Witjaksono v. Holder

FILE D
United States Court of Appeals
Tenth Circuit

July 23, 2009
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court

T E N T H C IR C U IT

HUM PHREY SARW ONO
W ITJAKSONO and LIGIOW ATI
FNU,

Petitioners,
No. 08-9540
v.

ERIC H. HOLDER, JR., United States
Attorney General,

Respondent .

ORDER

Before L U C E R O , B A L D O C K , and M cC O N N E L L , Circuit Judges.

This matter is before the court on Respondent’s M otion for Technical

Correction of Decision. The motion is G R A N T E D . Footnote 2 on page 4 of the

opinion is amended to read as follows:

Because Ligiowati does not advance an independent ground for
withholding of removal, we do not consider her claim separately
from W itjaksono’s petition.

In addition, the sentence appearing on page 9 of the opinion, reading “Nor is this

circuit a stranger to the problem of DHS producing inadequate records,” is
amended to read as follows, “Nor is this circuit a stranger to the problem of

inadequate records of immigration proceedings.”

A copy of the amended opinion is attached, filed nunc pro tunc to July 17,

2009.

Entered for the Court,

ELISABETH A. SHUM AKER, Clerk

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 FILE D
United States Court of Appeals
Tenth Circuit

PU B L ISH July 17, 2009
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court

T E N T H C IR C U IT

HUM PHREY SARW ONO
W ITJAKSONO and LIGIOW ATI
FNU,

Petitioners,
No. 08-9540
v.

ERIC H. HOLDER, JR., * United States
Attorney General,

Respondent.

PE TIT IO N FO R R E V IE W O F A N O R D E R
FR O M TH E B O A R D O F IM M IG R A T IO N A PPE A L S

Lisa Suzanne Anderson (Houman Varzandeh with her on the briefs), VHF Law
Group, Los Angeles, California, for Petitioners .

W illiam C. M inick (Linda S. W ernery, Assistant Director, with him on the briefs),
United States Department of Justice, Office of Immigration Litigation,
W ashington, D.C., for Respondent.

Before L U C E R O , B A L D O C K , and M cC O N N E L L, Circuit Judges.

L U C E R O , Circuit Judge.

*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr., is substituted for
M ichael B. M ukasey as United States Attorney General.
 Humphrey Sarwono W itjaksono and his wife, Ligiowati, 1 seek review of the

denial of their request for restriction on removal under 8 U.S.C. § 1231(b)(3) and

protection under the Convention Against Torture (“CAT” or “the Convention”).

Petitioners’ application was denied by an Immigration Judge (“IJ”), and the Board

of Immigration Appeals (“BIA” or the “Board”) dismissed their appeal. They

now petition this court for review of the BIA’s order. W e are also asked to

review the BIA’s denial of petitioners’ motion to remand.

W itjaksono’s primary argument is that he was denied due process because

the transcript of his hearing before an IJ was defective. Due process entitles

aliens to meaningful appellate review of their removal proceedings. To ensure

such review, the government is charged with preparing a reasonably complete and

accurate transcript of proceedings held before an IJ. The fifty-seven page

transcript in this case is replete with nearly two hundred notations saying

“indiscernible,” and W itjaksono insists that this in and of itself constitutes a

reversible due process violation.

In the context of an incomplete immigration transcript, whether there is a

constitutional deprivation of due process centers on two inquiries: Does the alien

1
Ligiowati has only one name. In the proceedings below, she was referred
to as Ligiowati FNU. The acronym “FNU” stands for “family name unknown.”

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possess a protected interest to which Fifth Amendment process is due and, if so,

was the individual afforded the process that was due? It is well settled that an

alien in an immigration proceeding is entitled to a reasonably complete and

accurate record to facilitate appellate review; we do not consider that issue

further. And we readily conclude that the transcript before us is not reasonably

complete and accurate.

