Panjaitan v. Gonzales

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 22, 2007
• Docket: 06-9562
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS May 22, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

IN D RA PA N JA ITA N ,

Petitioner,

v. No. 06-9562 (No. A97-195-877) ALBERTO R. GONZALES, United (Petition for Review) States A ttorney General,

Respondent.

OR D ER AND JUDGM ENT *

Before L UC ER O, Circuit Judge, BROR BY, Senior Circuit Judge, and M cCO NNELL, Circuit Judge.

Petitioner Indra Panjaitan, a citizen of Indonesia, entered the United States

as a visitor and failed to depart upon expiration of his visa. In removal

proceedings he conceded removablility but sought asylum, restriction on removal,

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. and relief under A rticle III of the U nited Nations Convention Against Torture

(CAT). An immigration judge (IJ) denied his asylum application as untimely

because it was filed over one year from his entry into the United States. The IJ

also found that M r. Panjaitan did not qualify for either of two exceptions to the

one-year time limit–for “changed circumstances” or “extraordinary

circumstances”–found in INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). The IJ

denied his applications for restriction on removal and relief under Article III of

the CAT for failure of proof.

M r. Panjaitan appealed to the Board of Immigration Appeals (BIA), arguing

that the IJ erred in denying his asylum application as untimely because he had

established “extraordinary circumstances.” He also argued that the IJ erred in

ruling that he had not adequately proven past persecution or that it was more

likely than not that he would suffer future persecution on account of his Christian

beliefs. The BIA adopted and affirmed the IJ’s decision regarding his

applications for asylum and restriction on removal. 1

DISCUSSION

In his petition to this Court, M r. Panjaitan raises six points of error: (1) the

IJ and the BIA erred in finding his asylum application was untimely because he

qualified for the “changed circumstances” and “extraordinary circumstances”

1 The BIA found that there was no meaningful challenge on appeal regarding the IJ’s denial of relief under Article III of the CA T.

-2- exception to the one-year time limit; (2) the BIA erred in affirming the IJ’s

determination that M r. Panjaitan failed to prove past persecution because the IJ

failed to make such a determination; (3) the BIA erred in affirming the IJ’s

determination that M r. Panjaitan failed to prove past persecution; (4) the BIA

erred in affirming the IJ’s determination that M r. Panjaitan failed to prove that he

had a well-founded fear of future persecution; (5) the BIA erred in affirming the

IJ’s determination that M r. Panjaitan was not eligible for restriction on removal

under IN A § 241(b)(3), 8 U.S.C. § 1231(b)(3); and (6) the BIA erred in

determining that M r. Panjaitan had not challenged the IJ’s denial of protection

under Article III of the CAT on appeal to the BIA. W e deny his petition because

we have no jurisdiction to review the BIA’s determination that his asylum

application was untimely, because there was substantial evidence supporting the

BIA ’s denial of restriction on removal, and because we have no jurisdiction to

review a claim regarding relief under Article III of the CAT that was not first

presented to the B IA .

I. Scope and Standard of Review

The BIA issued its decision by a brief order by a single member of the

Board affirming and adopting the IJ’s decision. See 8 C.F.R. § 1003.1(e)(5). W e

therefore review the BIA’s decision as the final order of removal but “may

consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.”

Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007).

-3- W hen reviewing BIA decisions, an appellate court must look to the record for ‘substantial evidence’ supporting the agency’s decision[.] Our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a w hole. Agency findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary. W e do not weigh the evidence or evaluate the witnesses’ credibility.

Id. at 788-89 (citations, internal quotation marks, and alterations omitted).

II. Establishing Eligibility for Asylum or Restriction on Removal

A deportable alien may seek to remain in the United States by demonstrating that he qualifies for one or more of three statuses: asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3)(A), or relief under the [CAT], see Pub.L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822-23 (1998); 8 U.S.C. § 1231 (note). To qualify for asylum, an alien must show that he “has suffered past persecution or has ‘a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (alteration in original) (quoting 8 U.S.C. § 1101(a)(42)(A) and citing 8 C.F.R. § 208.13(a)). To qualify for restriction on removal, an alien must demonstrate that his “life or freedom w ould be threatened in [the proposed country of removal] because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A ); see also 8 C.F.R. § 1208.16(b). Protection under the CTA does not depend on a showing that mistreatment would be based on any particular characteristic (e.g. race or political opinion), but an alien seeking such relief must show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).

Id. at 788.

