                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     February 14, 2007
                              FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                        Clerk of Court



    HO BBY DU BEL M AR T,

                Petitioner,
                                                         No. 06-9548
    v.                                                (No. A97 192 065)
                                                     (Petition for Review)
    ALBERTO R. GONZA LES,
    Attorney General,

                Respondent.



                              OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.


         In this petition for review, Hobby Dubel M art challenges a Board of

Immigration Appeals (BIA) decision denying his request for restriction on

removal under the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3). 1



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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
      M art also filed an application for asylum and requested relief under the
United Nations Convention Against Torture, but he does not challenge the BIA’s
decision as to those claims.
B ecause we conclude that substantial evidence supports the BIA’s decision, we

exercise our jurisdiction under 8 U.S.C. § 1252 to deny the petition.

                                          I.

      M art is an Indonesian citizen and practicing Christian who claims that he

will be persecuted on account of his religious beliefs if he is returned to

Indonesia. According to his testimony, he was born in a small village on the

island of Sumatra, and moved to the capital city of Jakarta when he was in the

second grade. He claims that as a child, his fellow classmates, who were

predominantly M uslim, frequently taunted him because of his religious beliefs. In

high school, an angry mob of M uslims gathered outside the church where he was

attending confirmation class and threw rocks, causing damage to the building and

terrorizing those inside. He also testified that other members of his family have

been persecuted on account of their Christian faith and he submitted evidence

detailing his sister’s narrow escape from a 1999 raid on her Protestant school

perpetrated by M uslims.

      M art testified that he left Indonesia in 1999 to escape religious persecution.

He was hired by an American cruise line and went to work on a ship that traveled

between Fort Lauderdale and the Bahamas. Although the ship docked in Florida

more than fifty times during M art’s employment, he did not apply for asylum

until February of 2003, more than two years after his first arrival in the

United States.

                                          -2-
      An Immigration Judge (IJ) denied M art’s asylum application because it was

not filed within one year of M art’s arrival in the United States, as required by

8 U.S.C. § 1158(a)(2)(B). Nonetheless, the IJ concluded that the merits of the

application did not warrant a grant of asylum. The IJ believed that M art had been

harassed on account of his Christianity, but found there was no showing of past

persecution or a well-founded fear of future persecution within the meaning of the

Immigration and Nationality Act. M art does not challenge the IJ’s finding

concerning past persecution. Accordingly, our review is limited to his claim that

he faces future persecution and the reasons why that claim was rejected.

      In his oral decision, the IJ conceded that Christians in Indonesia face what

he described as “not an ideal situation.” R. at 49. But he felt that circumstances

in Indonesia are improving. He also explained that in order to grant asylum,

“there must be a showing of a threat of persecution . . . countrywide,” id. at 50,

and he concluded that M art had failed to make such a showing. Having found

that M art “failed to satisfy the lower burden of proof required for asylum,” id. at

50-51, the IJ concluded that M art’s application necessarily fell short of the higher

standard applicable to restriction on removal.

      The BIA affirmed the IJ’s opinion, specifically agreeing that M art had

“failed to establish a clear probability of persecution if returned to Indonesia.”

Id. at 2. It also made several additional findings that bolstered this conclusion.




                                          -3-
      The respondent did not present sufficient evidence that anyone has a
      current interest in him on account of a protected ground. The
      respondent did not adequately establish that the Indonesian
      government is unable or unwilling to control the M uslim extremists
      as the respondent acknowledged that the police came to his church
      when extremists threw rocks at his church and guarded the church for
      two weeks. Nor did the respondent demonstrate that he could not
      relocate to another part of Indonesia to avoid future persecution. . . .
      Also, the record reflects that the respondent’s parents and siblings
      have remained in Indonesia and have been able to live and worship
      there.

Id. at 2-3 (citations omitted).

      M art raises several challenges to the opinions of both the IJ and the BIA .

First, he argues that the BIA applied an incorrect standard in asking whether he

would be singled out for persecution, because under 8 C.F.R. § 1208.16(b)(2), he

need only demonstrate that he would be subjected to a “pattern or practice of

persecution.” N ext, he argues that the evidence in the record, including the story

of the attack on his sister’s Protestant school, shows that the Indonesian

government is either unable or unwilling to control the increasingly violent

Islamic fundamentalists. Finally, he claims that the IJ wrongly placed the burden

on him to demonstrate the infeasibility of internal relocation. He argues that

under 8 C.F.R. § 1208.16(b)(2), the IJ w as required to designate an area within

Indonesia where he could safely relocate.

                                         II.

      Before addressing M art’s arguments, we note that in a case like this,

involving a brief order issued by a single BIA member under 8 C.F.R.

