                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS November 27, 2009
                                                                   Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                    Clerk of Court




    FNU HARIANTO,

                Petitioner,

    v.                                                    No. 09-9522
                                                      (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.



         FNU Harianto 1 petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) dismissing his appeal from the decision of an

Immigration Judge (“IJ”) that denied his applications for asylum, restriction on


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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
     FNU is an acronym for “First Name Unknown.” Indonesians, like
Mr. Harianto, often have a single given name.
removal, and relief under the Convention Against Torture (“CAT”). In his

petition, Harianto asserts that he has suffered past persecution in Indonesia, as

demonstrated by the evidence, and that his life will be endangered if he is forced

to return there. We have jurisdiction under 8 U.S.C. § 1252(a), and we DENY the

petition for review.

                                  I. Background

      Harianto is a Chinese-Christian citizen of Indonesia who was admitted to

the United States in December 1995 with authorization to remain for a temporary

period not to exceed June 4, 1996. Harianto overstayed his authorized period and,

some seven years later, was sent a Notice to Appear by the Department of

Homeland Security charging him with removability for staying longer in the

United States than permitted. In an appearance before an IJ, Harianto conceded

removability but requested asylum, restriction on removal, and CAT protection.

Harianto based his request for relief on evidence of past beatings and robberies at

the hands of Muslims, which he maintained established past persecution, and his

expressed fear of future persecution in Indonesia based on his Christian religion

and Chinese ancestry.

      On November 26, 2007, the IJ denied Harianto’s application but granted

him voluntary departure with an alternative order of removal to Indonesia.

Harianto appealed to the BIA which affirmed the denial of his asylum application




                                         -2-
as untimely. 2 The BIA also concluded that the IJ properly denied Harianto’s

restriction on removal and CAT applications. Harianto filed a timely petition for

review with this court.

                          II. Scope and Standard of Review

      Our scope of review is dictated by the fact that a single BIA member

decided the merits of the appeal and issued an opinion affirming the IJ’s decision.

See 8 C.F.R. § 1003.1(e)(5). In these circumstances, the BIA’s order is the final

order under review but “we may consult the IJ’s opinion to the extent that the

BIA relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790

(10th Cir. 2007). “We review the BIA’s factual findings under the substantial

evidence standard. The BIA’s findings of fact are conclusive unless the record

demonstrates that any reasonable adjudicator would be compelled to conclude to

the contrary. Our role is not to re-weigh the evidence or to evaluate the

credibility of witnesses.” Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir.

2006) (citations and internal quotation marks omitted). We review de novo the

BIA’s legal determinations. Herrera-Castillo v. Holder, 573 F.3d 1004, 1007

(10th Cir. 2009).




2
      Harianto does not challenge this holding on appeal, presumably in
recognition of the fact that we have no jurisdiction to review such a determination
absent a claim involving a legal or constitutional defect. Diallo v. Gonzales,
447 F.3d 1274, 1281 (10th Cir. 2006).

                                        -3-
                             III. Restriction on Removal

         Our cases establish a familiar framework for assessing entitlement to

restriction on removal:

                Under 8 U.S.C. § 1231(b)(3)(A), an alien is entitled to
         restriction on removal if the alien’s life or freedom would be
         threatened in th[e] country [of removal] because of the alien’s race,
         religion, nationality, membership in a particular social group, or
         political opinion. An alien may create a rebuttable presumption of
         eligibility for restriction on removal by either (1) demonstrating
         “past persecution” in the proposed country of removal on account of
         one of the protected grounds, or (2) showing that it is more likely
         than not that the alien would be subject to persecution on one of the
         specified grounds upon returning to the proposed country of removal.

Sidabutar v. Gonzales, 503 F.3d 1116, 1123-24 (10th Cir. 2007) (internal

quotation marks and citations omitted).

         A. Past persecution

         First, Harianto asserts that he has properly established past persecution

entitling him to the presumption of restriction on removal. After reviewing the

BIA’s conclusion that Harianto failed to show past persecution, we find no legal

error.

         The BIA decision explained,

         [r]egarding past persecution, we find that the acts described by the
         respondent – including being pushed off his bicycle; being mugged,
         beaten, and taunted for being Chinese by ethnic Indonesians when he
         was 14 years old; being asked for money after leaving church and
         subsequently having his Bible torn and being beaten; and having a
         rock thrown at his church – were insufficient to rise to the level of
         past persecution.


                                           -4-
Admin. R. at 3 (citations to the record omitted).

      The BIA’s conclusion that Harianto did not suffer past persecution based

on these findings is consistent with the law of this Circuit. “Although persecution

is not defined in the INA, we have held that a finding of 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. Ashcroft, 366 F.3d 889, 893

(10th Cir. 2004) (internal quotation marks omitted).

