Johan v. Mukasey , 309 F. App'x 227 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
January 23, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
TEDY JOHAN,
Petitioner,
v. No. 08-9541
(Petition for Review)
MARK FILIP, Acting United States
Attorney General, *
Respondent.
ORDER AND JUDGMENT **
Before MURPHY, McKAY, and ANDERSON, Circuit Judges.
Tedy Johan seeks review of a Board of Immigration Appeals (BIA)
decision affirming an Immigration Judge’s (IJ) denial of asylum, restriction on
removal, and relief under the Convention Against Torture (CAT). Mr. Johan
*
Pursuant to Fed. R. App. P. 43(c)(2), Mark Filip is substituted as
respondent for Michael B. Mukasey, as of January 20, 2009.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
argues that he has demonstrated past persecution by anti-Chinese extremists in
Indonesia, that he has a well-founded fear of future persecution, and that it is
more likely than not that he will be persecuted if forced to return to Indonesia.
He further contends that he has established eligibility for relief under the CAT.
We exercise jurisdiction under 8 U.S.C. § 1252(a)(1) and DENY the petition for
review.
Mr. Johan, an ethnic Chinese, is a native and citizen of Indonesia. He
entered the United States in December 2005 on a non-immigrant visa and
overstayed his visit. In August 2006, Mr. Johan filed an application for asylum,
restriction on removal, and CAT relief. An IJ held a hearing and, despite finding
Mr. Johan credible, denied all avenues of relief.
On appeal, a single member of the BIA wrote a three and one-half page,
single-spaced order affirming the IJ’s oral decision. In that order, the BIA found
“no legal error in the Immigration Judge’s determination that [Mr. Johan] failed
to sustain the burden of proof applicable to asylum and the more stringent burden
applicable to withholding of removal.” BIA Decision at 1-2 (citing Krastev v.
INS, 292 F.3d 1268, 127[1] (10th Cir. 2002)). The BIA further found no error in
the IJ’s factual findings. Id. Specifically with regard to persecution, the BIA
held that, even assuming Mr. Johan had shown past persecution, the presumption
of a well-founded fear of future persecution arising from that showing was
effectively rebutted by evidence in the record from recent Country Reports on
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Human Rights Practices indicating improved conditions for the Chinese citizens
of Indonesia.
The BIA also agreed with the IJ that, because Mr. Johan had failed to meet
the more lenient burden to establish asylum, his claim for restriction on removal
necessarily failed. And finally (and also in agreement with the IJ), the BIA held
that Mr. Johan had failed to establish his eligibility for relief under the CAT.
The relatively brief order by a single BIA member affirming the IJ’s order
under 8 C.F.R. § 1003.1(e)(5) 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’s decision unless they are relied upon by the BIA in its affirmance. Uanreroro
v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). However “we may consult the
IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Sidabutar
v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007) (quotation omitted).
When reviewing a BIA decision, we search the record for
substantial evidence supporting the agency’s decision. Our duty is to
guarantee that factual determinations are supported by reasonable,
substantial and probative evidence considering the record as a whole.
Agency findings of fact are conclusive unless the record
demonstrates that any reasonable adjudicator would be compelled to
conclude to the contrary. We do not weigh the evidence or evaluate
the witnesses’ credibility.
Id. at 1122 (quotations, alterations, and citations omitted).
To obtain asylum, Mr. Johan had to prove he is a refugee. See Yuk v.
Ashcroft, 355 F.3d 1222, 1232 (10th Cir. 2004). Under these facts, Mr. Johan had
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to show that he was unable or unwilling to return to Indonesia or to avail himself
of Indonesia’s protection because he had been persecuted, or was afraid he would
be persecuted, due to his Chinese ethnicity. See id. Mr. Johan had three options.
He could demonstrate: a well-founded fear of future persecution, past persecution
that would give rise to that well-founded fear, or past persecution so extreme that
he would qualify for humanitarian asylum. Id. at 1232-33. After establishing
refugee status, Mr. Johan would then need to rely on the Attorney General’s
discretion as to whether to grant him asylum. Id. at 1233.
