Ritonga v. Holder

FILED
United States Court of Appeals
Tenth Circuit

January 28, 2011
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROOZANA MARIA RITONGA; NELSON
ESTOMIHI SIMANUNGKALIT,

Petitioners,

v. No. 09-9539

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

Respondent.

ON PETITION FOR REVIEW OF A FINAL ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Submitted on the Briefs:

David M. Haghighi of VHF Law Group, Los Angeles, California, for Petitioners.

Thomas B. Fatouros, Senior Litigation Counsel, Office of Immigration Litigation,
and Annette M. Wietecha, Office of Immigration Litigation, Civil Division,
Washington, DC, for Respondent.

Before TYMKOVICH, SEYMOUR and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.
 Roozana Maria Ritonga, joined by her husband Nelson Estomihi

Simanungkalit, petitions for review of a final order of the Board of Immigration

Appeals (“BIA”) denying her application for asylum and restriction on removal

under the Immigration and Nationality Act (“INA”), and request for protection

under the United Nations Convention Against Torture (“CAT”). We have

jurisdiction to review the BIA’s final orders of removal, deportation, and

exclusion under 8 U.S.C. § 1252(a). We deny Ms. Ritonga’s petition.

I.

Ms. Ritonga was born and raised Christian in Indonesia. She testified that

Muslims often screamed at and taunted her for being Christian when she was at

school or leaving church. She attended school in England between 1991 and

1996. After completing her studies, she returned to Indonesia to work in the

tourism industry.

In 1998, Indonesia experienced anti-Christian, anti-Chinese rioting. During

this period of unrest, the lobby and restaurant of the hotel where Ms. Ritonga

worked “were destroyed by Muslim radicals,” although she was not at the hotel

the day this occurred. Rec., vol. I at 133. During the riots, there was violence in

the streets; stores and buildings near her home were robbed and set on fire. She

feared her apartment building also would be burned.

Members of her family also were subject to violence during this period.

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For example, in 1997, two of her brothers were beaten. During the 1998 riots, her

aunt’s bakery was robbed and burned.

In 2000, three Muslims forced their way into Ms. Ritonga’s home, asked

her if she was a Christian, and broke and stole many of her possessions. They

also pushed her against the wall, causing her head to bleed. The police arrived

thereafter and apprehended the men. Ms. Ritonga sought medical attention for

her head injury. On December 24 that year, Ms. Ritonga and her family were at

church when a Catholic church nearby was bombed. Her church was spared

because it had paid police to guard it. In March 2001, Ms. Ritonga was stopped

in her car by a train at a railroad crossing. She testified that Muslim men, upon

seeing a Christian cross in her car, hit the doors and windows of her car with

clubs, trying to force her to get out of the car. She was able to escape without

injury.

Before and after the riots, Ms. Ritonga made visits to the United States.

She vacationed in the United States in 1990 and 1992, and returned home to

Indonesia after each trip. In May 1999, she made a third trip to the United States

to watch one of her brothers graduate. She again returned to Indonesia with her

parents, with the expectation that she would not be living in Indonesia much

longer. She believed her employer would allow her to transfer her job to a

Singapore hotel. The transfer never occurred.

Mr. Simanungkalit entered the United States on May 21, 2000, with

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permission to stay in the country until November 20, 2000. Ms. Ritonga entered

the United States in June 2001 as a non-immigrant B2 visitor with authorization

to remain in the United States until June 25, 2002. Ms. Ritonga and her husband

overstayed their visas and remained in the United States without authorization,

where they remain today. 1

Ms. Ritonga timely filed her application for asylum and restriction on

removal in June 2002, claiming she had been persecuted based on her Christian

faith. Ms. Ritonga’s parents and two of her four siblings still live in Indonesia.

One sibling now lives in Singapore; another lives in the United States.

