Siahaan v. Mukasey

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 4, 2008 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

JOHNY JATILUHUT SIAHAAN,

Petitioner,

v. No. 08-9508 (Petition for Review) MICHAEL B. MUKASEY, United States Attorney General,

Respondent.

ORDER AND JUDGMENT *

Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.

Johny Jatiluhut Siahaan 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. Siahaan

does not contest the denial of asylum, but argues that his credible testimony alone

satisfied the standards for restriction on removal and CAT protection, and thus the

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. IJ erred in requiring corroborating evidence to establish his entitlement to relief.

We deny the petition for review.

I

Mr. Siahaan is a native and citizen of Indonesia; he is also a member of the

Batak Tribe and a practicing Seventh Day Adventist. He entered the United

States in 1992 on a B-2 visitor visa but overstayed his visit. Consequently, in

2003, the government charged him with remaining in this country beyond his

authorized time. See 8 U.S.C. § 1227(a)(1)(B). Mr. Siahaan conceded the charge

but filed for asylum, restriction on removal, and CAT relief. An IJ held a hearing

and concluded that Mr. Siahaan’s asylum application was untimely because he

failed to file it within one year of his last entry into the United States.

Alternatively, the IJ found that Mr. Siahaan’s testimony was “believable and

consistent” but “not enough to establish his eligibility for asylum without

corroborating evidence.” Admin. R. at 49. Since Mr. Siahaan failed to satisfy the

asylum standard, the IJ found that he necessarily failed to satisfy the more

onerous standards for restriction on removal and CAT relief. On appeal to the

BIA, a single member of the Board adopted and affirmed the IJ’s decision, noting

that Mr. Siahaan’s asylum claim was time-barred, his documentary evidence had

been considered, and he failed to demonstrate that his past experiences rose to the

level of persecution.

-2-  Mr. Siahaan now challenges the BIA’s decision, arguing that since the IJ

found him credible, his testimony alone ought to have established his entitlement

to relief without corroborating evidence. To support this position, Mr. Siahaan

cites our rule that lack of corroborating evidence cannot be a basis for an adverse

credibility finding. And from this premise, he concludes that the IJ’s favorable

credibility finding required that the IJ find him entitled to restriction on removal

and CAT protection. As we explain, however, Mr. Siahaan’s conclusion does not

follow from the premise he relies upon.

II

We review the BIA’s decision as the final order of removal but “consult the

IJ’s opinion to the extent the BIA relied upon or incorporated it.” Sarr v.

Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). “Our duty is to guarantee that

factual determinations are supported by reasonable, substantial and probative

evidence considering the record as a whole.” Sidabutar v. Gonzales, 503 F.3d

1116, 1122 (10th Cir. 2007) (quotation and brackets omitted). Credibility

findings are among those determinations subject to the substantial evidence test.

Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).

The problem in this case stems from the IJ’s reference to the need for

corroborating evidence. Mr. Siahaan’s premise is correct: an IJ cannot make an

adverse credibility finding based on a lack of corroborating evidence, see

Solomon v. Gonzales, 454 F.3d 1160, 1165 (10th Cir. 2006). But that is not what

-3- happened here. Rather, the IJ explicitly found Mr. Siahaan’s testimony

“believable and consistent.” Admin. R. at 49. Moreover, the BIA recognized that

the IJ also considered Mr. Siahaan’s documentary evidence. Because the IJ did

not make an adverse credibility finding and considered Mr. Siahaan’s

documentary evidence, our rule prohibiting adverse credibility findings based on

a lack of corroborating evidence is inapposite and Mr. Siahaan’s reliance on it is

misplaced.

What Mr. Siahaan is really challenging is the IJ’s conclusion that his

testimony alone, though credible, was insufficient to satisfy the asylum standard.

Indeed, he plainly argues that since the IJ found him to be credible, his testimony

should have been sufficient to meet his burden of proof. See Pet’r Br. at 5. But

the IJ understood that an alien’s testimony “can suffice [to establish his eligibility

for relief] where the testimony is both believable, consistent and sufficiently

detailed to provide a plausible and coherent account of the basis for the alien’s

fears.” Admin. R. at 45. And again, the IJ found Mr. Siahaan’s testimony

“believable and consistent.” Id. at 49. Nevertheless, this favorable credibility

finding did not require the IJ to conclude that Mr. Siahaan satisfied his burden of

proof.

“The testimony of the applicant, if credible, may be sufficient to sustain the

burden of proof without corroboration,” but such a finding is not mandatory. See

8 C.F.R. §§ 208.13(a), 208.16(b), and 208.16(c)(2) (emphasis added); see also

-4- Uanreroro, 443 F.3d at 1204 (“an alien’s testimony alone may support an

application for [restriction on] removal or asylum”) (emphasis added). The

“testimony must also be found ‘credible’ and ‘persuasive,’ and refer to ‘specific

facts sufficient to demonstrate that the applicant’” meets his burden of proof. Id.

at 1205 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)); cf. Solomon, 454 F.3d at 1165

(“otherwise credible testimony constitutes sufficient evidence to support an

application”). In determining whether an alien satisfies his burden of proof, “the

trier of fact may weigh the credible testimony along with other evidence of

record.” 8 U.S.C. § 1158(b)(1)(B)(ii).

