Silalahi v. Mukasey

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS May 21, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

DANIEL ROBY SILALAHI,

Petitioner,

v. No. 07-9567
(Petition for Review)
MICHAEL B. MUKASEY,
United States Attorney General,

Respondent.

ORDER AND JUDGMENT *

Before KELLY, McKAY, and BRISCOE, Circuit Judges.

Daniel Silalahi, a Christian native and citizen of Indonesia, petitions for

review of the Board of Immigration Appeals’ (BIA) decision to affirm the

immigration judge’s (IJ) denial of asylum, restriction on removal, 1 and relief

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 the parties and the agency refer to “withholding of removal,” this
language was changed to “restriction on removal” with the enactment of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996. We use
(continued...)
under the Convention Against Torture (CAT). 2 We have jurisdiction to consider

the petition under 8 U.S.C. § 1252(a). The BIA issued its own brief

single-member order, so its decision is the final agency decision that we review,

although “we are not precluded from consulting the IJ’s more complete

explanation” of the BIA’s grounds for denying relief. Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006). Because we do not have jurisdiction to

review the agency’s denial of asylum in this case and because Mr. Silalahi has

failed to show that it would be unreasonable for him to relocate within Indonesia

to avoid persecution, we dismiss the petition in part and deny it in part.

Mr. Silalahi arrived in the United States in July 1999. He filed for asylum

in April 2004, well beyond the statutory one-year limit for asylum applications.

See 8 U.S.C. § 1158(a)(2)(B). The IJ found no changed circumstances in

Indonesia or extraordinary circumstances related to the delay in filing, see id.

§ 1158(a)(2)(D), and denied the application as untimely. The BIA agreed. This

court generally lacks jurisdiction to review an asylum claim denied as untimely.

See id. § 1158(a)(3); Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006);

Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003). Mr. Silalahi does

1
(...continued)
the statutory term “restriction on removal.” See Ismaiel v. Mukasey, 516 F.3d
1198, 1200 n.2 (10th Cir. 2008).
2
Mr. Silalahi mentions his CAT claim in passing, but does not present any
argument regarding that claim. Thus, the issue is waived. See Becker v. Kroll,
494 F.3d 904, 913 n.6 (10th Cir. 2007).

-2-
not set forth any constitutional claims or questions of law that this court

otherwise would have jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(D);

Ferry, 457 F.3d at 1130. Accordingly, this court does not have jurisdiction to

review the denial of asylum, and this portion of the petition is dismissed for lack

of jurisdiction.

We do retain jurisdiction to review the denial of restriction on removal.

See Tsevegmid, 336 F.3d at 1235. For such relief, Mr. Silalahi must show that his

“life or freedom would be threatened” in Indonesia because of his Christian

religion. 8 U.S.C. § 1231(b)(3)(A). He can satisfy this standard by showing that

he experienced past persecution or that “it is more likely than not” that he would

be persecuted in the future. 8 C.F.R. §§ 1208.16(b)(1), (b)(2). Even assuming

that the standard is satisfied, however, relief is not available if the agency

determines that he “could avoid a future threat to his . . . 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 [him] to do so.” Id.

§§ 1208.16(b)(1)(i)(B), (b)(2).

The BIA’s determination that Mr. Silalahi had not suffered past persecution

is supported by substantial evidence. Mr. Silalahi, who was thirty-one years old

at the time of the hearing, testified that his family is Christian and that he grew up

in Jakarta. He went to a public school where ninety percent of the students were

Muslim and his family lived in a predominantly Muslim neighborhood. He and

-3-
his family were harassed when they went to school and to church, and people

threw rocks and screamed and yelled in front of the church on Christian holidays

such as Christmas. He was taunted at school with comments like “Christians eat

pork, unclean pork” and threats towards Christians were scribbled on bathroom

walls. Admin. R. at 126. In 1994, he and a friend, carrying Bibles on their way

back from church, were attacked by a group of people who kicked them, and he

had to run away. In the 1998 riots, his church was burned, but the congregation

repaired it.

This court has held that persecution “requires more than just restrictions or

threats to life and liberty.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280

(10th Cir. 2005) (quotation omitted). “We cannot conclude that every reasonable

fact-finder would be compelled to find persecution” based on the incidents

described by Mr. Silalahi, and therefore the agency did not err in finding no past

persecution. Id. at 1281; see also Sidabutar v. Gonzales, 503 F.3d 1116, 1124

(10th Cir. 2007) (holding that Indonesian Christian petitioner’s experiences of

being beaten by classmates and being confronted on the street with a demand for

money, allegedly by Muslims because they knew he was a Christian, did not

establish past persecution); Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir.

2003) (“Threats alone generally do not constitute actual persecution . . . .”).

Because Mr. Silalahi did not establish that he experienced past persecution,

and because the alleged future persecution would be by Muslims and not by the

-4-
Indonesian government or a government-sponsored group, it is his burden to

establish that relocation would be unreasonable. 8 C.F.R. §§ 1208.16(b)(3)(i).

The BIA found that Mr. Silalahi did not meet his burden. Our review of the

record does not compel us to conclude otherwise. The State Department report in

the administrative record indicates that Christians predominate and Muslims are a

minority in certain parts of Indonesia. Mr. Silalahi has not shown why he cannot

relocate to those areas. On appeal, he argues only that “it would not be

reasonable for him to relocate internally within Indonesia because he testified that

he is afraid to return to Indonesia, meaning all parts of Indonesia and that he

really did not want to go back to Indonesia.” Aplt. Br. at 18. While the court

understands that Mr. Silalahi does not wish to return to Indonesia, his wishes do

not make internal relocation unreasonable. The agency did not err in denying

restriction on removal, and accordingly this portion of the petition is denied.

The petition for review is DISMISSED in part and DENIED in part.

Entered for the Court

Monroe G. McKay
Circuit Judge

-5-