                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-15798                 ELEVENTH CIRCUIT
                                                                JUNE 1, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                          Agency Nos. A098-858-821,
                                A098-858-822

MEILINA KRISNAWATI,
IRON SITUMORANG,
                                                                      Petitioners,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                         ________________________

                    Petition for Review of a Decision of the
                         Board of Immigration Appeals
                         _________________________

                                 (June 1, 2009)

Before DUBINA, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

PER CURIAM:

     Meilina Krisnawati and Iron Situmorang (collectively, “Petitioners”), both
natives and citizens of Indonesia, through counsel, seek review of the decision of

the Board of Immigration Appeals (“BIA”) affirming the order of the Immigration

Judge (“IJ”) denying their application for asylum and withholding of removal

under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3);

8 C.F.R. § 208.16(b).1

       On appeal, the Petitioners argue that the IJ violated their due process rights

by admitting an Asylum Officer’s notes and Assessment to Refer into the record

without offering them an opportunity to object, and that the BIA erred in upholding

the violation. They note that the Executive Office for Immigration Review’s

Operating Policy and Procedures Memorandum (“OPPM”) specifically prohibits

the admission of documents containing an asylum officer’s credibility findings.

They further argue that they were not given a reasonable opportunity to review the

documents, confront and cross-examine the witnesses presented, or object to the

documents’ admission. The Petitioners assert that they cannot show how the

documents prejudiced them because the IJ failed to offer a “cogent or reasoned

analysis” for the denial of asylum relief but, nevertheless, the admission should be

considered presumptively prejudicial in light of the OPPM.

       “We review constitutional challenges de novo.” Lonyem v. U.S. Att’y Gen.,

       1
        When the BIA issues a decision, we review only that decision, except to the extent that
the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). In this case, the BIA issued its own decision.
                                                 2
352 F.3d 1338, 1341 (11th Cir. 2003) (per curiam). The Fifth Amendment entitles

petitioners in removal proceedings to due process of the law. Frech v. U.S. Att’y

Gen., 491 F.3d 1277, 1281 (11th Cir. 2007). “To prevail on a procedural due

process challenge, the petitioner must show that he was substantially prejudiced by

the violation.” Id. An alien can demonstrate substantial prejudice by showing that,

absent the due process violation, “the outcome would have been different.”

Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987).

      According to the OPPM, a document containing reference to an asylum

officer’s credibility findings should not be filed with the immigration court. See

OPPM 00-01, XII.C, 2000 WL 34444281 (Aug. 4, 2000) (“Under no

circumstances should any document containing reference to INS credibility

findings be filed with the Court.”). While we have not addressed the issue, the

Ninth Circuit has held that the such internal immigration operating instructions do

not have the force of law. Romeiro De Silva v. Smith, 773 F.2d 1021, 1024 (9th

Cir. 1985); see also Prokopenko v. Ashcroft, 372 F.3d 941, 944 (8th Cir. 2004)

(addressing OPPM 00-01 regarding credibility findings and finding that “[i]t is

doubtful that an internal agency memorandum of this sort could confer substantive

legal benefits upon aliens or bind the [INS]”).

      Moreover, even assuming that the IJ violated the OPPM and erred in

admitting the Asylum Officer’s notes and Assessment to Refer, the Petitioners’ due
                                          3
process rights were not violated by the admission because the documents did not

change the outcome of the case. The only credibility finding contained in the

documents was favorable to the Petitioners insofar as the IJ only cited them to find

that extraordinary circumstances excused the Petitioners’ untimely asylum

application. As such, the admission of the documents helped the Petitioners, not

prejudiced them.

      The Petitioners next argue that they demonstrated a well-founded fear of

future persecution in Indonesia as Christians because the reports in the record

indicate that religious violence by Muslims against Christians is still prevalent in

Indonesia, and the Indonesian Government cannot or will not enforce the law.

They argue that they would more likely than not be persecuted in Indonesia in light

of the numerous articles discussing violent attacks and the fact that Christians are

easily identifiable because religion is labeled on state-issued identification cards.