Here, the IJ considered Mr. Siahaan’s credible testimony and other record

evidence but found that he did not satisfy his burden of proof. The IJ made no

adverse credibility finding based on a lack of corroborating evidence, nor was IJ

obligated to find that Mr. Siahaan satisfied his burden of proof merely because he

testified credibly. Consequently, the only real question is whether the IJ’s finding

that Mr. Siahaan failed to satisfy his burden of proof is supported by substantial

evidence. We conclude it is.

To obtain restriction on removal, Mr. Siahaan must to show that his “life or

freedom would be threatened in [Indonesia] on account of [his] race, religion,

nationality, membership in a particular social group, or political opinion.” See

8 C.F.R. § 1208.16(b); Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008).

He may satisfy this standard by showing “past persecution” or that “it is more

-5- likely than not” he will be persecuted in the future. 8 C.F.R. § 1208.16(b)(1)-(2);

Sidabutar, 503 F.3d at 1123-24. Failure to meet the standard for restriction on

removal indicates that he has not, and probably will not, be tortured, and thus

cannot satisfy the standard for CAT relief. See 8 C.F.R. § 1208.16(c)(2); Ismaiel,

516 F.3d at 1206.

Mr. Siahaan claimed past persecution on account of his religion and

ethnicity. He had been beaten several times throughout his school years, recalling

a fight with a Muslim when he was sixteen or seventeen years old. Both he and

the Muslim were taken to a police station, where he was treated for bruises, but

no charges were filed, and they were both released. He also recalled that during

his school years, Muslims instigated fights, saying that Christian Bataks eat pork

and dogs. They also taunted him on his way to church and challenged his belief

in the Holy Trinity, stating, “there is only one God.” Admin. R. at 96. And he

remembered that the worst thing he was ever called was a “Bata[]k.” Id.

After graduating from a private Christian university, Mr. Siahaan worked

for a foreign-investment firm in Jakarta. He had no difficulty getting hired and

experienced no mistreatment based on his religion or ethnicity. His brother,

however, who remains in Indonesia, was attacked by someone wielding a sword.

The trauma left his brother with a personality-changing brain injury that forced

him to retire. Although the incident was reported to police, and his brother

identified his attacker, the police took no action.

-6-  This testimony is insufficient to establish that Mr. Siahaan was persecuted.

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.” Wiransane v. Aschroft,

366 F.3d 889, 893 (10th Cir. 2004) (quotation omitted). Although the

mistreatment Mr. Siahaan experienced in school was unfortunate, the IJ

recognized that it was more akin to discrimination than persecution. Yet

“[d]iscrimination on the basis of race or religion, as morally reprehensible as it

may be, does not ordinarily amount to persecution . . . .” Ba v. Mukasey,

539 F.3d 1265, 1270 (10th Cir. 2008) (quotation omitted). Moreover, the worst

verbal abuse Mr. Siahaan endured was being called a member of his own tribe,

while the most severe injuries he sustained were bruises from a fight he engaged

in as a boy. This is not persecution. Cf. Kapcia v. INS, 944 F.2d 702, 704-05

(10th Cir. 1991) (finding no past persecution where aliens had been harassed,

imprisoned, beaten, interrogated, and conscripted into the military).

Nor has Mr. Siahaan demonstrated a clear probability of persecution upon

removal. He suggests that the cumulative impact from his past experiences

creates a presumption of future persecution, but because he failed to show past

persecution, he is not entitled to this presumption. See 8 C.F.R. § 1208.16(b)(2).

Instead, he must affirmatively demonstrate that he would be singled out

personally for persecution or that he has “a reasonable fear of persecution because

-7- of [his] membership in a group subject to a pattern or practice of persecution.”

See Woldemeskel v. INS, 257 F.3d 1185, 1190-91 (10th Cir. 2001) (quotation

omitted). And on this score, although his brother was seriously injured in an

attack believed to be perpetrated by a Muslim, nothing indicates that Mr. Siahaan

himself faces an individualized risk of persecution. See id. at 1191. Nor does the

record disclose a pattern or practice of persecution against Christian Bataks. A

pattern or practice of persecution entails “something on the order of organized or

systematic or pervasive persecution.” Id. (quotation omitted). To be sure, the

record reflects religious violence between Christians and Muslims in Indonesia,

but it also indicates that relations between the two groups have improved,

particularly since the government began efforts to curb inter-religious violence.

Further, despite his claim of ethnic persecution, Mr. Siahaan fails to point to any

evidence of organized or systematic persecution against ethnic Bataks.

Consequently, we cannot say he faces a clear probability of persecution upon

removal. It follows, then, that he is entitled to neither restriction on removal, nor

protection under the CAT. See Ismaiel, 516 F.3d at 1206.

The petition for review is DENIED.

Entered for the Court

Bobby R. Baldock Circuit Judge

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