Sidabutar v. Gonzales

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH
September 21, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

TENTH CIRCUIT

TINGK OS TIM OTEUS SIDABUTAR,
and M O NA LISA SIR ON G O RINGO,

Petitioners,
v. No. 06-9576
ALBERTO R. GONZALES, United
States A ttorney General,

Respondent.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR TH E BOAR D O F IM M IGR ATION APPEALS
(AG ENCY FILE NO S. A96-351-563/564)

Submitted on the briefs

Armin A . Skalmow ski, Alhambra, California, for Petitioners.

Jesse Lloyd Busen, Attorney (Emily Anne Radford, Assistant Director, with him
on the brief) Office of Immigration Litigation, Department of Justice,
W ashington, D.C., for Respondent.

Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. *

*
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
T YM K O VIC H, Circuit Judge.

Tingkos T. Sidabutar and M ona Lisa S. Ringo, both natives and citizens of

Indonesia, filed a petition for review challenging a Board of Immigration

Appeals’ (B IA or Board) final order of removal following the denial of their

application for asylum, restriction on removal under 8 U.S.C. § 1231(b)(3), 1 and

relief under the United Nations Convention Against Torture (CAT). The

petitioners are married, with Sidabutar serving as the main applicant for asylum

and Ringo as a derivative applicant. See 8 U.S.C. § 1158(b)(3). An immigration

judge (IJ) denied their applications, which the BIA affirmed.

In this petition, they assert five claims: (1) the BIA improperly engaged in

de novo factfinding in concluding Sidabutar did not suffer “past persecution” for

purposes of seeking a restriction on removal, (2) Sidabutar in fact suffered “past

persecution” entitling him to restriction on removal, (3) Sidabutar also met the

clear probability of future persecution for restriction on removal, (4) the BIA

engaged in improper de novo factfinding in determining that Sidabutar failed to

1
W hile both parties refer to this provision as “withholding of removal,”
amendments to the Immigration & Naturalization Act made by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) changed
the terminology to “restriction on removal.” See 8 U.S.C. § 1231(b)(3); Yong
Ting Yan v. Gonzales, 438 F.3d 1249, 1251 n.1 (10th Cir. 2006). Since this case
arose after the effective date of the IIRIRA, we refer to this provision as
“restriction on removal.”

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show that he could not relocate to another part of Indonesia, negating his

restriction claim, and (5) the BIA erred in affirming the IJ’s denial of protection

under the CAT. W e exercise jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and

DENY this petition for review.

I. Background

Sidabutar entered the United States on July 27, 1997, with a non-immigrant

visa permitting him to stay in the country for six months. Ringo arrived in the

United States as a non-immigrant visitor w ith a six-month visa on July 16, 1999.

The two were married on September 30, 1999, in the United States and have three

boys born as American citizens. Sidabutar submitted an application for asylum

on April 15, 2003, which the Department of Homeland Security (DHS) declined.

On June 2, 2003, DHS commenced removal proceeding against Sidabutar

under 8 U.S.C. § 1227(a)(1)(B), charging him with remaining in the United States

beyond his permitted time. During proceedings before the IJ, Sidabutar conceded

his removability but testified in support of his applications for asylum, restriction

on removal, and protection under the CAT. As a Christian in predominantly-

M uslim Indonesia, he claimed past beatings and robberies at the hands of

M uslims and expressed fear of returning to the country based on his religion and

connections to the United States.

On M arch 11, 2005, an IJ denied Sidabutar’s application but granted him

voluntary departure with an alternative order of removal to Indonesia. On appeal

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to the BIA, Sidabutar and Ringo challenged only the IJ’s determinations regarding

the denial of asylum. They argued that the IJ erred in concluding they were

ineligible for asylum based on their failure to comply with the application’s one-

year filing deadline under 8 U.S.C. § 1158(a)(2)(B). On August 2, 2006, the B IA

adopted and affirmed the IJ’s denial of Sidabutar’s asylum application. The BIA

also concluded that the IJ properly denied Sidabutar’s restriction on removal and

CAT applications. Sidabutar and Ringo filed a timely petition for review.