But failure by the government to provide a complete record of the

proceedings below does not constitute a due process violation unless the

petitioner can show prejudice. The missing portions of the transcript before us

consist almost exclusively of W itjaksono’s own testimony, but W itjaksono failed

to attempt to fill in the gaps despite BIA procedures permitting him to do so.

This failure proves fatal to his claim. W itjaksono could reasonably be expected to

make some effort to recreate the missing portions and thus we cannot conclude

that the government’s dereliction was prejudicial to a degree rising to the level of

a denial of due process. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1) and

(b)(2), we deny the petition for review.

I

W itjaksono and Ligiowati are natives and citizens of Indonesia. They are

ethnically Chinese and practicing Catholics. W itjaksono entered the United

States as a nonimmigrant tourist on April 16, 1999, and Ligiowati was similarly

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admitted on November 16, 2000. They have three children; the youngest was

born in the United States and is a United States citizen.

After petitioners overstayed their visas, the Department of Homeland

Security (“DHS”) issued Notices to Appear charging them as deportable under the

Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1227(a)(1)(B).

W itjaksono filed an application for asylum, withholding of removal, and

protection under the CAT, alleging ethnic and religious persecution. Ligiowati

was a rider on W itjaksono’s application. 2

On October 12, 2006, a hearing was held to consider the merits of

petitioners’ requests. W itjaksono was the only witness to testify. He was subject

to direct and cross-examination and answered questions from the IJ. W itjaksono

testified that he and his family suffered violence and harassment because they are

ethnically Chinese and Catholic and recounted five specific incidents.

First, W itjaksono described an encounter that occurred during his

elementary schooling. On this occasion, M uslim students identified him as

Chinese and taunted him. One student threw a rock that hit him on the head

requiring stitches.

2
Because Ligiowati does not advance an independent ground for
withholding of removal, we do not consider her claim separately from
W itjaksono’s petition.

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 Second, W itjaksono testified about an attack on his vehicle. A group of

five or six individuals approached the car he was driving while stopped at a

traffic light. The group broke off both of the car’s side mirrors.

Third, and perhaps most seriously, W itjaksono recalled a 1997 incident

with an Indonesian soldier in which W itjaksono’s car was allegedly blocked.

W itjaksono honked his horn, the soldier exited the vehicle, knocked on

W itjaksono’s window, punched W itjaksono three times, and insulted him for

being Chinese. W itjaksono did not require medical attention and did not report

the incident to police as he believed the authorities would not take action because

he is Chinese and Catholic. 3

Fourth, W itjaksono testified that he was in Jakarta, Indonesia, during riots

in 1998. He saw a building in his neighborhood burning and witnessed a group of

individuals wearing traditional M uslim dress and carrying knives and sharpened

sticks. Although he was not attacked, W itjaksono testified that he hid inside his

3
W itjaksono’s testimony on direct examination regarding this incident is
nearly incomprehensible given the number of notations of “indiscernible” in this
part of the record. The transcript does reveal that W itjaksono did not go to the
hospital, but what is not clear from the testimony is whether he did not go to the
hospital because he did not require medical attention or because he feared he
would not be helped given his ethnic and religious heritage. As transcribed, the
IJ asked why he did not go to hospital, and W itjaksono replied, “Because
(Indiscernible) and I had (Indiscernible).” However, in his oral decision, the IJ
stated that W itjaksono had testified that “he had no serious injury, explaining that
he had only a headache from this incident.” As W itjaksono does not dispute this
finding on appeal, it governs our review.

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house until the “situation had calmed down a bit.” Because he feared for his

safety, W itjaksono avoided public transportation and public gatherings.

Finally, W itjaksono recounted a 1999 incident that occurred after he had

left Indonesia in which a Christian church was burned. Although it was in his

neighborhood, he had not attended that particular church.

In an oral decision announced at the close of the hearing, the IJ denied all

relief. Although the IJ did not make an explicit credibility determination, he

assumed the truth of W itjaksono’s testimony in concluding that petitioners were

not entitled to relief. W itjaksono’s application for asylum was denied as untimely

and W itjaksono was ruled ineligible for withholding of removal because he had

not shown that he suffered past persecution, that he would be individually

targeted for persecution upon return, or that there was a pattern or practice of

persecution against Catholic Indonesians or Indonesians of Chinese descent.

