[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 25, 2007
No. 06-13844 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-153-974
FERRY ALFRETS OGOTAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 25, 2007)
Before DUBINA, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Petitioner Ferry Alfrets Ogotan, a Christian Indonesian of Minahasa descent,
seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
immigration judge’s (“IJ”) order denying his application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), 8
U.S.C. §§ 1158, 1231, and relief under the Convention Against Torture (“CAT”), 8
C.F.R. § 208.16(c). For the reasons that follow, we dismiss in part and deny in
part.
I. Asylum Application
In his petition, Ogotan argues that we have jurisdiction to consider his
asylum claim, even though the IJ found that it was time-barred, because he does
not dispute the IJ’s factual findings, but rather the IJ’s legal conclusion that those
facts did not fall within the definition of changed or extraordinary circumstances.
We review “questions of subject matter jurisdiction de novo.” Brooks v.
Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). An asylum application must be
“filed within 1 year after the date of the alien’s arrival in the United States.” INA
§ 208(a)(2)(B); 8 U.S.C. § 1158(a)(2)(B). An untimely application “may be
considered . . . if the alien demonstrates . . . either the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing an application . . . .”
INA § 208(a)(2)(D); 8 U.S.C. § 1158(a)(2)(D).
No court has jurisdiction to review the IJ’s determination that the alien failed
2
to demonstrate changed circumstances or extraordinary circumstances that would
excuse the untimely filing of his asylum application. See INA § 208(a)(3); 8
U.S.C. § 1158(a)(3) (providing that “[n]o court shall have jurisdiction to review
any determination of the Attorney General under paragraph (2)”); see also
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (noting that 8
U.S.C. § 1158(a)(3) “divests our [c]ourt of jurisdiction to review a decision
regarding whether an alien complied with the one-year time limit or established
extraordinary circumstances that would excuse [her] untimely filing”). Further, we
have held that this jurisdictional bar still applies even after the enactment of the
Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. See Chacon-Botero v.
U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (holding that this court cannot
review the IJ’s and BIA’s denial of an untimely asylum application, even
considering the changes in the Real ID Act because “[t]he timeliness of an asylum
application is not a constitutional claim or question of law covered by the Real ID
Act’s changes”).
Here, the IJ and BIA found that Ogotan did not satisfy an exception to the
one-year filing requirement for asylum applications. Because we have held that
whether an applicant meets an exception to the timely filing requirement is not a
question of law or a constitutional claim over which we have jurisdiction, likewise,
in the instant case, we do not have jurisdiction to review whether the IJ erred in
3
finding that Ogotan did not satisfy an exception to the timeliness requirement.
Moreover, Ogotan’s reliance on Gjyzi v. Ashcroft, 386 F.3d 710 (6th Cir. 2004),
does not affect this conclusion because Gjyzi involved a legal error, and this case
does not. Accordingly, we dismiss the petition for review to the extent that it
seeks review of the denial of Ogotan’s asylum application.
II. Withholding of Removal Claim
In his petition, Ogotan argues that he demonstrated past persecution on
account of his religion and ethnicity because (1) the 2001 U.S. Department of State
Country Report for China showed that there have been widespread attacks against
Christians and ethnic Chinese Indonesians; (2) the two assaults against Ogotan
were of sufficient severity as to rise to the level of persecution; (3) the IJ
incorrectly found that the two assaults were not on account of Ogotan’s religion or
ethnicity; and (4) cumulatively, the assaults constituted past persecution.
When the BIA issues a decision, we review only that decision, “except to the
extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Id. Because the BIA expressly adopted the
IJ's decision and did not make additional observations about Ogotan’s application
for withholding of removal, we review the IJ’s decision. See Al Najjar, 257 F.3d at
1284.
4
To the extent that the IJ’s decision was based on a legal determination, our
review is de novo. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th
Cir. 2004). The IJ’s factual determinations are reviewed under the substantial
evidence test, and we should “affirm the [IJ's] decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal
quotations and citations omitted). “To reverse the IJ’s fact findings, we must find
that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). The fact that evidence in the record
may also support a conclusion contrary to the administrative findings is not enough
to justify a reversal. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.
2006).
An alien is entitled to withholding of removal under the INA if he can show
that his life or freedom would be threatened on account of his race, religion,
nationality, membership in a particular social group, or political opinion.
Mendoza, 327 F.3d at 1287; see also INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)(A).
“An alien bears the burden of demonstrating that he more-likely-than-not would be
persecuted or tortured upon his return to the country in question.” Mendoza, 327
F.3d at 1287.
