Herry v. Gonzales

231 F. App'x 814
Court of Appeals for the Tenth Circuit·Decided May 16, 2007·No. No. 06-9574·Published

Opinion

ORDER AND JUDGMENT*

MARY BECK BRISCOE, Circuit Judge.

Mr. Herry is a native and citizen of Indonesia. He petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the denial by the immigration judge (IJ) of his request for asylum, restriction on removal,1 and protection under the Convention Against Torture (CAT). Mr. Herry challenges only the agency’s denial of his claim for restriction on removal. He does not raise any other challenges to the agency’s decision.2 We deny the petition for review.

I

We review the BIA’s legal conclusions de novo and review the agency’s findings of fact applying the substantial evidence [816] standard. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004). Under the substantial evidence test, we must determine whether the factual findings “are supported by reasonable, substantial and probative evidence considering the record as a whole.” Id. Credibility determinations are subject to the substantial evidence test. Id. “Where the BIA’s decision relies upon an IJ’s initial findings, we must ensure that such determinations are substantially reasonable.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (quotation omitted). These credibility determinations will be upheld if the IJ provides “ ‘specific, cogent’ reasons” for an adverse credibility finding. Wiransane v. Ashcroft, 366 F.3d 889, 897 (10th Cir.2004) (quoting Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir.2004)). “The BIA’s findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.2005) (quotation omitted).

II

The BIA adopted and affirmed the IJ’s decision in a single-member brief order. See 8 C.F.R. § 1003.1(e)(5). In these circumstances, the BIA’s decision is the final order under review, but we may consult the IJ’s decision when it provides a more complete explanation of the grounds for the decision. See Uanreroro, 443 F.3d at 1204. With regard to the restriction on removal claim, the BIA stated:

As we find that the Immigration Judge’s adverse credibility finding is consistent with Wiransane v. Ashcroft; Sviridov v. Ashcroft; and Vatulev v. Ashcroft, controlling case law in the jurisdiction in which this matter arises, we adopt and affirm the Immigration Judge’s finding that the respondent failed to carry his burden of proof to establish his eligibility for [restriction on] removal under the act.

Admin. R. at 2 (full citations omitted). Because the BIA adopted and affirmed the IJ’s finding that Mr. Herry failed to meet his burden of establishing his eligibility for restriction on removal and because the BIA’s discussion of this claim is limited, we look to the IJ’s decision for a more complete explanation of the grounds for the decision. See Uanreroro, 443 F.3d at 1204.

Mr. Herry bears the burden of proof on his restriction on removal claim and he must establish that “his ... life or freedom would be threatened in the proposed country on the account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). He may meet this burden by demonstrating that he suffered past persecution or that there is a “clear probability” of future persecution on account of one of the protected grounds enumerated above. See id.; Niang, 422 F.3d at 1195. Mr. Herry, who is of Chinese ethnicity and a Christian, sought to establish his eligibility for restriction on removal primarily on the basis of two incidents, which we will discuss below.

A

Mr. Herry testified that during the May 1998 riots, he was attacked by native Indonesians, tied up, and dragged behind a motorbike for approximately one hour. He stated that he was not sure exactly what happened and for how long because he passed out. When he woke up, he had injuries on his hands from being tied, his knees were skinned, and he had a cut on his face. He testified that he did not seek medical assistance after this incident because doctors are too expensive. To support his allegations regarding the motor[817] cycle incident, Mr. Herry submitted a photograph allegedly taken after the incident. The following exchange then took place between the IJ and Mr. Herry:

Q. Okay. And you said you were dragged on the motorbike for one hour?
A. Approximately. I wasn’t sure. It maybe is an hour.
Q. All right. Well, this does show that you have—your knees are skinned, and the left side of your face is skinned and bruised, but it—I’m not an expert on being dragged around on a motorcycle, but it doesn’t look like you were dragged down the street for an hour.
A. I’m saying it took a long time because when your hands are tied and you’re dragged behind a motorcycle, anytime seems like a long time. I don’t know how long it actually took.
Q. Well, were you able to stay up on your feet most of the time? Is that what happened?
A. I was standing, but when they took off, I fell over right away.
Q. And then they dragged you down the street like that?
A. Yes. Maybe if I could have shown the rest of my pants, it would have shown what it did to my legs. But because it was cut, that portion of it I cannot show you. And—
Q. Is that the clothes you were wearing?
A. Yes.
Q. Well, they’re clean. The shirt’s clean, and it’s not ripped. It’s not possible you were dragged around for an hour on the ground wearing that shirt.
A. It felt to me it was an extremely long time, and that’s why I said maybe it was an hour. I don’t know how long it really took. And I passed—I lost consciousness, and that’s why I don’t remember how long it actually took.
Q. Yeah, but look at the shirt. It’s—I think it’s even ironed. It’s absolutely clean and looks like it’s a fresh shirt. It doesn’t even look like you were working out in the garden, much less dragged around in the street.
A. I cannot answer that.
Q. Right.
A. I have completely forgotten. To tell you the truth, I don’t even remember, but it could have been that I was wearing a jacket, and I still don’t remember what I was wearing and why that was clean.

Admin. R. at 117-19.

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Herry v. Gonzales, 231 F. App'x 814 (10th Cir. 2007).

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Related

Vatulev v. Ashcroft
354 F.3d 1207 (Tenth Circuit, 2003)
Sviridov v. Ashcroft
358 F.3d 722 (Tenth Circuit, 2004)
Wiransane v. Ashcroft
366 F.3d 889 (Tenth Circuit, 2004)
Elzour v. Ashcroft
378 F.3d 1143 (Tenth Circuit, 2004)
Niang v. Ashcroft
422 F.3d 1187 (Tenth Circuit, 2005)
Yong Ting Yan v. Gonzales
438 F.3d 1249 (Tenth Circuit, 2006)
Uanreroro v. Ashcroft
443 F.3d 1197 (Tenth Circuit, 2006)