FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 27, 2009
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT
Clerk of Court
EVYNA HALIM;
MICKO ANDEREAS;
KEINADA ANDEREAS,
No. 08-9551
Petitioners, (Petition for Review)
v.
ERIC H. HOLDER, JR., *
United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.
Petitioners, Chinese Christian natives and citizens of Indonesia, petition for
review of the Board of Immigration Appeals’ (BIA) decision affirming the
immigration judge’s (IJ) denial of lead petitioner Evyna Halim’s applications for
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
asylum, restriction on removal, and relief under the Convention Against Torture
(CAT). We have jurisdiction to consider the petition under 8 U.S.C. § 1252(a). 1
For the following reasons, we deny the petition.
BACKGROUND
Petitioners are wife (Ms. Halim), husband (Mr. Andereas), and child
(Keinada). Ms. Halim is the lead respondent, with Mr. Andereas and Keinada
being derivative applicants. 2 Both Ms. Halim and Mr. Andereas come from
Chinese Christian Indonesian families. They are educated professionals, with
Ms. Halim working in Indonesia as an auditor until she had Keinada and
Mr. Andereas working as a stockbroker. Ms. Halim’s parents and siblings
continue to live in Indonesia, as does Mr. Andereas’ brother.
Ms. Halim testified before the IJ that, on May 13, 1998, the first day of
widespread Indonesian riots, she took a taxi home from work to avoid the
violence. The taxi driver initially was polite, but when he discovered she is a
Christian, he began to drive erratically and would not stop to let her leave the
1
Petitioners’ opening brief attaches numerous supporting materials. Our
review is confined to the record before the BIA, see 8 U.S.C. § 1252(b)(4)(A),
and so we have not considered any documents presented on appeal that were not
included in the administrative record.
2
In a footnote, the United States contends that there is no right to pursue a
derivative claim for restriction on removal or relief under the CAT, but declines
to press the point because Ms. Halim, as the primary applicant, was denied relief
on all her claims. Because the United States declines to pursue the issue, we do
not address it.
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taxi. When he did slow the vehicle, two men jumped in, but the driver was not
surprised. The men stated they wanted to rob and kill her, threatened her with a
knife, took her handbag, and began to remove her clothing to sexually assault her.
She struggled and was able to get out of the taxi. The man with the knife had cut
her chin, and as she left the taxi, he cut her on her back. Ms. Halim walked
home, and her mother took her to the hospital to have the cuts stitched.
After the attack, Ms. Halim was depressed and anxious. When a
neighboring Christian church was bombed in 2000, it spurred the couple to decide
to come to the United States. Mr. Andereas also testified that he decided they
must leave Indonesia because of Ms. Halim’s mental condition, as she was
screaming in her sleep. He came to the United States in 2001, and Ms. Halim and
Keinada followed a year later. Ms. Halim and Mr. Andereas also have a son, who
was born in this country and thus is a United States citizen.
The IJ acknowledged that petitioners did not want to return to Indonesia.
He found, however, that Ms. Halim had not been subjected to past persecution
and did not establish a well-founded fear of future persecution on account of any
of the statutory grounds for asylum. The IJ discounted Ms. Halim’s credibility,
finding that her testimony did not suffice to establish her eligibility for asylum
without corroborating evidence, such as medical records of her treatment for the
1998 attack or letters from her family confirming her account of the attack. He
noted that Ms. Halim’s parents and eight siblings resided unharmed in Indonesia,
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and her husband had never had any problems, undermining the basis for her fears.
He also stated that Ms. Halim had not shown that either the government or a
governmental official was persecuting her or any other reason why the family
could not avoid problems by moving to a predominantly Christian area of
Indonesia. Thus, the IJ denied asylum, restriction on removal, and relief under
the CAT.
On appeal, the BIA affirmed the finding that Ms. Halim had not shown past
persecution or a well-founded fear of future persecution. The BIA particularly
agreed that she had not shown why the family could not move to a
majority-Christian area. The BIA also noted that the State Department’s records
indicated that conditions in Indonesia were improving, and that Ms. Halim’s
parents and siblings continue to reside in Indonesia. Finally, it held that the IJ
properly found that Ms. Halim had not satisfied the requirements for relief under
the CAT. Accordingly, the BIA dismissed the appeal and denied Ms. Halim’s
motion for remand. Petitioners now seek review of the BIA’s decision.
ANALYSIS
A. Standard of Review
Because the BIA issued its own brief single-member order, its decision is
the final agency decision that we review. Uanreroro v. Gonzales, 443 F.3d 1197,
1204 (10th Cir. 2006). “[I]n deference to the agency’s own procedures, we will
not affirm on grounds raised in the IJ decision unless they are relied upon by the
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BIA in its affirmance,” but “we are not precluded from consulting the IJ’s more
complete explanation” of the BIA’s grounds for denying relief. Id. “Our duty is
to guarantee that factual determinations are supported by reasonable, substantial
and probative evidence considering the record as a whole.” Sidabutar v.
Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007) (alteration and quotation
omitted).
“In this circuit, the ultimate determination whether an alien has
demonstrated persecution is a question of fact, even if the underlying factual
circumstances are not in dispute and the only issue is whether those circumstances
qualify as persecution.” Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir.
2008) (quotation omitted). We may reverse the BIA’s decision “‘only if the
evidence presented by [the alien] was such that a reasonable factfinder would
have to conclude that the requisite fear of persecution existed.’” Id. (quoting INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
B. Asylum
“To obtain asylum, an alien must prove, first, that [s]he is a refugee as
defined in 8 U.S.C. § 1101(a)(42)(A), and then persuade the Attorney General to
exercise his discretion and grant relief under 8 U.S.C. § 1158(b).” Ba v.
Mukasey, 539 F.3d 1265, 1268 (10th Cir. 2008). Under § 1101(a)(42)(A), a
“refugee” is a person outside her country of nationality “who is unable or
unwilling to return to, and is unable or unwilling to avail . . . herself of the
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protection of, that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” Thus, an applicant may establish refugee
status by showing past persecution or a well-founded fear of future persecution.
See Hayrapetyan, 534 F.3d at 1335; 8 C.F.R. §§ 1208.13(b)(1), (2).
1. Past Persecution
Petitioners primarily rely on the 1998 assault on Ms. Halim to establish
past persecution. But 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). In Tulengkey, we concluded that not every reasonable
factfinder would be compelled to find persecution based on two incidents
involving a Chinese Christian woman from Indonesia, one in which she was
robbed and fondled and one in which she witnessed a Muslim mob attacking a
Christian wedding, stealing the food and beating some guests. 425 F.3d at
1280-81. Similarly, in Sidabutar v. Gonzales, we concluded that an Indonesian
Christian man who had suffered repeated beatings by Muslim classmates and
street robberies had not established past persecution. 503 F.3d at 1123-24.
Because “[w]e cannot conclude that every reasonable fact-finder would be
compelled to find persecution” based on the incident described by Ms. Halim, we
cannot disturb the BIA’s determination that petitioners have not shown they
suffered past persecution. Tulengkey, 425 F.3d at 1281.
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2. Well-Founded Fear of Future Persecution
A well-founded fear of future persecution “must be both subjectively
genuine and objectively reasonable.” Id. The possibility of relocation within the
country of origin, however, negates a well-founded fear of persecution, if it is
reasonable to expect such relocation. Id.; 8 C.F.R. § 1208.13(b)(2)(ii). “Where,
as here, the asylum applicant has not shown past persecution and the alleged
future persecution is not by a government or a government-sponsored group, the
asylum applicant bears the burden of establishing that relocation would be
unreasonable.” Tulengkey, 425 F.3d at 1281; see also 8 C.F.R.
§ 1208.13(b)(3)(i). The BIA found that petitioners had not carried that burden.
On appeal, petitioners indicate that they are afraid of living anywhere in
Indonesia, but they “point to no evidence that relocation would be unreasonable.”
Tulengkey, 425 F.3d at 1282. Accordingly, “their claim of a well-founded fear of
future persecution necessarily fails.” Id. 3
C. Restriction on Removal
For restriction on removal, petitioners must show their “life or freedom
would be threatened” in Indonesia because of their Christian religion and/or
Chinese ethnicity. 8 U.S.C. § 1231(b)(3)(A). They can satisfy this standard by
3
Petitioners also assert that they will be persecuted in Indonesia because
their son/brother is a United States citizen. We cannot consider this issue because
it was not raised before the BIA, and thus petitioners have not exhausted their
administrative remedies. See 8 U.S.C. § 1252(d)(1); Sidabutar, 503 F.3d at 1118.
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showing past persecution or that “it is more likely than not” that they would be
persecuted in the future. 8 C.F.R. § 1208.16(b)(1)-(2); see also Sidabutar,
503 F.3d at 1123-24. But petitioners’ failure to establish past persecution or a
well-founded fear of future persecution with regard to the asylum claim
necessarily constitutes a failure to meet the more stringent burden of proof for
restriction on removal. See Ba, 539 F.3d at 1271.
D. Relief Under CAT
The BIA concluded that petitioners had failed to meet the requirements for
relief under the CAT. Petitioners have not established that it is more likely than
not that they would be tortured in Indonesia by or with the acquiescence of a
governmental official, and thus the BIA’s decision is supported by substantial
evidence. See Sidabutar, 503 F.3d at 1125-26.
CONCLUSION
Petitioners’ implied request to supplement the administrative record with
the documents attached to their opening brief is DENIED. The petition for
review is DENIED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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