                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     December 12, 2008
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                   TENTH CIRCUIT


 GANDA PARULIAN LUMBANTOBING;
 KANERIA TAMBUNAN; BOBBY
 ANGGINA TRIANDA; FAJAR TANDA
 NAULY TOBING
                                                              No. 08-9549
                Petitioners,                              (Petition for Review)

           v.

 MICHAEL B. MUKASEY, United States
 Attorney General,

                Respondent.


                               ORDER AND JUDGMENT*


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       The petitioners are a husband and wife and their two sons, all of them Christian

citizens of Indonesia, a predominantly Muslim nation. They seek review of a ruling by


       *
        This order and judgment is not binding precedent except under the doctrines of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.
the Board of Immigration Appeals (“BIA”) denying them a restriction on removal from

the United States. The petitioners first assert a violation of their due process rights,

contending that an inadequate transcript of proceedings in front of the immigration judge

prevented the BIA from meaningfully reviewing their claims. They also argue that the

BIA erred in finding that they had not been persecuted in the past, and that they had not

proved that their life or freedom would be threatened if they returned to Indonesia.

       We have no jurisdiction to entertain the petitioners’ first argument. They did not

raise the transcript issue before the BIA, meaning they did not exhaust their

administrative remedies. On the issues of past and future persecution, the BIA’s ruling is

supported by substantial evidence. We therefore DENY the petitioners’ petition for

review.

                                    I. BACKGROUND

       The petitioners are Ganda Parulian Lumbantobing, his wife Kaneria Tambunan,

and their sons Bobby Anggina Trianda and Fajar Tanda Nauly Tobing. In 1984, Mr.

Lumbantobing and his family received death threats during the construction of the

Christian church where he would serve as minister. The family endured many other

threatening phone calls in the coming years. Mr. Lumbantobing testified that in May

1984, Muslims demonstrated in front of the church with “big knives.” The demonstrators

fought with police and military who were called to protect the church. He further testified

that Muslim groups frequently demonstrate in front of the church and that the church has

to pay money to them. The demonstrators also would play Muslim ceremonies over a

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loud speaker in the church parking lot, and sometimes they threw objects at the church.

       The children were intimidated over the phone and often “hassled” on their way to

church. One of the boys, Mr. Trianda, testified that he was robbed and stabbed at a bus

terminal because he looks “like a Chinese person.” Mr. Lumbantobing ultimately sent the

children to study in the United States because he feared for their safety.

       After several lawful trips to the United States to visit their children, both Mr.

Lumbantobing and his wife decided to remain in the country despite the fact that their

visas had expired. But there were further incidents in Indonesia even after the petitioners

had settled in the United States. On Christmas Eve, 2001, a bomb exploded in front of

the church, injuring Mr. Lumbantobing’s brother. Mr. Lumbantobing also testified that

Sunday School teachers have been jailed for “Christianizing” children. Several Christian

churches have been closed.

       Mr. Lumbantobing said he fears for the safety of himself and his family if they are

forced to return to Indonesia because he is known to be Christian through his activities at

the church. He also must carry an identification card that lists him as “Protestant

Christian.” He said he would continue his activities with his church, despite his concerns

about his safety. He said his children would not be involved in church activities.

       In March and April of 2003, the petitioners filed applications for asylum. Their

applications were denied, and the Department of Homeland Security began removal

proceedings. At those proceedings, the petitioners renewed their applications for asylum

and also sought a restriction on removal, protection under the Convention Against

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Torture, and voluntary departure.

       In June 2006, an immigration judge rejected most of the petitioners’ applications,

granting them only a voluntary departure. The judge denied their application for asylum

because they filed it more than a year after the end of their legal residency and did not

have an adequate explanation for the delay. The judge also denied their application for a

restriction on removal. While acknowledging that the petitioners had been harassed, the

judge stated that the harassment did not “rise to the level of past persecution.” In

addition, the judge found that it was not more likely than not that the petitioners would

suffer future prosecution. He specifically noted that there were safer areas within

Indonesia to which the petitioners could move. The judge therefore denied their

application for a restriction on removal. Finally, he found the petitioners had not

established that it was more likely than not that they would be subject to torture if they

returned to Indonesia and denied protection based on the Convention Against Torture.