If the alien demonstrates past persecution, it is presumed that his life or
5
freedom would be threatened in the future unless the government can rebut the
presumption. 8 C.F.R. § 208.16(b)(1)(I). If, however, the alien does not establish
past persecution, he bears the burden of showing that it is more likely than not that
(1) he would be persecuted on account of race, religion, nationality, membership in
a particular social group, or political opinion; and (2) he could not avoid a future
threat to his life or freedom by relocating to another part of his country, if under all
the circumstances it would be reasonable to expect relocation. See 8 C.F.R.
§ 208.16(b)(2); see also Mendoza, 327 F.3d at 1287 (finding that “[a]n alien who
has not shown past persecution, though, may still be entitled to withholding of
removal if he can demonstrate a future threat to his life or freedom on a protected
ground in his country”). An applicant can establish that it is more likely than not
that he would be persecuted upon return to his country of nationality, without
showing that he would be singled out for persecution, if he shows that there is a
pattern and practice of persecution against persons similarly situated to the
applicant, such that it is more likely than not that his life would be threatened upon
returning to that country. 8 C.F.R. § 1208.16(b)(2)(I)-(ii).
Although the INA does not expressly define “persecution,” we recognize
that “‘persecution’ is an ‘extreme concept,’ requiring ‘more than a few isolated
incidents of verbal harassment or intimidation,’ and that ‘[m]ere harassment does
not amount to persecution.’” Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1231
6
(11th Cir. 2005) (citation omitted). “[O]nly in a rare case does the record compel
the conclusion that an applicant for asylum suffered past persecution . . . .” Silva,
448 F.3d at 1239.
In this case, we conclude from the record that substantial evidence supports
the IJ’s determination that Ogotan is not entitled to withholding of removal under
the INA because he has not shown past persecution or that it is more likely than not
that he would be subject to future persecution on account of one of the five
statutorily protected grounds.
First, substantial evidence supports the IJ’s finding that Ogotan did not
experience past persecution because (1) Ogotan never sought medical treatment for
his injuries; (2) he did not provide proof that his nose was broken; and (3) he did
not claim that he received threats from the Muslim groups.
Second, substantial evidence supports the IJ’s finding that Ogotan did not
meet his burden of proving that it was more likely than not that he would be
persecuted in Indonesia because (1) although Ogotan testified that his friend told
him that the Muslim group returned to his home after they assaulted him during a
prayer service, his friend was not present when the Muslims returned to the house
and did not provide any details about their visit; (2) there is no evidence that the
Muslim groups continued to look for Ogotan after he left Indonesia; (3) according
to the evidence in the record, the Liskar Jijad, the group Ogotan claimed that he
7
feared, has been disbanded, and most Muslims were tolerant of other religions; and
(4) the most widespread interreligious violence occurred in the Moluccas Islands,
approximately 1,500 east of Ogotan’s residence in Jakarta.
Third, substantial evidence supports the IJ’s conclusion that Ogotan failed to
establish a nexus between the feared harm and a protected ground because
(1) Ogotan testified that the Muslims stopped everyone’s car when he was stopped
in May 1998, thereby undermining his claim that he was targeted because he was
Christian; (2) Ogotan stated in his asylum application that he was assaulted after he
attempted to stop the Muslims from burning his friend’s car, which suggests that
they assaulted him for attempting to intervene to protect the car, rather than
because he is Christian; and (3) the evidence in the record established that the 1998
riots in Jakarta primarily targeted Chinese-owned businesses, rather than
Christians. Although the evidence could also support a contrary conclusion, the
record does not compel the conclusion that Ogotan was assaulted on account of his
religion or ethnicity. See Silva, 448 F.3d at 1236. Accordingly, we deny the
petition as to this issue because the evidence does not compel reversal.
Finally, substantial evidence supports the IJ’s finding that Ogotan did not
demonstrate that he could not relocate to another part of Indonesia to avoid any
future threat because the evidence showed that, in many regions in the less
populated outer islands of Indonesia, Christians constituted a majority and
8
occupied important positions in the country. Further, most of the attacks
referenced in the articles did not occur in Jakarta, but rather the Moluccas Islands
and Central Sulawesi, which are hundreds of miles away from Jakarta.
III. CAT Claim
On appeal, Ogotan’s brief does not address the IJ’s denial of his application
for CAT relief. When a party “elaborates no arguments on the merits as to [an]
issue in its initial or reply brief . . . the issue is deemed waived.” Greenbriar, Ltd.
v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989). Further, “[i]ssues
that are not clearly outlined in an appellant’s initial brief are deemed abandoned.”
Allison v. McGhan Med. Corp., 184 F.3d 1300, 1317 n.17 (11th Cir. 1999).
Accordingly, we conclude that Ogotan abandoned his CAT claim because he
does not present any arguments regarding this claim in his brief.
For the above-stated reasons, we dismiss the petition for lack of jurisdiction
with respect to Ogotan’s asylum claim and deny the petition with respect to his
withholding of removal claim and CAT claim.
PETITION DISMISSED IN PART, DENIED IN PART.
9