Leonard v. Gonzales, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JONNY LEONARD; RANDHY

ANANDY GULTOM; SITI

HIDAYATI; MARLYN

THIANOV,

Petitioners,

v.

ALBERTO R. GONZALES,

Attorney General,

Respondent.

No. 06-9516

(Nos. A97-192-525, 96-291-222,

97-192-526 & 97-192-527)

(Petition for Review)

ORDER AND JUDGMENT
name="txt*">(*)

Before HOLMES, McKAY, and

BRORBY, Circuit Judges.

Jonny Leonard, Siti Hidayati,(1)

Randhy Anandy Gultom, and Marlyn

Thianov (collectively "Petitioners") seek review of a final order of removal

issued by the Board of Immigration Appeals (BIA) affirming the denial of their

applications for asylum, withholding of removal under the Immigration and

Nationality Act (INA), and withholding of removal under the United Nations

Convention Against Torture (CAT). The petition for review is dismissed in part

and denied in part.

Asylum Claim

Petitioners challenge the IJ's determination that Mr. Gultom's asylum

application was untimely.(2) An asylum

application must be "filed within 1 year

after the date of the alien's arrival in the United States." 8 U.S.C. 1158(a)(2)(B). Petitioners concede that the application was untimely, but they

argue that Mr. Gultom is entitled to an exception to the one-year deadline

because he demonstrated "extraordinary circumstances relating to the delay in

filing," id. § 1158(a)(2)(D).

Prior to the enactment of the REAL ID Act in May 2005, courts did not

have jurisdiction to review a timeliness determination made under section

1158(a)(2). See id. § 1158(a)(3). After the REAL ID Act,

courts were given

limited jurisdiction to review "constitutional claims or questions of law" related

to the timeliness determination. Diallo v. Gonzales, 447 F.3d 1274, 1281

(10th Cir. 2006) (quoting 8 U.S.C. 1252(a)(2)(D)). "However, challenges

directed solely at the agency's discretionary and factual determinations remain

outside the scope of judicial review." Id. Petitioners' argument focuses on the

alleged factual circumstances involved in the delayed filing of Mr. Gultom's

asylum application and the IJ's discretionary decision that Mr. Gultom had not

established his entitlement to an exception to the one-year filing deadline. This

argument does not raise a constitutional claim or a question of law. We do not

have jurisdiction to review this type of challenge. See id.

Withholding of Removal Claims

Petitioners contend that the IJ erred in making his adverse credibility

finding and that the record as a whole supports their claims for withholding of

removal under the INA and the CAT. Petitioners essentially claim that they fear

returning to Indonesia because they will suffer persecution at the hands of

Ms. Hidayati's family due to their Christian religious beliefs. The IJ found that

the petitioners' testimony on this issue was not credible. He reasoned that it was

not plausible that Ms. Hidayati's allegedly devout Muslim family would not have

uncovered their Christian faith, if (as the IJ found) they practiced it near her

family in Indonesia for 18 years. Admin. R. at 71-74.

An IJ's credibility determination will be upheld "so long as the IJ provides

specific, cogent reasons for disbelieving the witness' testimony." Elzour v.

Ashcroft, 378 F.3d 1143, 1152 (10th Cir. 2004) (quotation and citation omitted).

An adverse credibility determination may be based on inconsistencies in the

witness' testimony, lack of sufficient detail, implausibility, or testimonial

demeanor. Id. at 1152-53. "An IJ's finding that an applicant's testimony is

implausible may not be based upon speculation, conjecture, or unsupported

personal opinion." Id. at 1153.

The IJ supported his adverse credibility finding with evidence from the

record. He noted that the petitioners testified that their children attended

religious school for about twelve years each and that the children had to wear

uniforms from the Christian school. Also, there was a period of time when

Mr. Gultom lived with his grandparents when he was a child and, according to

the testimony, his mother came to pick him up every day and he continued to go

to the Christian school. The IJ concluded that "the families lived in relatively

close proximity to one another" and that it was "inconceivable . . . that if they

were indeed practicing Christians that their practice would not have come to light

while they were living in Indonesia." Admin. R. at 72.

In order to establish withholding of removal under the INA, petitioners

must show that it is more likely than not that they would be persecuted upon their

return to Indonesia. Woldemeskel v. INS, 257 F.3d 1185, 1193 (10th Cir. 2001).

As discussed above, the IJ found that petitioners' testimony about potential

persecution from their relatives was not credible and that the fact that they were

able to live in Indonesia for 18 years and allegedly pursue their religious

activities shows that they are able to live in Indonesia without serious harm being

inflicted on them by their relatives. The IJ also noted that the Department of

State report indicated that Jehovah's Witnesses, another Christian denomination,

enjoyed a high degree of religious freedom in Indonesia. Admin. R. at 74.

Moreover, Mr. Leonard testified that he was able to worship freely as a Christian

in Indonesia. Id. at 126. Substantial evidence in the record supports the IJ's

determination that petitioners had not met their burden of establishing entitlement

under the INA to withholding of removal.

In order to satisfy the requirements under the CAT, an applicant must

establish that it is more likely than not that he or she would be tortured if

returned to the proposed country of removal. 8 C.F.R. § 208.16(c)(4). The IJ

concluded that petitioners were ineligible for CAT relief because this provision

"requires the respondents to show at least acquiescence in torture by a

government official, or someone acting with official authority" and petitioners

had failed to show any kind of mistreatment at the hands of the authorities.

Admin. R. at 75. The IJ correctly articulated the operative legal principle. Ferry

v. Gonzales, 457 F.3d 1117, 1130-31 (10th Cir. 2006). And petitioners have

not

pointed to any evidence in the record to support this claim. Both Ms. Hidayati

and Mr. Leonard testified that they had never been harmed by the Indonesian

government. Id. at 122, 148. The IJ's decision is supported by substantial

evidence in the record.

The petition for review as to the asylum claim is DISMISSED for

lack of

jurisdiction. As to the withholding of removal claims under the INA and the

CAT, the petition is DENIED.

Entered for the Court

Jerome A. Holmes

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

1. Although Ms. Hidayati's name is

spelled "Hatayate" in some portions of

the record, see, e.g., Admin. R. at 101, her name is spelled "Hidayati" on her

passport, see id. at 431, and that is the spelling we will use.

2. Mr. Leonard and Mr. Gultom filed

separate applications for asylum.

Ms. Hidayati and Ms. Thianov are listed on Mr. Leonard's application and are

therefore considered derivative beneficiaries of his application. Petitioners are

challenging only the timeliness determination with respect to Mr. Gultom's

asylum application. See Pet. Br. at 12-13.

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