II. Jurisdiction

This Court may only retain jurisdiction over claims challenging a final

order of removal “if the alien has exhausted all administrative remedies available

. . . as of right.” 8 U.S.C. § 1252(d)(1). “W e have recognized that neglecting to

take an appeal to the BIA constitutes a failure to exhaust administrative remedies

as to any issue that could have been raised, negating the jurisdiction necessary for

subsequent judicial review.” Torres de la Cruz v. M aurer, 483 F.3d 1013, 1017

(10th Cir. 2007) (internal quotation omitted). Accordingly, we generally assert

jurisdiction only over those arguments that a petitioner properly presents to the

B IA .

In this case, the government argues that petitioners failed to exhaust their

administrative remedies because they did not challenge the IJ’s denial of their

restriction on removal and CAT application— the basis of this petition for

review— before the BIA. The government contends that we therefore do not have

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jurisdiction to consider this petition. In their notice of appeal and brief before the

BIA, Sidabutar and Ringo assert multiple claims against the IJ’s determination

that they were ineligible for political asylum based on their failure to meet the

one-year filing deadline under 8 U.S.C. § 1158(a)(2)(B). See Admin. R. at 72–89,

132–35. 2 Neither their notice of appeal nor their brief, however, indicated a

challenge to the IJ’s decision to deny them restriction on removal or protection

under the CA T.

O rdinarily, w e w ould hold the petitioners’ failure to present these two

issues to the BIA was a failure to exhaust administrative remedies, Torres de la

Cruz, supra, precluding our review. Nevertheless, in this case, the BIA sua

sponte addressed and ruled on both the restriction on removal and CAT claim. In

its August 2, 2006 decision, the B IA “adopt[ed] and affirm[ed]” the IJ’s entire

M arch 11, 2005 decision. Admin R. at 2. After agreeing with the IJ’s conclusion

that Sidabutar was not eligible for asylum, the BIA “concurred” with the IJ that

(1) Sidabutar failed to show “past persecution” or a clear probability that his life

or freedom w ould be threatened if returned to Indonesia, negating his claim for

restriction on removal; and (2) Sidabutar did not establish that he was more likely

than not to be tortured by, or with the acquiescence of, the Indonesian

2
Petitioners argued to the BIA they were entitled to the “changed
circumstances” exception to the filing deadline under § 208(a)(2)(D), but the BIA
disagreed. This issue was not raised on appeal. See 8 U.S.C. § 1158(a)(3) (no
court shall have jurisdiction to review the attorney general’s determination of
changed circumstances).

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government, to gain the protection of the CAT. Id. at 2–4. The BIA then

summarized the IJ’s factual findings and conclusions and, in some instances,

provided its own independent grounds for some of the claims.

Despite the BIA’s consideration of the issues the petitioners raise before

this Court, the government still argues that we lack jurisdiction based on the

failure to exhaust. It relies on an Eleventh Circuit case holding that the B IA’s

sua sponte consideration of an issue does not preserve it for appellate review in

the courts of appeals. See Amaya-Artunduaga v. United States AG, 463 F.3d

1247, 1249–1251 (11th Cir. 2006) (per curiam). In Amaya-Artunduaga, the court

held that the “goals of exhaustion are better served by our declining to review

claim s a petitioner, w ithout excuse or exception, failed to present before the BIA ,

even if the BIA addressed the underlying issue sua sponte.” Id. at 1251.

According to the court, the purpose of the exhaustion requirement is threefold:

(1) to avoid premature interference with administrative processes, (2) to allow the

agency the full opportunity to consider petitioner’s claims, and (3) to allow the

BIA to compile an adequate record for judicial review. Id. The court found that

claiming jurisdiction where the BIA only sua sponte considered an issue frustrates

those purposes because it could not say “the BIA fully considered the petitioner’s

claims, as it had no occasion to address the relevant arguments with respect to the

issue it review ed, nor can [the court] say there is any record, let alone an adequate

record, of how the administrative agency handled the claim in light of the

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arguments presented.” Id.; see also Socop-G onzalez v. INS, 272 F.3d 1176, 1199

(9th Cir. 2001) (O’Scannlain, J., dissenting) (opining that circuit courts have no

jurisdiction over claim petitioner did not actually raise before the BIA despite the

BIA’s sua sponte review). 3 W e respectfully disagree with these cases.