To establish his refugee status, Mr. Johan testified that, as a child, he was
often detained and assaulted by ethnic Indonesians intent on robbing him. His
family was the victim of extortion, but the police refused to investigate unless
paid. During the anti-Chinese riots of 1998 in West Jakarta, Mr. Johan witnessed
atrocities committed against his fellow Chinese people and was himself stabbed
by a machete-wielding member of a native mob. Mr. Johan was within a mile or
two of the terrorist bombs that exploded in Bali in 2002, and in 2005 he was
nearly robbed by native Indonesians as he drove home.
Mr. Johan first argues that he has established past persecution. That
argument, however, is beside the point because the BIA assumed that Mr. Johan
had shown past persecution and, implicitly therefore, was presumed to have a
well-founded fear of future persecution. See Ba v. Mukasey, 539 F.3d 1265, 1268
(10th Cir. 2008). Mr. Johan’s case falters on the next prong of the analysis.
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Once the presumption of future persecution arises,
the burden shifts to the [Department of Homeland Security (DHS)] to
establish by a preponderance of the evidence either that there has
been a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution in his or her country
of nationality, or that the applicant could avoid future persecution by
relocating to another part of his or her country of nationality, and
under all the circumstances, it would be reasonable to expect the
applicant to do so. If the DHS rebuts the presumption, the asylum
application will be denied unless the applicant demonstrates
compelling reasons for being unwilling or unable to return to his or
her country of nationality, or a reasonable possibility that he or she
may suffer other serious harm upon removal to that country.
Matter of D-I-M, 24 I. & N. Dec. 448, 450 (2008) (quotations, citations, and
alterations omitted).
In holding that the DHS rebutted the presumption of future persecution, the
BIA noted that “the new Indonesian government promotes racial and ethnic
tolerance, including tolerance of ethnic Chinese who comprise approximately
3 percent of the population; the largest non-indigenous minority group in
Indonesia. . . . As a whole, the evidence of record, including those documents
submitted by [Mr. Johan], projects a much improved situation for the ethnic
Chinese in Indonesia.” BIA Decision at 3 (citing Indonesia, Country Reports on
Human Rights Practices (Dep’t of State, Mar. 6, 2007)
(http://www.state.gov/g/drl/rls/hrrpt/2006/78774.htm)). The BIA further noted
that Mr. Johan’s family has “remained in Indonesia since his departure without
suffering any apparent difficulty.” BIA Decision at 3.
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“Whether the materials of record rebutted the presumptive inference from
past to future persecution is a question of fact that we review for substantial
evidence.” Ba, 539 F.3d at 1269. This deferential standard applies even where
we review the application of a statutory standard to established subsidiary facts.
Nazaraghaie v. INS, 102 F.3d 460, 463 n.2 (10th Cir. 1996). “Country reports
can constitute substantial evidence” of changed country circumstances, although
they may not always address the specific concerns relevant to a particular case.
Ba, 539 F.3d at 1269. Here, however, the Country Report from 2006 is
substantial evidence that the situation for ethnic Chinese in Indonesia has
improved, especially since the 1998 riots. There is nothing particularly unique
about Mr. Johan’s case that is not covered by the report’s generally positive
assessment of changes in Indonesian society relative to the civil rights of its
Chinese citizens. Additionally, the BIA’s conclusion that his family has been
relatively safe is supported by Mr. Johan’s own testimony.
Because the DHS has rebutted the presumption of future persecution due to
changed country conditions, Mr. Johan must now demonstrate “‘compelling
reasons for being unwilling or unable to return’” to Indonesia or “‘a reasonable
possibility that he or she may suffer other serious harm upon removal to that
country.’” Matter of D-I-M, 24 I. & N. Dec. at 450 (quoting 8 C.F.R.
§§ 1208.13(b)(1)(i)(A), (B)). To the extent Mr. Johan even argues this point on
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appeal, we agree with the BIA that Mr. Johan has failed to make the required
showing.
Because Mr. Johan has failed to satisfy the more lenient standard for
asylum, the BIA also correctly affirmed the IJ’s denial of restriction on removal.
And finally, because Mr. Johan failed to show that it is more likely than not that
he would be tortured if returned to Indonesia, he has failed to qualify for relief
under the CAT.
The petition for review is DENIED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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