FILED
United States Court of Appeals
Tenth Circuit
December 12, 2008
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GANDA PARULIAN LUMBANTOBING;
KANERIA TAMBUNAN; BOBBY
ANGGINA TRIANDA; FAJAR TANDA
NAULY TOBING
No. 08-9549
Petitioners, (Petition for Review)
v.
MICHAEL B. MUKASEY, United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
The petitioners are a husband and wife and their two sons, all of them Christian
citizens of Indonesia, a predominantly Muslim nation. They seek review of a ruling by
*
This order and judgment is not binding precedent except under the doctrines of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.
the Board of Immigration Appeals (“BIA”) denying them a restriction on removal from
the United States. The petitioners first assert a violation of their due process rights,
contending that an inadequate transcript of proceedings in front of the immigration judge
prevented the BIA from meaningfully reviewing their claims. They also argue that the
BIA erred in finding that they had not been persecuted in the past, and that they had not
proved that their life or freedom would be threatened if they returned to Indonesia.
We have no jurisdiction to entertain the petitioners’ first argument. They did not
raise the transcript issue before the BIA, meaning they did not exhaust their
administrative remedies. On the issues of past and future persecution, the BIA’s ruling is
supported by substantial evidence. We therefore DENY the petitioners’ petition for
review.
I. BACKGROUND
The petitioners are Ganda Parulian Lumbantobing, his wife Kaneria Tambunan,
and their sons Bobby Anggina Trianda and Fajar Tanda Nauly Tobing. In 1984, Mr.
Lumbantobing and his family received death threats during the construction of the
Christian church where he would serve as minister. The family endured many other
threatening phone calls in the coming years. Mr. Lumbantobing testified that in May
1984, Muslims demonstrated in front of the church with “big knives.” The demonstrators
fought with police and military who were called to protect the church. He further testified
that Muslim groups frequently demonstrate in front of the church and that the church has
to pay money to them. The demonstrators also would play Muslim ceremonies over a
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loud speaker in the church parking lot, and sometimes they threw objects at the church.
The children were intimidated over the phone and often “hassled” on their way to
church. One of the boys, Mr. Trianda, testified that he was robbed and stabbed at a bus
terminal because he looks “like a Chinese person.” Mr. Lumbantobing ultimately sent the
children to study in the United States because he feared for their safety.
After several lawful trips to the United States to visit their children, both Mr.
Lumbantobing and his wife decided to remain in the country despite the fact that their
visas had expired. But there were further incidents in Indonesia even after the petitioners
had settled in the United States. On Christmas Eve, 2001, a bomb exploded in front of
the church, injuring Mr. Lumbantobing’s brother. Mr. Lumbantobing also testified that
Sunday School teachers have been jailed for “Christianizing” children. Several Christian
churches have been closed.
Mr. Lumbantobing said he fears for the safety of himself and his family if they are
forced to return to Indonesia because he is known to be Christian through his activities at
the church. He also must carry an identification card that lists him as “Protestant
Christian.” He said he would continue his activities with his church, despite his concerns
about his safety. He said his children would not be involved in church activities.
In March and April of 2003, the petitioners filed applications for asylum. Their
applications were denied, and the Department of Homeland Security began removal
proceedings. At those proceedings, the petitioners renewed their applications for asylum
and also sought a restriction on removal, protection under the Convention Against
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Torture, and voluntary departure.
In June 2006, an immigration judge rejected most of the petitioners’ applications,
granting them only a voluntary departure. The judge denied their application for asylum
because they filed it more than a year after the end of their legal residency and did not
have an adequate explanation for the delay. The judge also denied their application for a
restriction on removal. While acknowledging that the petitioners had been harassed, the
judge stated that the harassment did not “rise to the level of past persecution.” In
addition, the judge found that it was not more likely than not that the petitioners would
suffer future prosecution. He specifically noted that there were safer areas within
Indonesia to which the petitioners could move. The judge therefore denied their
application for a restriction on removal. Finally, he found the petitioners had not
established that it was more likely than not that they would be subject to torture if they
returned to Indonesia and denied protection based on the Convention Against Torture.
The petitioners appealed to the BIA, which affirmed the immigration judge’s
decision on all issues presented. The BIA concluded that the petitioners “have not met
their burden of establishing that it is more likely than not their life or freedom would be
threatened in Indonesia on account of their Christian religion.” The BIA agreed with the
immigration judge that the past harm suffered by the petitioners did not rise to the level of
persecution, and that the respondents could avoid future violence by moving to certain
parts of Indonesia. The petitioners now seek a petition for review from this court,
contending that (1) the BIA’s decision was based on an inadequate transcript of the
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proceedings below and therefore does not comport with due process, and (2) they have
established past persecution or the requisite likelihood of future persecution sufficient to
be entitled to a restriction on removal.
II. DISCUSSION
A. The Due Process Claim
We do not have jurisdiction to review the petitioners’ claim that their due process
rights were violated because the transcript of their immigration proceedings is inadequate.
According to the petitioners, the record contains 210 notations that a particular comment
was “indiscernible.” This inadequate record, they argue, denied them their right to
meaningful appellate review.
The petitioners have raised this issue for the first time on this appeal. They have
not, therefore, exhausted their administrative remedies. This court may review orders of
removal only after the alien has exhausted all administrative remedies. 8 U.S.C. §
1252(a)(1). Generally, this provision means that we have jurisdiction only over
arguments that were properly made before the BIA. Vincente-Elias v. Mukasey, 532 F.3d
1086, 1094 (10th Cir. 2008). One exception is that we will take jurisdiction over
“constitutional challenges to the immigration laws,” because the BIA has no jurisdiction
over such claims. Id. However, we will not take jurisdiction over an objection to a
procedural error that is framed in terms of due process, if the BIA could have remedied
the problem. See id.