They also contend that the BIA placed undue reliance on the fact that Krisnawati

voluntarily returned to Indonesia after studying in Australia for several years

because her return was brief and necessary. They further assert that they also met

the higher standard for withholding of removal because they would be easily

identified as Christians with western influence given their time in the United States

and the fact that their son is a United States citizen. Finally, they argue that the IJ

erred in determining that Krisnawati’s testimony was not credible because the IJ
                                            4
did not support his credibility determination with specific reasons or substantial

evidence.

      We review the BIA’s legal determinations de novo. Nreka v. U.S. Att’y

Gen., 408 F.3d 1361, 1368 (11th Cir. 2005). The BIA’s factual determinations are

reviewed under the substantial evidence test, and we will affirm the BIA’s decision

“if it is supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006

(11th Cir. 2008) (internal quotation marks and citation omitted). “We will not

reverse unless the record compels a contrary conclusion.” Id.

      An alien who arrives in or is present in the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). To be eligible for asylum, the applicant must

prove that he or she is a “refugee” within the meaning of the INA. 8 U.S.C. §

1158(b)(1)(A). To establish refugee status, the applicant must show, with specific

and credible evidence, either past persecution or a “well-founded fear” of future

persecution on account of, inter alia, religion. 8 U.S.C. § 1101(a)(42)(A); Sanchez

Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007). Although the

INA does not define persecution for purposes of refugee status, we have noted that

“persecution is an extreme concept, requiring more than a few isolated incidents of

verbal harassment or intimidation, and that mere harassment does not amount to

persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
                                          5
(per curiam) (internal quotation marks and citation omitted).

      Here, the Petitioners assert a fear of future persecution. With respect to a

well-founded fear of future persecution, “[t]he applicant may prove eligibility by

demonstrating (1) a subjectively genuine and objectively reasonable fear of

persecution that is (2) on account of a protected ground.” De Santamaria, 525

F.3d at 1007. “The subjective component is generally satisfied by the applicant’s

credible testimony that he or she genuinely fears persecution.” Id. (internal

quotation marks and citation omitted). “The objective prong can be fulfilled by

establishing that the applicant has a good reason to fear future persecution.” Id.

(internal quotation marks and citation omitted). Finally, an applicant who fails to

establish eligibility for asylum on the merits “necessarily fails” to establish

eligibility for withholding of removal. Forgue v. U.S. Att’y Gen., 401 F.3d 1282,

1288 n.4 (11th Cir. 2005).

      As an initial matter, we will not review the IJ’s adverse credibility finding

because the BIA not only declined to address it but assumed that Krisnawati

testified credibly. See Al Najjar, 257 F.3d at 1284.

      We conclude that substantial evidence supports the BIA’s conclusion that

the Petitioners failed to establish eligibility for asylum because they did not

establish a well-founded fear of future persecution. The fact that Krisnawati

voluntarily returned to Indonesia for a month before traveling to the United States
                                            6
and that her parents and siblings have remained in Indonesia without incident

supports our conclusion. See De Santamaria, 525 F.3d at 1011 (“An asylum

applicant’s voluntary return to his or her home country is a relevant consideration

in determining whether the asylum applicant has a well-founded fear of future

persecution.”); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (per

curiam) (discussing future persecution and noting that applicant’s family

“remained unharmed in the region of [the country] where [the applicant] allegedly

was threatened”). At best, the reports submitted by the Petitioners, some of which

recounted religious tension, violence, and church closings and others of which

noted a high degree of religious freedom and even a decrease in religious violence

since 2002, present a mixed picture in terms of the persecution of Christians in

Indonesia. Such evidence does not compel a conclusion that the Petitioners would

be persecuted if they returned to Indonesia. Lastly, because the Petitioners did not

establish eligibility for asylum, they also failed to establish eligibility for

withholding of removal. See Forgue, 401 F.3d at 1288 n.4 Accordingly, we deny

the petition.

       PETITION DENIED.




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