Sibuea v. Gonzales

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS December 28, 2007
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

ANGGIA SIBUEA; SUSY
WIDJAJANTI,

Petitioners,

v. No. 07-9508
(Petition for Review)
MICHAEL B. MUKASEY, *
Attorney General,

Respondent.

ORDER AND JUDGMENT **

Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.

Petitioners Anggia Sibuea and Susy Widjajanti, a husband and wife who are

natives and citizens of Indonesia, petition for review of a decision by an

Immigration Judge (“IJ”), affirmed by the Board of Immigration Appeals

*
Pursuant to Fed. R. App. P. 43(c)(2), Michael B. Mukasey is substituted for
Alberto R. Gonzales as respondent in this appeal.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
(“BIA”), denying their applications for asylum, restriction on removal under the

Immigration and Nationality Act (“INA”), and relief under the United Nations

Convention Against Torture (“CAT”). Petitioners are Christians of the Seventh

Day Adventist denomination and Ms. Widjajanti also claims Chinese ethnicity.

Petitioners claim they will be persecuted for their religious beliefs and for

Ms. Widjajanti’s ethnicity if forced to return to Indonesia. The IJ denied their

application for asylum as untimely. The IJ found in regard to petitioners’

application for restriction on removal under the INA and relief under the CAT

that petitioners failed to show past persecution, torture, or that it would be more

likely than not that they would be persecuted or tortured upon return to Indonesia.

The IJ also found that petitioners would be able to relocate to a safe area of

Indonesia if necessary upon their return. The IJ therefore denied restriction on

removal and relief under the CAT but granted voluntary departure. The BIA

affirmed, and the petition for review was filed. We lack jurisdiction over

petitioners’ asylum claim and dismiss the petition as to that point. As to

petitioners’ remaining points, we exercise jurisdiction under 8 U.S.C. § 1252 and

deny the petition.

I. BACKGROUND

Petitioners arrived in the United States in June 1997 and then overstayed

their nonimmigrant visas. Petitioners main claim is that they will persecuted if

they are forced to return to Indonesia because some of Mr. Sibuea’s relatives on

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his mother’s side, who are Muslim, believe that he and his wife played a role in

converting his mother, who was born a Muslim, to Christianity. 1 Mr. Sibuea

testified that his mother’s family is very militant regarding religion and is

politically connected. It is clear from the record that Mr. Sibuea and his wife

actually played no role in his mother’s conversion in that the conversion occurred

in 1960, six years prior to Mr. Sibuea’s birth, and he was raised in a Christian

household.

Mr. Sibuea met Ms. Widjajanti, who was also raised a Christian, at a

private college from which they both graduated with degrees in accounting. They

were married in 1996 in Jakarta where they were living and working. Mr. Sibuea

claims that his mother managed to keep her conversion to Christianity a secret

from her family until June of 1997, four days before Mr. Sibuea, Ms. Widjajanti,

and Mr. Sibuea’s mother left for the United States. 2 Mr. Sibuea’s aunt told his

mother that she had been seen entering church and that her family was going to

kill the three of them. After the three left for the United States, their house was

vandalized.

1
According to hearing testimony, Mr. Sibuea’s mother is now a permanent
resident in the United States.
2
Mr. Sibuea and Ms. Widjajanti testified that when they left Indonesia, they
were only going to the United States to visit relatives and that their intention was
to return to their home country after their visit. Somewhat incongruously, they
also testified that prior to their departure Mr. Sibuea’s mother was not being as
careful about hiding her Christian religion because she knew she was getting
ready to leave Indonesia.

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 Ms. Widjajanti testified that Indonesians of Chinese descent are

discriminated against by Muslims in Indonesia. She testified that she had a

Chinese name that she only used with her family because she was afraid to use it

in public and that the Indonesian government charged Indonesians of Chinese

heritage more for government documents than it charged other Indonesians. She

testified that there was a major anti-Chinese riot that took place in the 1960’s,

another that took place in 1997 and 1998, and that she and Mr. Sibuea gave up

hope of returning to Indonesia following a bombing that occurred in Bali in 2002.

She testified that she was harassed growing up because of her religion and

ethnicity and that on two occasions the harassment was so severe that her family

reported it to the police. On the first occasion, which occurred when she was nine

or ten years old, she was assaulted and insulted by Muslim men who tried to

fondle her and then hit her in the back while calling her derogatory names. On

the second occasion, which occurred six or seven years after the first, she was

driving home from school on a motorcycle and some Muslim men tried to stop her

and sexually harass and touch her. She claimed that Muslim neighbors also

insulted her family and sometimes threw stones at their house. She claimed that

reporting the incidents to the police accomplished nothing.

