                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS January 23, 2008
                                                                  Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                   Clerk of Court



    MEI ENG JOE,

                Petitioner,
    v.
                                                          No. 07-9524
    MICHAEL B. MUKASEY,                               (Petition for Review)
    Attorney General, *

                Respondent.


                              ORDER AND JUDGMENT **


Before TACHA, EBEL, and MURPHY, Circuit Judges.


         Petitioner Mei Eng Joe seeks review of the denial of her application for

restriction on removal by the Board of Immigration Appeals (BIA). We dismiss

in part and deny in part her petition for review.




*
      On November 9, 2007, Michael B. Mukasey became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Mukasey is substituted for Alberto R. Gonzales as the
respondent in this action.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                  I. Background

      Ms. Joe is a citizen of Indonesia. She was admitted to the United States on

a non-immigrant visa on July 19, 2000, with authorization to attend San Diego

State University. She admits that she never attended that school and she

overstayed her six-month authorization period in the United States. In 2002,

Ms. Joe submitted applications for asylum, restriction on removal, 1 and relief

under the Convention Against Torture (CAT). She claimed past persecution and a

well-founded fear of future persecution in Indonesia, based upon her Chinese

ethnicity and her Christian religion. The Department of Homeland Security

initiated removal proceedings against Ms. Joe in March 2002 and she conceded

removability.

      Ms. Joe testified in support of her applications at a hearing before an

immigration judge (IJ). She stated that she was born in 1973 in Jakarta,

Indonesia, where she lived until 2000 when she entered the United States. She

attended school in Jakarta from the elementary level through high school and she

graduated from a university in Jakarta in 1994 with a degree in management.



1
       The parties and the agency use the term “witholding of removal.”
“[A]mendments to the Immigration & Naturalization Act made by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) changed
the terminology to ‘restriction on removal.’ See 8 U.S.C. § 1231(b)(3)[.] Since
this case arose after the effective date of the IIRIRA, we refer to this provision as
‘restriction on removal.’” Sidabutar v. Gonzales, 503 F.3d 1116, 1117 n.1
(10th Cir. 2007) (citation omitted).

                                         -2-
Ms. Joe traveled safely on foot or by bus from her home to each of these schools.

During this time she did not suffer any harm, aside from having her wallet stolen

in 1994. After graduating from the university, she worked in the accounting

department of a company in Jakarta from 1994 to 2000.

      Ms. Joe testified that nothing happened to her until May 1998, when there

were riots throughout Jakarta. She said that her employer sent her home in a car

one day during the riots, but the driver of the car stopped at some point close to

her home and made her get out and walk the rest of the way. On her walk home

she observed people lighting oil-filled bottles on fire and throwing them at

buildings, and she witnessed that some of the buildings were burning. She

testified she was about twenty feet away from these people. She covered her face

with a handkerchief and kept walking. She did not look at the rioters again and

she said they did not pay any attention to her. She said she had thoughts of being

raped or killed, but she did not observe anyone being harmed and she arrived

home safely.

      According to Ms. Joe, her father’s store was burned down during the same

riots in 1998. She said that the family did not witness the store being burned,

because her father had closed it after hearing there was going to be a

demonstration. But she believes that the store was targeted by the rioters because

her family is Chinese. She said that stores marked as being owned by Muslims




                                         -3-
were not burned. Her father opened a new store two or three months after the

riots.

         Ms. Joe testified that nothing else happened to her or anyone else in her

family after these incidents she described in 1998, except that her wallet was

stolen again in 1999. She said that her parents and her two sisters, all of whom

are also Chinese and Christian, continue to live in Indonesia without experiencing

any harm. She said that her mother walks safely from her home to the market and

to her father’s store.

         In support of her fear of future persecution, she submitted newspaper

articles and various reports on the conditions in Indonesia. The administrative

record includes the State Department 2004 Country Reports on Human Rights

Practices and the 2004 International Religious Freedom Report regarding

Indonesia. She testified about a recent bombing in Bali and she said that a friend

of a friend was killed in a Catholic church that was bombed on Christmas Eve in

2000. She also testified that sometime after she left Indonesia a bomb was found

by the front door of her family’s church, but she did not say that anyone was

harmed. She said she did not want to go home because she was afraid there

would be bombs everywhere in Indonesia. She was also certain that her father’s

store would be burned again. She stated, regarding her fear of returning to

Indonesia because she is Chinese and Christian: “It’s possible I could die. It’s




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possible that I wouldn’t be allowed to go to church, and it’s also possible that

they will try to convert all of us to become Muslims.” Admin. R. at 122.

