FNU v. Mukasey

FILED
United States Court of Appeals
Tenth Circuit

April 17, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

KARYA FNU,

Petitioner,

v. No. 07-9550
(Petition for Review)
MICHAEL B. MUKASEY,
United States Attorney General,

Respondent.

ORDER AND JUDGMENT *

Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.

Petitioner Karya, FNU, 1 is a citizen and native of Indonesia who has been

ordered removed from the United States. He petitions for review of an order of

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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
This case is captioned “Karya FNU,” the last three letters signifying
“Family Name Unknown.” Like many Indonesians, Karya uses only one name.
Admin. R. at 87-88. See also http://en.wikipedia.org/wiki/Indonesian_name
(visited April 14, 2008) (explaining Indonesian naming conventions). He also has
a Chinese name, Pek Cai Kun.
the Board of Immigration Appeals (BIA) adopting the decision of an immigration

judge (IJ) denying his application for asylum, restriction on removal, 2 and relief

under the Convention Against Torture (CAT). We deny the petition for review.

BACKGROUND

Karya is ethnic Chinese, born to Chinese parents in Indonesia in 1973. His

father owns a small palm-seed plantation in Indonesia. His wife and their

children reside in Indonesia with her parents.

Karya has conceded his removability from this country. He was admitted

to the United States on a non-immigrant student visa, arriving on March 18, 2003,

but he did not attend school. He overstayed his visa instead and remained in the

United States without authorization.

On February 12, 2004, he submitted a timely application for asylum and

restriction on removal, contending that he faced persecution if returned to

Indonesia because of his race and his political opinions. The IJ held a hearing on

2
Restriction on removal was known as “withholding of removal” before the
amendments to the Immigration and Nationality Act (INA) made by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.
No. 104-208, 100 Stat. 3009. The regulations under the INA, however, retain the
former term “withholding of removal,” see, e.g., 8 C.F.R. § 208.16(b), and both
Karya and the IJ referred to “withholding of removal.” We employ the statutory
term “restriction on removal.” See Ismaiel v. Mukasey, 516 F.3d 1198, 1200 n.2
(10th Cir. 2008).

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this application, at which Karya testified. In his testimony, he detailed a series of

incidents of alleged persecution based on his Chinese ethnicity.

Karya testified that his father pays protection money to “gangsters” who

have threatened his palm-seed business. Karya was the only Chinese child in his

public elementary school, and his classmates harassed him for being ethnic

Chinese. Some of his teachers also picked on him. He was beaten on one

occasion in public school by a native Indonesian classmate. He later dropped out

of school for two years but attended a private high school and was not harassed

there.

After high school, one of his friends was allegedly beaten to death when the

friend confronted a group of gangsters. Gangsters also approached Karya,

demanding money, and when he stated he did not have any and asked them why

they always asked for money from Chinese people, they beat him until his face

bled. Karya later started a business selling rice, for which he had to pay

protection money to a gang. That business was destroyed during anti-Chinese

rioting in 1998.

An additional incident of alleged persecution occurred in 2002, when

gangsters robbed Karya. Also in 2002, his brother died. Although Karya’s

family was told that the death was caused by a car accident, they were suspicious

of this explanation because there was some kind of a mark on the back of the

brother’s hand that they believed was evidence that he had been beaten to death.

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 The IJ did not find Karya’s testimony entirely credible. He characterized it

as “not sufficiently detailed, consistent, or believable to provide a plausible and

coherent account for the basis of his fears and [it] thus cannot suffice to establish

his eligibility for asylum without any corroborat[ion].” Admin. R. at 58. The IJ

noted the lack of corroborating evidence for Karya’s story, such as medical

exams, police reports, and accident reports. He also noted that there was no

evidence that he had attempted to get his wife and children out of Indonesia. His

family still lived there and owned a business and the children were in school.

Finally, the IJ concluded that country conditions have improved and that the

Indonesian government does attempt to prosecute and incarcerate the sort of

“gangsters” who perpetrate assaults like those of which Karya complained.

The IJ determined that Karya had failed to satisfy his burden of proof for

either asylum or restriction on removal. The BIA affirmed this determination in a

brief order. It adopted and affirmed the IJ’s decision and also specifically

rejected Karya’s argument that the IJ had applied an incorrect legal standard by

requiring him to provide corroboration for his allegations of past persecution.