Additionally, the IJ ruled that W itjaksono was not entitled to relief under the CAT

because he did not show that it was more likely than not that he would be

tortured. W itjaksono appealed to the BIA.

For appellate purposes, the government prepared a transcript of the

proceedings before the IJ. In its final form, the transcript was fifty-seven pages

long and contained approximately 189 notations of “(Indiscernible).” In his

appeal to the BIA, W itjaksono argued that the transcript was inadequate, but he

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did not attempt to fill the void by tender of an affidavit, sworn declaration, or

otherwise. He also contended that the IJ erred by declining to make an explicit

credibility determination, by failing to adequately consider W itjaksono’s request

for protection under the CAT, and by concluding that W itjaksono was not entitled

to withholding of removal.4 W itjaksono requested a remand to the IJ, claiming

that he and his son would face persecution upon return to Indonesia because his

son is a United States citizen.

In a written order issued by a single Board member, see 8 C.F.R.

§ 1003.1(e)(5), the BIA denied W itjaksono’s motion for remand and dismissed his

appeal. Because W itjaksono did not point to any material testimony omitted from

the transcript, the BIA concluded that he had not demonstrated that the inadequate

transcript adversely affected his application. The BIA also determined that

W itjaksono failed to establish his claims of persecution.

II

A BIA order dismissing an appeal constitutes a final order of removal

which we review pursuant to 8 U.S.C. § 1252(a)(1) and (b)(2). See Sarr v.

Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). W e may consult the oral decision

of an IJ to the extent the BIA’s order incorporates its reasoning. Id.

4
W itjaksono did not appeal his asylum claim to the BIA, and he does not
raise it before us. W e therefore do not consider it.

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 W itjaksono brings four arguments on appeal to us: (1) the inadequate

transcript deprived him of due process; (2) he is entitled to withholding of

removal because he suffered past persecution and will likely suffer future

persecution if forced to return to Indonesia; (3) he is eligible for protection under

the CAT; and (4) the case must be remanded for consideration of his claim that he

and his son will be targeted in Indonesia because his son is a United States

citizen.

A

W itjaksono tells us that his hearing transcript is so deficient that it

constitutes a denial of due process in that it precludes our review on appeal. This

is a legal claim we consider de novo. Niang v. Gonzales, 422 F.3d 1187, 1196

(10th Cir. 2005); see Kheireddine v. Gonzales, 427 F.3d 80, 83-84 (1st Cir. 2005).

1

An elementary component of due process is the right to meaningful

appellate review. See Oroh v. Holder, 561 F.3d 62, 65 (1st Cir. 2009); Garza-

M oreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007); Kheireddine, 427 F.3d at

84; see also Hadjimehdigholi v. INS, 49 F.3d 642, 649 (10th Cir. 1995) (“The

fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” (quotation omitted)). This right

necessarily means one is entitled to a reasonably complete and accurate transcript,

-8-
or an adequate substitute. See M arincas v. Lewis, 92 F.3d 195, 203 (3d Cir.

1996) (noting that one of “the most basic of due process protections” is “a

complete record of the proceeding”). W ithout such a record, appellate review is

not possible because a reviewing court cannot meaningfully scrutinize the

proceedings below and a petitioner is unable to effectively challenge the bases of

the decision in question. See Kheireddine, 427 F.3d at 84.

As to immigration hearings, the government is statutorily obligated to

completely and accurately record removal proceedings. 8 U.S.C.

§ 1229a(b)(4)(C). Section 1229a(b)(4)(C) imposes upon the government a duty to

keep “a complete record . . . of all testimony and evidence produced at the

proceeding.” Federal implementing regulations likewise require that the hearing

“shall be recorded verbatim except for statements made off the record with the

permission of the immigration judge.” 8 C.F.R. § 1240.9.

