Mulianto v. Gonzales , 201 F. App'x 637 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 23, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BUDI MULIANTO,
Petitioner-Appellant,
v. No. 05-9541
ALBERTO R. GONZALES, Attorney (BIA No. A95 225 577)
General,
Respondent- Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH, and BALDOCK, Circuit Judges, and FIGA,** District Judge.***
Petitioner Budi Mulianto is a native and citizen of Indonesia. He seeks review of a
Board of Immigration Appeals’ (BIA) final order of removal. The BIA affirmed the
Immigration Judge’s (IJ) order denying Mulianto’s claim for asylum, withholding of
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Phillip S. Figa, United States District Judge for the District of
Colorado, sitting by designation.
***
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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.
removal, and protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252(a)(1), and deny the petition for review.
Mulianto entered the United States on February 24, 2001 with a visitor’s visa. After
overstaying his visit, the Government commenced removal proceedings pursuant to 8 U.S.C.
§ 1227(a)(1)(B). At a hearing before the IJ, Mulianto conceded to his removability, but
sought asylum, withholding of removal, and relief under CAT, claiming past persecution and
fear of future persecution on account of his Chinese ethnicity and Catholic religion. In his
application for asylum, as well as at the merit hearing before the IJ, Mulianto testified to a
number of instances he and his family were allegedly assaulted and harassed by Muslims
because they were Catholic and Chinese, including the alleged murder of his older brother.
Mulianto testified he fears the Muslims from his town will kill him if he returns to Indonesia.
The IJ denied Mulianto’s requested relief finding his testimony lacked credibility.
Specifically, the IJ disbelieved Mulianto’s claim he was Chinese and Catholic. The BIA
summarily affirmed, concluding the IJ’s credibility determination was not clearly erroneous.
The only question before us is whether the IJ’s credibility determination, which the
BIA accepted, is supported by specific and cogent reasons based on the record evidence and
not merely based on speculation and conjuncture. See Wiransane v. Ashcroft, 366 F.3d 889,
897 (10th Cir. 2004). Mulianto’s allegations of past persecution and fear of future
persecution if returned to Indonesia rely almost entirely on his alleged religious affiliation.
During the merit hearing, the Government asked Mulianto some basic questions about
Catholicism. Mulianto appeared befuddled by the questions and was unable to answer them
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correctly. Mulianto did not know the name of the Pope or where the Pope resides. When
asked to name the Catholic Church’s seven sacraments, Mulianto was only able to name two
of the seven. Mulianto subsequently identified two others after the Government brought
them to his attention. Mulianto was also asked when he received his First Communion. In
response, Mulianto stated: “If I am not mistaken in 1997. It shows on my paper there.” But
the document to which Mulianto referred was his Baptism certificate which did not say
anything about his First Communion, suggesting Mulianto could not distinguish between
Baptism and First Communion. Moreover, Mulianto’s testimony was inconsistent. During
the hearing he originally testified he had attended Mass in the United States either during
Christmas or Easter. Later in his testimony, however, Mulianto testified he had never
attended Mass in the United States. Based on the foregoing, the IJ’s credibility determination
relies on specific and cogent reasons supported by substantial evidence in the record. See
Chaib v. Ashcroft, 397 F.3d 1273, 1278 (10th Cir. 2005).
The IJ’s determination Mulianto was not Chinese is similarly supported by the record
evidence. To support his claim he was Chinese, Mulianto provided his purported birth
certificate dated August 14, 1979. The IJ concluded the certificate was not a credible
document. The IJ observed Mulianto had testified his parents were required to change their
names from Chinese names to Indonesian names in 1967 following a decree by the
Indonesian President. Mulianto’s purported birth certificate, however, lists his parents’
Chinese names. Mulianto was unable to explain this discrepancy. The IJ concluded it did
not make much sense that Mulianto’s parents would change their names to Indonesian
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names, but twelve-years later would defy the law and change their names back to Chinese
and use those names in official Indonesian documents. The IJ’s determination Mulianto is
not Chinese is, therefore, “supported by reasonable, substantial and probative evidence on
the record as a whole.” Krastev v. I.N.S., 292 F.3d 1268, 1275 (10th Cir. 2002).1
PETITION DENIED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
1
Petitioner also contends the BIA’s adverse credibility determination violated his
First Amendment rights because it constituted an impermissible government inquiry into
the strength of faith. Petitioner did not raise this issue before the BIA, so he failed to
exhaust his administrative remedies. Accordingly, we lack jurisdiction over this claim.
See Akinwunmi v. I.N.S, 194 F.3d 1340, 1341 (10th Cir. 1999) (holding that “[t]he
failure to raise an issue on appeal to the Board constitutes failure to exhaust
administrative remedies with respect to that question and deprives the Court of Appeals
of jurisdiction to hear the matter”).
4