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
JO N N Y LEO N A RD ; R AN D H Y
AN AN DY GU LTOM ; SITI
H ID A Y ATI; M A RLY N
TH IA N OV ,
No. 06-9516
Petitioners, (N os. A97-192-525, 96-291-222,
97-192-526 & 97-192-527)
v. (Petition for Review)
ALBERTO R. GONZA LES,
Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.
Jonny Leonard, Siti Hidayati, 1 Randhy Anandy Gultom, and M arlyn
Thianov (collectively “Petitioners”) seek review of a final order of removal issued
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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
Although M s. Hidayati’s name is spelled “Hatayate” in some portions of
the record, see, e.g., Admin. R. at 101, her name is spelled “Hidayati” on her
passport, see id. at 431, and that is the spelling we will use.
by the Board of Immigration Appeals (BIA) affirming the denial of their
applications for asylum, withholding of removal under the Immigration and
Nationality Act (INA), and withholding of removal under the United Nations
Convention Against Torture (CAT). The petition for review is dismissed in part
and denied in part.
Asylum Claim
Petitioners challenge the IJ’s determination that M r. Gultom’s asylum
application was untimely. 2 An asylum application must be “filed within 1 year
after the date of the alien’s arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B). Petitioners concede that the application was untimely, but they
argue that M r. Gultom is entitled to an exception to the one-year deadline because
he demonstrated “extraordinary circumstances relating to the delay in filing,” id.
§ 1158(a)(2)(D).
Prior to the enactment of the REAL ID Act in M ay 2005, courts did not
have jurisdiction to review a timeliness determination made under section
1158(a)(2). See id. § 1158(a)(3). After the REAL ID Act, courts were given
limited jurisdiction to review “constitutional claims or questions of law” related
to the timeliness determination. Diallo v. Gonzales, 447 F.3d 1274, 1281
2
M r. Leonard and M r. G ultom filed separate applications for asylum.
M s. Hidayati and M s. Thianov are listed on M r. Leonard’s application and are
therefore considered derivative beneficiaries of his application. Petitioners are
challenging only the timeliness determination with respect to M r. Gultom’s
asylum application. See Pet. Br. at 12-13.
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(10th Cir. 2006) (quoting 8 U.S.C. § 1252(a)(2)(D)). “However, challenges
directed solely at the agency’s discretionary and factual determinations remain
outside the scope of judicial review.” Id. Petitioners’ argument focuses on the
alleged factual circumstances involved in the delayed filing of M r. Gultom’s
asylum application and the IJ’s discretionary decision that M r. Gultom had not
established his entitlement to an exception to the one-year filing deadline. This
argument does not raise a constitutional claim or a question of law. W e do not
have jurisdiction to review this type of challenge. See id.
W ithholding of R emoval Claim s
Petitioners contend that the IJ erred in making his adverse credibility
finding and that the record as a whole supports their claims for withholding of
removal under the INA and the CAT. Petitioners essentially claim that they fear
returning to Indonesia because they will suffer persecution at the hands of
M s. Hidayati’s family due to their Christian religious beliefs. The IJ found that
the petitioners’ testimony on this issue was not credible. He reasoned that it was
not plausible that M s. Hidayati’s allegedly devout M uslim family would not have
uncovered their Christian faith, if (as the IJ found) they practiced it near her
family in Indonesia for 18 years. Admin. R. at 71-74.
An IJ’s credibility determination will be upheld “so long as the IJ provides
specific, cogent reasons for disbelieving the witness’ testimony.” Elzour v.
Ashcroft, 378 F.3d 1143, 1152 (10th Cir. 2004) (quotation and citation omitted).
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An adverse credibility determination may be based on inconsistencies in the
witness’ testimony, lack of sufficient detail, implausibility, or testimonial
demeanor. Id. at 1152-53. “A n IJ’s finding that an applicant’s testimony is
implausible may not be based upon speculation, conjecture, or unsupported
personal opinion.” Id. at 1153.
The IJ supported his adverse credibility finding with evidence from the
record. He noted that the petitioners testified that their children attended
religious school for about twelve years each and that the children had to wear
uniforms from the Christian school. Also, there was a period of time when
M r. Gultom lived with his grandparents when he was a child and, according to the
testimony, his mother came to pick him up every day and he continued to go to
the Christian school. The IJ concluded that “the families lived in relatively close
proximity to one another” and that it was “inconceivable . . . that if they were
indeed practicing Christians that their practice would not have come to light while
they were living in Indonesia.” Admin. R. at 72.
In order to establish withholding of removal under the INA, petitioners
must show that it is more likely than not that they would be persecuted upon their
return to Indonesia. Woldemeskel v. INS, 257 F.3d 1185, 1193 (10th Cir. 2001).
As discussed above, the IJ found that petitioners’ testimony about potential
persecution from their relatives was not credible and that the fact that they were
able to live in Indonesia for 18 years and allegedly pursue their religious
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activities shows that they are able to live in Indonesia without serious harm being
inflicted on them by their relatives. The IJ also noted that the Department of
State report indicated that Jehovah’s W itnesses, another Christian denomination,
enjoyed a high degree of religious freedom in Indonesia. Admin. R. at 74.
M oreover, M r. Leonard testified that he was able to worship freely as a Christian
in Indonesia. Id. at 126. Substantial evidence in the record supports the IJ’s
determination that petitioners had not met their burden of establishing entitlement
under the IN A to withholding of removal.
In order to satisfy the requirements under the CAT, an applicant must
establish that it is more likely than not that he or she would be tortured if returned
to the proposed country of removal. 8 C.F.R. § 208.16(c)(4). The IJ concluded
that petitioners were ineligible for CAT relief because this provision “requires the
respondents to show at least acquiescence in torture by a government official, or
someone acting with official authority” and petitioners had failed to show any
kind of mistreatment at the hands of the authorities. Admin. R. at 75. The IJ
correctly articulated the operative legal principle. Ferry v. Gonzales, 457 F.3d
1117, 1130-31 (10 th Cir. 2006). And petitioners have not pointed to any evidence
in the record to support this claim. Both M s. Hidayati and M r. Leonard testified
that they had never been harmed by the Indonesian government. Id. at 122, 148.
The IJ’s decision is supported by substantial evidence in the record.
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The petition for review as to the asylum claim is DISM ISSED for lack of
jurisdiction. As to the withholding of removal claims under the INA and the
CAT, the petition is DENIED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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