In his review of Ms. Ritonga’s asylum petition, the Immigration Judge

(“IJ”) found she lacked credibility, in part because she returned to Indonesia after

trips to England and the United States. On appeal, the BIA rejected the IJ’s

determination that Ms. Ritonga was not credible. Nevertheless, even accepting

Ms. Ritonga’s claims at face value, the BIA determined that she failed to meet her

burden of proof for asylum or restriction on removal. Ms. Ritonga has petitioned

for our review.

II.

1
Mr. Simanungkalit, also an Indonesian Christian, initially filed a separate
asylum application, but it was deemed to be untimely. As a result, he is relying
on his wife’s asylum petition for relief. See 8 U.S.C. § 1158(b)(3) (allowing the
spouse or child of an alien to be granted the same status as the alien in the asylum
proceedings).

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 The scope of our review is governed by the form of the BIA decision.

Sidabutar v. Gonzales, 503 F.3d 1116, 1122-23 (10th Cir. 2007). Where the BIA

issues its own opinion dismissing the appeal in a single-member decision pursuant

to 8 C.F.R. § 1003.1(e)(5), the order “constitutes the final order of removal under

8 U.S.C. § 1252(a).” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.

2006) (citation omitted). Although we review the BIA’s opinion, we also may

consult the IJ’s explanation. Id. This is especially appropriate in three

circumstances:

(1) where the BIA incorporates by reference the IJ’s rationale, (2)
where the BIA repeats a condensed version of [the IJ’s] reasons
while also relying on the IJ’s more complete discussion, and (3)
where the BIA reasoning is difficult to discern and the IJ’s analysis
is all that can give substance to the BIA’s reasoning.

Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007) (quoting Uanreroro, 443

F.3d at 1204) (internal quotation marks omitted) (alteration in original).

In our review of the agency’s decision, we decide purely legal questions de

novo. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). Agency findings

of fact are reviewed under the substantial evidence standard. Id. Under this

standard of review, agency “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). In this circuit, the “determination whether an alien has

demonstrated persecution is a question of fact . . . .” Hayrapetyan v. Mukasey,

534 F.3d 1330, 1335 (10th Cir. 2008) (internal quotation marks omitted).

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 “[O]ur review is confined to the reasoning given by the [agency], and we

will not independently search the record for alternative bases to affirm.” Elzour,

378 F.3d at 1150; see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

(explaining that a court “must judge the propriety of [agency] action solely by the

grounds invoked by the agency”).

A. Asylum

To be eligible for a discretionary grant of asylum by the Attorney General,

an alien must first establish she is a refugee. 8 U.S.C. § 1158(b)(1)(A). A refugee

is an individual who is “outside” the country of his or her nationality, and “is

unable or unwilling to return to . . . 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.” 8 U.S.C.

§ 1101(a)(42)(A). 2 A petitioner can establish refugee status by establishing either

“past persecution” or a “well-founded fear of future persecution.” 8 C.F.R.

§ 1208.13(b).

1. Past Persecution

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 must entail

more than just restrictions or threats to life and liberty. Such persecution may be

2
Although in special circumstances an individual does not need to be
outside the country of his or her nationality to obtain refugee status, see 8 U.S.C.
§ 1101(a)(42)(B), such circumstances are not present in the instant case.

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inflicted by the government itself, or by a non-governmental group that the

government is unwilling or unable to control.” Wiransane v. Ashcroft, 366 F.3d

889, 893 (10th Cir. 2006) (internal quotation marks and citations omitted). We do

not look at each incident in isolation, but instead consider them collectively,

because the cumulative effects of multiple incidents may constitute persecution.

See Witjksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009) (considering incidents

cumulatively); see also Fei Mei Cheng v. Att’y Gen. of the U.S., 623 F.3d 175, 192

(3d Cir. 2010) (holding that “incidents alleged to constitute persecution . . . must

be considered cumulatively” (alteration in original) (internal quotation marks

omitted)); Chen v. Holder, 604 F.3d 324, 333-34 (7th Cir. 2010) (similar);

Ngengwe v. Mukasey, 543 F.3d 1029, 1036 (8th Cir. 2008) (similar); Delgado v.

