F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 14, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
HO BBY DU BEL M AR T,
Petitioner, No. 06-9548 v. (No. A97 192 065) (Petition for Review) ALBERTO R. GONZA LES, Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
In this petition for review, Hobby Dubel M art challenges a Board of
Immigration Appeals (BIA) decision denying his request for restriction on
removal under the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3). 1
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 M art also filed an application for asylum and requested relief under the United Nations Convention Against Torture, but he does not challenge the BIA’s decision as to those claims. B ecause we conclude that substantial evidence supports the BIA’s decision, we
exercise our jurisdiction under 8 U.S.C. § 1252 to deny the petition.
I.
M art is an Indonesian citizen and practicing Christian who claims that he
will be persecuted on account of his religious beliefs if he is returned to
Indonesia. According to his testimony, he was born in a small village on the
island of Sumatra, and moved to the capital city of Jakarta when he was in the
second grade. He claims that as a child, his fellow classmates, who were
predominantly M uslim, frequently taunted him because of his religious beliefs. In
high school, an angry mob of M uslims gathered outside the church where he was
attending confirmation class and threw rocks, causing damage to the building and
terrorizing those inside. He also testified that other members of his family have
been persecuted on account of their Christian faith and he submitted evidence
detailing his sister’s narrow escape from a 1999 raid on her Protestant school
perpetrated by M uslims.
M art testified that he left Indonesia in 1999 to escape religious persecution.
He was hired by an American cruise line and went to work on a ship that traveled
between Fort Lauderdale and the Bahamas. Although the ship docked in Florida
more than fifty times during M art’s employment, he did not apply for asylum
until February of 2003, more than two years after his first arrival in the
United States.
-2- An Immigration Judge (IJ) denied M art’s asylum application because it was
not filed within one year of M art’s arrival in the United States, as required by
8 U.S.C. § 1158(a)(2)(B). Nonetheless, the IJ concluded that the merits of the
application did not warrant a grant of asylum. The IJ believed that M art had been
harassed on account of his Christianity, but found there was no showing of past
persecution or a well-founded fear of future persecution within the meaning of the
Immigration and Nationality Act. M art does not challenge the IJ’s finding
concerning past persecution. Accordingly, our review is limited to his claim that
he faces future persecution and the reasons why that claim was rejected.
In his oral decision, the IJ conceded that Christians in Indonesia face what
he described as “not an ideal situation.” R. at 49. But he felt that circumstances
in Indonesia are improving. He also explained that in order to grant asylum,
“there must be a showing of a threat of persecution . . . countrywide,” id. at 50,
and he concluded that M art had failed to make such a showing. Having found
that M art “failed to satisfy the lower burden of proof required for asylum,” id. at
50-51, the IJ concluded that M art’s application necessarily fell short of the higher
standard applicable to restriction on removal.
The BIA affirmed the IJ’s opinion, specifically agreeing that M art had
“failed to establish a clear probability of persecution if returned to Indonesia.”
Id. at 2. It also made several additional findings that bolstered this conclusion.
-3- The respondent did not present sufficient evidence that anyone has a current interest in him on account of a protected ground. The respondent did not adequately establish that the Indonesian government is unable or unwilling to control the M uslim extremists as the respondent acknowledged that the police came to his church when extremists threw rocks at his church and guarded the church for two weeks. Nor did the respondent demonstrate that he could not relocate to another part of Indonesia to avoid future persecution. . . . Also, the record reflects that the respondent’s parents and siblings have remained in Indonesia and have been able to live and worship there.
Id. at 2-3 (citations omitted).
M art raises several challenges to the opinions of both the IJ and the BIA .
First, he argues that the BIA applied an incorrect standard in asking whether he
would be singled out for persecution, because under 8 C.F.R. § 1208.16(b)(2), he
need only demonstrate that he would be subjected to a “pattern or practice of
persecution.” N ext, he argues that the evidence in the record, including the story
of the attack on his sister’s Protestant school, shows that the Indonesian
government is either unable or unwilling to control the increasingly violent
Islamic fundamentalists. Finally, he claims that the IJ wrongly placed the burden
on him to demonstrate the infeasibility of internal relocation. He argues that
under 8 C.F.R. § 1208.16(b)(2), the IJ w as required to designate an area within
Indonesia where he could safely relocate.
II.
Before addressing M art’s arguments, we note that in a case like this,
involving a brief order issued by a single BIA member under 8 C.F.R.
-4- § 1003.1(e)(5) as opposed to a summary affirmance under (e)(4), “we will not
affirm on grounds raised in the IJ decision unless they are relied upon by the B IA
in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).