First, while § 1252(d)(1) requires that an alien exhaust “all administrative

remedies,” the BIA has the authority to determine its agency’s administrative

procedures. If the BIA deems an issue sufficiently presented to consider it on the

merits, such action by the BIA exhausts the issue as far as the agency is

concerned and that is all § 1252(d)(1) requires to confer our jurisdiction. W here

the BIA determines an issue administratively-ripe to warrant its appellate review ,

we will not second-guess that determination. Indeed, it is a touchstone of

administrative law that “the formulation of procedures [is] basically to be left

within the discretion of the agencies to which Congress had confided the

responsibility for substantive judgments.” Vermont Yankee Nuclear Power Corp.

v. Natural Resources D efense Council, Inc., 435 U.S. 519, 524 (1978).

Administrative agencies “should be free to fashion their ow n rules of procedure

and to pursue methods of inquiry capable of permitting them to discharge their

multitudinous duties.” FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143

3
Cf. Singh-Bhathal v. INS, 170 F.3d 943, 947 (9th Cir. 1999) (holding that
an issue only addressed in a BIA dissenting opinion does not preserve the issue on
appeal).

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(1940). Cf. Weinberger v. Salfi, 422 U.S. 749, 767 (1975) (holding that an

agency may waive internal exhaustion requirements).

In this case, the BIA determined under its own rules that it had enough

information on the record to issue a “discernible substantive discussion,”

Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006), on the two un-

briefed issues. Under 8 C.F.R. § 1003.3(b) (“specificity requirement”), an alien

taking an appeal of an IJ decision “must specifically identify the findings of fact,

the conclusions of law, or both, that are being challenged.” Nothing in the

agency’s regulations preclude the BIA from waiving this requirement. Indeed,

the BIA has discretionary authority to dismiss (and conversely, accept) appeals

lacking in specificity. See 8 C.F.R. § 1003.1(d)(2)(i) (“A single Board member or

panel may summarily dismiss any appeal or portion of any appeal in any case in

which . . . [t]he party concerned fails to specify the reasons for the appeal . . . .”)

(emphasis added). Thus, the BIA’s w aiver of the specificity requirement in this

case does not detract from the decision constituting the BIA’s final order on the

issues, 8 C.F.R. § 1003.1(d)(7) and we retain jurisdiction over that final order, 8

U.S.C. § 1252(a)(1). Cf. Quarty v. United States, 170 F.3d 961, 973 (9th Cir.

1999) (holding that an agency may waive compliance with a specificity

requirement in a tax refund case where the agency “see[s] fit to dispense with

[its] formal requirements and to examine the merits of the claim”). Accordingly,

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under its own rules, the BIA considered the issues sufficiently presented to reach

the merits of the issues and that is all exhaustion requires.

The failure to consider the BIA-issued decisions on the two claims “would

come at the cost of respect for the agency’s own judgment regarding its ground

for decision.” Sarr v. Gonzales, 474 F.3d 783, 791 (10th Cir. 2007). As A rticle

III courts, our role is not to substitute our own preference for the optimal

administrative procedures for the agency’s determination of its internal rules.

Congress entrusted to the agencies, not the courts, the authority to promulgate the

rules to carry out their duties under their enabling statutes. Ignoring the B IA’s

determination of these issues would amount to a judicial determination that the

Board acted ultra vires in following its own rules.

Second, this determination is consistent with our holding in Dulane v. INS,

46 F.3d 988, 996 (10th Cir. 1995). 4 In that case, we delimited the exhaustion

rule to “arguments which had not been raised before nor ruled upon by the BIA.”