Mr. Sibuea also testified that he had been harassed and insulted when

younger because of his Christianity. He testified that on one occasion, he was

physically injured. That time he and a sibling were riding to church on a

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motorcycle when three or four Muslim people stopped them and pushed him in

such a way that he fell to the ground and injured his chin. Mr. Sibuea also

testified that his family’s Muslim neighbors threw trash at their house on

occasion. As to his mother’s conversion, he testified that his mother’s family

wanted them killed, but he only identified three particular individuals–two aunts

who were in their seventies or eighties and a male cousin in his thirties–when he

was asked who specifically might injure them.

Petitioners testified that Mr. Sibuea’s mother returned to Indonesia in

September 2005 to see a brother who was dying. The brother, allegedly a fanatic

Muslim who nevertheless cared deeply for his Christian sister, told her that she

should leave Indonesia quickly because their family still wanted to kill her,

Mr. Sibuea, and Ms. Widjajanti. Mr. Sibuea’s mother immediately went to

Jakarta and hid with a friend for three weeks until it was time for her to return to

the United States.

As to family members still living in Indonesia, Ms. Widjajanti’s father has

passed away from natural causes but her mother, brother, and sister, all Chinese

Christians, still live in Indonesia. Mr. Sibuea’s father also passed away but he

has five sisters and three brothers, all Christian. Three of his siblings still live in

Indonesia and the other five now live in the United States. 3

3
It does not appear from the record that any of Mr. Sibuea’s relatives living
in the United States have received asylum.

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 II. DISCUSSION

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

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

We 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). On review, we “look to the

record for ‘substantial evidence’ supporting the agency’s decision.” Id. at 788.

We review the agency’s legal conclusions de novo, see Tulengkey v. Gonzales,

425 F.3d 1277, 1280 (10th Cir. 2005), but “[a]gency findings of fact are

conclusive unless the record demonstrates that any reasonable adjudicator would

be compelled to conclude to the contrary,” Sarr, 474 F.3d at 788-89 (quotation

omitted).

A. Asylum

Petitioners argue that they are eligible for asylum, that the agency erred in

not granting them asylum, and that this court has jurisdiction to review that

denial. However, they do not address the untimeliness of their asylum

application, which was the agency’s stated reason for that denial. Under 8 U.S.C.

§ 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

petitioners did not meet this one-year time limit. Nevertheless, the only mention

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in their brief of the untimeliness of their application is an acknowledgment that

the application was not filed within the one-year limit, followed by the statement

that “[Petitioners] are nevertheless members of disfavored group[s] given their

Christian and Chinese ethnicity.” Aplt. Br. at 15. This is not a coherent

argument.

As petitioners’ argument addresses the merits of their asylum claim, an

issue never reached by the agency, it is moot. To the limited extent that it can be

read as attacking the timeliness determination, we are without jurisdiction to

conduct such a review. Section 1158(a)(3) specifically instructs that “[n]o court

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

the paragraph regarding timeliness].” Point dismissed.

B. Restriction on Removal

To qualify for restriction on removal, an alien must demonstrate that his

“life or freedom would be threatened in [the proposed country of removal]

because of the alien’s race, religion, nationality, membership in a particular social

group, or political opinion.” 4 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R.

§ 1208.16(b). “In order to demonstrate eligibility for [restriction on removal],

the applicant must establish a clear probability of persecution through

4
Prior to the amendment to the INA made by the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, restriction on removal was called
withholding of removal. See Wiransane v. Ashcroft, 366 F.3d 889, 892 n.1 (10th
Cir. 2004). Petitioners’ application was filed in 2003, so we use the term
restriction on removal.

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presentation of evidence establishing that it is more likely than not that the

applicant would be subject to persecution.” Woldemeskel v. INS, 257 F.3d 1185,

1193 (10th Cir. 2001) (quotation omitted). A showing of past persecution creates

a rebuttable presumption that the applicant’s life or freedom would be threatened

in the future in the country of removal on the basis of the original claim. 8 C.F.R.

§ 1208.16(b)(1).

Mr. Sibuea and Ms. Widjajanti argue that the harassment that they suffered

when younger and the threats to their lives from Mr. Sibuea’s mother’s family

constitute past persecution. We agree with the IJ that these incidents do not rise

to the level of persecution.