W e may consult the IJ’s more complete explanation of grounds relied on by the
BIA , and we may also look to the IJ’s opinion if the BIA’s reasoning is difficult
to discern. But if the BIA’s opinion “contains a discernible substantive
discussion, . . . our review extends no further, unless it explicitly incorporates or
references an expanded version of the same reasoning below.” Id. Because the
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 14, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
HO BBY DU BEL M AR T,
Petitioner, No. 06-9548 v. (No. A97 192 065) (Petition for Review) ALBERTO R. GONZA LES, Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
In this petition for review, Hobby Dubel M art challenges a Board of
Immigration Appeals (BIA) decision denying his request for restriction on
removal under the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3). 1
* 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. 1 M art also filed an application for asylum and requested relief under the United Nations Convention Against Torture, but he does not challenge the BIA’s decision as to those claims. B ecause we conclude that substantial evidence supports the BIA’s decision, we
exercise our jurisdiction under 8 U.S.C. § 1252 to deny the petition.
I.
M art is an Indonesian citizen and practicing Christian who claims that he
will be persecuted on account of his religious beliefs if he is returned to
Indonesia. According to his testimony, he was born in a small village on the
island of Sumatra, and moved to the capital city of Jakarta when he was in the
second grade. He claims that as a child, his fellow classmates, who were
predominantly M uslim, frequently taunted him because of his religious beliefs. In
high school, an angry mob of M uslims gathered outside the church where he was
attending confirmation class and threw rocks, causing damage to the building and
terrorizing those inside. He also testified that other members of his family have
been persecuted on account of their Christian faith and he submitted evidence
detailing his sister’s narrow escape from a 1999 raid on her Protestant school
perpetrated by M uslims.
M art testified that he left Indonesia in 1999 to escape religious persecution.
He was hired by an American cruise line and went to work on a ship that traveled
between Fort Lauderdale and the Bahamas. Although the ship docked in Florida
more than fifty times during M art’s employment, he did not apply for asylum
until February of 2003, more than two years after his first arrival in the
United States.
-2- An Immigration Judge (IJ) denied M art’s asylum application because it was
not filed within one year of M art’s arrival in the United States, as required by
8 U.S.C. § 1158(a)(2)(B). Nonetheless, the IJ concluded that the merits of the
application did not warrant a grant of asylum. The IJ believed that M art had been
harassed on account of his Christianity, but found there was no showing of past
persecution or a well-founded fear of future persecution within the meaning of the
Immigration and Nationality Act. M art does not challenge the IJ’s finding
concerning past persecution. Accordingly, our review is limited to his claim that
he faces future persecution and the reasons why that claim was rejected.
In his oral decision, the IJ conceded that Christians in Indonesia face what
he described as “not an ideal situation.” R. at 49. But he felt that circumstances
in Indonesia are improving. He also explained that in order to grant asylum,
“there must be a showing of a threat of persecution . . . countrywide,” id. at 50,
and he concluded that M art had failed to make such a showing. Having found
that M art “failed to satisfy the lower burden of proof required for asylum,” id. at
50-51, the IJ concluded that M art’s application necessarily fell short of the higher
standard applicable to restriction on removal.
The BIA affirmed the IJ’s opinion, specifically agreeing that M art had
“failed to establish a clear probability of persecution if returned to Indonesia.”
Id. at 2. It also made several additional findings that bolstered this conclusion.
-3- The respondent did not present sufficient evidence that anyone has a current interest in him on account of a protected ground. The respondent did not adequately establish that the Indonesian government is unable or unwilling to control the M uslim extremists as the respondent acknowledged that the police came to his church when extremists threw rocks at his church and guarded the church for two weeks. Nor did the respondent demonstrate that he could not relocate to another part of Indonesia to avoid future persecution. . . . Also, the record reflects that the respondent’s parents and siblings have remained in Indonesia and have been able to live and worship there.
Id. at 2-3 (citations omitted).
M art raises several challenges to the opinions of both the IJ and the BIA .
First, he argues that the BIA applied an incorrect standard in asking whether he
would be singled out for persecution, because under 8 C.F.R. § 1208.16(b)(2), he
need only demonstrate that he would be subjected to a “pattern or practice of
persecution.” N ext, he argues that the evidence in the record, including the story
of the attack on his sister’s Protestant school, shows that the Indonesian
government is either unable or unwilling to control the increasingly violent
Islamic fundamentalists. Finally, he claims that the IJ wrongly placed the burden
on him to demonstrate the infeasibility of internal relocation. He argues that
under 8 C.F.R. § 1208.16(b)(2), the IJ w as required to designate an area within
Indonesia where he could safely relocate.
