Turangan v. Gonzales

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 10, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

DAVID W. TURANGAN;
KEVIN M. TURANGAN;
RENAWATI GULTON,

Petitioners,

v. No. 07-9517
(Petition for Review)
MICHAEL B. MUKASEY, *
Attorney General,

Respondent.

ORDER AND JUDGMENT **

Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.

David Turangan, his wife Renawati Gultan, and their son Kevin Turangan,

petition for review of a Board of Immigration Appeals (BIA) decision denying

their applications for asylum, restriction on removal, and protection under the

*
Pursuant to Fed. R. App. P. 43(c)(2), Michael B. Mukasey is substituted for
Alberto R. Gonzales as appellee 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Convention Against Torture (CAT). The sole issue presented is whether

petitioners are eligible for restriction on removal. We agree with the BIA’s

determination that petitioners failed to establish their eligibility for restriction on

removal and therefore deny the petition for review.

I.

Petitioners are natives and citizens of Indonesia. They entered the United

States on October 29, 2000, on B-2 visitor visas authorizing them to stay until

April 28, 2001. They overstayed their visit, however, and subsequently applied

for asylum in 2003. The Department of Homeland Security accepted their

applications on September 11, 2003, but denied relief because petitioners failed to

file their applications within one year of entering this country. Thereafter, the

government commenced removal proceedings, charging petitioners under 8 U.S.C.

§ 1227(a)(1)(B) for having remained in the United States beyond their authorized

time. Petitioners conceded their removability, but reasserted their request for

asylum, adding claims for restriction on removal and protection under the CAT.

An Immigration Judge (IJ) denied relief, the BIA affirmed, and this petition

followed.

II.

Our threshold inquiry is whether we have jurisdiction to consider this

petition. See Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1147 (10th Cir. 2005)

(“We must first address a threshold jurisdictional question before turning to the

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merits.”). Petitioners do not challenge the agency’s decision regarding the denial

of asylum or relief under the CAT and as a consequence, we have no occasion to

consider the propriety of these conclusions. With regard to the BIA’s denial of

restriction on removal, however, we review the agency’s legal determinations

de novo and its findings of fact under the substantial evidence standard, Elzour v.

Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). The BIA’s decision is reviewed

as the final order of removal, but where the BIA relies on the IJ’s rationale to

reach its decision, we may consult the IJ’s opinion to the extent relied upon by

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

An alien is entitled to restriction on removal if “the alien’s life or freedom

would be threatened in [the country of removal] on account of the alien’s race,

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

opinion.” 8 U.S.C. § 1231(b)(3)(A); see also Sidabutar v. Gonzales,

503 F.3d 1116, 1123 (10th Cir. 2007). An alien creates a rebuttable presumption

that he is eligible for restriction on removal by showing he suffered past

persecution on account of any of these five grounds, 8 C.F.R. § 1208.16(b)(1), or

by showing that it is “more likely than not” that he will suffer future persecution

if returned to the country of removal, id., § 1208.16(b)(2); see also Sidabutar,

503 F.3d at 1124.

In this case, petitioners assert they suffered past persecution and face a

clear probability of future persecution on account of their Christian faith. With

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regard to past persecution, they cite Mr. Turangan’s childhood, when he was

harassed by students and administrators at his school. They also cite riots

Mr. Turangan later observed in 1997 and 1998, during which Muslims targeted

Christians on account of religious animus, causing petitioners to feel trapped in

their home while their church was damaged. Petitioners claim the BIA erred in

concluding that this evidence did not show past persecution because the BIA

failed to consider certain background material discussing Christian churches that

had been damaged or destroyed between 1945 and 1998, Indonesia’s poor human

rights record, a growing terrorist movement, and a limited number of officially

recognized religions.

We perceive no error. 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 must entail more than just restrictions or threats to life and liberty.”

Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) (internal quotation

marks omitted). To establish past persecution, an alien must show (1) an incident

that rises to the level of persecution; (2) on account of a statutorily-protected

basis; (3) committed by the government or forces the government cannot or will

not control. Niang v. Gonzales, 422 F.3d 1187, 1194-95 (10th Cir. 2005). Here,

petitioners simply allege nothing that rises to the level of persecution. See Singh

v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (explaining that “[m]ere generalized

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lawlessness and violence between diverse populations” is not enough to show

persecution).

Still, petitioners maintain that the cumulative effect of their past

experiences creates a presumption of future persecution. But because they fail to

establish past persecution, petitioners are not entitled to a presumption of future

persecution. 8 C.F.R. § 1208.16(b)(2). Instead, they must affirmatively show a

clear probability of future persecution by demonstrating either that they would be

singled out personally for persecution, or that they have “a reasonable fear of

persecution because of [their] membership in a group subject to a pattern or

practice of persecution.” Woldemeskel v. INS, 257 F.3d 1185, 1190-91 (10th Cir.

2001) (internal quotation marks omitted). Petitioners make no showing on either

of these grounds and as a result, fail to establish that they face a clear probability

of future persecution. Petitioners are not eligible for restriction on removal.

Accordingly, the petition for review is DENIED.

Entered for the Court

Stephen H. Anderson
Circuit Judge

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