Unfortunately, as our sibling circuits have chronicled, “[t]he problem of

inaccurate or incomplete transcription of immigration proceedings is not recent.”

Kheireddine, 427 F.3d at 85; see, e.g., Garza-M oreno, 489 F.3d at 241; Ortiz-

Salas v. INS, 992 F.2d 105, 106-07 (7th Cir. 1993); M cLeod v. INS, 802 F.2d 89,

94-95 (3d Cir. 1986). Nor is this circuit a stranger to the problem of inadequate

records of immigration proceedings. See Niania v. Gonzales, 222 F. App’x 684,

686 (10th Cir. 2007) (unpublished); M ondal v. Gonzales, 198 F. App’x 718, 722

-9-
(10th Cir. 2006) (unpublished). In the case under review, there can be little

dispute but that the government breached its duty to prepare a reasonably

complete and accurate transcript. Not only is the transcript replete with nearly

two hundred notations of “indiscernible,” but key portions of the hearing are all

but incomprehensible. For example, W itjaksono’s initial testimony about being

assaulted by an Indonesian soldier is utterly opaque:

After I graduated school, (Indiscernible), when I went to park my car
there was a car blocking me, in front of me. Because I wanted to go
to work I was planning to get to work early I pushed my horn in the
car and (Indiscernible) they looked at me they said hey Chinese
(Indiscernible) I’m from the Army and (Indiscernible) and I was
(Indiscernible) and I (Indiscernible) and I asked for (Indiscernible).
So after I (Indiscernible) he left and got back in his car.

Only because the IJ asked follow-up questions does the record reveal that the

soldier punched W itjaksono three times.

2

As in other contexts, the government’s failure to produce an adequate

transcript does not necessarily rise to the level of a due process violation

mandating reversal or remand. Oroh, 561 F.3d at 65; Ortiz-Salas, 992 F.2d at

106. Rather, to demonstrate a denial of due process and obtain relief, an alien

must show that the deficient transcript prejudiced his ability to perfect an appeal.

Oroh, 561 F.3d at 65; Kheireddine, 427 F.3d at 85; cf. United States v. Kelly, 535

F.3d 1229, 1240-41 (10th Cir. 2008) (a violation of the Court Reporter’s Act did

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not require reversal because the defendant failed to show prejudice). That is, an

alien must show that the “gaps [in the transcript] relate to matters material to his

case and that they materially affect his ability to obtain meaningful review.”

Oroh, 561 F.3d at 65 (quotations omitted).

“Prejudice is an amorphous concept, and necessarily so, given the wide

variety of facts that may arise.” Kheireddine, 427 F.3d at 85. Several

foundational principles are clear. See id. at 85-86. An alien may not show

prejudice if the information omitted from a transcript is immaterial, see M cLeod,

802 F.2d at 85-86 (missing portions of transcript did not bear on legal or factual

questions at issue in the hearing), nor may a petitioner demonstrate prejudice if

the omissions in the record, assuming they were corrected in the manner proposed

by the petitioner, would not alter the outcome of the proceedings, see Ibe v.

Gonzales, 415 F.3d 142, 144 (1st Cir. 2005) (alleged omissions in record could

not have affected outcome because petitioner lacked the statutory predicate for

adjustment of status). Neither may a petitioner meet the required showing of

prejudice when the gaps in the transcript could reasonably be recreated but the

alien fails to do so. 5 See Oroh, 561 F.3d at 66 (missing material came during

5
W e do not foreclose the possibility that a transcript is so deficient that it
is effectively no transcript at all.

- 11 -
testimony of petitioner and his attorney and could have been recreated on appeal

to BIA).

W ith respect to an alien’s ability to supplement a faulty transcript, we note

that the BIA’s regulations and its Practice M anual, published on its public

website, expressly provide for such supplementation. See 8 C.F.R.