       The petitioners appealed to the BIA, which affirmed the immigration judge’s

decision on all issues presented. The BIA concluded that the petitioners “have not met

their burden of establishing that it is more likely than not their life or freedom would be

threatened in Indonesia on account of their Christian religion.” The BIA agreed with the

immigration judge that the past harm suffered by the petitioners did not rise to the level of

persecution, and that the respondents could avoid future violence by moving to certain

parts of Indonesia. The petitioners now seek a petition for review from this court,

contending that (1) the BIA’s decision was based on an inadequate transcript of the

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proceedings below and therefore does not comport with due process, and (2) they have

established past persecution or the requisite likelihood of future persecution sufficient to

be entitled to a restriction on removal.

                                     II. DISCUSSION

A.     The Due Process Claim

       We do not have jurisdiction to review the petitioners’ claim that their due process

rights were violated because the transcript of their immigration proceedings is inadequate.

According to the petitioners, the record contains 210 notations that a particular comment

was “indiscernible.” This inadequate record, they argue, denied them their right to

meaningful appellate review.

       The petitioners have raised this issue for the first time on this appeal. They have

not, therefore, exhausted their administrative remedies. This court may review orders of

removal only after the alien has exhausted all administrative remedies. 8 U.S.C. §

1252(a)(1). Generally, this provision means that we have jurisdiction only over

arguments that were properly made before the BIA. Vincente-Elias v. Mukasey, 532 F.3d

1086, 1094 (10th Cir. 2008). One exception is that we will take jurisdiction over

“constitutional challenges to the immigration laws,” because the BIA has no jurisdiction

over such claims. Id. However, we will not take jurisdiction over an objection to a

procedural error that is framed in terms of due process, if the BIA could have remedied

the problem. See id.

       In this case, the petitioners do not challenge the constitutionality of a particular

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immigration law. They allege a procedural error—that a defective transcript prevented

them from obtaining fair appellate review. To the extent that the transcript was

inadequate, the BIA could have remedied the situation by seeking clarification from the

parties or remanding the case to the immigration judge to create a more complete record.

See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007) (listing remand to the

immigration judge as one of the BIA’s options). Because the petitioners could have

raised this issue in front of the BIA but did not, the petitioners have not satisfied

§ 1252(a)(1)’s exhaustion requirement, and we do not have jurisdiction to review this

claim.

B.       The Claims Regarding Past and Future Persecution

         To qualify for a restriction on removal, an alien must demonstrate “that the alien’s

life or freedom would be threatened in [the alien’s native] country because of the alien’s

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

8 U.S.C. § 1231(b)(3)(A). An alien must establish that it is “more likely than not” that he

will be persecuted based on one of those statutory grounds. Tulengkey v. Gonzales, 425

F.3d 1277, 1280 (10th Cir. 2005) (citing I.N.S. v. Stevic, 467 U.S. 407, 429–30 (1984)).

The “more likely than not” standard is more stringent than the standard used on an

application for asylum, which requires that the alien have a “well-founded fear” of

persecution. Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005). Where an alien

can demonstrate past persecution based on any of the factors listed in 8 U.S.C. §

1231(b)(3)(A), “it shall be presumed that the applicant’s life or freedom would be

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threatened in the future in the country of removal.” 8 C.F.R. § 1208.16(b)(1)(i).

       The BIA’s decision was written by one member and is more than a summary

affirmance of the immigration judge’s decision. Therefore, we review the BIA’s

decision, but we may look to the immigration judge’s opinion for further explanation or

when the BIA’s opinion “relied upon or incorporated it.” Sidabutar, 503 F.3d at 1123. In

reviewing the BIA’s decision, we apply the substantial evidence test, meaning that we

uphold the decision where it is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Sviridov v. Ashcroft, 358 F.3d 722, 727

(10th Cir. 2004). The agency’s 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).