-4- III. Discussion

A. M r. Panjaitan’s Points 1-4: Asylum

Under § 1158(a)(2)(B), an alien may not apply for asylum “unless the alien

demonstrates by clear and convincing evidence that the application has been filed

within 1 year after the date of the alien’s arrival in the United States.” There is

no dispute that M r. Panjaitan did not meet this one-year time limit. He argues in

his first point, however, that he met one of the exceptions to the time limit found

in § 1158(a)(2)(D).

W e agree with the government that this court has no jurisdiction to review

this point of error. Section § 1158(a)(3) specifically instructs that “[n]o court

shall have jurisdiction to review any determination of the Attorney General under

paragraph (2).” M r. Panjaitan presents no argument on how this court may ignore

such an explicit directive. Although, “[w]ith Congress’ passage of the Real ID

Act, we now have jurisdiction to review constitutional claims and questions of

law , 8 U.S.C. § 1252(a)(2)(D ),” M r. Panjaitan’s argument to the BIA that his

inability to speak English and his unfamiliarity with United States’ immigration

law qualified as an “extraordinary circumstance,” is a “challenge[] directed solely

at the agency’s discretionary and factual determinations [and] remains outside the

scope of judicial review.” Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir.

2006) (internal quotation marks omitted). Since we have no jurisdiction to review

the B IA ’s determination that M r. Panjaitan’s asylum application was untimely, w e

-5- dismiss as moot his second, third, and fourth points which address the grounds for

granting asylum.

B. M r. Panjaitan’s Point 5: Restriction on Removal Under 8 U.S.C. § 1231(b)(3)(A )

Section 1231(b)(3)(A) reads in pertinent part: “the Attorney General may

not remove an alien to a country if the A ttorney General decides that the alien’s

life or freedom w ould be threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social group, or political

opinion.” “The restriction statute is satisfied by a showing that it is more likely

than not that the alien would be subject to persecution on one of the specified

grounds upon returning to [his] country of origin.” Tulengkey, 425 F.3d at 1280

(quotation omitted). “It is therefore more demanding than the ‘w ell-founded fear’

standard applicable to an asylum claim.” Elzour v. Ashcroft, 378 F.3d 1143, 1149

(10th Cir. 2004) (quotation omitted).

The evidence in this case consisted mainly of M r. Panjaitan’s testimony,

which the IJ found to be credible. M r. Panjaitan was born in the small, mostly

Christian, Indonesian village called Sipahuta. He is a Seventh Day Adventist and

lived in Sipahuta until he graduated from high school. During his time in

Sipahuta there were only a few incidents between M uslims and Christians because

“[t]here was no major opposition [from] the M uslims at that time.” Admin. R. at

81.

-6- After high school he moved to Jakarta and got married. Relations between

M uslims and Christians w ere still “relatively peaceful” during the time he lived in

Jakarta. Id. In 1979, M r. Panjaitan began working at a bank. His life remained

peaceful for approximately the next nine years until “general changes started to

happen in 1998 when the students wanted a different government.” Id. at 83. A t

that point in time M r. Panjaitan was living in “Bandalampong” and “things

changed and became quite disorganized.” Id. M r. Panjaitan testified that

“[p]hysically actually nothing happened to me, but in that particular time in

Bandalampong, there were a lot of M uslim extremists who caused a lot of

businesses to go down and one of them w as my bank.” Id. at 84. According to

M r. Panjaitan, the rise in M uslim extremism caused a lot of businesses to flee the

country and the departure of these business adversely affected the banking

industry due to the loans that subsequently went unpaid. He took a pension and

retired in February of 2000. He then left Indonesia, arriving in the United States

in December of 2000. The bank was taken over by “a conglomerate” and was still

in operation at the time of the hearing. Id. at 85.

M r. Panjaitan testified that another reason for coming to the United States

was that he was afraid that his son “wouldn’t be able to go to the university.” Id.

Nevertheless, he later testified that at the time of the hearing his family still lived

in Indonesia, his oldest son was 25 and had “just graduated recently from the

university” with a law degree, his second son was 23 and had “also just graduated

-7- in management,” and his third son was “in first grade in senior high.” Id. at

109-10.

M r. Panjaitan testified that there were M uslim extremists in the area w here

he lived and that “they shout Allah Akbar, all the time and they tell people that if

you are able to kill a non-believer, a person that does not belong to M uslims, then

you will go to heaven and what they mean is . . . Christians.” Id. at 84.