ANALYSIS

1. Applicable Standards

To obtain asylum, Karya must first prove that he is a “refugee” as defined

in 8 U.S.C. § 1101(a)(42)(A). See Uanreroro v. Gonzales, 443 F.3d 1197, 1202

(10th Cir. 2006). He qualifies as a “refugee” if he can demonstrate that he is

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unwilling or unable to return to Indonesia because of past persecution or a

well-founded fear of future persecution based on one of the statutory grounds of

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

opinion.” Id. (quoting § 1101(a)(42)(A)). If Karya qualifies as a refugee, he

must then persuade the Attorney General to exercise his discretion to grant him

asylum relief. Uanreroro, 443 F.3d at 1202. To obtain restriction on removal, he

must meet a higher standard, by establishing a “‘clear probability of persecution’”

on account of one of the aforementioned statutory grounds. Id. (quoting 8 U.S.C.

§ 1231(b)(3)).

The BIA adopted and affirmed the IJ’s decision in a single-member brief

order. See 8 C.F.R. § 1003.1(e)(5). In these circumstances, the BIA’s decision is

the final order under review, but we may consult the IJ’s decision when it

provides a more complete explanation of the grounds for the decision.

Uanreroro, 443 F.3d at 1204. We review the BIA’s decision to ascertain whether

the record on the whole provides substantial support for its denial of relief. Id.

Its factual findings “are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

2. Omissions in Hearing Transcript

Karya first argues that the transcript the agency prepared of the IJ hearing

was so fundamentally flawed that the BIA’s use of it on review denied him due

process. He identifies two basic deficiencies in the transcript. First, it contained

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numerous notations that individual words or phrases were “undiscernable.”

Second, it omitted his entire testimony concerning his brother’s death. He

contends that these deficiencies prejudiced him to such an extent that we must

remand his case for an additional hearing.

The government argues that we should not consider Karya’s claims

concerning the reliability of the transcript because he failed to exhaust them by

presenting them to the BIA. We lack jurisdiction to consider arguments that an

alien has failed to raise before the BIA. Sidabutar v. Gonzales, 503 F.3d 1116,

1118 (10th Cir. 2007).

The BIA provided Karya with at least two opportunities to present his

arguments on appeal. Initially, he was required to state his reasons for appealing

within the notice of appeal. See Admin. R. at 26. In the notice he did not

identify any issues concerning the reliability of the hearing transcript. This is not

surprising, since the hearing transcript was not yet available to him.

Karya was, however, also permitted to file an appeal brief. In his notice of

appeal, counsel stated that he would be filing a written brief “upon receipt of the

transcript” that would describe “[o]ther errors in fact and law made by the

[Immigration] Judge in his oral decision.” Id. The BIA established a briefing

schedule, see id. at 17, but no brief appears in the administrative record. The

government represents that in fact Karya did not file a brief with the BIA. He

does not dispute this representation. We conclude that he had the opportunity to

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raise issues concerning the unreliability of the hearing transcript in an appellate

brief, but failed to do so. This issue is thus unexhausted and we lack jurisdiction

to consider it.

3. REAL ID Act Argument

Karya contends that the IJ improperly relied on an inapplicable provision of

the REAL ID Act of 2005, see Pub. L. No. 109-13, div. B, § 101(a), 119 Stat.

231, 303, to require him to provide corroborating evidence for his testimony. In

the IJ’s oral decision, after noting that Karya’s testimony was not sufficiently

believable to establish his entitlement to asylum without corroboration, he stated

that “the situation regarding asylum has changed. There must if in fact available

to him corroboration.” [sic] Id. at 58.

Karya argues that this rather oblique language refers to the corroboration

requirement contained in the REAL ID Act, codified at 8 U.S.C.

§ 1158(b)(1)(B)(ii). 3 This corroboration requirement only applies to asylum

3
That statute provides:

The testimony of the applicant may be sufficient to sustain the
applicant’s burden without corroboration, but only if the applicant
satisfies the trier of fact that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to demonstrate that
the applicant is a refugee. In determining whether the applicant has
met the applicant’s burden, the trier of fact may weigh the credible
testimony along with other evidence of record. Where the trier of fact
determines that the applicant should provide evidence that
corroborates otherwise credible testimony, such evidence must be
(continued...)

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applications filed after May 11, 2005. See Oyekunle v. Gonzales, 498 F.3d 715,

717-18 (7th Cir. 2007). Karya filed his application over a year before that date.

He argues, therefore, that the IJ improperly applied the amendment to require him

to provide corroboration for his testimony, and improperly rejected his

application because he failed to do so.

Karya presented this REAL ID Act argument to the BIA. The BIA

disagreed with his contention that the IJ relied on an incorrect standard. It stated:

Despite the respondent’s claim on appeal, our review of the
Immigration Judge’s decision and the record does not show that the
Immigration Judge applied an incorrect standard in this case. Rather,
he correctly applied the law and we affirm his conclusion that the
respondent failed to establish past persecution or a well-founded fear
of persecution in Indonesia. INS v. Cardoza-Fonseca, 480 U.S. 421
(1987); Matter of Dass, 20 I&N Dec. 120 (BIA 1989); Matter of
Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

Admin. R. at 2.