“Although persecution is not defined in the INA, we have held that a
finding of persecution requires the infliction of suffering or harm
upon those who differ (in race, religion, or political opinion) in a
way regarded as offensive and must entail more than just restrictions
or threats to life and liberty.” [Wiransane, 366 F.3d at 893] (internal
quotation omitted). Compare Tulengkey, 425 F.3d at 1281 (finding
no past persecution where alien was robbed, fondled, and suffered a
minor head injury); Kapcia v. INS, 944 F.2d 702, 704-05, 708 (10th
Cir. 1991) (holding no past persecution where alien had twice been
detained for two-day periods during which he was beaten and
interrogated, whose parents’ home had been searched, whose work
locker had been repeatedly broken into, and who had been assigned
poor work tasks, denied bonuses, and conscripted into the army,
where he was constantly harassed); and Lie v. Ashcroft, 396 F.3d
530, 536 (3d Cir. 2005) (“[T]wo isolated criminal acts, perpetrated
by unknown assailants, which resulted only in the theft of some
personal property and a minor injury, is not sufficiently severe to be
considered persecution.”); with Nazaraghaie v. INS, 102 F.3d 460,
463-64 (10th Cir. 1996) (suggesting that asylum applicant’s severe
beating and ten month imprisonment on account of his political
opinion constituted persecution).

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Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007).

Nor are Mr. Sibuea and Ms. Widjajanti entitled to restriction on removal

based solely on the clear probability of future persecution in Indonesia. We first

note that even though they have not suffered past persecution, Mr. Sibuea and

Ms. Widjajanti are not required to provide evidence that they would be singled

out individually for persecution upon their return if they can establish that “there

is a pattern or practice of persecution” of Christians–or Chinese Christians in

Ms. Widjajanti’s case–in Indonesia. See 8 C.F.R. § 1208.16(b)(2)(i-ii). A pattern

or practice of persecution entails “something on the order of organized or

systematic or pervasive persecution.” Woldemeskel, 257 F.3d at 1191 (quotation

omitted). The allegations in the record do not support such a conclusion in this

case.

As to the claim that Mr. Sibuea and Ms. Widjajanti would be singled out

individually by Mr. Sibuea’s mother’s family for converting Mr. Sibuea’s mother

to Christianity, we believe the IJ’s factual finding that this would be unlikely to

occur is supported by substantial evidence. The record contains a baptism

certificate clearly showing that the conversion took place six years before

Mr. Sibuea was even born and, if that is the only reason that Mr. Sibuea’s family

would have to perpetrate violence against petitioners, the misunderstanding would

seem to be easily dispelled.

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 More importantly, the IJ found that petitioners could relocate to safety

within Indonesia.

[A]n applicant cannot demonstrate that his or her life or freedom
would be threatened if the . . . [IJ] finds that the applicant could
avoid a future threat to his or her life or freedom by relocating to
another part of the proposed country of removal and, under all the
circumstances, it would be reasonable to expect the applicant to do
so.

8 C.F.R. § 1208.16(b)(2). Since they did not establish past persecution,

Mr. Sibuea and Ms. Widjajanti bore the burden of proving that it would not be

reasonable for them to relocate. See id. § 1208.16(b)(3)(i). We agree with the

BIA’s determination that relocation would remove the threat from

Ms. Widjajanti’s family and that the record did not demonstrate that relocation

would be unreasonable in a country of 241 million people. The IJ held that “[a]s

Christians, they would be facing persecution in Indonesia only in an isolated or

non-countrywide situation and not as the result of government action.” Admin. R.

at 68. This is consistent with the State Department country reports on Indonesia

that are in the record. See id. at 234, 245-47, 260-70. It is true that petitioners

testified that Mr. Sibuea’s mother’s family was well-connected and could find

them if they returned, and that these connections would also allow them to effect

retribution without legal consequences, but this testimony was very

general–simply that Mr. Sibuea knew the family was very wealthy, included

important Muslim leaders, and had many friends and acquaintances who worked

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in the government and with police. Nevertheless, Mr. Sibuea failed to

specifically identify any of these friends and acquaintances, could only identify

one member of his mother’s family who worked for the government, and could

not identify what kind of work that person did. It is therefore entirely unclear

what level of influence Mr. Sibuea’s mother’s family had with the government

and whether that influence was of a local or national variety. Further, there is no

evidence that petitioners ever went to the police or government regarding the

threats to Mr. Subuea’s wife’s family. Consequently, we cannot say that

substantial evidence is lacking as to the agency’s determination. Point denied.

C. Relief under the CAT

Although petitioners assert in two headings in their brief that this court has

jurisdiction to review the denial of relief under the CAT, there is no argument in

the brief that they have been tortured, would face torture if returned to Indonesia,

or are otherwise entitled to relief under the CAT. Accordingly, we deem the

argument waived. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1202 n.4 (10th Cir.

2003). Point denied.

III. CONCLUSION

The petition for review is DISMISSED for lack of jurisdiction to the extent

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it seeks review of the denial of asylum on the ground that the application was

untimely. The remainder of the petition for review is DENIED.

Entered for the Court

John C. Porfilio
Circuit Judge

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