                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                        August 10, 2007
                              FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                         Clerk of Court

    FN U LA M IJA N ,

                Petitioner,

    v.                                                    No. 06-9586
                                                       (No. A79-477-401)
    ALBERTO R. GONZA LES,                             (Petition for Review)
    Attorney General,

                Respondents.



                              OR D ER AND JUDGM ENT *


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




         Petitioner Jason Lamijan, a citizen of Indonesia, seeks review of a final

order of removal issued by the Board of Immigration Appeals (BIA) affirming the

denial of his applications for asylum and restriction on removal under the

Immigration and Nationality Act and protection under the United Nations




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Convention Against Torture (CAT). 1 W e affirm the BIA’s ruling on asylum and

restriction on removal. For lack of jurisdiction, we dismiss M r. Lamijan’s claim

concerning his request for CAT relief.

                                  BACKGROUND

      M r. Lamijan entered the United States as a visitor and failed to depart upon

expiration of his visa. When he sought asylum, restriction on removal, and CAT

relief, he was placed in removal proceedings. He conceded removability and, at

the hearing before the immigration judge (IJ), testified about his religious and

military history and anticipated problems if he returned to Indonesia.

      M r. Lamijan was raised as a M uslim but became interested in the Christian

religion while attending the Indonesian Naval Academy. After graduating from

the Academy in 1989, he served in the M arine Corps for eleven years as an

officer and reached the rank of captain in 1995. According to M r. Lamijan’s

testimony, his increasing identification with the Christian religion caused him

difficulties in the military service. Because he protested that some of the

military’s actions and techniques w ere contrary to his principles, his superiors

warned him in 1998 that he would not be promoted past his current rank.




1
       After his arrival in the United States, petitioner was baptized w ith the first
name of Jason. Before that time, like many Indonesians, he did not have a first
name. His name is shown in the caption as FN U LAM IJAN. FNU stands for first
name unknow n. In this order and judgment, the court will refer to petitioner as
M r. Lamijan.

                                         -2-
      Starting in 1998, M r. Lamijan began to lay his plans for leaving Indonesia.

In the belief that he would have difficulties in obtaining a passport and visa as an

unmarried military man, he developed evidence of a sham marriage and civilian

status. In early June 2000, M r. Lamijan made a formal request to resign from the

armed forces. W hen the request was denied, he went absent without leave

(A W OL) and departed with a woman purporting to be his wife.

      M r. Lamijan arrived in this country on June 23, 2000, on a nonimmigrant

visitor visa, with permission to remain until December 23, 2000. He did not leave

when the visa expired. During his stay in the United States, he has been baptized

and married to a Christian Indonesian, with whom he has two children. He filed

his applications for relief from removal on M ay 31, 2001.

      M r. Lamijan attempted to demonstrate the prospect of future persecution by

documenting general anti-Christian conditions in Indonesia and by describing his

specific situation with the military. He testified that, about a year and a half after

he left Indonesia, he learned that his father, mother, and brothers were arrested at

their home in East Java and interrogated in Jakarta about allegations of his selling

state secrets. If he returned to Indonesia, M r. Lamijan expected to be subjected to

harsh punishment for being AW OL.

      Though the IJ expressed doubts about certain aspects of M r. Lamijan’s

account, the IJ decided to “base [his] decision based only on the respondent’s ow n

testimony.” Admin. R. at 49. The IJ concluded that M r. Lamijan is not entitled

                                          -3-
to asylum, because he had not shown past persecution or a well-founded fear of

future persecution based on religion or political expression. As for M r. Lamijan’s

position with the military, the IJ observed that “Indonesia has the right to govern

its military, require its servicemen to perform in accordance with their law and

their applications of military [justice]” and that M r. Lamijan “is . . . afraid to go

back and [] face [the military] punishment he would receive for desertion or for

being absent without leave.” Id. at 54. The IJ denied the applications for asylum

and restriction on removal. W ithout further discussion he also denied the request

for relief under the CAT.

      M r. Lamijan appealed to the BIA, asserting that the IJ’s decision should be

reversed for three reasons: (1) a failure to consider all of his testimony and

documentary evidence on the persecution of Christians in Indonesia; (2) an

erroneous finding that he had not established a w ell-founded fear of future

persecution based on religion; and (3) a failure to recognize that Indonesian

authorities view ed his refusal to serve in the military as an expression of his

religious and political beliefs. The BIA noted that, while serving in the

Indonesian military, M r. Lamijan had been a practicing Christian for ten years

without suffering any persecution. The BIA agreed with the IJ’s finding that “any

reasonable punishment incurred by [M r. Lamijan] upon his return to Indonesia for

being AW OL from the Indonesian M arines, pursuant to that country’s generally

applicable laws regarding the performance of military service, would constitute

                                           -4-
prosecution, not persecution.” Admin. R. at 3 (citations omitted). Accordingly,

the BIA upheld the IJ’s decision and dismissed the appeal. M r. Lamijan now

seeks review in this court.

