acquiescence of, the Indonesian

government. As a result, the IJ denied Petitioners’ applications for relief and

ordered them removed to Indonesia w ith an alternative grant of voluntary

departure.

-4- The BIA affirmed the decision of the IJ on November 28, 2006, and this

appeal followed.

II. Discussion

W e review the BIA’s legal conclusions de novo, and any factual findings

for substantial evidence. Under the substantial evidence test, “our duty is to

guarantee that factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.” Diallo v. Gonzales, 447

F.3d 1274, 1279 (10th Cir. 2006).

A. Asylum

This court’s jurisdiction to review determinations related to the timeliness

of an asylum application after a final order of removal has been entered is limited

to constitutional claims and questions of law. See 8 U.S.C. § 1158(a)(3); Diallo,

447 F.3d at 1281. Here, Petitioners entered the United States in 1999 and 2001,

respectively, but did not file for asylum until 2003. The IJ found, and the B IA

agreed, that Petitioners’ asylum application was untimely, without any

extraordinary circumstances justifying their failure to file w ithin the statutory

period of one year.

Petitioners concede on appeal that their asylum application was untimely,

and do not attempt to identify any constitutional claims or legal questions

germane to the timeliness of their application.” W e therefore turn to the BIA's

denial of their application for w ithholding of removal.

-5- B. W ithholding of Removal

To be eligible for withholding of removal, an alien must show that it is

more likely than not that his life or freedom w ould be threatened by persecution

in the country of removal on account of his race, religion, nationality,

membership in a particular social group, or political affiliation. 8 U.S.C. §

1231(b)(3)(A); Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005). A n

alien satisfies this burden by showing that he suffered past persecution on account

of any of these five enumerated factors, 8 C.F.R. § 1208.16(b)(1), or by showing

that it is “more likely than not” that he will suffer future persecution if returned to

the country of removal, INS v. Stevic, 467 U.S. 407, 429–30 (1984); 8 C.F.R. §

1208.16(b)(2).

1. Petitioners failed to establish past persecution

Petitioners’ separate claims of past persecution were based on the following

incidents: (1) the 1986 attack on M r. Adrian purportedly because of his Chinese

appearance; (2) the killing of M r. Adrian’s childhood dog; (3) discrimination and

name-calling endured by M r. Adrian as a child; (4) the bombing of a church M s.

Sihomping was planning to attend on December 24, 2000; and (5) M s.

Sihomping’s witnessing of a riot in 1998. A.R. at 92–94, 105–08, 253–54.

“Persecution is 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.” Chaib v. Ashcroft,

-6- 397 F.3d 1273, 1277 (10th Cir. 2005) (internal 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) (internal

quotation omitted). “Persecution may be found by cumulative, specific instances

of violence and harassment,” id., but “generalized lawlessness and violence

between diverse populations” is generally insufficient to satisfy the standard,

Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998).

Here, Petitioners have not experienced treatment that rises to the level of

past persecution. M r. Adrian’s solitary assault in 1986, though unfortunate, does

not rise to the level of persecution. See Kapcia v. INS, 944 F.2d 702, 704–05, 708

(10th Cir. 1991) (sustaining finding of no past persecution where aliens were

detained and beaten in home country on multiple occasions). M oreover, while

M r. Adrian’s claim to future persecution is based on his Christian faith, he

testified that he was beaten because of his alleged resemblance to an ethnically

Chinese person. Pet. Brief at 9. The beating in 1986 cannot, therefore, rationally

support his fear of persecution based on the fact that he is a Christian. M s.

Sihomping’s position is similarly unpersuasive. The single incidence of violence

between Christians and M uslims in Indonesia which she observed was generalized

and had little direct impact on her. The fact that the riots she witnessed and

church bombing she heard about caused her anxiety is not sufficient to establish

past persecution.

-7- These incidents, whether considered individually or together, cannot

establish past persecution. Therefore, the IJ properly required petitioners to show

that it would be “more likely than not” that they will suffer future persecution if

returned to Indonesia.