M r. Panjaitan’s testimony was basically that there was a rise in M uslim

extremism and that he was afraid that if the extremists were able to take over the

government it would cause a lot of problems for his family. As to specific

instances of persecution, he testified that a church was burnt near his house and

that “they show a lot of [physical persecution by extremists] on TV. Id. at 88.

Nothing ever happened to him physically, but stones had been thrown at a

building where he and other church members were holding meetings. He testified

that when the church celebrated Christian holidays it had to be done quietly and

under guard by the police. According to M r. Panjaitan, his children had at times

had anti-Christian insults shouted at them w hile coming home from school. But

despite his fear he admitted that “if I had to go home, I actually think that I’m not

as afraid as I used to be, but my life would be difficult because the economy is

still very bad.” Id. at 97. He also testified:

I w ould say physically I’m not as afraid because there are ways to avoid them, to run away from them, to not confront them but mentally it would be extremely difficult because I would be

-8- surrounded by M uslims and they would have this pressure on me, on my behavior, so that would be very hard.

Id.

“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.” Tulengkey, 425 F.3d at

1280 (quotation omitted). M r. Panjaitan had the burden of proof of showing that

it was more likely than not that he would be persecuted on account of his

Christian religion if he returned to Indonesia. The BIA adopted the IJ’s

determination that M r. Panjaitan had not met his burden of proof on his restriction

on removal claim. W hile the evidence shows some harassment and that the rise in

M uslim extremism has caused increased problems for Christians, M r. Panjaitan’s

family still lives in Indonesia and there was little evidence presented of their

persecution. In fact, his two oldest children had just graduated from university,

one with a law degree. Consequently, we hold that the BIA’s denial of restriction

on removal was supported by substantial evidence because from this record it is

impossible to say that all reasonable adjudicators would be compelled to conclude

to the contrary. 2

2 In his second point, M r. Panjaitan complains that the IJ failed to make an adequate factual finding as to whether he suffered past persecution. W e recognize that even though restriction on removal (unlike asylum) may not be granted solely on the basis of past persecution, this argument has some relevance to the IJ’s denial of restriction on removal since “[i]f the applicant is determined (continued...)

-9- C . M r. Panjaitan’s Point 6. R elief Under Article III of the CAT

In his sixth point, M r. Panjaitan argues that he raised the issue of the IJ’s

denial of relief under Article III of the CAT before the BIA and the BIA erred in

no addressing his claim of error. M r. Panjaitan argues:

In his brief to the BIA, counsel for [M r. Panjaitan] writes, “The Petitioner based his claim to asylum on his ethnicity and religious affiliation and convention against torture.” Thus by this written statement, [M r. Panjaitan] has made it clear to the BIA that he did not waive any challenge to the IJ’s conclusion that he Indra is ineligible for CA T.

Pet. Opening Br. at 17 (citation omitted). The statement cited by M r. Panjaitan is

from the statement of facts in his BIA brief. This is not a reasoned argument.

“The failure to raise an issue on appeal to the Board constitutes failure to exhaust

administrative remedies with respect to that question and deprives the Court of

2 (...continued) to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant’s life or freedom w ould be threatened in the future in the country of removal on the basis of the original claim.” 8 C.F.R. § 208.16(b)(1)(I).

Nevertheless, even if we considered this argument properly raised as to M r. Panjaitan’s denial of restriction, it would be denied. First, M r. Panjaitan never argued to the BIA that the IJ failed to make a finding as to past persecution. See Admin. R. at 11 (showing that M r. Jaitan’s second issue on appeal before the BIA was “[w]hether the [IJ] erred when he held that while [M r. Panjaitan] has not shown past persecution, he did not feel that [M r. Panjaitan] met the high burden of showing that it is more likely [than not] that he would be subject to persecution or torture.” (emphasis added)). Second, M r. Panjaitan has not directed us to any authority supporting a proposition that it is reversible error for an IJ not to make a specific finding as to past persecution when denying an application for restriction on removal.

-10- Appeals of jurisdiction to hear the matter.” Akinwunmi v. INS, 194 F.3d 1340,

1341 (10th Cir. 1999) (per curiam) (internal quotation marks omitted); De La

Cruz v. M aurer, ___ F.3d ___, 2007 W L 970166, at *2 (10th Cir. April 3, 2007)

(“[W ]e have jurisdiction only over those claims that were presented to the B IA

and were properly appealed to this court . . . .”).

CONCLUSION

M r. Panjaitan’s petition for review is therefore DENIED.

Entered for the Court

M ichael W . M cConnell Circuit Judge

-11-