U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (similar); Edimo-Doualla v.

Gonzales, 464 F.3d 276, 283 (2d Cir. 2006) (similar); Korbalina v. INS, 158 F.3d

1038, 1044 (9th Cir. 1998) (similar).

The BIA held that although Ms. Ritonga was credible, there was “no error in

the Immigration Judge’s alternate determination that the respondent failed to meet

her burden of proof for the requested relief.” Rec., vol. I at 3. Ms. Ritonga

disputes that the IJ made such an alternative finding, which would have accepted

her testimony at face value. Consequently, she contends the BIA erred by

affirming the IJ’s denial of asylum without “support[ing] its decision with any

independent facts or analysis.” Aplt. Br. at 15.

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 Although Ms. Ritonga correctly characterizes the IJ’s opinion, we are not

persuaded the BIA provided insufficient analysis and findings to support its

decision. The opinion, taken as a whole, provides sufficient findings and analysis

to facilitate our review. See Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th

Cir. 1987) (“What is required is merely that [the BIA] consider the issues raised,

and announce its decision in terms sufficient to enable a reviewing court to

perceive that it has heard and thought and not merely reacted.” (internal quotation

marks omitted)). Here, the BIA explained, “the respondent’s assertions, even

taken at face value, did not make out a claim of either past persecution or a well-

founded fear of persecution on account of a protected ground.” Rec., vol. I at 4.

After reviewing the record, we conclude the BIA’s determination that Ms. Ritonga

failed to establish past persecution is supported by substantial evidence.

We have previously reviewed appeals by Christian Indonesians seeking

asylum and restriction on removal. See, e.g., Witjaksono, 573 F.3d 968; Sidabutar

v. Gonzales, 503 F.3d 1116 (10th Cir. 2007); Tulengkey v. Gonzales, 425 F.3d

1277 (10th Cir. 2005). In Witjaksono, the petitioner described incidents in which

he was targeted for being Christian and/or Chinese. Muslim students taunted him

and threw rocks at him for being Chinese, a group attacked his car while he was

stopped at a traffic light, a solider assaulted him, a church in his neighborhood was

bombed, and he hid in his home during the 1998 riots. 573 F.3d at 972-73. We

affirmed the determination that he failed to demonstrate past persecution. Id. at

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977.

Similar facts require the same conclusion in this case. Just as in

Witjaksono, Ms. Ritonga suffered minor injuries only once, when Muslims broke

into her home. But as the lone occasion in her life in which she was physically

injured, we cannot say this constituted persecution within the meaning of the

statute. See id. Additionally, the police investigated the assault and apprehended

the criminals, which undermines Ms. Ritonga’s argument that the government was

“unwilling or unable to control” the perpetrators. See Wiransane, 366 F.3d at 893.

Muslims also attacked her car while she was inside of it, but she suffered no

injuries. These events do not necessarily rise to the level of persecution. See

Sidabutar, 503 F.3d at 1124-25 (finding no past persecution when a Christian

Indonesian was beaten repeatedly by Muslim classmates for his religion and had

his motorcycle burned).

Similarly, Ms. Ritonga’s descriptions of the 1998 riots and the church

bombing are insufficient to establish persecution. See Witjaksono, 573 F.3d at 977

(“Witjaksono’s descriptions of the 1998 Jakarta riots and the 1999 church bombing

do not mandate relief.”). Ms. Ritonga does not suggest that she was individually

targeted or physically harmed in these events. See id. We do not doubt these

experiences were frightening for Ms. Ritonga and her family. Even considering all

of these incidents cumulatively, however, we cannot conclude that a reasonable

adjudicator would be compelled to find Ms. Ritonga suffered past persecution,

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given our prior decisions in analogous circumstances.

2. Well-Founded Fear of Future Persecution

Having failed to prove past persecution, Ms. Ritonga still could gain refugee

status by demonstrating a well-founded fear of future persecution. See 8 C.F.R.