                                         -4-
§ 1003.1(e)(5) as opposed to a summary affirmance under (e)(4), “we will not

affirm on grounds raised in the IJ decision unless they are relied upon by the B IA

in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).

W e may consult the IJ’s more complete explanation of grounds relied on by the

BIA , and we may also look to the IJ’s opinion if the BIA’s reasoning is difficult

to discern. But if the BIA’s opinion “contains a discernible substantive

discussion, . . . our review extends no further, unless it explicitly incorporates or

references an expanded version of the same reasoning below.” Id. Because the

BIA ’s opinion in this case contains a clear explanation of the grounds for its

decision, we need not consult the IJ’s opinion.

      W e are ever mindful of the substantial deference to be accorded the B IA’s

decision. W e may not reverse the BIA unless w e find that the evidence not only

supports, but compels a different conclusion. I.N.S. v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992). In reviewing the BIA ’s decision,

      [w]e consider any legal questions de novo, and we review the
      agency’s findings of fact under the substantial evidence standard.
      Under that test, our duty is to guarantee that factual determinations
      are supported by reasonable, substantial and probative evidence
      considering the record as a whole.

Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004).

      Restriction on removal, previously called withholding of removal, prohibits

the removal of “an alien to a country if the Attorney General decides that the

alien’s life or freedom w ould be threatened in that country because of the

                                          -5-
alien’s . . . religion.” 8 U.S.C. § 1231(b)(3)(A ). “In order to demonstrate

eligibility for [restriction on removal], the applicant must establish a clear

probability of persecution through presentation of evidence establishing that it is

more likely than not that the applicant would be subject to persecution.”

Woldemeskel v. I.N.S., 257 F.3d 1185, 1193 (10th Cir. 2001) (quotation and

alteration omitted). Under this test, M art must show that he has a greater

than fifty-percent chance of being persecuted upon his return to Indonesia.

Cf. Kamara v. Attorney Gen., 420 F.3d 202, 213-14 (3d Cir. 2005) (holding that

the “more likely than not” standard applicable to Convention Against Torture

claims is met if the probability of torture exceeds fifty percent); Wang v.

Ashcroft, 320 F.3d 130, 144, n.20 (2d Cir. 2003) (same).

      Based on our careful review of the record, we cannot say that the evidence

compels a finding that M art faces more than a fifty-percent chance of being

persecuted if returned to Indonesia. He argues that in contravention of its own

regulations, the BIA erroneously required him to prove that he would be singled

out for persecution. 2 The applicable regulation clearly provides that a showing of

2
      8 C.F.R. § 1208.16(b)(2)(i) provides in relevant part,

      [a]n applicant who has not suffered past persecution may
      demonstrate that his or her life or freedom w ould be threatened in the
      future in a country if he or she can establish that it is more likely
      than not that he or she would be persecuted on account of . . .
      religion . . . upon removal to that country. . . . In evaluating whether
      it is more likely than not that the applicant’s life or freedom would
                                                                         (continued...)

                                          -6-
individualized harm is not always required to establish a clear probability of

future persecution. But it is also clear that the applicant’s burden to show that he

would be singled out for persecution is only alleviated “if . . . [t]he applicant

establishes . . . a pattern or practice of persecution.” 8 C.F.R. § 1208.16(b)(2)(i)

(emphasis added). This, we have explained, entails “something on the order of

organized or systematic or pervasive persecution.” Woldemeskel, 257 F.3d at

1191 (quotation omitted). The background information that M art submitted

certainly confirms that deplorable acts of violence and discrimination are directed

at the Christian community throughout Indonesia. But the record also shows that

the government has not abandoned its efforts to stop the violence and continues to

investigate the perpetrators. Importantly, the evidence simply does not support

the conclusion that Christians in Indonesia suffer organized, systematic, or

pervasive persecution. W hile the attack on M art’s sister’s school more than seven

years ago may not have been aberrational, we remain unconvinced on the record

before us that it is more likely than not that he too will be targeted because of his

faith. And there is certainly nothing in the record to indicate that M art will be

singled out for persecution based on any other reason. To the contrary,

2
    (...continued)
          be threatened . . . , the asylum officer or immigration judge shall not
          require the applicant to provide evidence that he or she would be
          singled out individually for such persecution if: (i) The applicant
          establishes that in that country there is a pattern or practice of
          persecution of a group of persons similarly situated to the applicant
          on account of . . . religion.

                                             -7-
substantial evidence supports the BIA’s conclusion that M art failed to establish a

clear probability of persecution. 3 W e are therefore bound to uphold its decision.

      The petition for review is DENIED.

                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




3
      Since we conclude that there is no clear probability of persecution, we need
not address M art’s argument concerning the feasibility of internal relocation.

                                         -8-