      The IJ denied Ms. Joe’s applications for asylum, restriction on removal,

and relief under CAT. The IJ noted that she bore the burden of proof on her

application for restriction on removal. Regarding her claim of past persecution,

the IJ acknowledged her testimony regarding having her wallet stolen and the

incidents she described during the civil unrest in 1998. But he found that she

suffered no harm the day that she witnessed the riots and that there was no

evidence that the thefts were related to her ethnicity. As to the burning of her

father’s store, the IJ held that single incident “is not sufficient for the court to

find that there is a likelihood that [Ms. Joe] would be persecuted upon return to

Indonesia.” Id. at 90. Noting that she and her family have lived a long time in

Indonesia without incident, the IJ concluded that nothing in the record indicated

that the majority of Chinese Christians in that country have suffered in the past or

are likely to suffer persecution in the future. The IJ acknowledged the possibility

that Ms. Joe might be persecuted upon her return to Indonesia, but held that the

evidence did not support a finding of a clear probability of persecution, as

required for restriction on removal.

      Ms. Joe appealed to the BIA. She argued that the evidence established past

persecution and that the government failed to overcome the resulting presumption

of future persecution. Alternatively, she contended that the evidence showed it is

                                           -5-
more likely than not she will be subject to persecution in Indonesia based on her

ethnicity and religion. A single member of the BIA issued a brief order affirming

the IJ’s decision.   Ms. Joe’s petition for review challenges only the BIA’s denial

of restriction on removal.

                              II. Standards of Review

      “We look to 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.”

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

alteration omitted). “[A]dministrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary . . . .”

8 U.S.C. § 1252(b)(4)(B). “We may not weigh the evidence, and we will not

question the immigration judge’s or BIA’s credibility determinations as long as

they are substantially reasonable.” Woldemeskel v. INS, 257 F.3d 1185, 1192

(10th Cir. 2001). We review the BIA’s legal determinations de novo. See Lockett

v. INS, 245 F.3d 1126, 1128 (10th Cir. 2001).

      Because a single member of the BIA affirmed the IJ’s decision in a brief

order, see 8 C.F.R. § 1003.1(e)(5), we review the BIA’s opinion rather than the

decision of the IJ, see Uanreroro, 443 F.3d at 1204. “However, when seeking to

understand the grounds provided by the BIA, we are not precluded from

consulting the IJ’s more complete explanation of those same grounds.” Id.

                                         -6-
                                   III. Discussion

      Ms. Joe challenges the BIA’s denial of restriction on removal. She may not

be removed to Indonesia “if the Attorney General decides that [her] life or

freedom would be threatened in that country because of [her] race, religion,

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

8 U.S.C. § 1231(b)(3)(A). The burden of proof for restriction on removal is

significantly higher than for asylum. In order to be eligible for restriction on

removal, Ms. Joe must establish a clear probability of persecution on account of

one of the factors in § 1231(b)(3)(A). See Woldemeskel, 257 F.3d at 1193. Thus,

she must present evidence establishing that it is more likely than not she will be

subject to persecution based on her ethnicity and religion. See id. Evidence of

past persecution is relevant to a claim for restriction on removal. See Sidabutar v.

Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007) (“An alien may create a

rebuttable presumption of eligibility for restriction on removal by . . .

demonstrating ‘past persecution’ in the proposed country of removal on account

of one of the protected grounds . . . .”); 8 C.F.R. § 1208.16(b)(1)(i).

      Ms. Joe contends that the BIA erred in affirming the IJ’s determination that

she did not face a clear probability of persecution if she returned to Indonesia.

