Aritonang vs. Gonzales

Filing 920070604

Opinion

United States Court of Appeals Tenth Circuit U N I T E D ST A T E S C O U R T O F A P P E A L S FO R TH E TENTH CIRCUIT

FILED

June 4, 2007
Elisabeth A. Shumaker C le r k of Court

PA R L IN D U N G A N A RIT O N A N G ; R O N A U L I SIM A T U P A N G , P etition ers, v. A L B E R T O R. GONZA L E S , A t t o r n e y General, R esp ondent. N o . 06-9551 ( A g . Nos. A97-186-460 and A97-186-461) ( P e t i t i o n for Review)

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

B e f o r e M c C O N N E L L , PO R F I L I O , and B A L D O C K , Circuit Judges.

I n this petition for review , Parlindungan Aritonang and Ronauli S i m a t u p a n g , a married couple, challenge the decision of the Board of Immigration A p p e a l s (BIA) to deny their application for asylum, restriction on removal, and

*

After examining the briefs and appellate record, this panel has determined u n a n i m o u s l y to grant the parties' request for a decision on the briefs without oral a r g u m e n t . See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore o r d e r e d submitted without oral argument. This order and judgment is not binding p r e c e d e n t , except under the doctrines of law of the case, res judicata, and c o l l a t e r a l estoppel. It may be cited, however, for its persuasive value consistent w i t h Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

p r o t e c t i o n under the Convention Against Torture. W e dismiss their claim c o n c e r n i n g asylum for lack of jurisdiction and deny the petition for review of the BIA ' s remaining decisions. I. P e t i t i o n e r s are Indonesian citizens and practicing Christians who claim that t h e y will be persecuted on account of their religious beliefs if returned to I n d o n e s i a . Although petitioner Aritonang himself has never been injured, he c l a i m s he has been threatened by M u s l i m extremists, some "carry[ing] signs s a y i n g `Kill the Christians.'" Aplt. Br. at 2. He also states that he "survived s o m e near misses" when the extremists threw stones at his church building, s h a t t e r i n g glass and causing "head wounds, bruises and other injuries to the c h u r c h members." Id. M r . Aritonang also felt discriminated against in work o p p o r t u n i t i e s . He believes the situation has worsened since he left Indonesia, as e x e m p l i f i e d by the 2002 Bali bombings of locations frequented by foreign t o u r i s t s . Petitioner Simatupang, a nurse, treated many Christian victims for i n j u r i e s inflicted by the extremists and felt traumatized by her experience. M r . Aritonang arrived in the United States on a six-month tourist visa in 1 9 9 4 ; petitioner Simatupang arrived on a six-month tourist visa in 2000. Both p e t i t i o n e r s overstayed their visas. The parties married in 2001.

-2-

M o r e than eight years after the expiration of his visa, M r . Aritonang filed a n application for asylum, restriction on removal, and protection under the United N a t i o n s Convention Against Torture (CAT) for himself and M s . Simatupang. The I m m i g r a t i o n Judge (IJ) denied the asylum application because it was not filed w i t h i n the statutory one-year time-limit and M r . Aritonang did not show changed o r extraordinary circumstances excusing the tardiness. Turning to the requested w i t h h o l d i n g of removal and CAT relief, the IJ recognized that "the situation for C h r i s t i a n s in Indonesia is not ideal." Admin. R. at 45. The IJ determined, h o w e v e r , that aspects of M r . Aritonang's testimony were not credible, that the h a r m described by petitioners did not rise to the level of persecution, and that b a c k g r o u n d material indicated that conditions w e r e improving for Christians in I n d o n e s i a . The IJ therefore denied petitioners' request for withholding of r e m o v a l and CAT relief. On administrative appeal, the Board of Immigration A p p e a l s adopted and affirmed the IJ's findings and conclusions on the substantive issues. II. P e t i t i o n e r s admit that their asylum application was not "filed within 1 year a f t e r the date of [their] arrival in the U n i t e d States," 8 U.S.C. § 1158(a)(2)(B), b u t argue that they are entitled to an exception to the time limit based on

