                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        December 28, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court

    SONDANG SILITONGA,

              Petitioner,

     v.                                                   No. 05-9540
                                                       (No. A97-191-753)
    ALBERTO R. GONZALES, Attorney                     (Petition for Review)
    General,

              Respondent.


                             ORDER AND JUDGMENT *


Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.



          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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Sondang Silitonga seeks review of the Board of Immigration

Appeals’ (BIA’s) decision affirming an Immigration Judge’s (IJ’s) removal order.

We deny the petition.

                                   B ACKGROUND

       In January 2001, Ms. Silitonga, a native and citizen of Indonesia, entered

the United States as a non-immigrant visitor, with authorization to remain until

July 13, 2001. She remained beyond that date and obtained work using fraudulent

documents. In May 2003, Ms. Silitonga applied for asylum, restriction on

removal, and protection against torture based on her Christian religion.

       At a hearing before an IJ, she testified that her father is a Seventh Day

Adventist minister in Indonesia and that one night a “huge rock” was thrown

through her parents’ bedroom window. Admin. R. at 78. She also testified that

while working as a nurse, she was psychologically traumatized by seeing

Christian victims of Muslim rioters. She also recounted how every time she

walked by a particular mosque on her way to work, Muslims “would call [her] all

kinds of names that would defile [her] religion.” Id. at 82. Finally, Ms. Silitonga

indicated that she filed her application as soon as she “heard . . . about asylum.”

Id. at 84.

       The Immigration Judge (IJ) denied Ms. Silitonga’s application, concluding

that she failed to demonstrate past persecution or a fear of future persecution or


                                         -2-
torture. The IJ noted that Ms. Silitonga was ethnically Indonesian and expressed

doubt that someone would “stop[ ] her in the street . . . to see if [she] [is] a

Muslim.” Id. at 54. Additionally, the IJ cited the “Country Reports on Human

Rights Practices for Indonesia,” id. at 46, to find that “there is a lot of problems

in Indonesia,” but President “Megawati is working to unite all the individuals,”

id. at 54. The IJ further found no circumstances that would excuse

Ms. Silitonga’s delay in seeking asylum after arriving in the United States.

Ms. Silitonga was ordered removed to Indonesia.

      The BIA adopted and affirmed the IJ’s decision, stating that Ms. Silitonga

did not meet the one-year deadline for filing asylum requests, see 8 U.S.C.

§ 1158(a)(2)(B), and failed to show “past persecution or a clear probability of

persecution or torture were she returned to Indonesia.” Admin. R. at 4. In

deciding that Ms. Silitonga did not face a clear probability of persecution, the

BIA referred to the “The United States Department of State International

Religious Freedom Report for 2002” and stated:

      [T]here is widespread tension between Muslims and Christians that
      has erupted into localized violent conflicts in recent years. . . . [T]he
      government has worked to end or decrease violence in some areas,
      but in other areas some military units sided with their coreligionists,
      both Muslim and Christian. While these problems are serious, we do
      not agree that they rise to a pattern and practice of persecution . . . .

Id.

      This petition for review followed.

                                           -3-
                                    D ISCUSSION

      When the BIA affirms the IJ’s decision in a brief order that contains some

of the BIA’s own reasoning, we review the IJ’s decision as modified by the BIA,

Batalova v. Ashcroft, 355 F.3d 1246, 1254 (10th Cir. 2004); accord Chacon-

Botero v. U.S. Attorney General, 427 F.3d 954, 956 (11th Cir. 2005); Eta-Ndu v.

Gonzales, 411 F.3d 977, 982 (8th Cir. 2005); Ssali v. Gonzales, 424 F.3d 556, 561

(7th Cir. 2005). “[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), whereas legal determinations are reviewed de novo, Niang v.

Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005).

      Ms. Silitonga identifies for review only her restriction on removal and

torture claims. Consequently, we need not address her asylum claim. See Krastev

v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on appeal are

deemed to be waived.”).

      To obtain restriction on removal, an alien must demonstrate that her “life or

freedom would be threatened in [the proposed country of removal] because of

[her] race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3)(A). An alien’s life or freedom is

presumed to be threatened if she “is determined to have suffered past persecution

in the proposed country of removal.” 8 C.F.R. § 208.16(b)(1)(i). Otherwise, the


                                         -4-
alien must meet a clear probability standard—she must show that it is more likely

than not that she would be persecuted if removed. See INS v. Stevic, 467 U.S.

407, 429-30 (1984); 8 C.F.R. § 208.16(b)(2). Similarly, the Convention Against

Torture (CAT) restricts removal to a particular country if “it is more likely than

not that the petitioner will be tortured if removed to that country.” Chaib v.

Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005). The two types of restriction

differ most profoundly in that 8 U.S.C. § 1231 “requires proof of persecution on

account of a protected class, whereas [the] CAT is not concerned with the

reasoning of the persecution, just whether the persecution arises to the level of

torture.” Chaib, 397 F.3d at 1277-78.

      Ms. Silitonga first argues that the IJ relied on evidence outside the

administrative record to assess her restriction on removal and CAT claims.