      We have upheld the IJ’s finding of no past persecution where the alien

reported being robbed, fondled, and suffered a minor head injury, see Tulengkey

v. Gonzales, 425 F.3d 1277, 1281 (10th Cir. 2005), and where the alien had twice

been detained for two-day periods during which he was beaten and interrogated,

whose parents’ home had been searched, whose work locker had been repeatedly

broken into, and who had been assigned poor work tasks, denied bonuses, and

conscripted into the army, where he was constantly harassed, see Kapcia v. INS,

944 F.2d 702, 704-05, 707 (10th Cir. 1991). In contrast, we have suggested that

an asylum applicant’s severe beating and ten-month imprisonment on account of

his political opinion constituted persecution. See Nazaraghaie v. INS, 102 F.3d

460, 463-64 (10th Cir. 1996).




                                          -5-
      Here, Harianto has suffered, at most, from several robberies, two minor

injuries, and incidents of harassment. The BIA correctly determined that these

incidents do not rise to the level of past persecution.

      B. Probability of Future Persecution

      The fact that Harianto is not able to demonstrate past persecution will not

doom his cause if he can show that he has a clear probability of being persecuted

in the future in Indonesia. Sidabutar, 503 F.3d at 1125. To do that, Harianto

must “establish a ‘clear probability of persecution’ through presentation of

‘evidence establishing that it is more likely than not that [he] would be subject to

persecution on [account of race, religion, nationality, membership in a particular

social group, or political opinion].’” Woldemeskel v. INS, 257 F.3d 1185, 1193

(10th Cir. 2001) (quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)). To

establish that probability, Harianto argues that “[d]ue to the rise in anti-Chinese

and anti-Christian extremism and inter-religious and inter-racial conflicts in

Indonesia, Petitioner would be at serious risk for harm, if not death, if forced to

return to Indonesia.” Opening Br. at 16. Relying on various State Department

reports and other evidence in the record, the BIA rejected this argument. We do

likewise.

      The BIA held,

            [r]egarding the respondent’s religious claim, the United States
      Department of State’s 2006 Country Reports on Human Rights
      Practices for Indonesia, dated March 2007, identifies a few sporadic

                                          -6-
      incidents of tension between religious groups, but also indicates that
      there have been improvements in the relations between religious
      groups. The incidents of conflict described in the Country Reports
      do not rise to the level of persecution. Further, the United States
      Department of State’s Issue Paper: Christians in Indonesia indicates
      that in most parts of Indonesia, “people generally are able to worship
      as they wish with no interference from the state or their neighbors of
      other faiths,” but that religious violence does occur in isolated areas.

             ....

            Similarly, the record indicates that although there is ongoing
      discrimination against Indonesians of Chinese ethnicity, that discrimination
      does not rise to the level of persecution. For example, the Country Reports
      indicated that “[i]nstances of discrimination and harassment of ethnic
      Chinese continued to decline compared with previous years” (Exh. 4,
      Country Reports, at 25). The respondent’s evidence to the contrary is quite
      dated and does not reflect current country conditions. Therefore, the
      respondent has not established that he is more likely than not to face
      persecution in Indonesia.

Admin. R. at 4 (citations omitted).

      To counter this conclusion, Harianto asks us to accept a broad, unsupported

general proposition: “Petitioner faces at least a 51% chance of persecution if he

is forced to return to Indonesia.” Opening Br. at 15. That, according to

Harianto, is because he is obviously and immutably Chinese and must carry a card

identifying himself as a Christian. The BIA, however, never disputed that

Harianto is a Chinese Christian. Instead it relied on State Department evidence

that both ethnic and religious tensions in Indonesia have eased and no longer pose

a substantial threat of persecution.




                                         -7-
      Harianto also points to other documentation to rebut the conclusions of the

BIA and corroborate his own claim. Our role here, however, is not to reweigh the

evidence but merely to determine whether the conclusions of the BIA are

supported by substantial evidence. Sidabutar, 503 F.3d at 1125. We will only

reverse if every reasonable fact-finder would be compelled to find past

persecution or a clear probability of future persecution based on Harianto’s

evidence. See Tulengkey, 425 F.3d at 1281. Harianto has failed to meet that

demanding standard.

      Harianto urges us to follow the Ninth Circuit’s reasoning in Sael v.

Ashcroft, 386 F.3d 922, 925-29 (9th Cir. 2004), which would characterize

Harianto as a member of a “disfavored group” and thus lessen the showing he

would need to make of particularized risk of future persecution. Even if we did

adopt the Ninth Circuit’s lower standard for “disfavored groups” and chose to

apply it to Christians or Chinese Christians in Indonesia, Harianto has not shown

that he, “in particular, is likely to be targeted as a member of that group,” Sael,

386 F.3d at 925. The “personal connection to the general persecution” that

was abundantly present in Sael, 386 F.3d at 929, is lacking in this case. We

thus have no occasion to accept or reject the “disfavored groups” approach

of Sael.




                                          -8-
      With regard to his application for relief under the CAT, we agree with the

BIA that Harianto has not established it is more likely than not that he will be

tortured in Indonesia.

      The Petition for Review is DENIED.

                                                     Entered for the Court


                                                     Timothy M. Tymkovich
                                                     Circuit Judge




                                         -9-