First, she argues that she demonstrated past persecution, basing her claim on the

burning of her father’s store during the riots in Jakarta in 1998, as well as her

own experience in witnessing the rioting. She notes that neither the IJ nor the

                                          -7-
BIA expressly denied that she suffered past persecution. Absent a finding of no

past persecution by the IJ, she contends that the burden shifted to the government

to overcome the presumption of her entitlement to restriction on removal, which it

failed to do.

      The government counters that the IJ did determine that Ms. Joe failed to

establish past persecution, albeit implicitly. The government bases this

conclusion on the IJ’s discussion of her evidence related to the 1998 riots, as well

as the fact that the IJ did not shift the burden of proof to the government.

Moreover, the government argues that Ms. Joe did not raise the issue of the lack

of an explicit finding in her BIA appeal. In her reply brief, Ms. Joe argues for the

first time that it was error for the IJ to fail to make an explicit determination on

past persecution, citing cases in which other circuits have remanded to allow the

IJ to make a specific finding.

      Ms. Joe did not raise in her BIA appeal the arguments she now makes

regarding the lack of an explicit finding by the IJ on past persecution. Instead,

she argued only that her evidence demonstrated past persecution, evidently

agreeing with the government that the IJ made a determination against her on that

issue. A petitioner must first exhaust her administrative remedies by raising her

claims of error in her appeal to the BIA. See 8 U.S.C. § 1252(d)(1). Ms. Joe’s

failure to do so deprives this court of jurisdiction. See Sidabutar, 503 F.3d at

1118 (“[W]e generally assert jurisdiction only over those arguments that a

                                          -8-
petitioner properly presents to the BIA.”). Consequently, we do not have

jurisdiction to review Ms. Joe’s claims of error regarding the IJ’s implicit

determination on the issue of past persecution and we dismiss that portion of her

petition.

      Ms. Joe nonetheless argues that the BIA erred in failing to find past

persecution on the record in this case. “Persecution is the infliction of suffering

or harm upon those who differ (in race, religion, or political opinion) in a way

regarded as offensive, and requires more than just restrictions or threats to life

and liberty.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005)

(quotation omitted). Ms. Joe testified that she never personally suffered any harm

in the twenty-seven years that she lived in Indonesia, aside from having her wallet

stolen. Although she also described witnessing the 1998 riots while walking

home one day, that evidence is insufficient to compel a finding of past

persecution. See id. at 1281 (affirming finding of no past persecution based upon

a robbery resulting in minor injury to the petitioner and her witnessing of a

Muslim mob’s rough treatment of other people eight years later). Nor can we

conclude that every reasonable fact finder would be compelled to find past

persecution of Ms. Joe based on the burning of her father’s store, which was

quickly reopened and never harmed again–especially in light of the fact that

Ms. Joe’s immediate family continues to live in Indonesia without incident. See

Yuk v. Ashcroft, 355 F.3d 1222, 1234 (10th Cir. 2004) (affirming finding of no

                                          -9-
past persecution based on torture and death of Mr. Yuk’s son, when petitioners

presented no evidence of further reprisals, they stayed in Cambodia for twelve

more years, and other family members continued to live there without

experiencing further persecution). In short, substantial evidence supports the

conclusion that Ms. Joe did not suffer past persecution.

      Finally, Ms. Joe argues that she demonstrated a clear probability of future

persecution. She criticizes the BIA for resting its assessment of the risk of future

persecution on the fact her family continues to live unharmed in Indonesia. She

points to evidence of the Indonesian government’s occasional tolerance of

discrimination against and abuse of religious groups; a bombing at a Jakarta hotel

in 2003 by Islamic extremists; and attacks on Christian villages in another part of

Indonesia. She also refers generally to the 2004 Country Reports. This evidence

fails to meet Ms. Joe’s high burden to show that it is more likely than not that she

would be subject to persecution on the basis of her ethnicity or religion upon

returning to Indonesia. See Sidabutar, 503 F.3d at 1123-24. The BIA’s denial of

restriction on removal is supported by substantial evidence.




                                         -10-
                                 IV. Conclusion

      Ms. Joe’s petition for review is DISMISSED in part for lack of jurisdiction.

The remainder of the petition is DENIED.


                                                   Entered for the Court

                                                   Deanell Reece Tacha
                                                   Circuit Judge




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