                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS                  April 4, 2008
                              FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                     Clerk of Court


    BARENYONO SITOMPUL,

                Petitioner,

    v.                                                   No. 07-9533
                                                     (Petition for Review)
    MICHAEL B. MUKASEY,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before LUCERO and PORFILIO, Circuit Judges, BRORBY, Senior Circuit
Judge.



         Barenyono Sitompul petitions for review of a final order of removal in

which the Bureau of Immigration Appeals (BIA) affirmed an Immigration Judge’s

(IJ) denial of his applications for asylum, restriction on removal, 1 protection

*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
               Restriction on removal was known as withholding of removal
         before amendment to the [Immigration and Nationality Act] made by
                                                                     (continued...)
under the Convention Against Torture (CAT), and cancellation of removal. On

appeal, Mr. Sitompul does not challenge the denial of asylum. He petitions for

our review of only the denials of restriction on removal, protection under the

CAT, and cancellation of removal. Exercising jurisdiction under 8 U.S.C.

§ 1252(a)(1), we dismiss for lack of jurisdiction Mr. Sitompul’s argument

concerning cancellation of removal and deny his petition for review in all other

respects.

                                    BACKGROUND

         Mr. Sitompul is a native and citizen of Indonesia, a predominantly Muslim

nation. He is an ethnic Batak and a Christian, who is a member of the Seventh

Day Adventist Church. He was admitted to the United States in July 1991 as a

tourist with permission to stay until January 1992. In 2003, the Department of

Homeland Security began removal proceedings against Mr. Sitompul under

8 U.S.C. § 1227(a)(1)(B). He conceded removability, but sought asylum,

withholding of removal, CAT protection, and cancellation of removal.



1
    (...continued)
          the Illegal Immigration Reform and Immigrant Responsibility Act of
          1996 . . . , Pub. L. No. 104-208, 100 Stat. 3009. The regulations
          under the INA, however, retain the former term withholding of
          removal, see, e.g., 8 C.F.R. § 208.16(b), and both the IJ and the BIA
          have referred to withholding of removal. Nevertheless, we use the
          statutory term restriction on removal.

Ismaiel v. Mukasey, 516 F.3d 1198, 1200 n.2 (10th Cir. 2008).

                                           -2-
      At the hearing before the IJ, Mr. Sitompul testified that Muslims in his

neighborhood in Indonesia taunted his family based on their being Christians and

Bataks. He also testified that he attended a Christian school in Indonesia and was

harassed and taunted by Muslims at his bus stop. On one occasion, he was

punched and kicked by Muslim students until police arrived. After the incident,

he was treated at a hospital for cuts to his hand and lips. If he is returned to

Indonesia, Mr. Sitompul stated that he fears being kidnaped or killed because he

is a Christian and because he is returning to Indonesia from the United States. He

believes it would be unsafe for him to live anywhere in Indonesia.

Mr. Sitompul’s pastor testified that although it is generally dangerous to openly

practice Christianity and to build Christian churches in Indonesia, there are

Christian-majority areas that are safe for Christians to openly practice their

religion. In addition to presenting testimony at the hearing, Mr. Sitompul also

presented news reports and government documents indicating there is religious

turmoil in Indonesia.

      The IJ denied asylum, withholding of removal, protection under the CAT,

and cancellation of removal and ordered Mr. Sitompul removed to Indonesia. The

IJ recognized that Christians occasionally are abused and authorities occasionally

fail to respond to that abuse. But, based on the entire record, the IJ rejected

Mr. Sitompul’s claim of a likelihood of persecution based on his Christian beliefs.

Instead, the IJ found that Mr. Sitompul could relocate within Indonesia to avoid

                                          -3-
harm due to his religion. In accordance with these findings, the IJ denied

Mr. Sitompul’s claim for withholding of removal. Additionally, the IJ denied the

CAT claim, because the record evidence was insufficient to show a likelihood that

the Indonesian government would torture Mr. Sitompul or acquiesce in such

behavior against him if he was returned to Indonesia. With respect to

cancellation of removal, the IJ found that Mr. Sitompul’s mother would suffer

some hardship if he were returned to Indonesia, but that hardship would not be

exceptional or extremely unusual since her other children, who live in the United

States, could care for her and she could stay in touch with Mr. Sitompul since she

regularly visits Indonesia.

      Adopting and affirming the IJ’s decision, the BIA agreed with the IJ that

Mr. Sitompul did not meet his burden of showing he would be persecuted if he

returned to Indonesia, he did not prove Christians of Batak ethnicity are subject to

a pattern or practice of persecution that the Indonesian government is unable or

unwilling to control, CAT protection was not warranted because he did not prove

that it was more likely than not that he would be tortured, he was unable to prove

he could not relocate within Indonesia, and he was unable to show that his mother

would suffer exceptional and extreme hardship if he was removed.




                                         -4-
                                   DISCUSSION

A. Cancellation of Removal

      Mr. Sitompul contends that the IJ abused his discretion and denied

Mr. Sitompul due process by failing to consider the record evidence before

denying cancellation of removal. We do not have jurisdiction to review an

agency’s discretionary decision to deny cancellation of removal. See 8 U.S.C.

§ 1252(a)(2)(B)(I); Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148 (10th Cir.

2005). But we do have jurisdiction to review a constitutional claim asserting

denial of due process. See 8 U.S.C. § 1252(a)(2)(D); Torres de la Cruz v.

Maurer, 483 F.3d 1013, 1020 (10th Cir. 2007) (“While the cancellation of

removal is not a liberty or property interest, aliens challenging eligibility for the

cancellation of removal are entitled to an opportunity to be heard at a meaningful

time and in a meaningful manner.”) (quotation omitted). Mr. Sitompul’s due

process argument, however, merely disputes the IJ’s findings and therefore is not

a colorable constitutional challenge capable of avoiding the jurisdictional bar.

See Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007) (“An alien does

not present a colorable constitutional claim capable of avoiding the jurisdictional

bar by arguing that the evidence was incorrectly weighed, insufficiently

considered, or supports a different outcome.”). Accordingly, we dismiss this

claim for lack of jurisdiction.




                                          -5-
B. Restriction on Removal and CAT

      1. Scope and Standard of Review

      The BIA issued its per curiam decision in a brief order signed by a single

board member. See 8 C.F.R. § 1003.1(e)(5). We therefore review that decision

as the final order of removal, but “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). We review the BIA’s decision to determine whether its factual

findings are supported by reasonable, substantial, and probative evidence based

on the entire record. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.

2006). “We do not weigh the evidence . . . .” Sidabutar v. Gonzales, 503 F.3d

1116, 1122 (10th Cir. 2007) (quotation omitted). For Mr. Sitompul to prevail on

appeal, we must be convinced that “the evidence not only supports [reversal], but

compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

      2. Restriction on Removal

      Mr. Sitompul argues that the agency should not have denied restriction on

removal because the agency’s finding that he would not suffer religious

persecution upon return to Indonesia is not supported by substantial evidence.

For restriction on removal, Mr. Sitompul must show that his “life or freedom

would be threatened” in Indonesia because of his Christian religion or Batak

ethnicity. 8 U.S.C. § 1231(b)(3)(A). He can satisfy this by “showing that ‘it is

more likely than not that [he] would be subject to persecution . . .’ upon returning

                                         -6-
to” Indonesia. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005)

(quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)).

      Mr. Sitompul concedes that he has not been subject to past persecution, but

he argues that he has “a well-founded fear of persecution.” 8 C.F.R.

§ 1208.13(b)(2)(I). He, however, “does not have a well-founded fear of

persecution if [he] could avoid persecution by relocating to another part of”

Indonesia, “if under all the circumstances it would be reasonable to expect [him]

to do so.” Id. § 1208.13(b)(2)(ii); see id. § 1208.16(b)(2), (3). Because

Mr. Sitompul “has not shown past persecution and the alleged future persecution”

is by Muslims and “is not by a government or a government-sponsored group,

[he] bears the burden of establishing that relocation would be unreasonable.” 2

Tulengkey, 425 F.3d at 1281.

      In adopting the IJ’s decision, the BIA, in summary, found that

Mr. Sitompul did not meet his burden to show that he would be unable to relocate

within Indonesia. More specifically, the IJ found that relocation would be

possible, based on State Department reports indicating that some Christians have

moved to parts of Indonesia where they generally experience little religious




2
      Although the IJ and BIA rejected Mr. Sitompul’s claim of future
persecution on relocation and other grounds, we need only address the issue of
relocation. See Tulengkey, 425 F.3d at 1281.

                                         -7-
discrimination and based on Mr. Sitompul’s pastor’s testimony identifying places

in Indonesia where Christians can safely live.

      Our review of the record does not compel us to conclude otherwise. The

State Department reports indicate that Christians predominate and Muslims are a

minority in certain parts of Indonesia. Mr. Sitompul does not present evidence

showing why he cannot relocate to those areas. Instead, he incorrectly argues that

the IJ erred in relying on only one piece of evidence when finding that he could

safely relocate in Indonesia. The IJ, however, considered the entire record,

including State Department reports and the pastor’s testimony. See Admin. R. at

59-60, 63-64. In addition, the remainder of Mr. Sitompul’s arguments–that the IJ

erred in relying on his pastor’s testimony when the pastor was not qualified as an

expert and that the IJ did not make a proper relocation determination because the

IJ did not consider the length of time he has been away from Indonesia, the

present conditions in Indonesia, whether the islands mentioned for relocation

could be reasonably relocated to, and whether he has any family ties in Indonesia

that make relocation reasonable–also are not sufficient to convince us to overturn

the relocation findings. See Tulengkey, 425 F.3d at 1282 (upholding denial of

restriction on removal when “the IJ found relocation to be possible and petitioners

point[ed] to no evidence that relocation would be unreasonable”). We therefore

hold that the agency’s determination that Mr. Sitompul failed to show a likelihood

of future persecution because of his ability to relocate within Indonesia is

                                         -8-
supported by substantial evidence. Indeed, nothing in the record compels a

conclusion that Mr. Sitompul cannot relocate.

      3. Convention Against Torture

      We also agree with the BIA’s rejection of Mr. Sitompul’s argument that he

is entitled to protection under the CAT because he “is more likely than not to be

tortured” if removed to Indonesia. 8 C.F.R. § 1208.16(c)(4); see id.

§ 1208.16(c)(2). Mr. Sitompul’s cursory treatment of his CAT claim in his

appellate brief provides no reason for concluding that he would be tortured by or

with the consent or acquiescence of any public official, as the CAT requires. See

id. § 1208.18(a)(1). Furthermore, no evidence in the record suggests that he has

ever been harmed by the Indonesian government or that it is more likely than not

that torture bearing the necessary nexus to persons acting in an official capacity

would occur if he were returned to Indonesia. We therefore are compelled to

conclude that the BIA’s denial of CAT protection was supported by substantial

evidence.




                                         -9-
                                CONCLUSION

      We DISMISS for lack of jurisdiction the claim concerning cancellation of

removal, and we DENY the remainder of the petition for review.


                                                 Entered for the Court



                                                 John C. Porfilio
                                                 Circuit Judge




                                      -10-