§ 1003.1(d)(3)(iv), (e)(2); Executive Office for Immigration Review, Dep’t of

Justice, Board of Immigration Appeals Practice M anual (2004), available at

http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm [hereinafter BIA

Practice M anual]. Under these rules and practices, an alien should immediately

file with the BIA Clerk’s Office a “Request for Correction of Transcript,” alerting

the Board to the defect. BIA Practice M anual, ch. 4.2(f)(iii), at 51. If the Board

does not or cannot remedy the defect “and the party believes that defect to be

significant to the party’s argument or the adjudication of the appeal, the party

should identify the defect and argue its significance with specificity in the appeal

brief.” Id. at 52. An alien may file a sworn, detailed statement or affidavit

attesting to the significance of the defect and attach it to his brief. Id.; see also

id. ch. 5.2(f), at 80. “The Board will [then] consider any allegations of transcript

error in the course of adjudicating the appeal.” Id. ch. 4.2(f)(iii), at 52.

If the missing portions of a transcript can be reasonably recreated, the

affidavit should attest to the missing testimony. See id. W hen it would be

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unreasonable to expect the alien to recreate the missing portions of a

transcript— if, for example, the omissions are from the testimony of a third-party

witness— the alien should explain that it is impractical to do so. In the latter

situation, the alien should also file a motion to remand the case for further

factfinding.6 See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board

cannot properly resolve an appeal without further factfinding must file a motion

for remand.”).

W hen an alien follows these procedures, the BIA is able to evaluate

whether the “gaps [in the transcript] relate to matters material to [the] case and

[whether] they materially affect [the alien’s] ability to obtain meaningful review.”

Oroh, 561 F.3d at 65 (quotation omitted). M oreover, if the BIA concludes that a

defective transcript did not cause prejudice, these procedures create a record that

facilitates the meaningful and effective judicial review to which a petitioner is

entitled.

3

W itjaksono ultimately fails to demonstrate prejudice and a resulting denial

of due process because the missing material is his own testimony and he did not

6
A single member of the BIA may remand a petition to an IJ when a
defective transcript requires it. 8 C.F.R. § 1003.1(e)(2) (“[A] single Board
member may adjudicate . . . a case where remand is required because of a
defective or missing transcript.”).

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attempt to recreate it. See id.; see also M unoz-M onsalve v. M ukasey, 551 F.3d 1,

9 (1st Cir. 2008) (no prejudice when “the petitioner made no effort before the

BIA (or before [the court], for that matter) either to produce that record or to

explain why it is not available”). The missing portions of the transcript consist

almost exclusively of W itjaksono’s own testimony and only a few months had

elapsed between the hearing before the IJ and the filing of W itjaksono’s brief to

the BIA.7 Under these circumstances, it is reasonable to expect him to recreate

the omissions. See Oroh, 561 F.3d at 66. But W itjaksono made no effort

whatsoever to do so. W itjaksono would not have to recall his precise testimony,

but he should have at least attested to the missing facts that he believes warrant

relief. That failure is fatal to his claimed denial of due process. 8

B

7
Some notations of “(Indiscernible)” are from statements of other
participants in the hearing— W itjaksono’s attorney, the government, and the IJ.
But these missing portions generally comprise the questions W itjaksono was
being asked, not his answers. Although the questions provide the context for
W itjaksono’s answers, it is apparent from the transcript that the substantive
evidence was in his responses.
8
Our holding should not be read as an invitation to the government to
provide inadequate and incomplete transcripts to burden aliens with the task of
recreating removal hearings. W e stress that the government has a constitutional
and statutory obligation to provide reasonably accurate and complete transcripts
of immigration proceedings. W e expect the government to take this duty
seriously. In cases in which the government’s dereliction in this duty prejudices
an alien, we will not hesitate to take corrective action.

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 W itjaksono also argues that he is entitled to withholding of removal

because he has suffered past persecution in Indonesia and because he has shown

that he will suffer future persecution if forced to return. “Generally speaking, an

alien may not be removed to a particular country if he or she can establish a clear

probability of persecution in that country on the basis of race, religion,

nationality, membership in a particular social group, or political opinion.” Elzour

v. Ashcroft, 378 F.3d 1143, 1149 (10th Cir. 2004); see 8 U.S.C. § 1231(b)(3)(A);

8 C.F.R. § 1208.16(b). “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.”

Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (quotation omitted).

