Aritonang vs. Gonzales
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
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.
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
" 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).
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
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-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?