Lumbangaol v. Gonzales , 258 F. App'x 167 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 15, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
M ONANG LUM BANGAOL and
SH ELLY PA SA RIB U,
No. 07-9504
Petitioners-Appellants,
v. (Board of Immigration Appeals)
PETER D. KEISLER, Acting Attorney (Agency File Nos. A97-194-418/419)
General of the United States, *
Respondent-Appellee.
OR D ER AND JUDGM ENT **
Before M cCO NNELL, BR ISC OE, and M cKAY, Circuit Judges.
Petitioners M onang Lumbangaol and Shelly Pasaribu, husband and wife,
challenge a January 10, 2007 decision of the Board of Immigration Appeals
(BIA). The BIA denied their claims for asylum, withholding of removal, and
*
Peter D. Keisler, Acting Attorney General, is automatically substituted for
his predecessor in office, Alberto R. Gonzales, Attorney General. See Fed. R.
App. P. 43(c)(2).
**
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).
This case is therefore 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is not binding precedent, except under the doctrines of law of the case, res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.
relief under the Convention Against Torture (CAT). Petitioners do not challenge
the determination with respect to their asylum claim, as it w as time-barred. See
Ferry v. Gonzales, 457 F.3d 1117, 1129–30 (10th Cir. 2006). They petition this
C ourt for review only w ith respect to their withholding of removal and CAT
claims. W e have exclusive jurisdiction under the Immigration and Nationality
Act to review the final order of removal, 8 U.S.C. § 1252(a), and we deny the
petition.
I. BACKGROUND
Petitioners are natives and citizens of Indonesia. They are practicing
Seventh-Day Adventists from a predominantly M uslim nation. M r. Lumbangaol
came to the United States on November 12, 1995, under a visitor’s visa permitting
him to stay only until M ay 10, 1996. M s. Pasaribu came on M arch 25, 2001; her
visitor’s visa expired on September 25, 2001. They were married in Colorado in
M arch 2003, and jointly applied for asylum, withholding of removal, and relief
under the CAT on April 14, 2003. On February 10, 2005, an immigration judge
(IJ) at D enver denied their application and ordered them removed to Indonesia.
The BIA affirmed in a written per curiam opinion on January 10, 2007.
According to M r. Lumbangaol’s testimony before the IJ, he was born in a
mostly Christian part of North Sumatra in 1968, but moved to the capital, Jakarta,
a heavily M uslim city, in 1982. There, he had to sw itch from the public schools
to a private school to avoid M uslim indoctrination. It was difficult to find a
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church in Jakarta at which to worship, so he helped his parents build one. M r.
Lumbangaol testified that services at his church were often interrupted by
M uslims outside blaring loud music to cause disruption. W hen he began
attending churches elsewhere in Jakarta, however, he experienced no problems.
During the time he was still in the country, no violence or harassment was
directed toward M r. Lumbangaol personally, although he once observed a
Christian friend get into a fight with M uslims and he testified that M uslims
“would really look at us [Christians] as if we are unclean.” After he left
Indonesia, he heard that M uslims had broken his family’s church’s windows and
destroyed its fence.
M s. Pasaribu testified that her church in Jakarta was often the target of
stone-throwing and disruption by M uslims, and that on one occasion the church
was attacked by a mob which had to be fended off by the police. She saw riots in
the city and witnessed Chinese people being beaten and raped. She was
frequently groped and sexually harassed on the bus, and although she could not
say that it was M uslims who were doing so or that she was targeted on account of
her religion, nonetheless she w as constantly afraid of M uslims.
II. D ISC USSIO N
A. Standards and Scope of Review
To obtain withholding of removal (also called restriction on removal),
which forestalls an alien’s deportation to a particular country, the petitioner must
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show that his “life or freedom w ould be threatened in that country because of
[his] race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A ). There must be a “clear probability
of persecution,” which requires objectively that persecution on the basis of a
protected status be “more likely than not.” Elzour v. Ashcroft, 378 F.3d 1143,
1149 (10th Cir. 2004). Persecution in this context “is an ‘extreme’ concept that
‘does not encompass all treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional.’” Chen v. Ashcroft, 381 F.3d 221, 231 (3d Cir.
2004) (Alito, J.) (quoting Fatin v. INS, 12 F.3d 1233, 1240 & n.10 (3d Cir.
1993)). It is a more demanding standard than that applicable to requests for
asylum.
To obtain relief under the Convention Against Torture, an alien must prove
that it is more likely than not that he will be tortured upon return to his country.
