FILED
United States Court of Appeals
Tenth Circuit
June 25, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
TONI PANRIHON
SIMANGUNSONG,
Petitioner, No. 08-9548
(Petition for Review)
v.
ERIC H. HOLDER, JR., *
United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
Petitioner Toni Panrihon Simangunsong challenges an order of the Board of
Immigration Appeals (BIA) upholding an Immigration Judge’s (IJ’s) denial of his
application for asylum, restriction on removal, and relief under the Convention
*
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 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we
deny the petition.
I. Background
Mr. Simangunsong is a native and citizen of Indonesia. He entered the
United States in December 1994 on a B-2 visitor visa. Nine years later, he was
served with a notice to appear that charged him as removable for overstaying his
visa and for being employed. He conceded removability but sought asylum,
restriction on removal, CAT relief, and in the alternative, voluntary departure.
At a merits hearing in 2006, Mr. Simangunsong testified that he is
Christian. His two older brothers and one younger sister are also Christian but
they still live in Indonesia. Mr. Simangunsong testified that he is afraid to return
to Indonesia because the circumstances there have “changed,” Admin. R. at 60, it
is difficult to find a job, and “it’s very easy for riots to take place,” id. at 63.
When asked whether he or his family suffered harm on account of being Christian
he responded, “That didn’t happen in my family. . . . I lived in a Chinese people
environment. They would often bother us. We were afraid, we had a feeling of
fear . . . .” Id. at 59. But he denied being “threatened in any way.” Id. In public
middle school in Indonesia, however, the Christians “were kind of isolated,” and
he and other Christian children were required to leave the classroom during
Muslim religion class. Id. at 57.
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When asked what political opinion he held that made him “fear . . . going
back to Indonesia,” he replied without explanation, “the demonstrations that were
taking place.” Id. at 67. He also testified that he had neither belonged to a
political party in Indonesia nor been involved in politics in Indonesia. He stated
that he did not know whether there was any place in Indonesia where he would be
safe, and that he did not know whether the police “could keep the peace there.”
Id. at 62.
The IJ issued an oral decision denying the relief sought. He found
Mr. Simangunsong statutorily ineligible for asylum because he failed to file his
asylum application within one year of arriving in the United States, and he failed
to show changed or extraordinary circumstances sufficient to excuse the untimely
filing. Turning to restriction on removal and CAT relief, the IJ found
Mr. Simangunsong had “not testified to past persecution in Indonesia,” Supp.
Admin. R. at 5, the matters testified to did not constitute persecution but rather
“harassment and discrimination,” id., and Mr. Simangunsong had failed to
demonstrate that relocation within Indonesia would be unreasonable. The IJ
concluded:
[A]lthough the situation for Christians in Indonesia is not
ideal, the Court cannot find that the respondent’s evidence taken as a
whole would show that it is more likely than not that [he] would be
persecuted in Indonesia. Also, there is no evidence at all that the
Government [would be complicit to] torture [of] the respondent if he
were returned to Indonesia. Accordingly, [he] does not meet his
burden of proof to show that it is more likely than not that he would
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be persecuted or tortured upon return to Indonesia. Therefore, he
may not be granted [restriction on removal] . . . or [relief] under the
United Nations Convention Against Torture.
Id. at 7. The IJ did, however, grant Mr. Simangunsong’s request for voluntary
departure. Mr. Simangunsong appealed.
The BIA dismissed Mr. Simangunsong’s appeal. It agreed with the IJ that
Mr. Simangunsong’s application for asylum was untimely and that he had failed
to demonstrate qualification for an exception from the filing deadline. It also
agreed with the IJ that Mr. Simangunsong was not entitled to restriction on
removal or CAT protection. In so holding, the BIA stated:
the respondent’s past mistreatment as a Christian in Indonesia did not
rise to the level of persecution. Nor does the evidence establish that
it is more likely than not that he would suffer religious or political
persecution in Indonesia in the future. Moreover, in order to prevail
on his [restriction on removal] claim, the respondent must
demonstrate that persecution [would] be inflicted by the government
or by a non-governmental group that the government is unwilling or
unable to control; the respondent has claimed only that the
government may not try or be able to protect him from anti-Christian
violence.
Finally we affirm the Immigration Judge’s denial of the
respondent’s application for protection under the Convention Against
Torture, for he has not shown that he would more likely than not
suffer torture by or with the acquiescence of the government of
Indonesia.
Admin. R. at 2 (citations and quotations omitted). This petition for review
followed.
