FILED
United States Court of Appeals
Tenth Circuit
November 5, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
RUDDY TANUWIDJAJA,
Petitioner,
v. No. 09-9511
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and EBEL, Circuit Judges.
Ruddy Tanuwidjaja, a Chinese Christian native and citizen of Indonesia
representing himself before this court, petitions for review of the Board of
Immigration Appeals’ (BIA) decision affirming the immigration judge’s (IJ)
denial of asylum, withholding of removal (properly known as restriction on
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
removal), and relief under the Convention Against Torture (CAT). Construing the
pro se petition liberally, we deny it.
Background
Petitioner was born into a Chinese Christian family in Jakarta, Indonesia.
He has a wife and two children, as well as three siblings, all of whom are
Christian and all of whom remain in Indonesia. He overstayed his visa after
entering the United States in December 2000. In November 2003, after being
placed in removal proceedings, he applied for relief.
His petition was based primarily on his experiences during the riots in
Indonesia in 1998. A group of approximately fifteen Muslim radicals attacked his
small sundries store, breaking the glass counter, stealing items, and demanding
money. They were screaming, “kill the Chinese.” Admin. R. at 69. When he did
not immediately hand over the money kept at the store, the attackers kicked his
wife in the chest and cut his right thumb with a knife, leaving a scar about one
centimeter long. He and his wife received medical treatment for their injuries,
and he reported the attack to the police. (His records from the hospital and the
police, however, were destroyed in a 2001 flood of his home.) In addition, during
the 1998 riots, his church was destroyed. His congregation transferred their
services to his home.
The IJ denied relief, finding that the request for asylum was filed after the
statutory one-year deadline and that petitioner had failed to establish a basis for
-2-
restriction on removal or relief under the CAT. On appeal, the BIA affirmed the
IJ’s determination that petitioner’s asylum request was untimely. Addressing
restriction on removal, the BIA assumed petitioner was credible, but held that the
1998 incident was not sufficiently severe to constitute past persecution. Noting
that petitioner’s wife, children, and three siblings had remained in Indonesia
unharmed, the BIA also held that the evidence of record did not establish an
objectively reasonable basis for concluding that petitioner would more likely than
not be harmed in the future because of his ethnicity or religion. It found no
reason to grant relief under the CAT, because petitioner had not demonstrated that
he had been tortured or that the government would acquiesce to the harm he
feared if he were returned to Indonesia. Finally, addressing petitioner’s assertion
that his due process rights were violated because the IJ was biased against him,
the BIA found that IJ had not stepped outside his role as a neutral arbiter.
Accordingly, the BIA dismissed the appeal.
Analysis
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). “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
-3-
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)).
A. Asylum
Petitioner filed for asylum well after the statutory one-year limit for asylum
applications, see 8 U.S.C. § 1158(a)(2)(B), and the agency denied the application
as untimely. We generally cannot 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). But we do retain
jurisdiction to review constitutional claims. See 8 U.S.C. § 1252(a)(2)(D); Ferry,
457 F.3d at 1130. Petitioner submitted a due process argument to the BIA,
claiming the IJ was biased. To the extent that petitioner’s pro se filings can be
broadly construed to include this issue here, however, we are not convinced that
the BIA erred in rejecting the due process argument. See Mangels v. Pena, 789
F.2d 836, 838 (10th Cir. 1986) (“Due process is violated only when the risk of
unfairness is intolerably high under the circumstances of a particular case.
Because honesty and integrity are presumed on the part of a tribunal, there must
-4-
be some substantial countervailing reason to conclude that a decisionmaker is
actually biased with respect to factual issues being adjudicated.” (quotation and
citations omitted)).
B. Restriction on Removal
We retain jurisdiction to review the denial of restriction on removal. See
Tsevegmid, 336 F.3d at 1235. For this relief, Mr. Tanuwidjaja must show that his
“life or freedom would be threatened” in Indonesia because of his Christian
religion or his Chinese ethnicity. 8 U.S.C. § 1231(b)(3)(A). He can satisfy this
standard by showing that he experienced “past persecution” on enumerated
grounds or that “it is more likely than not” that he would be persecuted in the
future. 8 C.F.R. § 1208.16(b)(1), (2); Sidabutar, 503 F.3d at 1123-24.
1. Past Persecution
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). It is “an extreme concept that does not include every sort of treatment
our society regards as offensive.” Korablina v. INS, 158 F.3d 1038, 1044
(9th Cir. 1998) (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
-5-
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 1124. Because
“[w]e cannot conclude that every reasonable fact-finder would be compelled to
find persecution” based on the incident that petitioner describes, we cannot
disturb the BIA’s determination that he has not shown he suffered past
persecution. Tulengkey, 425 F.3d at 1281.
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). “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). Evidence in
the administrative record indicates that Christians predominate and Muslims are a
minority in certain parts of Indonesia, and petitioner has not shown why he cannot
relocate to those areas. Accordingly, “[his] claim of a well-founded fear of future
persecution necessarily fails.” Tulengkey, 425 F.3d at 1282.
-6-
C. CAT Relief
Petitioner has not established that it is more likely than not that he would
be tortured in Indonesia by or with the acquiescence of a governmental official,
and thus the BIA’s decision to deny relief under the CAT is supported by
substantial evidence. See Sidabutar, 503 F.3d at 1125-26.
Conclusion
Petitioner’s implied request to supplement the administrative record through
his July 14, 2009, submission of documents and photographs to this court is
DENIED because we may review only the record before the BIA. See 8 U.S.C.
§ 1252(b)(4)(A). The petition for review is DENIED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
-7-