II.
Before addressing M art’s arguments, we note that in a case like this,
involving a brief order issued by a single BIA member under 8 C.F.R.
-4- § 1003.1(e)(5) as opposed to a summary affirmance under (e)(4), “we will not
affirm on grounds raised in the IJ decision unless they are relied upon by the B IA
in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).
W e may consult the IJ’s more complete explanation of grounds relied on by the
BIA , and we may also look to the IJ’s opinion if the BIA’s reasoning is difficult
to discern. But if the BIA’s opinion “contains a discernible substantive
discussion, . . . our review extends no further, unless it explicitly incorporates or
references an expanded version of the same reasoning below.” Id. Because the
BIA ’s opinion in this case contains a clear explanation of the grounds for its
decision, we need not consult the IJ’s opinion.
W e are ever mindful of the substantial deference to be accorded the B IA’s
decision. W e may not reverse the BIA unless w e find that the evidence not only
supports, but compels a different conclusion. I.N.S. v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992). In reviewing the BIA ’s decision,
[w]e consider any legal questions de novo, and we review the agency’s findings of fact under the substantial evidence standard. Under that test, our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole.
Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004).
Restriction on removal, previously called withholding of removal, prohibits
the removal of “an alien to a country if the Attorney General decides that the
alien’s life or freedom w ould be threatened in that country because of the
-5- alien’s . . . religion.” 8 U.S.C. § 1231(b)(3)(A ). “In order to demonstrate
eligibility for [restriction on removal], the applicant must establish a clear
probability of persecution through presentation of evidence establishing that it is
more likely than not that the applicant would be subject to persecution.”
Woldemeskel v. I.N.S., 257 F.3d 1185, 1193 (10th Cir. 2001) (quotation and
alteration omitted). Under this test, M art must show that he has a greater
than fifty-percent chance of being persecuted upon his return to Indonesia.
Cf. Kamara v. Attorney Gen., 420 F.3d 202, 213-14 (3d Cir. 2005) (holding that
the “more likely than not” standard applicable to Convention Against Torture
claims is met if the probability of torture exceeds fifty percent); Wang v.
Ashcroft, 320 F.3d 130, 144, n.20 (2d Cir. 2003) (same).
Based on our careful review of the record, we cannot say that the evidence
compels a finding that M art faces more than a fifty-percent chance of being
persecuted if returned to Indonesia. He argues that in contravention of its own
regulations, the BIA erroneously required him to prove that he would be singled
out for persecution. 2 The applicable regulation clearly provides that a showing of
2 8 C.F.R. § 1208.16(b)(2)(i) provides in relevant part,
[a]n applicant who has not suffered past persecution may demonstrate that his or her life or freedom w ould be threatened in the future in a country if he or she can establish that it is more likely than not that he or she would be persecuted on account of . . . religion . . . upon removal to that country. . . . In evaluating whether it is more likely than not that the applicant’s life or freedom would (continued...)
-6- individualized harm is not always required to establish a clear probability of
future persecution. But it is also clear that the applicant’s burden to show that he
would be singled out for persecution is only alleviated “if . . . [t]he applicant
establishes . . . a pattern or practice of persecution.” 8 C.F.R. § 1208.16(b)(2)(i)
(emphasis added). This, we have explained, entails “something on the order of
organized or systematic or pervasive persecution.” Woldemeskel, 257 F.3d at
1191 (quotation omitted). The background information that M art submitted
certainly confirms that deplorable acts of violence and discrimination are directed
at the Christian community throughout Indonesia. But the record also shows that
the government has not abandoned its efforts to stop the violence and continues to
investigate the perpetrators. Importantly, the evidence simply does not support
the conclusion that Christians in Indonesia suffer organized, systematic, or
pervasive persecution. W hile the attack on M art’s sister’s school more than seven
years ago may not have been aberrational, we remain unconvinced on the record
before us that it is more likely than not that he too will be targeted because of his
faith. And there is certainly nothing in the record to indicate that M art will be
singled out for persecution based on any other reason. To the contrary,
2 (...continued) be threatened . . . , the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for such persecution if: (i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of . . . religion.
-7- substantial evidence supports the BIA’s conclusion that M art failed to establish a
clear probability of persecution. 3 W e are therefore bound to uphold its decision.
The petition for review is DENIED.
Entered for the Court
Bobby R. Baldock Circuit Judge
3 Since we conclude that there is no clear probability of persecution, we need not address M art’s argument concerning the feasibility of internal relocation.
-8-