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II. Discussion
Because the BIA issued its decision by a brief order signed by a single
board member, 8 C.F.R. § 1003.1(e)(5), we review the BIA’s decision as the final
order of removal but “may consult the IJ’s opinion to the extent that the BIA
relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir.
2007). “Our duty is to guarantee that factual determinations are supported by
reasonable, substantial and probative evidence considering the record as a whole.
Agency findings of fact are conclusive unless the record demonstrates that any
reasonable adjudicator would be compelled to conclude to the contrary.” Id. at
788-89 (quotations and brackets omitted). We review the agency’s legal
conclusions de novo. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.
2005).
Mr. Simangunsong does not appeal the denial of his asylum application,
apparently recognizing its untimeliness. He does, however, appeal the decisions
not to grant restriction on removal or CAT relief.
A. Restriction on Removal
An alien is entitled to restriction on removal if his “life or freedom would
be threatened in th[e] country [of removal] because of [his] race, religion,
nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A).
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An alien may create a rebuttable presumption of eligibility for
restriction on removal by either (1) demonstrating “past persecution”
in the proposed country of removal on account of one of the
protected grounds . . . ; or (2) showing that “it is more likely than not
that the alien would be subject to persecution on one of the specified
grounds” upon returning to the proposed country of removal.
Sidabutar v. Gonzales, 503 F.3d 1116, 1123-24 (10th Cir. 2007). “[W]hether an
alien has demonstrated persecution is a question of fact.” Hayrapetyan v.
Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (quotation omitted).
Mr. Simangunsong makes conclusory assertions, without citation to the
record, that he has suffered past persecution. 1 Here, the BIA concluded that the
matters Mr. Simangunsong testified about did not rise to the level of past
persecution, and our review of the record reveals substantial evidence to support
that conclusion. See Tulengkey, 425 F.3d at 1280 (“Persecution is the infliction
of suffering or harm . . . and requires more than just restrictions or threats to life
and liberty.” (quotation omitted)).
Equally unavailing is Mr. Simangunsong’s position that because he
established past persecution, “it is the Government’s burden to show that he could
reasonably safely relocate.” Pet’r Br. at 6-7. This bare assertion is misplaced.
1
While this court has “routinely . . . declined to consider arguments that . . .
are inadequately presented,” we exercise our discretion in this case to reach the
merits of Mr. Simangunsong’s arguments. Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007). See also Fed. R. App. P. 28(a)(9)(A) (“[Appellant’s]
argument . . . must contain appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.”
(emphasis added)).
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Because Mr. Simangunsong has not shown past persecution, and because the
alleged future persecution would be by Muslims and not by the Indonesian
government or government-sponsored group, it is his burden—not the
Government’s—to establish that relocation would be unreasonable. See 8 C.F.R.
§ 1208.13(b)(3)(I); Tulengkey, 425 F.3d at 1281. Here, the BIA concluded that
Mr. Simangunsong did not meet his burden, and our review of the record does not
compel us to conclude otherwise. Likewise, Mr. Simangunsong’s subjective
belief that he could not “safely relocate within Indonesia,” Pet’r Br. at 7, falls far
short of demonstrating that “any reasonable adjudicator would be compelled to
conclude” the BIA erred on this point, Sarr, 474 F.3d at 788-89 (quotation
omitted).
The BIA held that Mr. Simangunsong did “not establish[] that he merits
[restriction on removal].” Admin. R. at 2. Our review of the record confirms this
determination.
B. Convention Against Torture
“To receive the protections of the CAT, an alien must demonstrate that it is
more likely than not that he will be subject to torture by a public official, or at the
instigation or with the acquiescence of such an official.” Sidabutar, 503 F.3d
at 1125 (quotation omitted). A CAT claim differs from a restriction on removal
claim in that “there is no requirement that the petitioner[] show that torture will
occur on account of a statutorily protected ground.” Id. (quotation omitted).
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Mr. Simangunsong asserts, again in conclusory fashion, see supra n.1, that
he qualifies for CAT relief for the same reasons that he qualifies for restriction on
removal. We see no basis to disturb the BIA’s decision to deny
Mr. Simangunsong’s application for protection under the CAT. He has not
established a clear probability of torture by or at the instigation of or with the
consent and acquiescence of the Indonesian government.
III. Conclusion
The BIA did not err in dismissing Mr. Simangunsong’s claims for
restriction on removal and CAT relief. The petition for review is therefore
DENIED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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