“Such persecution may be inflicted by the government itself, or by a

non-governmental group that the government is unwilling or unable to control.”

Hayrapetyan v. M ukasey, 534 F.3d 1330, 1337 (10th Cir. 2008) (quotation

omitted). On establishing such past persecution, “it shall be presumed that the

[alien’s] life or freedom would be threatened in the future in the country of

removal.” 8 C.F.R. § 1208.16(b)(1)(I). W ithout a showing of past persecution,

an alien must demonstrate that it is more likely than not that he will be

individually persecuted in the future. § 1208.16(b)(2).

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 W e review the BIA’s factual findings for substantial evidence. As before,

our review of its legal conclusions is de novo. Vicente-Elias v. M ukasey, 532

F.3d 1086, 1091 (10th Cir. 2008). Under a substantial evidence standard, factual

findings “are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Id. (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.” Id. (citing Nazaraghaie v.

INS, 102 F.3d 460, 463 n.2 (10th Cir. 1996)).

Even accepting W itjaksono’s testimony at face value, 9 the BIA’s

determination that W itjaksono did not establish past persecution is supported by

substantial evidence. Verbal taunts, while offensive, fall within the bounds of

harassment and discrimination, not persecution. See Vatulev v. Ashcroft, 354

F.3d 1207, 1210 (10th Cir. 2003). The violent episode W itjaksono recounted that

occurred during elementary school and the incident in which his car was damaged

did not result in serious injury. M ore troubling is W itjaksono’s account of being

assaulted by an Indonesian soldier. But while we do not gainsay the significance

9
Because neither the IJ nor the BIA expressly determined whether
W itjaksono was credible, we accept his testimony as true. See Hartooni v. INS,
21 F.3d 336, 342 (9th Cir. 1994) (“Absent an explicit finding that a specific
statement by the petitioner is not credible we are required to accept her testimony
as true.”).

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of this incident, it appears to have been the lone occasion in W itjaksono’s adult

life in which he was physically injured, albeit not requiring medical attention.

See Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (finding no persecution

because, inter alia, petitioner did not require medical treatment as a result of an

attack). W itjaksono’s descriptions of the 1998 Jakarta riots and the 1999 church

burning do not mandate relief. W itjaksono does not suggest that he was

individually targeted or that he was physically harmed. Even considering all

incidents cumulatively, see Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.

1998), we cannot say that a reasonable adjudicator would be compelled to

conclude that W itjaksono suffered persecution.

Because W itjaksono did not show past persecution, he is entitled to

withholding of removal only if he can establish that it is more likely than not that

he will be individually persecuted in the future, 8 C.F.R. § 1208.16(b)(2), or that

(1) “there is a pattern or practice of persecution of a group of persons similarly

situated to [W itjaksono],” § 1208.16(b)(2)(I), and that (2) because of his

“inclusion in and identification with such group[,] . . . it is more likely than not

that [W itjaksono’s] life or freedom would be threatened upon return.”

§ 1208.16(b)(2)(ii).

W itjaksono does not argue that he will be individually targeted for

persecution. M oreover, despite the IJ’s finding that there is not a pattern or

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practice of persecution against Christian Indonesians or Indonesians of Chinese

descent, W itjaksono did not challenge this conclusion on appeal to the BIA.

Because he did not exhaust his administrative remedies on this issue, we lack

jurisdiction to consider it. See Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th

Cir. 2007).

C

W itjaksono insists that the IJ (and by implication, the BIA, to the extent it

adopted the IJ’s reasoning) committed an error of law by improperly conflating

his request for relief under the Convention Against Torture with his application

for withholding of removal. He also argues that he is entitled to relief under the

Convention.

Removal of an alien to a country where he is more likely than not to face

torture at the hands of “a public official, or at the instigation or with the

acquiescence of such an official” is prohibited under the Convention. Cruz-Funez

v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005); see 8 C.F.R. § 1208.16(c)(2).