Dass and Mogharrabi, its own prior decisions that the BIA cited in

rejecting Karya’s argument, both hold that in order meet his burden of proof

without further corroboration, an asylum applicant’s testimony should be

“believable, consistent, and sufficiently detailed to provide a plausible and

coherent account of the basis for his alleged fear” of persecution. Dass, 20 I & N

3
(...continued)
provided unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii).

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Dec. at 124; Mogharrabi, 19 I & N Dec. at 445. This is the same language

applied by the IJ in this case. See Admin. R. at 58. Dass further states that “the

general rule is that [corroborating] evidence should be presented where

available.” Dass, 20 I & N Dec. at 124.

Both Dass and Mogharrabi pre-date the enactment of the REAL ID Act by

many years. We note also that regulatory authority in effect even before the

REAL ID Act permitted an applicant to sustain his burden of proof without

corroboration only where his testimony was “credible.” 8 C.F.R. § 208.13(a). As

we understand the BIA’s analysis, then, it concluded that Karya’s testimony was

not sufficiently credible to sustain his burden of proof by itself, even under the

standard in effect prior to the enactment of § 1158(b)(1)(B)(ii) by the REAL ID

Act. Karya fails to establish that this conclusion is erroneous.

Karya further argues that the BIA’s decision is flawed because “the IJ did

not indicate any basis whatsoever for his adverse credibility finding except for his

incorrect assertion that Petitioner was required to provide additional

corroboration.” Pet’r. Br. at 22. An IJ cannot make an adverse credibility

determination concerning the alien’s testimony (including a determination that the

testimony requires further corroboration) unless he provides specific, cogent

reasons for that determination. Uanreroro, 443 F.3d at 1204-05. Here, the IJ

expressed doubt about Karya’s claim because he identified his assailants

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primarily as “gangsters.” 4 Ultimately, he concluded that Karya’s testimony was

insufficiently detailed, consistent, or believable to provide a plausible account for

his fear of persecution. Admin. R. at 58. Karya did not argue to the BIA that this

reasoning was deficient. We therefore lack jurisdiction to consider this aspect of

his challenge. Sidabutar, 503 F.3d at 1118.

4. Sufficiency of Persecution Showing

Karya also argues that contrary to the BIA’s conclusions, he qualifies as a

refugee because he has shown both past persecution and a likelihood of future

persecution. He bears a high burden to obtain relief on this claim. He must

establish that the record compels a conclusion that he has suffered past

persecution or is likely to suffer future persecution. See 8 U.S.C.

§ 1252(b)(4)(B).

Upon consideration, he has failed to meet this burden. The record supports

the IJ’s conclusions, adopted by the BIA. Karya supplied only speculation

concerning the reasons for his brother’s death. The record contains no details

4
The IJ stated:

[T]he Court’s heard Indonesian cases for 11 years and this is the first
time I’ve heard that terminology, gangsters. Most people from
Indonesia that come in have indicated that they [have] been attacked
by indigenous people from that particular area, meaning that there
are people that were born there that are not [of] Chinese [descent].

Admin. R. at 70-71.

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concerning the alleged loss of his rice business during the 1998 riots. In any

event, the IJ noted improvement in the treatment of Chinese people in Indonesia

since the riots, and the 2004 State Department Country Report in the record

supports this conclusion. Admin. R. at 164. Although he described a few

incidents in which he was harassed or mistreated by “gangsters,” a reasonable

fact-finder would not be compelled to conclude that these rose to the level of past

persecution. See 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.”). His family members continue to reside in

Indonesia, apparently without being harmed. We cannot say on this evidence that

“any reasonable adjudicator would be compelled to conclude” that Karya suffered

past persecution or has a well-founded fear of future persecution if returned to

Indonesia. Sarr v. Gonzales, 474 F.3d 783, 788 (10th Cir. 2007) (quotation

omitted). Having failed to meet the standard for asylum, he also failed to satisfy

the higher standard for restriction on removal. See Solomon v. Gonzales,

454 F.3d 1160, 1163 (10th Cir. 2006).

5. CAT Claim

Karya argues that the IJ and the BIA supplied insufficient reasons for

rejecting his CAT claim. But he raised no arguments to the BIA concerning this

claim. His notice of appeal mentioned only his asylum and restriction on removal

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claims and made no mention of his CAT claim. See Admin. R. at 26. We

therefore lack jurisdiction to consider his CAT arguments. Sidabutar, 503 F.3d at

1118.

CONCLUSION

The petition for review is DENIED.

Entered for the Court

Wade Brorby
Senior Circuit Judge

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