In this case, the petitioners do not challenge the constitutionality of a particular
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immigration law. They allege a procedural error—that a defective transcript prevented
them from obtaining fair appellate review. To the extent that the transcript was
inadequate, the BIA could have remedied the situation by seeking clarification from the
parties or remanding the case to the immigration judge to create a more complete record.
See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007) (listing remand to the
immigration judge as one of the BIA’s options). Because the petitioners could have
raised this issue in front of the BIA but did not, the petitioners have not satisfied
§ 1252(a)(1)’s exhaustion requirement, and we do not have jurisdiction to review this
claim.
B. The Claims Regarding Past and Future Persecution
To qualify for a restriction on removal, an alien must demonstrate “that the alien’s
life or freedom would be threatened in [the alien’s native] country because of the alien’s
race, religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). An alien must establish that it is “more likely than not” that he
will be persecuted based on one of those statutory grounds. Tulengkey v. Gonzales, 425
F.3d 1277, 1280 (10th Cir. 2005) (citing I.N.S. v. Stevic, 467 U.S. 407, 429–30 (1984)).
The “more likely than not” standard is more stringent than the standard used on an
application for asylum, which requires that the alien have a “well-founded fear” of
persecution. Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005). Where an alien
can demonstrate past persecution based on any of the factors listed in 8 U.S.C. §
1231(b)(3)(A), “it shall be presumed that the applicant’s life or freedom would be
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threatened in the future in the country of removal.” 8 C.F.R. § 1208.16(b)(1)(i).
The BIA’s decision was written by one member and is more than a summary
affirmance of the immigration judge’s decision. Therefore, we review the BIA’s
decision, but we may look to the immigration judge’s opinion for further explanation or
when the BIA’s opinion “relied upon or incorporated it.” Sidabutar, 503 F.3d at 1123. In
reviewing the BIA’s decision, we apply the substantial evidence test, meaning that we
uphold the decision where it is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Sviridov v. Ashcroft, 358 F.3d 722, 727
(10th Cir. 2004). The agency’s findings of fact “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
The BIA’s conclusion regarding the likelihood of future persecution is a factual finding
and is therefore given that deference. See Nazaraghaie v. I.N.S., 102 F.3d 460, 463 n.2
(10th Cir. 1996).
We have stated that “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
requires more than just restrictions or threats to life and liberty.” Chaib, 397 F.3d at 1277
(quotations omitted). Applying this standard, we affirmed a denial of asylum for Polish
citizens who were beaten multiple times, had their homes searched, and were poorly
treated at work. One of them was conscripted into the Polish army and harassed. Kapcia
v. I.N.S., 944 F.2d 702, 704–05, 710 (10th Cir. 1991). We stated that those incidents did
not constitute “past persecution.” Id. at 708.
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In a more analogous case, an Indonesian Christian applied for a restriction on
removal, claiming past persecution. Sidabutar, 503 F.3d at 1117, 1124. The alien
testified to repeated beatings by Muslim classmates in school, and said he was frequently
confronted by Muslims who demanded money. Id. He said on one occasion when he had
no money, he was hit and his motorcycle was burned. Id. We upheld the BIA’s finding
of no past persecution as consistent with our case law. Id.
In this case, the incidents that occurred while the petitioners were in Indonesia
mostly fall into the category of threats or harassment, which generally do not rise to the
level of persecution. See Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003). The
only incident alleged that injured a family member was the bus terminal attack on Mr.
Trianda. While certainly regrettable, that attack appears to have been an isolated incident,
and there is no record evidence that it was racially or religiously motivated.
In addition, to find past persecution we must find that the government either
participated in the actions, or was either unwilling or unable to control the group that did.
Sidabutar, 503 F.3d at 1124. In this case, Mr. Lumbantobing testified that the police and
military were able to protect the church from Muslim demonstrators in 1984. Record
documents also indicate that the Indonesian government has made efforts to control
religious violence. For these reasons, we agree with the BIA that the petitioners have not
proved past persecution.
The petitioners could still make their case by showing that it is more likely than
not that they would suffer future persecution in Indonesia. On this point, the incidents
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that occurred after they came to the United States—the bombing of their church and the
jailing of Sunday school teachers—are relevant. The petitioners’ argument still fails,
however, because they have not established that they could not avoid those tensions by
moving to a different part of Indonesia.
Where an applicant for a restriction on removal has not established past
persecution, the applicant cannot establish the likelihood of future persecution “if the . . .
immigration judge 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). The BIA found that recent religious violence in Indonesia has taken place
mainly “in specific parts of Indonesia such as Bali and the Malukus.” The BIA also
found that it would be reasonable for the petitioners to move within Indonesia to avoid
the violence.
We must give deference to the BIA’s decision, and the petitioners have offered
little evidence to rebut the BIA’s finding. On the issue of whether they could move
within Indonesia, their only argument is that all of Indonesia is dangerous. To support
this claim, they have simply stated that Bali is considered the safest island in Indonesia,
and it still has religiously motivated violence. That unsupported assertion hardly counters
the BIA’s finding, when the BIA cited Bali as one of the two most dangerous islands in
Indonesia. Because the petitioners have not proved that they could not avoid future
violence by moving, they have not established that it is more likely than not that their life
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or freedom would be threatened if they were to return to Indonesia. The BIA’s
conclusion, therefore, is supported by substantial evidence.
III. CONCLUSION
The petitioners have not established past persecution in Indonesia, nor have they
proved that it is more likely than not that their life or freedom would be threatened if they
were to return to Indonesia. For these reasons, we DENY their petition for review.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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