Id. (emphasis added). Accordingly, of paramount concern for the exhaustion

requirement is that (1) the petitioner raise the issue, or (2) the BIA actually

decide the issue. W e held that “[a]ll determinations made during and incident to

4
Both the government and petitioners m istakenly contend that Dulane
governs this case. In Dulane, the petitioner raised the contested issues in a direct
appeal to the BIA. 46 F.3d at 993. The petitioner then filed an additional motion
to reopen without the contested issues before the BIA decided the appeal. Id.
The BIA consolidated the appeal with the motion to reopen and addressed all of
the issues at once. Accordingly, the BIA did not simply sua sponte consider the
issues and, therefore, Dulane does not govern this case.

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the administrative proceeding conducted by a special inquiry officer, and

reviewable together by the Board of Immigration Appeals . . . are likew ise

included within the ambit of the exclusive jurisdiction of the Courts of Appeals

. . . .” Id. (citing Foti v. INS, 375 U.S. 217, 229 (1963)). W hile our prior

examinations of the exhaustion rule often emphasize the petitioner’s burden in

raising an issue before the BIA , see, e.g., Torres de la Cruz, supra, our holding

today applies only to the latter situation— where the BIA considers and rules on

the issue, even when the issue w as not presented by the petitioner.

Third, we disagree with the Eleventh Circuit that this view is inconsistent

with the purpose of the exhaustion rule. As identified by other circuits,

§ 1252(d)(1)’s exhaustion requirement permits the BIA “the opportunity to apply

its specialized knowledge and experience to the matter,” Padilla v. Gonzales, 470

F.3d 1209, 1213 (7th C ir. 2006), and “to resolve a controversy or correct its ow n

errors before judicial intervention,” Bonhometre v. Gonzales, 414 F.3d 442, 447

(3d Cir. 2005) (quoting Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004)).

W here the BIA has issued a decision considering the merits of an issue, even sua

sponte, these interests have been fulfilled. W e have already benefitted from the

BIA’s application of its “specialized knowledge and experience,” Padilla, 470

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F.3d at 1213, and from its attempt “to resolve the controversy,” Bonhometre, 414

F.3d at 447. 5

At least one other circuit agrees with our analysis. In Socop-Gonzalez, 272

F.3d at 1186, the Ninth Circuit asserted jurisdiction over a claim not expressly

raised before the BIA based on the B IA’s consideration of the issue. The court

held “w hether or not the decision on the merits was technically before the BIA,

the BIA addressed it thoroughly enough to convince us that the relevant policy

concerns underlying the exhaustion requirement— that an administrative agency

should have a full opportunity to resolve a controversy or correct its ow n errors

before judicial intervention— have been satisfied here.” Id.

5
Although we do not find that DHS has waived the exhaustion
requirement in this case (rather it waived the requirement that an issue be
“specifically” raised in the notice of appeal), we find the authority supporting the
waiver doctrine persuasive in this context.

The power of an agency to waive exhaustion of any administrative
remedy except a remedy that Congress has made jurisdictional seems
well established. It also makes a great deal of sense. The agency is
well-positioned to determine whether a petitioner’s pursuit of further
remedies potentially available at the agency is likely to cause the
agency to change its position on the issue, or allow the agency to
provide a factual context or an insight based on expertise that will aid
the court in resolving the merits issue.

If an agency waives exhaustion for any combination of . . . reasons, a
court should acquiesce in the agency’s w aiver and should decline to
apply the exhaustion requirement.

Richard J. Pierce, Jr., II Administrative Law Treatise § 15.6, 1011–12 (4th ed.
2002).

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 Finally, we disagree with the Eleventh Circuit that the BIA’s sua sponte

consideration of an issue requires a per se finding that it lacked consideration of

“the niceties and contours of the relevant arguments” and thereby failed “to fully

consider[] the petitioner’s claims and compil[e] a record which is adequate for

judicial review.” Amaya-Artunduaga, 463 F.3d at 1250 (internal quotations and

alterations omitted). At the end of the day, if w e find the BIA’s decision is

unsupported by “reasonable, substantial and probative evidence” in the record,

see Uanreroro, 443 F.3d at 1204 (citing the standard of review of BIA decisions),

we can address that question on the merits. A substantive final decision by the

BIA on the issues, even one poorly considered, is all that is needed to confer our

jurisdiction.