2. Petitioners failed to establish it was“more likely than not” they would suffer future persecution

Because Petitioners did not suffer past persecution, they are not entitled to

a presumption of future persecution. 8 C.F.R. § 1208.16(b)(2). Rather, they must

affirmatively establish a clear probability of future persecution by demonstrating

(1) the likelihood of individualized persecution, or (2) a pattern or practice of

persecution against a group to which Petitioners belong (i.e., Indonesian

Christians) such that it is more likely than not that petitioners’ lives or freedom

would be threatened. Woldemeskel v. INS, 257 F.3d 1185, 1190–91 (10th Cir.

2001). W e agree that Petitioners have failed to satisfy this burden.

Petitioners allege three grounds to support their claim that “there is more

than 50% chance” they will suffer future persecution if forced to return to

Indonesia:

(1) the testimony of the petitioners regarding those terrible experiences encountered by them due to their religion; (2) the D epartment of State’s report on the country condition and religious freedom; (3) the m ost recent incidents that had happened to three Christian w omen w hose heads were cut off by extreme M uslims.

-8- Pet. Brief at 8. But these claims, without more, are insufficient to satisfy the

standard of proof. They neither show a likelihood of individualized persecution

nor a pattern or practice of persecution against a group to w hich Petitioners

belong.

Petitioners’ first point— that future persecution can be inferred from the

abuses they suffered in the past— is unpersuasive since we have already rejected

the notion that the past incidents amounted to persecution.

Petitioners’ second point, which attempts to establish a pattern or practice

of persecution against religious minorities in Indonesia, likewise fails. The State

Department reports are, at best, equivocal. On the one hand, they provide that

Indonesian government policy “provides for all persons the right to worship

according to his or her own religious belief.” A.R. at 119. On the other hand,

they note that the government “occasionally” tolerates discrimination by private

actors. Id. Nevertheless, the bottom line is that, “in most parts of Indonesia,

people are generally able to worship as they wish with no interference from the

state or their neighbors of other faiths.” Id. at 118.

W e agree with the government that these reports cannot compel a finding

that Petitioners are likely to suffer future persecution in Indonesia because of

their religion. In over a dozen opinions addressing similar facts, we have

declined to find Indonesian Christians have a well-founded fear of future

persecution on account of their religion. See, e.g., Tulengkey, 425 F.3d at

-9- 1281–82 (substantial evidence supported IJ’s determination that petitioners did

not have a well-founded fear of persecution based on their Christian faith); M art

v. Gonzales, No. 06-9548, 2007 W L 466315 (10th Cir. Feb. 14, 2007) (“[T]he

evidence simply does not support the conclusion that Christians in Indonesia

suffer organized, systematic, or pervasive persecution.”); Bastian v. Gonzales,

187 F.App’x 891, 894 (10th Cir. 2006) (substantial evidence supported IJ’s

decision to deny asylum on basis that anti-Christian violence in Indonesia appears

to be decreasing); Sutanto v. Gonzales, 123 F.App’x 380, 383 (10th Cir. 2005)

(petitioner’s individual experience of anti-Christian hostility was “minor and

isolated” and he had also failed to demonstrate likelihood of future persecution

because he could choose to live in a predominantly Christian city).

Finally, Petitioners’ unsubstantiated reference to the killing of three

Christian women is also insufficient to satisfy the requirements for establishing

that future persecution is more likely than not. W ithout more, three deaths –

though tragic and senseless – are not a proxy for establishing a pattern or practice

of persecution against members of the Christian faith in a country of over 240

million people. “A pattern or practice of persecution has been defined as

‘som ething on the order of organized or systematic or pervasive persecution.’”

Woldemeskel, 257 F.3d at 1191 (internal quotation and citation omitted). The

evidence on the record here cannot satisfy this standard.

-10- In sum, the IJ’s decision is supported by substantial evidence in the record.

Nothing suggests that Petitioners face a clear probability of persecution upon

return to Indonesia and therefore their petitions for review must be denied.

III. Conclusion

For the reasons stated above, the petitions for review are DENIED.

Entered for the Court

Timothy M . Tymkovich Circuit Judge

-11-