                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                        November 14, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court

    TURMAN MANAOR HUTAHAEAN,

               Petitioner,

     v.                                                  No. 05-9515
                                                   (Agency No. A95-221-576)
    ALBERTO GONZALES, Attorney                       (Petition for Review)
    General,

             Respondent.


                             ORDER AND JUDGMENT            *




Before TYMKOVICH , PORFILIO , and BALDOCK , Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.

          Petitioner Turman Manaor Hutahaean is a native and citizen of Indonesia.

He challenges the Board of Immigration Appeals’ (BIA’s) decision denying his


*
      This order and judgment is not binding precedent, except under the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.
request to reopen and reconsider his application for asylum, restriction on

removal and protection under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for review.

                                  B ACKGROUND

      Mr. Hutahaean was admitted to the United States on December 10, 2000, on

a nonimmigrant tourist visa with authorization to remain for six months. After

overstaying his visa, he appeared before an asylum officer and submitted an

application for asylum, restriction on removal and protection under the CAT. On

the application form, Mr. Hutahaean stated that he is a Christian and “would face

death if forced to return to Muslim controlled Indonesia,” A.R. 1172.

      On September 4, 2002, Mr. Hutahaean testified before an Immigration

Judge (IJ) that after he moved to Jakarta, he was robbed three times over a three

year period because he was a Christian and was twice involved in Christian

religious services that were stopped because of threats or intimidation. But

Mr. Hutahaean also testified that neither he nor his father and siblings were ever

physically harmed in his hometown, Pematang Siantar, where his father is a

retired police sergeant. In an oral decision, the IJ denied Mr. Hutahaean relief

from removal, reasoning that Mr. Hutahaean had been subjected to random

criminal activity rather than persecution, and that he could return to his hometown




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to avoid any future persecution. Consequently, the IJ ordered Mr. Hutahaean

removed to Indonesia.

       Mr. Hutahaean appealed to the BIA, which affirmed the IJ’s decision and

dismissed the appeal on September 20, 2004. Mr. Hutahaean then filed with the

BIA a “Motion to Reopen & Reconsider,” stating that he “fear[s] for [his] life if

forced back to Indonesia because the Muslim extremists are everywhere,” A.R. at

6, and that “relocation is not a viable or even reasonable solution to surviving in

Indonesia,” A.R. at 7. The BIA denied the motion on February 7, 2005, observing

that Mr. Hutahaean did “not specifically address [the] affirmance of the [IJ’s]

finding that [Mr. Hutahaean’s] father, a former police officer, and other family

members who are also Christians, have not been harmed and have safely resided

within his hometown.” A.R. 2-3. Mr. Hutahaean petitioned this court for review

on March 7, 2005.

                                        D ISCUSSION

       “To be eligible for asylum, an alien must be a refugee, meaning that he or

she must generally be outside his or her country of nationality and unable or

unwilling to return to that country because of persecution or a well-founded fear

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

particular social group or political opinion.”     Elzour v. Ashcroft , 378 F.3d 1143,

1148-49 (10th Cir. 2004) (quotation marks omitted). To obtain a restriction on


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removal, an alien must show that his or her “life or freedom would be threatened

in [the proposed country of removal] 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);     see also 8 C.F.R. § 1208.16(b). The CAT prohibits the

return of an alien to a country where “it is more likely than not that he or she

would be tortured.” 8 C.F.R. § 1208.16(c)(2).

       Preliminarily, we note that our jurisdiction in this matter is limited to

reviewing the BIA’s denial of Mr. Hutahaean’s “Motion to Reopen &

Reconsider.” No petition was filed in this court to review the BIA’s decision

affirming the IJ’s decision and dismissing Mr. Hutahaean’s administrative appeal,

and the time to file expired roughly five months before the instant petition was

filed. See 8 U.S.C. § 1252(b)(1) (requiring that a petition for review be filed no

later than 30 days after the date of the final removal order);   Stone v. INS , 514

U.S. 386, 405 (1995) (stating that a motion to reconsider does not affect a

removal order’s finality); 8 C.F.R. § 1241.1(a) (providing that a removal order

becomes final upon the BIA’s dismissal of an asylum applicant’s appeal).

Consequently, insofar as Mr. Hutahaean challenges more than the BIA’s denial of

his motion, we lack jurisdiction.

       A motion to reopen seeks to present evidence that “is material and was not

available and could not have been discovered or presented at the former hearing.”


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8 C.F.R. § 1003.2(c)(1);   see also 8 U.S.C. § 1229a(c)(7)(B). A motion to

reconsider, on the other hand, is available to raise errors of fact or law committed

by the BIA in its prior decision, and must be supported by pertinent authority.

8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). “The decision to grant or

deny a motion to reopen or reconsider is within the [BIA’s] discretion.” 8 C.F.R.

§ 1003.2(a). We will reverse only if the BIA’s “decision provides no rational

explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.”     Osei v. INS , 305

F.3d 1205, 1208 (10th Cir. 2002) (quotation marks omitted).

      In his motion, Mr. Hutahaean sought relief based on reports from the

United States Department of State and news agencies purportedly showing a

pattern and practice of persecution against Christians in Indonesia. But the IJ

admitted over one thousand pages of such reports during the removal hearing, and

Mr. Hutahaean failed to indicate in his motion how any reports issued after the

hearing would have compelled the BIA to reverse the IJ. Further, Mr. Hutahaean

did not address how any report undermined the IJ’s finding that Mr. Hutahaean

could avoid persecution by returning to Pematang Siantar, where his family has

resided without physical harm. An asylum applicant such as Mr. Hutahaean who




                                          -5-
has not demonstrated past persecution   1
                                            cannot qualify for asylum under the “well-

founded fear of persecution” alternative if he “could avoid persecution by

relocating to another part of [his] country of nationality . . . [and] if under all the

circumstances it would be reasonable to expect [him] to do so.” 8 C.F.R.

§ 208.13(b)(2)(ii). Mr. Hutahaean bore the burden of showing that his relocation

to Pematang Siantar would be unreasonable.        See 8 C.F.R. § 208.13(b)(3)(I). As

the BIA cited its unchallenged affirmance of the IJ’s relocation finding as a basis

for denying Hutahaean’s motion, we cannot conclude that the BIA abused its

discretion.   2




1
       Persecution involves “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 v.
Ashcroft , 397 F.3d 1273, 1277 (10th Cir. 2005) (quotation marks omitted). The
“Motion to Reopen & Reconsider” did not challenge the IJ’s past persecution
findings. See Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991)
(“Judicial review does not extend to points the alien could have made before the
Board but did not.”). And to the extent the motion sought reconsideration
because the BIA affirmed the IJ’s decision and dismissed Mr. Hutahaean’s appeal
in only five sentences, the motion was barred.          See 8 C.F.R. § 1003.2(b)(3).
2
       Because the BIA acted within its discretion in denying reopening and
reconsideration in the asylum context, it follows that there was no abuse of
discretion in the context of restriction on removal. See Krastev v. INS , 292 F.3d
1268, 1271 (10th Cir. 2002). Nor has there been any demonstration of an abuse
of discretion with respect to reopening or reconsideration under the CAT.

                                            -6-
Accordingly, the petition for review is denied.

                                             Entered for the Court


                                             Bobby R. Baldock
                                             Circuit Judge




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