In sum, because the BIA sufficiently considered Sidabutar’s two unraised

claims in its final order and that final order was properly appealed in this petition

for review, we assert jurisdiction over the matters directly ruled on by the BIA .

Of course, this rule should be construed narrowly to circumstances where the B IA

issues a full explanatory opinion or a discernible substantive discussion on the

merits over matters not presented by the alien. W e will not entertain jurisdiction

over matters where the BIA summarily affirms the IJ decision in toto without

further analysis of the issue. See 8 C.F.R. § 1003.1(e)(4).

Under this rubric, we are deprived of jurisdiction over two of petitioners’

claims— Sidabutar’s procedural challenge to the BIA’s allegedly de novo finding

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that he failed to establish (1) “past persecution,” and (2) the unreasonableness of

relocation to another part of Indonesia where the IJ made no such finding in the

first instance. Since these are challenges raised for the first time in this Court,

the BIA had no opportunity to consider their merits. Accordingly, the petitioners’

failed to exhaust administrative remedies on these claims. These two claims

should have been brought before the BIA in the first instance through a motion to

reconsider or reopen. See 8 C.F.R. § 1003.2. 6

W e now turn to the remaining claims that the BIA directly decided.

III. Rem aining Claim s

A. Standard of Review

W hen reviewing a BIA decision, we search the record for “substantial

evidence” supporting the agency’s decision. Uanreroro, 443 F.3d at 1204.

“[O]ur duty is to guarantee that factual determinations are supported by

reasonable, substantial and probative evidence considering the record as a whole.”

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

findings of fact are “conclusive unless the record demonstrates that any

reasonable adjudicator would be compelled to conclude to the contrary.” Sarr,

6
The petitioners base these claims on the BIA’s inability to conduct de
novo factfinding. See 8 C.F.R. § 1003.1(d)(3)(1). Although we have no
jurisdiction to reach the merits of these claims, we draw the petitioners’ attention
to the preamble of the 2002 regulations enacting § 1003.1. See 67 Fed. Reg.
54878, 54890 (Aug. 26, 2002). It suggests that the B IA is not limited to the IJ’s
determinations of “past persecution” and the like. Id. It advises that the BIA may
reach these decisions de novo under its plenary review of legal decisions. Id.

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474 F.3d at 788–89. W e do not “weigh the evidence or . . . evaluate the

witnesses’ credibility.” Id. at 789.

B. Scope of Review

In a pair of cases, we recently re-examined the scope of our review of B IA

decisions. See Sarr, 474 F.3d at 783; Uanreroro, 443 F.3d at 1197. W e

explained that the BIA now has three options in adjudicating an alien’s claims:

(1) a decision by a three-member panel with a full explanatory opinion, 8 C.F.R.

§ 1003.1(e)(6); (2) a summary affirmance by a single member of the Board

without opinion, id. § 1003.1(e)(4); or (3) a decision via a brief order by a single

member of the Board, affirming, modifying, or remanding the IJ’s decision, id. §

1003.1(e)(5). Sarr, 474 F.3d at 789; Uanreroro, 443 F.3d at 1203–04.

Our scope of review directly correlates to the form of the BIA decision.

Sarr, 474 F.3d at 789. First, if a three-member panel issues a full opinion under

(e)(6), the “BIA opinion completely supercedes the IJ [opinion] for purposes of

[judicial] review.” Uanreroro, 443 F.3d at 1203. Second, if a single member of

the BIA issues a summary affirmance without opinion under (e)(4), the IJ opinion

constitutes the decision of the agency for purposes of appeal and the reviewing

court looks to that opinion to determine the agency’s rationale. Id. at 1203. 7

7
Under 8 C.F.R. § 1003.1(e)(4)(ii), the Board member’s order must
include the follow ing language for a summary affirmance: “The Board affirms,
without opinion, the result of the decision below. The decision below is,
therefore, the final agency determination. See 8 C.F.R. 1003.1(e)(4).”