§ 1208.13(b). For a fear of future persecution to be well-founded, it must be both

“subjectively genuine and objectively reasonable.” Tulengkey, 425 F.3d at 1281.

Such a fear is objectively well-founded if (1) the petitioner “may be singled out

for persecution upon returning to her country of origin or (2) ‘there is a pattern or

practice in [that] country . . . of persecution of a group of persons similarly

situated to the applicant’” on account of a protected classification. Id. (quoting 8

C.F.R. § 208.13(b)(2)(iii)) (alterations in original). For asylum purposes, “it need

not be shown that the situation will probably result in persecution, but it is enough

that persecution is a reasonable possibility.” INS v. Cardoza-Fonseca, 480 U.S.

421, 440 (1987). Fear of persecution is not well-founded if the applicant can

avoid persecution by relocating to another part of the country and it would be

reasonable to expect her to do so. 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3). Ms.

Ritonga does not argue that she would be singled out for persecution if she

returned to Indonesia, so we consider whether the record compels the conclusion

that there is a pattern or practice of persecution of Christians in Indonesia.

According to Ms. Ritonga, the BIA’s affirmation of the IJ’s decision must

be rejected because the IJ failed to support his determination that she lacked a

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well-founded fear of persecution with any facts. We disagree. The IJ repeatedly

referenced facts from State Department reports which support his finding. Even if

the IJ did not go into as much detail as Ms. Ritonga would like, the record

provides substantial evidence to support his finding, and he announced his

decision in terms sufficient to enable our review. See Witjaksono, 573 F.3d at

978.

The BIA determined Ms. Ritonga lacked a well-founded fear of persecution

for several reasons. First, Ms. Ritonga’s repeated returns to Indonesia even after

the riots had occurred undermined her claim of subjective fear of living in the

country. Furthermore, the objective reasonableness of her fear is “undermined by

the fact that most of her family remains in Indonesia unharmed.” Rec., vol. I at 3.

The BIA also ruled that Ms. Ritonga failed to establish a pattern or practice of

continuing persecution against Christians in Indonesia sufficient to demonstrate

that her fear is objectively well-founded. See 8 C.F.R. § 208.13(b)(2)(iii)(A); see

also Tulengkey, 425 F.3d at 1281.

We agree with the BIA that Ms. Ritonga’s repeated returns to Indonesia, as

well as the continued presence of her family in Indonesia without further violent

incidents, undercuts her asserted fear of persecution. See Hakeem v. INS, 273 F.3d

812, 816-17 (9th Cir. 2001), superceded on other grounds by Real ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231 (codified as amended at 8 U.S.C. §

1252(a)(2)(D)); Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

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 Moreover, Ms. Ritonga has failed to demonstrate the BIA erred in finding

that she could reasonably relocate within the country. The IJ explained, “there are

areas in Indonesia that are strictly or majority Christians, [sic] so there are places

that [Ms. Ritonga] could have relocated if she wished.” Rec., vol. I at 100.

Indeed, Ms. Ritonga’s family resides on North Sumatra, an island that is primarily

Christian.

Ms. Ritonga asserts the record “plainly demonstrates that the government is

. . . unable or unwilling to stem the tide of violence against Christians in Indonesia

. . . .” Aplt. Br. at 18. It is true that she submitted voluminous documentation of

violence against Christians in various parts of Indonesia over the years, including

newspaper articles and material from websites. 3 Indeed, the State Department

International Religious Freedom Report 2007 on Indonesia documents that the

Indonesian government “sometimes tolerated discrimination against and the abuse

of religious groups by private actors and often failed to punish perpetrators.”

Rec., vol. I at 185. The Report also notes, however, that “government policy

continued to contribute to the generally free practice of religion.” Id. The State

Department International Religious Freedom Report for 2006 indicates the

3
Ms. Ritonga’s brief also quotes extensively from the 2007 Country Reports
on Human Rights Practices for Indonesia prepared by the State Department.
Because this material was not included in the record, we decline to consider it in
our decisionmaking. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall
decide the petition only on the administrative record on which the order of
removal is based.”).

