Ahlan v. Gonzales

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 19, 2006
• Docket: 06-9512
• Status: Unpublished

Opinion

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 December 19, 2006 FO R T H E T E N T H C IR C U IT Elisabeth A. Shumaker Clerk of Court

AHLAN AHLAN; SJULTJE W A U RA N,

Petitioners, No. 06-9512 v. (Nos. A95-254-295 & A95-254-296) (Petition for Review) ALBERTO R. GONZALES, Attorney General,

Respondent.

O R D E R A N D JU D G M E N T *

Before T Y M K O V IC H , A N D ER SO N , and B A L D O C K , Circuit Judges.

Ahlan Ahlan and his wife, Sjultje W auran, seek review of a final order of

removal issued by an immigration judge (IJ) denying their requests for asylum,

restriction on removal, and relief under the U nited N ations Convention Against

Torture (CAT). Adopting but supplementing the IJ’s decision, the Board of

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Immigration Appeals (BIA) affirmed. W e have jurisdiction under 8 U.S.C.

§ 1252(a)(1) to review the decision denying restriction on removal and relief

under the CAT, but lack jurisdiction to review the denial of asylum. As explained

below, substantial evidence supports the BIA’s decision, and we therefore deny

the petition for review .

I. Background

Petitioners are natives and citizens of Indonesia. M r. Ahlan was raised

M uslim, but converted to Christianity before marrying M s. W auran, who is

Christian. On January 19, 2001, petitioners entered the U nited States on visitor’s

visas, but overstayed their visit. The Government subsequently comm enced

removal proceedings pursuant to 8 U.S.C. § 1227(a)(1)(B). At a hearing before

the IJ, the couple conceded their removability, but requested asylum, restriction

on removal, and relief under the CAT, claiming past persecution and fear of

future persecution on account of M s. W auran’s Chinese ethnicity and M r. Ahlan’s

conversion to Christianity. The IJ denied the asylum application, finding that

petitioners failed to show past persecution or a well-founded fear of persecution.

The IJ also found petitioners’ asylum application untimely. Regarding their

requests for restriction on removal and relief under the CAT, the IJ reasoned that

because petitioners failed to satisfy the lower standard of proof for asylum, they

necessarily failed to satisfy the more stringent standards for restriction on

-2- removal and relief under the CAT. The BIA adopted, supplemented, and affirmed

the IJ’s decision. The BIA agreed that petitioners failed to meet the burdens of

proof on their claims of persecution and torture, as well as the IJ’s finding that

the asylum application w as untimely. Petitioners now seek review.

II. D iscussion

W e review the agency’s legal determinations de novo, and its findings of

fact under the substantial evidence standard. Elzour v. Ashcroft, 378 F.3d 1143,

1150 (10th Cir. 2004); 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative findings of

fact are conclusive unless any reasonable adjudicator w ould be compelled to

conclude to the contrary.”). Factual findings must be “supported by reasonable,

substantial, and probative evidence considering the record as a whole.” Elzour,

378 F.3d at 1150. Although we review the BIA’s decision as the final order of

removal, here we may consult the IJ’s more complete analysis because the BIA

relied on the IJ’s rationale to reach its decision. See Uanreroro v. Gonzales,

443 F.3d 1197, 1203-04 (10th Cir. 2006).

A . A sylum

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

of an asylum application is limited to constitutional claims and questions of law .

See 8 U.S.C. § 1158(a)(3); Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir.

2006). Here, petitioners entered the United States in January 2001, but did not

-3- file for asylum until 2003. The IJ found, and the BIA agreed, that petitioners’

asylum application was untimely, without any extraordinary circumstances

justifying their failure to file within the statutory period of one year. Therefore,

because petitioners do not identify any constitutional claims or legal questions

germane to the untimeliness of their asylum application, we lack jurisdiction to

review the IJ’s denial of asylum.

B . R estriction on R em oval and R elief under the C onvention A gainst

T orture

W e are not, however, precluded from reviewing the IJ’s denial of

restriction on removal or relief under the CAT. See Tsevegmid v. Ashcroft,

336 F.3d 1231, 1235 (10th Cir. 2003) (explaining that 8 U.S.C. § 1158(a)(3)

applies only to asylum requests and does not preclude review of other aspects of

final orders of removal, such as restriction on removal, under 8 U.S.C. § 1252(a)).

To obtain restriction on removal, an alien must show that his life or freedom

would be threatened in the country of removal on account of his race, religion,

nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1231(b)(3)(A); Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.

2005). An 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

-4- 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).

M r. Ahlan claims he and his wife suffered past persecution on account of

her Chinese ethnicity and his conversion to Christianity. He argues the IJ failed

to recognize that general ethnic and religious animosity towards Sino-Christians

in Indonesia rises to the level of persecution. In particular, M r. Ahlan describes

an event in which his wife’s clothing store was destroyed during riots in 1998,

and suggests that substantial economic deprivation resulting from this event,

coupled with the “general atmosphere of insecurity,” amounted to persecution on

“cumulative grounds.” Pet’rs’ Br. 13.