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Finally, if a single BIA member issues “a brief order, affirming, modifying, or

remanding” the IJ’s order under (e)(5), such an order constitutes “the final order

of removal under 8 U.S.C. § 1252(a),” and thus this Court “will not affirm on

grounds raised in the IJ decision unless they are relied upon by the BIA in its

affirmance.” Id. at 1203–04.

The petitioners’ appeal was not reviewed by a panel, nor did the B IA

decision include the mandatory language necessary for a summary affirmance;

accordingly, the BIA’s order in this case represents the (e)(5) middle-ground

situation— one “more significant than an (e)(4) case and less significant than an

(e)(6) case,” Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190 (10th Cir. 2005). In

the instant case, the Board concurred in the IJ’s decision and summarized the

arguments in support of that judgment. Yet, the B IA also relied on some factors

not explicitly cited by the IJ. U nder these circumstances, according to

Uanreroro, “w hen seeking to understand the grounds provided by the B IA, we are

not precluded from consulting the IJ’s more complete explanation of those same

grounds.” 443 F.3d at 1204. But where the BIA decision “contains a discernible

substantive discussion” that stands on its own and does not “explicitly

incorporate[] or reference[]” the IJ’s reasoning, “our review extends no further

. . . .” Id. In sum, “w e may consult the IJ’s opinion to the extent that the B IA

relied upon or incorporated it.” Sarr, 474 F.3d at 790.

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 C. Application

1. Restriction on R em oval

Under 8 U.S.C. § 1231(b)(3)(A), an alien is entitled to restriction on

removal if “the alien’s life or freedom w ould be threatened in th[e] country [of

removal] because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.” See also Tulengkey v. Gonzales,

425 F.3d 1277, 1280 (10th Cir. 2005). 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, 8 C.F.R. § 1208.16(b)(1); see also Niang v. Gonzales, 422

F.3d 1187, 1195 (10th Cir. 2005); or (2) showing that “it is more likely than not

that the alien w ould be subject to persecution on one of the specified grounds”

upon returning to the proposed country of removal, 8 C.F.R. § 1208.16(b)(2); see

also Tulengkey, 425 F.3d at 1280.

a. Past Persecution

First, the petitioners assert that Sidabutar has properly established past

persecution, entitling Sidabutar to the presumption of restriction on removal.

Considering the BIA’s determination that Sidabutar failed to show past

persecution, we disagree with the petitioners.

The BIA decision explained,

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 [Sidabutar] testified that he w as beaten repeatedly by M uslim classmates
in high school and in University on account of his Christian religion. In
two of these incidents, he said he was seriously injured, although he
submitted no medical records to document the severity of the injuries.
Outside of school, he was repeatedly confronted by people who
demanded money from him. In one instance, when he did not have
money to give, he w as struck and his motorcycle was burnt. He believed
that these people were M uslims w ho were targeting him because they
knew he was Christian.

Admin. R. at 3.

Based on these findings, the BIA’s conclusion that he did not suffer past

persecution is consistent with our case law. “Although persecution is not defined

in the INA, we have held that a finding of persecution requires 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.” W iransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004)

(internal quotation omitted). Compare Tulengkey, 425 F.3d at 1281 (finding no

past persecution where alien was robbed, fondled, and suffered a minor head

injury); Kapcia v. INS, 944 F.2d 702, 704–05, 708 (10th Cir. 1991) (holding no

past persecution where alien had twice been detained for two-day periods during

which he was beaten and interrogated, whose parents’ home had been searched,

whose work locker had been repeatedly broken into, and who had been assigned

poor work tasks, denied bonuses, and conscripted into the army, where he was

constantly harassed); and Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005)

(“[T]wo isolated criminal acts, perpetrated by unknown assailants, which resulted

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only in the theft of some personal property and a minor injury, is not sufficiently

severe to be considered persecution.”); with Nazaraghaie v. INS, 102 F.3d 460,

463–64 (10th Cir. 1996) (suggesting that asylum applicant’s severe beating and

ten month imprisonment on account of his political opinion constituted

persecution). H ere, we have no allegations of imprisonment or severe beatings.