-3-

" c h a n g e d circumstances which materially affect [their] eligibility for asylum" and " e x t r a o r d i n a r y circumstances relating to the delay in filing," id. § 1158(a)(2)(D). They ask this court "to consider the facts of their case." A p l t . Br. at 8. The IJ's f a c t u a l determination related to timeliness is "outside the scope of judicial r e v i e w . " Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006). Accordingly, w e lack jurisdiction to review petitioners' challenge to the denial of asylum. III. W e are not, however, precluded from reviewing the denial of restriction on r e m o v a l or relief under the CAT. See Tsevegmid v. Ashcroft, 336 F.3d 1231, 1 2 3 5 (10th Cir. 2003), superseded by statute on related grounds, REAL ID Act o f 2005, Pub. L. No. 109-13, 119 Stat. 231, §106(a)(1)(A)(iii), as recognized in D i a l l o , 447 F.3d at 1281. When the BIA summarily affirms an IJ's decision, w e r e v i e w the IJ's decision as the final agency determination. Elzour v. Ashcroft, 3 7 8 F.3d 1143, 1150 (10th Cir. 2004). Our review is circumscribed by 8 U.S.C. § 1252(b)(4)(B), which provides "administrative findings of fact are conclusive u n l e s s any reasonable adjudicator would be compelled to conclude to the c o n t r a r y . " W e also keep in mind that petitioners bear the burden to prove their c l a i m s . 8 U.S.C. §1231(b)(3)(C) (applicable to restriction on removal); 8 C.F.R. § 208.16(c)(2) (applicable to CAT).

-4-

R e s t r i c t i o n on removal prohibits the removal of "an alien to a country if the A t t o r n e y General decides that the alien's life or freedom would be threatened in t h a t country because of the alien's . . . religion." 8 U.S.C. § 1231(b)(3)(A). Petitioners must establish eligibility for the relief by demonstrating that there is a c l e a r probability of persecution if returned to Indonesia. Niang v. Gonzales, 4 2 2 F.3d 1187, 1195 (10th Cir. 2005) "[P]ersecution requires the infliction of s u f f e r i n g 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 l i f e and liberty." Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004) ( q u o t a t i o n s omitted). Petitioners argue that the IJ erred in failing to find that their cumulative e x p e r i e n c e s demonstrate past persecution at the hands of M u s l i m extremists in I n d o n e s i a . They also assert that the IJ failed to recognize a probability of p e r s e c u t i o n on their return to Indonesia, since they would be targeted as both C h r i s t i a n s and individuals who had lived in the United States. Our review of the r e c o r d , however, reveals substantial evidence in the record to support the IJ's f i n d i n g that petitioners failed to establish either past persecution or a wellf o u n d e d fear of persecution upon their return to Indonesia. C onvention A gainst T orture

-5-

T o satisfy requirements under the CAT, petitioners m u s t demonstrate that it i s more likely than not that they would be tortured if returned to Indonesia. See 8 C.F.R. § 208.16(22)(c)(4). A showing of entitlement to CAT relief includes e v i d e n c e that the government in the proposed country of removal either inflicts t o r t u r e or acquiesces in torture against persons similarly situated to petitioners. See Ferry v. Gonzales, 457 F.3d 1117, 1130-31 (10th Cir. 2006). The IJ denied relief based on his finding that petitioners had failed to p r o d u c e any evidence that the Indonesian government promoted torture or turned a willfully blind eye to torture. Admin. R. at 46. To the contrary, the IJ found " [ t ] h e background material indicate[s] that the government is officially comm i t t e d t o the protection of Christians in Indonesia." Id. Substantial evidence supports t h e IJ's CAT decision. IV. T h e petition for review as to the asylum claim is DISM I S S E D for lack of j u r i s d i c t i o n . As to the withholding of removal claims under the INA and the C A T , the petition is D E N I E D .

E n t e r e d for the Court

B o b b y R. Baldock C i r c u i t Judge -6-

-7-