“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,

397 F.3d 1273, 1277 (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). “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).

-5- Here, petitioners have experienced no offensive treatment that rises to the

level of persecution. The violence between Christians and M uslims in Indonesia

was generalized and had little direct impact on petitioners such that it could be

considered persecution. In this regard, the IJ acknowledged that riots had taken

place in 1998, that businesses were burned down, and that women had been raped.

But referring to a State Department report, the IJ also recognized that there had

been a sharp drop in religious violence between Christians and M uslims, and that

cooperation between the two groups had actually improved in certain areas of the

country. Examining the effect of these conditions specifically upon petitioners,

the IJ noted that petitioners had been dating since 1997, living together since

1998, and had been married since 2000, but were never specifically targeted on

account of racial or religious animus. The IJ further noted that although the riots

occurred in 1998, petitioners did not leave Indonesia until 2001. Given these

findings and the substantial evidence supporting them, it seems apparent that the

general atmosphere in Indonesia had little detrimental effect on petitioners.

The destruction of M s. W auran’s shop does nothing to bolster petitioners’

argument. The evidence proffered by petitioners concerning why M s. W auran’s

shop was burned down failed to establish that it was specifically targeted on

account of her ethnicity or any other statutory basis of relief. M r. Ahlan testified

that the shop was destroyed only because it was among a group of Chinese-owned

-6- buildings, and the IJ found that M s. W auran’s birth certificate indicated she was

Indonesian, not Chinese. Given this evidence, there is no indication that the

destruction of M s. W auran’s shop w as anything but a general act of lawlessness

and not an act of persecution. Nor was the burning of M s. W auran’s shop

tantamount to economic persecution. After the riots, a portion of the buildings in

which M s. W auran’s shop was situated was rebuilt, and her shop was reopened.

Although petitioners w ere surely put at an economic disadvantage, there is simply

no indication that this temporary shutdown caused petitioners to suffer severe

economic persecution. See Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992)

(“Potential job loss or generalized economic disadvantage . . . does not equal

persecution.”). Hence, substantial evidence supports the conclusion that

petitioners were not the victims of past persecution.

Nevertheless, petitioners may still demonstrate entitlement to restriction on

removal by showing “a clear probability of persecution in the country to which

[they] would be returned.” Niang v. Gonzales, 422 F.3d 1187, 1195 (10th Cir.

2005) (quotation omitted). In this case, petitioners contend they fear persecution

on account of M r. Ahlan’s conversion to Christianity. M r. Ahlan submitted

evidence that among the M uslim faithful, conversion to Christianity is punishable

by death. He testified that his entire family is M uslim and that his father said he

-7- could not guarantee petitioners’ safety if they returned to Indonesia – a statement

M r. A hlan interprets as a threat.

“Threats alone generally do not constitute actual persecution; only rarely,

when they are so immediate and menacing as to cause significant suffering or

harm in themselves, do threats per se qualify as persecution.” Vatulev v. Ashcroft,

354 F.3d 1207, 1210 (10th Cir. 2003). Here, M r. Ahlan explained that his father

did not expressly say he would kill him, but rather that he understood his

statement, “I cannot guarantee your safety,” to mean that he would. R. at 197.

Evaluating this testimony, the IJ found it illogical that M r. Ahlan would fear his

family even though his parents knew since 1998 that he was living with a

non-M uslim woman, and his father, sister, and brothers all knew he converted to

Christianity in 2000. The IJ also found it illogical that throughout their

relationship, petitioners purportedly feared M r. Ahlan’s family, but remained in

Indonesia until 2001. Thus, the IJ concluded that M r. Ahlan was not credible and

did not have a well-founded fear of persecution. Based on the substantial

evidence in the record, we agree that petitioners have failed to establish a clear

probability of persecution if removed to Indonesia.

Still, petitioners claim to fear persecution from others as well, including

neighbors and co-workers. Yet again, as the IJ recognized, petitioners had been

living together since 1998, but had encountered no hostility from neighbors or

-8- co-workers, even though they all knew M r. Ahlan was living with a Christian

woman. Indeed, regarding petitioners’ general sense of fear from their neighbors,

the IJ noted that M s. W auran has tw o children from a prior marriage who remain

in Indonesia, are also Chinese Christians, but have been subject to no act of

persecution. And concerning M r. Ahlan’s fear of his co-workers, the IJ found it

unusual that M r. Ahlan continued to work during his relationship with

M s. W auran, left his job on good terms, and fully expects to receive a pension

when he becomes eligible, but never experienced any hostility from his

co-w orkers. U nder these circumstances, the IJ found that petitioners failed to

satisfy the standard for restriction on removal. Our review confirms that 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. It

follows, then, that because petitioners have failed to satisfy the standard for

restriction on removal, they are also not entitled to relief under the CAT. See

Sviridov. v. Ashcroft, 358 F.3d 722, 729-30 (10th Cir. 2004).

III. C onclusion

-9- The petition for review is DENIED.

Entered for the Court

Stephen H. Anderson Circuit Judge

-10-