“Relief under the CAT is mandatory if the convention’s criteria are satisfied.”

Ismaiel v. M ukasey, 516 F.3d 1198, 1204 (10th Cir. 2008) (an alien meeting the

CAT’s criteria “shall be granted” withholding of removal or, at a minimum,

deferral of removal (citing 8 C.F.R. § 1208.16(c)(4))).

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 W e are wholly unpersuaded by W itjaksono’s claim that the IJ conflated the

CAT and withholding of removal inquiries. To the contrary, the IJ expressly

acknowledged that W itjaksono’s application sought protection under the

Convention as well as withholding of removal and correctly stated the legal

standards applicable to each claim. Although the IJ’s analysis of W itjaksono’s

CAT claim is sparse on detail, the IJ “has no duty to write an exegesis on every

contention. W hat is required is merely that [he] consider the issues raised, and

announce [his] decision in terms sufficient to enable a reviewing court to perceive

that [he] has heard and thought and not merely reacted.” Becerra-Jimenez v. INS,

829 F.2d 996, 1000 (10th Cir. 1987) (quoting Osuchukwu v. INS, 744 F.2d 1136,

1142-43 (5th Cir. 1984)). As the BIA recognized on appeal, “[t]he Immigration

Judge fully considered [W itjaksono’s] application as one for withholding of

removal under the Convention Against Torture and adjudicated it along with

[W itjaksono’s] application for withholding of removal under the Act.”

In addition, the IJ’s determination regarding the CAT claim is supported by

substantial evidence. W itjaksono relies on the same incidents for this claim as he

does for his claim of persecution. But that evidence does not indicate that the

Indonesian government will torture him or acquiesce in his torture. See Ba v.

M ukasey, 539 F.3d 1265, 1271 (10th Cir. 2008). The most serious incident

W itjaksono describes— when an Indonesian soldier punched him in the

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face— appears isolated and not demonstrative of official behavior. Accordingly,

we affirm the BIA’s denial of protection under the CAT.

D

W itjaksono claims the BIA erred in denying his motion to remand. In that

motion, W itjaksono requested the BIA remand his petition to the IJ for

consideration of his argument that conditions in Indonesia had deteriorated such

that W itjaksono and his son would be subject to harm upon return because his

child is identifiably American. W itjaksono relied exclusively on a United States

Department of State Travel W arning issued in M ay 2007 (“the W arning”), which

warned of the possibility of terrorist attacks against Americans, other W estern

citizens, and Indonesians. In denying the motion, the BIA reasoned that the

W arning was general in nature and did not indicate that Americans were

specifically likely to be targeted and that the W arning did not contain new

information. W e review the denial of a motion to remand for an abuse of

discretion.1 0 An abuse of discretion occurs when the BIA’s “decision provides no

rational explanation, inexplicably departs from established policies, is devoid of

10
The BIA applies the same legal standard to motions to reopen and
motions to remand. See In re L-V-K, 22 I. & N. Dec. 976, 978 (BIA 1999); 8
C.F.R. § 1003.2(c)(4). Because we review a denial of a motion to reopen for an
abuse of discretion, see Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir.
2004), we employ that standard when reviewing the denial of a motion to remand.

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any reasoning, or contains only summary or conclusory statements.” Infanzon,

386 F.3d at 1362 (quotation omitted).

In its order, the BIA explained that the W arning “merely serves to warn

Americans of the possible inherent dangers of travel in Indonesia” (emphasis

added). This is a reasonable interpretation of the W arning, which states that

“[t]errorist attacks in Indonesia could occur at any time and could be directed

against any location, including those frequented by foreigners, as well as

identifiably American or other W estern facilities or businesses in Indonesia.” In

concluding that this generalized warning did not support W itjaksono’s specific

claim that he and his son would be targeted, the BIA did not abuse its discretion.

III

For the reasons stated, we D E N Y the petition for review.

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