Specifically, she points out that the State Department’s country report for

Indonesia is not in the record but was mentioned by the IJ. 1 We cannot reach the

argument, however, because Ms. Silitonga failed to raise it when she appealed,

through counsel, to the BIA. See Admin. R. at 19-30, 37; Rivera-Zurita v. INS,

946 F.2d 118, 120 n.2 (10th Cir. 1991) (stating that “[t]he failure to raise an issue



1
       We are not entirely convinced that the IJ relied on the country report, rather
than the religious freedom report, which is part of the record. We also note that
the BIA made no mention of the country report, instead citing only the religious
freedom report in affirming the IJ’s decision.

                                         -5-
on appeal to the [BIA] constitutes failure to exhaust administrative remedies” and

precludes this court from exercising jurisdiction).

      We reject Ms. Silitonga’s assertion that her duty to exhaust was excused by

the fact that her counsel was unaware when he filed the appeal that the country

report was not in the record. 2 According to Ms. Silitonga, “[t]he transcript sent to

the Petitioner [by the BIA] did not include any of the evidence submitted in

connection with the hearing” and she “assumed that [the] report was properly

contained in the administrative record.” Petitioner’s Reply Br. at 5. Exhaustion

is dictated by Congress, see 8 U.S.C. § 1252(d)(1), and cannot be avoided without

some congressional mandate or, possibly, a showing that exhaustion would be

futile, see Booth v. Churner, 532 U.S. 731, 736 n.4 & 741 n.6 (2001) (holding

that Congress intended to create an exceptionless exhaustion requirement in the

Prisoner Litigation Reform Act, but observing generally that there is nothing to

exhaust when the administrative process cannot provide relief or function in any

responsive manner); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (stating that

statutory exhaustion requirements may be circumvented “where a resort to the

agency would be futile because the challenge is one that the agency has no power

to resolve in the applicant’s favor”). Ms. Silitonga does not attempt to identify



2
      During the proceedings before the IJ and BIA, Ms. Silitonga had different
counsel than she currently has.

                                         -6-
any congressionally approved exception to § 1252(d)(1)’s exhaustion requirement.

Nor can she claim that the BIA was powerless to correct a deficiency in the

administrative record. See Baria v. Reno, 94 F.3d 1335, 1340 (9th Cir. 1996)

(stating that an inadequate administrative record is the “type of procedural error[ ]

which the [BIA] has the authority to correct and which must therefore be raised

first before the [BIA]”). Had Ms. Silitonga not assumed that

the country report was in the record, she could have raised the issue with the

BIA—or at least complained about not receiving “any of the evidence submitted

in connection with the hearing,” Petitioner’s Reply Br. at 5. Because our

jurisdiction rests on the exhaustion of administrative remedies and not on the

accuracy of counsel’s assumptions, our review is foreclosed.

      Ms. Silitonga next contests the IJ’s findings that her Indonesian ethnicity

shields her from being identified as a Christian and that conditions in Indonesia

are improving for Christians. Insofar as these findings concern Ms. Silitonga’s

§ 1231 restriction-on-removal claim, they were not administratively contested. In

fact, on appeal to the BIA, Ms. Silitonga made no restriction-on-removal

arguments and instead expressly acknowledged her inability to show a clear

probability of persecution in Indonesia. See Admin. R. at 22. Accordingly, she

devoted all of her appellate attention to asylum and CAT issues. Although the

BIA apparently overlooked Ms. Silitonga’s acknowledgment and addressed


                                         -7-
whether there exists a clear probability of persecution in Indonesia for Christians,

we will not address claims deliberately abandoned on appeal to the BIA. Cf.

Osborne v. Babbitt, 61 F.3d 810, 814 (10th Cir. 1995) (holding that appellants

had waived their challenge in this court to an administrative law judge’s finding

by conceding the finding’s accuracy during an administrative appeal).

      To the extent that Ms. Silitonga’s remaining issues concern the CAT, she

has identified nothing in the administrative record showing a clear probability that

she will be tortured in Indonesia “by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity,” 8

C.F.R. § 208.18(a)(1). Indeed, the religious freedom report for 2002 states that

the Indonesian government has “finally t[aken] action [against interreligious

violence] by brokering peace accords, effectively deploying troops, and cracking

down on extremists.” Admin. R. at 179. The report also indicates that the

government has attempted to promote religious pluralism, freedom, and interfaith

dialogue and has initiated an investigation into the causes of one of the worst

religious conflicts between Christians and Muslims. Id. at 172, 179. We

recognize the report’s serious concern that some Indonesian military units have

been “accused of siding with their coreligionists,” id. at 168, and that “[t]he lack

of an effective government response to punish perpetrators and prevent further

attacks continued to lead to allegations that officials were complicit in some of


                                          -8-
the incidents,” id. But this and the other record evidence does not compel the

conclusion that Ms. Silitonga would more than likely be tortured by, or with the




acquiescence of, a public official if removed to Indonesia.

      The petition for review is DENIED.

                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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