8 C.F.R. §§ 208.16(c)(2), (4). Persecution “so severe as to rise to the level of
torture” may also be grounds for relief under the CAT, and the torture need not be
on account of a protected status. Elzour, 378 F.3d at 1150. “Torture,” however,
must be “an extreme form of cruel and inhuman treatment,” 8 C.F.R. §
1208.18(a)(2), and to warrant relief under the CAT it must be “inflicted by or at
the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity,” id. § 1208.18(a)(1).
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W e review questions of law de novo. Niang v. Gonzales, 422 F.3d 1187,
1196 (10th Cir. 2005). Here, however, the issues are of fact, and we review the
BIA’s factual determinations to see if they are supported by “substantial
evidence.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). Facts
found during the administrative process are “conclusive unless any reasonable
adjudicator w ould be compelled to conclude to the contrary,” 8 U.S.C. §
1252(b)(4)(B), and “our duty is to guarantee that factual determinations are
supported by reasonable, substantial and probative evidence considering the
record as a whole.” Elzour, 378 F.3d at 1150.
B. W ithholding of Removal Claim
The BIA properly concluded that Petitioners have not shown the clear
probability of persecution required to sustain a claim for withholding of removal.
There is little doubt that M r. Lumbangaol and M s. Pasaribu find it easier to
practice their religion in the United States than in their native Indonesia, and that
they may expect to undergo difficulties upon return. But Petitioners have not
shown that these difficulties rise to the severity necessary to warrant the relief
they seek.
M r. Lumbangaol and M s. Pasaribu each have relatives who are practicing
Christians and continue to live in Indonesia, a fact which “diminishes [their]
claim to a fear of future persecution.” R. 3 (citing In re A–M –, 23 I. & N. Dec.
737, 740–41 (BIA 2005)). M ore importantly, the BIA and the IJ determined that
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the treatment Petitioners received while in Indonesia did not rise to the level of
persecution at all, and we agree. A general atmosphere of intolerance, with no
incidents directed specifically at either Petitioner nor any hardship that could be
said to rise above the level of mere harassment, is not persecution within the
meaning of the law . Petitioners have presented no evidence that conditions in
Indonesia are worse today than when Petitioners came to this country, so there is
no reason to think that they would be persecuted upon return to Indonesia any
more than before they left. M r. Lumbangaol even testified that when he stopped
attending the church he built with his parents, which was near five mosques, and
started frequenting Seventh-Day Adventist churches elsewhere in Jakarta, he
“didn’t experience any problems.” R. 114.
In comparison, we have recently held that an Indonesian Christian who
alleged “past beatings and robberies at the hands of M uslims” had failed to
establish past persecution, let alone a likelihood of future persecution. Sidabutar
v. Gonzales, ___ F.3d ___, No. 06-9576, slip op. at 3, 18, 20 (10th Cir. Sept. 21,
2007). Based on the comparatively weaker record in this case, the B IA’s
determination that Petitioners failed to meet their burden of showing that
persecution upon return was “more likely than not” is well supported by
substantial evidence. Elzour, 378 F.3d at 1149.
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C. Convention Against Torture Claim
The BIA also properly rejected Petitioners’ argument that it is more likely
than not that they would face torture on return to Indonesia. Simply put, they
have made out no elements of torture at all. M r. Lumbangaol admitted that
nothing happened to him personally in Indonesia, and although M s. Pasaribu
stated that she had been sexually harassed on public buses, this is not torture.
Neither has provided any reason to think that they will suffer worse treatment
upon return to Indonesia than while there before— let alone the “extreme form of
cruel and inhuman treatment” that is torture. 8 C.F.R. § 1208.18(a)(2).
Furthermore, the cursory treatment given by Petitioners in their brief to
their CAT claim suggests no reason for thinking that they would be tortured by,
or with the consent or acquiescence of, any public official, as required under the
CAT. Id. § 1208.18(a)(1). To the contrary: as the BIA noted, M s. Pasaribu
testified that the police in Jakarta actually intervened to protect a group of
Seventh-Day Adventists, including herself, from an apparent mob attack by the
local M uslims. As w e observed in Sidabutar, where there is little likelihood that
an alien “would face future persecution at the hands of the government or a non-
governmental group that ‘the government is unwilling or unable to control,’ it is
likewise against the odds that he would be tortured by the government or a proxy
for the government.” Sidabutar, supra, slip op. at 21 (quoting Batalova v.
Ashcroft, 355 F.3d 1246, 1253 (10th Cir. 2004)).
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III. C ON CLU SIO N
The BIA did not err in dismissing Petitioners’ claims for withholding of
removal and relief under the CAT, and accordingly the instant petition for review
is DENIED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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