Instead, at most, Sidabutar suffered repeated robberies and some minor injuries.

W e agree with the BIA that this does not rise to past persecution.

Furthermore, past persecution must be inflicted by the government or by a

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

Batalova v. Ashcroft, 355 F.3d 1246, 1253 (10th Cir. 2004). On this point, the

BIA noted that Sidabutar was not “threatened, harmed, or detained by the

government . . . . [,] that the government has, in recent years, taken steps to stop

and punish sectarian violence. Consequently, it does not appear that the

government is now unwilling or unable to control those who have in the past

targeted Christians for harm.” Admin. R. at 3. Accordingly, the BIA determined

that Sidabutar failed to establish past persecution and that, in any event, changed

circumstances in Indonesia foreclosed any past mistreatment as a basis for

restriction on removal. See 8 C.F.R. § 1208.16(b)(1)(A). W e are convinced that

a reasonable factfinder would not be compelled to find past persecution here.

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 b. Probability of Future Persecution

Even if Sidabutar has not established past persecution, the petitioners next

claim he is entitled to a restriction on removal based on the clear probability of

future persecution in Indonesia. He argues that his testimony regarding his fear

of returning to Indonesia based on his past problems and the current country

conditions affecting Christians creates a presumption of future fear. Relying

mainly on State Department reports, the BIA rejected the argument. W e agree.

The BIA held,

According to the 2004 International Religious Freedom Report,
published by the Department of State, Indonesia is not an Islamic state,
and the constitution recognizes the right of Indonesians to worship
according to their own religion. Both Catholicism and Protestantism are
officially recognized religions. Christians constitute about 10 percent
of the population and predominate in eastern parts of Indonesia. Islamic
Shari’a law is not imposed on Christians, and, in practice, most
Indonesians enjoy a high degree of religious freedom.

Admin. R. at 3.

In addition, the IJ found that any “mistreatment [to Sidabutar in Indonesia]

would not rise above the level of harassment or ambiguous threats.” Id. at 155.

The IJ held,

The Court does not believe the respondent would be individually
targeted as a Christian or based on his children’s birth in the United
States. Thus, although it is possible that the respondent would suffer
some harm upon return to Indonesia, I don’t think that it’s more likely
than not that this harm would be visited upon him.

Id.

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 Petitioners argue that the BIA’s reliance on the State Department reports is

inappropriate. The petitioners also point to other documentation to rebut the State

Department reports, as w ell as information in the State Department reports

themselves which would corroborate Sidabutar’s claim.

“It is not our prerogative to reweigh the evidence, but only to decide if

substantial evidence supports the [agency’s] decision.” Hang Kannha Yuk v.

Ashcroft, 355 F.3d 1222, 1236 (10th Cir. 2004). W e only determine w hether a

reasonable factfinder could find that Sidabutar did not have a reasonable fear of

future persecution. Indeed, we only reverse that finding if a “reasonable

adjudicator would be compelled to conclude to the contrary.” Sarr, 474 F.3d at

788–89. W hile there may be some conflicting data in the reports, the B IA and IJ

did not err in their overall assessment of country conditions. Based on the

findings of the BIA and the IJ, we hold that the decision is supported by

substantial evidence in the record.

2. Convention A gainst 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.” Cruz-Funez, 406 F.3d at

1192; see also 8 C.F.R. § 1208.16(c)(2). “A claim under the CAT differs from a

claim for asylum or withholding of removal under the INA because there is no

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requirement that the petitioners show that torture will occur on account of a

statutorily protected ground.” Cruz-Funez, 406 F.3d at 1192.

Since we affirmed the BIA’s finding that it is unlikely that Sidabutar would

face future persecution at the hands of the government or a non-governmental

group that “the government is unw illing or unable to control,” it is likew ise

against the odds that he would be tortured by the government or a proxy for the

government. Accordingly, we hold the BIA’s determination is supported by

substantial evidence.

IV. Conclusion

For the foregoing reasons, Sidabutar and Ringo’s claims are without merit

and w e D EN Y this petition for review.

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