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government was actively prosecuting those who perpetrated religiously-motivated

crimes. That report also states that the Indonesian government was working with

Muslim and Christian community leaders to defuse religious conflict, and that

religiously-motivated violence in parts of the country was declining. The record

as a whole reflects there are problems of violence in Indonesia, as well as

discrimination against Christians, but the government overall does not seem unable

or unwilling to combat such crimes. Sporadic incidents of violence do not

necessarily compel the conclusion that there is a “pattern or practice” of

persecution against Christians in Indonesia. See, e.g., Tulengkey, 425 F.3d at

1281-82 (Christian Indonesians failed to show relocation within Indonesia was

unreasonable).

Ms. Ritonga has not convinced us the BIA denied her asylum petition

contrary to the weight of the evidence. Although the record illustrates religious

problems in Indonesia, we cannot conclude the weight of the evidence is so

overwhelming that an adjudicator would be compelled to find a well-founded fear

of persecution.

B. Restriction on Removal

To be eligible for restriction on removal under the INA, an applicant must

demonstrate that her “life or freedom would be threatened in th[e] country

[proposed for removal] because of [her] race, religion, nationality, membership in

a particular social group or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also

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Tulengkey, 425 F.3d at 1280. The applicant must show either past persecution in

the proposed country of removal, or that “it is more likely than not that he or she

would be persecuted” on one of the specified grounds upon returning to the

proposed country of removal. 8 C.F.R. § 1208.16(b)(2); see also Sidabutar, 503

F.3d at 1123-24. The test for restriction on removal “is therefore more demanding

than the ‘well-founded fear’ standard applicable to an asylum claim.” Elzour, 378

F.3d at 1149 (internal quotation marks omitted). As a result, an applicant who

fails to satisfy the asylum eligibility requirement necessarily fails to qualify for

restriction on removal. Uanreroro, 443 F.3d at 1202. Because we affirm the

BIA’s denial of her asylum petition, we also must hold that Ms. Ritonga failed to

prove her eligibility for restriction on removal.

C. Convention Against Torture

To receive the protections of the CAT, an applicant must demonstrate “it is

more likely than not that he or she would be tortured if removed to the proposed

country of removal.” 8 C.F.R. § 1208.16(c)(2). “A claim under the CAT differs

from a claim for asylum or restriction on removal under the INA because there is

no requirement that the petitioner show that torture will occur on account of a

statutorily protected ground.” Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th

Cir. 2005). Instead, it requires that she establish the treatment of her would be so

severe as to constitute torture. Elzour, 378 F.3d at 1150. Such torture must be

“by or at the instigation of or with the consent or acquiescence of a public official

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or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

Ms. Ritonga argues the IJ and BIA improperly conflated her request for

protection under the CAT with her requests for other forms of relief under the

INA. We disagree. The BIA’s analysis of the CAT claim is sparse, but the BIA

“has no duty to write an exegesis on every contention.” Witjaksono, 573 F.3d at

978 (internal quotation marks omitted). The BIA correctly stated the legal

standards applicable to each claim, see id., and explained Ms. Ritonga “failed to

demonstrate that it is more likely than not that she would be tortured if returned to

Indonesia.” Rec., vol. I at 4.

In addition, Ms. Ritonga provided no evidence that her risks of persecution

and torture differ. Instead, she relied on the same incidents to support her asylum

and CAT claims. Because substantial evidence supports the BIA’s finding that it

is unlikely Ms. Ritonga would face future persecution if returned to Indonesia, “it

is likewise against the odds that [she] would be tortured by the government or a

proxy for the government.” Sidabutar, 503 F.3d at 1126. Accordingly, we affirm

the BIA’s denial of relief under the CAT.

For the foregoing reasons, we DENY Ms. Ritonga’s petition for review.

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