The BIA’s conclusion regarding the likelihood of future persecution is a factual finding

and is therefore given that deference. See Nazaraghaie v. I.N.S., 102 F.3d 460, 463 n.2

(10th Cir. 1996).

       We have stated that “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.” Chaib, 397 F.3d at 1277

(quotations omitted). Applying this standard, we affirmed a denial of asylum for Polish

citizens who were beaten multiple times, had their homes searched, and were poorly

treated at work. One of them was conscripted into the Polish army and harassed. Kapcia

v. I.N.S., 944 F.2d 702, 704–05, 710 (10th Cir. 1991). We stated that those incidents did

not constitute “past persecution.” Id. at 708.

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       In a more analogous case, an Indonesian Christian applied for a restriction on

removal, claiming past persecution. Sidabutar, 503 F.3d at 1117, 1124. The alien

testified to repeated beatings by Muslim classmates in school, and said he was frequently

confronted by Muslims who demanded money. Id. He said on one occasion when he had

no money, he was hit and his motorcycle was burned. Id. We upheld the BIA’s finding

of no past persecution as consistent with our case law. Id.

       In this case, the incidents that occurred while the petitioners were in Indonesia

mostly fall into the category of threats or harassment, which generally do not rise to the

level of persecution. See Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003). The

only incident alleged that injured a family member was the bus terminal attack on Mr.

Trianda. While certainly regrettable, that attack appears to have been an isolated incident,

and there is no record evidence that it was racially or religiously motivated.

       In addition, to find past persecution we must find that the government either

participated in the actions, or was either unwilling or unable to control the group that did.

Sidabutar, 503 F.3d at 1124. In this case, Mr. Lumbantobing testified that the police and

military were able to protect the church from Muslim demonstrators in 1984. Record

documents also indicate that the Indonesian government has made efforts to control

religious violence. For these reasons, we agree with the BIA that the petitioners have not

proved past persecution.

       The petitioners could still make their case by showing that it is more likely than

not that they would suffer future persecution in Indonesia. On this point, the incidents

                                            -8-
that occurred after they came to the United States—the bombing of their church and the

jailing of Sunday school teachers—are relevant. The petitioners’ argument still fails,

however, because they have not established that they could not avoid those tensions by

moving to a different part of Indonesia.

       Where an applicant for a restriction on removal has not established past

persecution, the applicant cannot establish the likelihood of future persecution “if the . . .

immigration judge finds that the applicant could avoid a future threat to his or her life or

freedom by relocating to another part of the proposed country of removal and, under all

the circumstances, it would be reasonable to expect the applicant to do so.” 8 C.F.R. §

1208.16(b)(2). The BIA found that recent religious violence in Indonesia has taken place

mainly “in specific parts of Indonesia such as Bali and the Malukus.” The BIA also

found that it would be reasonable for the petitioners to move within Indonesia to avoid

the violence.

       We must give deference to the BIA’s decision, and the petitioners have offered

little evidence to rebut the BIA’s finding. On the issue of whether they could move

within Indonesia, their only argument is that all of Indonesia is dangerous. To support

this claim, they have simply stated that Bali is considered the safest island in Indonesia,

and it still has religiously motivated violence. That unsupported assertion hardly counters

the BIA’s finding, when the BIA cited Bali as one of the two most dangerous islands in

Indonesia. Because the petitioners have not proved that they could not avoid future

violence by moving, they have not established that it is more likely than not that their life

                                             -9-
or freedom would be threatened if they were to return to Indonesia. The BIA’s

conclusion, therefore, is supported by substantial evidence.

                                   III. CONCLUSION

       The petitioners have not established past persecution in Indonesia, nor have they

proved that it is more likely than not that their life or freedom would be threatened if they

were to return to Indonesia. For these reasons, we DENY their petition for review.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Circuit Judge




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