                                   D ISC USSIO N

       Although we concentrate our review on the BIA’s single-member order

affirming the IJ’s decision, “we may consult the IJ’s opinion to the extent that the

BIA relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790

(10th Cir. 2007) (quotations, citations, and alterations omitted).”

      Our duty is to guarantee that factual determinations are supported by
      reasonable, substantial and probative evidence considering the record
      as a whole. Agency findings of fact are conclusive unless the record
      demonstrates that any reasonable adjudicator w ould be compelled to
      conclude to the contrary.

 Id. at 788-89 (quotations, citations, and alterations omitted).

       To be considered for asylum, an applicant must prove that he meets the

definition of “refugee”– that is, that he faces government-related “persecution or

a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A ); id. § 1158(b)(1). Persecution means “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.” Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004) (internal

quotation marks omitted); see In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996)

                                         -5-
(“Persecution for ‘imputed’ grounds (e.g., where one is erroneously thought to

hold particular political opinions or mistakenly believed to be a member of a

religious sect) can satisfy the ‘refugee’ definition.”).

      On appeal, M r. Lamijan claims he demonstrated both past religious

persecution and a well-founded fear of future persecution based on religion and

imputed political opinion. Our record review, however, does not reveal any

compelling evidence in support of his asylum claim. For ten years, M r. Lamijan

was a practicing Christian while serving in the Indonesian armed forces, without

suffering any persecution. He testified to discriminatory actions, such as denial

of promotions above the level of captain, but did not describe any incidents of

persecution. And as to future persecution, M r. Lamijan showed the risk of arrest

and detention upon his return to Indonesia due to his A W OL status, not to his

religion or imputed political opinion. “[P]unishment for desertion . . . does not

constitute a protected ground for the purpose of asylum eligibility.”

Abdel-Rahm an v. Gonzales, No. 06-1619, 2007 W L 2004462, at *7 (4th Cir.

July 12, 2007) (citation omitted). The BIA decision is supported by substantial

evidence in the record and we will not disturb it.

      M r. Lamijan further asserts that his case should be remanded because the IJ

failed to make detailed findings on his request for restriction on removal. This

argument is unavailing. Eligibility for restriction on removal requires a clear

probability that the applicant’s “life or freedom w ould be threatened in [the

                                          -6-
proposed country of removal] because of [his] race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3). “Applicants who cannot establish a well-founded fear under asylum

standards will necessarily fail to meet the higher burden of proof required for

[restriction on removal].” Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir.

2006).

         Finally, M r. Lamijan argues that the IJ committed reversible error in failing

to provide an explicit discussion of his request under the CAT, which restricts

removal to a particular country if “it is more likely than not that the petitioner

will be tortured if removed to that country,” without concern for “the reasoning of

the persecution.” Chaib v. Ashcroft, 397 F.3d 1273, 1277-78 (10th Cir. 2005).

M r. Lamijan’s “failure to raise [this CAT] issue on appeal to the B oard

constitutes failure to exhaust administrative remedies with respect to that question

and deprives the Court of Appeals of jurisdiction to hear the matter.” Akinwunm i

v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (internal quotation

marks omitted); Torres de la Cruz v. M aurer, 483 F.3d 1013, 1017 (10th Cir.

2007) (“[W]e have jurisdiction only over those claims that were presented to the

BIA and were properly appealed to this court . . . .). W e must dismiss this claim. 2



2
      W e note that M r. Lamijan may be prosecuted and punished in Indonesia for
going AW OL. The record, however, falls far short of showing probable torture.
The recent case of Abdel-Rahman v. Gonzales, No. 06-1619, 2007 W L 2004462,
                                                                    (continued...)

                                           -7-
                                  C ON CLU SIO N

      M r. Lamijan’s petition for review is therefore DENIED in part and

DISM ISSED in part.


                                                    Entered for the Court


                                                    W ade Brorby
                                                    Senior Circuit Judge




2
 (...continued)
illustrates this distinction. In that case, the IJ denied the asylum and restriction
on removal applications of an officer who had deserted from the Egyptian army,
but granted his request for protection under the CAT. At the hearing, an expert
testified that “torture is systemic and ongoing in Egypt[,] that the Egyptian legal
system will not protect [the petitioner] from it[, and] confirmed that [petitioner]
will be treated by the Egyptian authorities as a defector and will be subjected to
severe torture during the interrogation process. . . .” Id. at 2007 W L 2004462, *3
(quotation omitted). Based on this testimony, the IJ concluded that “it is more
likely than not that upon his return to Egypt, [the petitioner] would be detained
and tortured by the Egyptian government to punish him for deserting the Egyptian
army and to extract information from him on what he may have revealed while in
the United States.” Id. at *1. The BIA upheld the CAT determination on
cross-appeal. In contrast, M r. Lamijan provided no definitive evidence that the
Indonesian government would subject him to torture upon his return.

                                         -8-
