Johan v. Mukasey

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

-2- 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

-3- 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.

-4-  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.

-5-  “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

-6- 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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