                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                     February 14, 2007
                              FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                        Clerk of Court

    JO N N Y LEO N A RD ; R AN D H Y
    AN AN DY GU LTOM ; SITI
    H ID A Y ATI; M A RLY N
    TH IA N OV ,
                                                           No. 06-9516
               Petitioners,                     (N os. A97-192-525, 96-291-222,
                                                   97-192-526 & 97-192-527)
      v.                                               (Petition for Review)

    ALBERTO R. GONZA LES,
    Attorney General,

               Respondent.



                              OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




           Jonny Leonard, Siti Hidayati, 1 Randhy Anandy Gultom, and M arlyn

Thianov (collectively “Petitioners”) seek review of a final order of removal issued

*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 M s. 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.
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 M r. 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 M r. 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 M ay 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

2
      M r. Leonard and M r. G ultom filed separate applications for asylum.
M s. Hidayati and M s. Thianov are listed on M r. Leonard’s application and are
therefore considered derivative beneficiaries of his application. Petitioners are
challenging only the timeliness determination with respect to M r. Gultom’s
asylum application. See Pet. Br. at 12-13.

                                         -2-
(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 M r. Gultom’s

asylum application and the IJ’s discretionary decision that M r. 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. W e do not

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

      W ithholding of R emoval Claim s

      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

M s. 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 M s. Hidayati’s allegedly devout M uslim 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).

                                         -3-
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. “A n 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

M r. 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

                                          -4-
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 W itnesses, another Christian denomination,

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

M oreover, M r. 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 IN A 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 (10 th Cir. 2006). And petitioners have not pointed to any evidence

in the record to support this claim. Both M s. Hidayati and M r. 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.




                                          -5-
      The petition for review as to the asylum claim is DISM ISSED 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




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