                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 25, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                              FOR THE TENTH CIRCUIT


    TONI PANRIHON
    SIMANGUNSONG,

                Petitioner,                             No. 08-9548
                                                    (Petition for Review)
    v.

    ERIC H. HOLDER, JR., *
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT **


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         Petitioner Toni Panrihon Simangunsong challenges an order of the Board of

Immigration Appeals (BIA) upholding an Immigration Judge’s (IJ’s) denial of his

application for asylum, restriction on removal, and relief under the Convention


*
     Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we

deny the petition.

                                    I. Background

      Mr. Simangunsong is a native and citizen of Indonesia. He entered the

United States in December 1994 on a B-2 visitor visa. Nine years later, he was

served with a notice to appear that charged him as removable for overstaying his

visa and for being employed. He conceded removability but sought asylum,

restriction on removal, CAT relief, and in the alternative, voluntary departure.

      At a merits hearing in 2006, Mr. Simangunsong testified that he is

Christian. His two older brothers and one younger sister are also Christian but

they still live in Indonesia. Mr. Simangunsong testified that he is afraid to return

to Indonesia because the circumstances there have “changed,” Admin. R. at 60, it

is difficult to find a job, and “it’s very easy for riots to take place,” id. at 63.

When asked whether he or his family suffered harm on account of being Christian

he responded, “That didn’t happen in my family. . . . I lived in a Chinese people

environment. They would often bother us. We were afraid, we had a feeling of

fear . . . .” Id. at 59. But he denied being “threatened in any way.” Id. In public

middle school in Indonesia, however, the Christians “were kind of isolated,” and

he and other Christian children were required to leave the classroom during

Muslim religion class. Id. at 57.




                                           -2-
       When asked what political opinion he held that made him “fear . . . going

back to Indonesia,” he replied without explanation, “the demonstrations that were

taking place.” Id. at 67. He also testified that he had neither belonged to a

political party in Indonesia nor been involved in politics in Indonesia. He stated

that he did not know whether there was any place in Indonesia where he would be

safe, and that he did not know whether the police “could keep the peace there.”

Id. at 62.

       The IJ issued an oral decision denying the relief sought. He found

Mr. Simangunsong statutorily ineligible for asylum because he failed to file his

asylum application within one year of arriving in the United States, and he failed

to show changed or extraordinary circumstances sufficient to excuse the untimely

filing. Turning to restriction on removal and CAT relief, the IJ found

Mr. Simangunsong had “not testified to past persecution in Indonesia,” Supp.

Admin. R. at 5, the matters testified to did not constitute persecution but rather

“harassment and discrimination,” id., and Mr. Simangunsong had failed to

demonstrate that relocation within Indonesia would be unreasonable. The IJ

concluded:

              [A]lthough the situation for Christians in Indonesia is not
       ideal, the Court cannot find that the respondent’s evidence taken as a
       whole would show that it is more likely than not that [he] would be
       persecuted in Indonesia. Also, there is no evidence at all that the
       Government [would be complicit to] torture [of] the respondent if he
       were returned to Indonesia. Accordingly, [he] does not meet his
       burden of proof to show that it is more likely than not that he would

                                         -3-
      be persecuted or tortured upon return to Indonesia. Therefore, he
      may not be granted [restriction on removal] . . . or [relief] under the
      United Nations Convention Against Torture.

Id. at 7. The IJ did, however, grant Mr. Simangunsong’s request for voluntary

departure. Mr. Simangunsong appealed.

      The BIA dismissed Mr. Simangunsong’s appeal. It agreed with the IJ that

Mr. Simangunsong’s application for asylum was untimely and that he had failed

to demonstrate qualification for an exception from the filing deadline. It also

agreed with the IJ that Mr. Simangunsong was not entitled to restriction on

removal or CAT protection. In so holding, the BIA stated:

      the respondent’s past mistreatment as a Christian in Indonesia did not
      rise to the level of persecution. Nor does the evidence establish that
      it is more likely than not that he would suffer religious or political
      persecution in Indonesia in the future. Moreover, in order to prevail
      on his [restriction on removal] claim, the respondent must
      demonstrate that persecution [would] be inflicted by the government
      or by a non-governmental group that the government is unwilling or
      unable to control; the respondent has claimed only that the
      government may not try or be able to protect him from anti-Christian
      violence.

             Finally we affirm the Immigration Judge’s denial of the
      respondent’s application for protection under the Convention Against
      Torture, for he has not shown that he would more likely than not
      suffer torture by or with the acquiescence of the government of
      Indonesia.

Admin. R. at 2 (citations and quotations omitted). This petition for review

followed.




                                         -4-
                                     II. Discussion

         Because the BIA issued its decision by a brief order signed by a single

board member, 8 C.F.R. § 1003.1(e)(5), we review the BIA’s decision as the final

order of removal but “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). “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 would be compelled to conclude to the contrary.” Id. at

788-89 (quotations and brackets omitted). We review the agency’s legal

conclusions de novo. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.

2005).

         Mr. Simangunsong does not appeal the denial of his asylum application,

apparently recognizing its untimeliness. He does, however, appeal the decisions

not to grant restriction on removal or CAT relief.

A.       Restriction on Removal

         An alien is entitled to restriction on removal if his “life or freedom would

be threatened in th[e] 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)(A).




                                           -5-
      An alien may create a rebuttable presumption of eligibility for
      restriction on removal by either (1) demonstrating “past persecution”
      in the proposed country of removal on account of one of the
      protected grounds . . . ; or (2) showing that “it is more likely than not
      that the alien would be subject to persecution on one of the specified
      grounds” upon returning to the proposed country of removal.

Sidabutar v. Gonzales, 503 F.3d 1116, 1123-24 (10th Cir. 2007). “[W]hether an

alien has demonstrated persecution is a question of fact.” Hayrapetyan v.

Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (quotation omitted).

      Mr. Simangunsong makes conclusory assertions, without citation to the

record, that he has suffered past persecution. 1 Here, the BIA concluded that the

matters Mr. Simangunsong testified about did not rise to the level of past

persecution, and our review of the record reveals substantial evidence to support

that conclusion. See Tulengkey, 425 F.3d at 1280 (“Persecution is the infliction

of suffering or harm . . . and requires more than just restrictions or threats to life

and liberty.” (quotation omitted)).

      Equally unavailing is Mr. Simangunsong’s position that because he

established past persecution, “it is the Government’s burden to show that he could

reasonably safely relocate.” Pet’r Br. at 6-7. This bare assertion is misplaced.


1
       While this court has “routinely . . . declined to consider arguments that . . .
are inadequately presented,” we exercise our discretion in this case to reach the
merits of Mr. Simangunsong’s arguments. Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007). See also Fed. R. App. P. 28(a)(9)(A) (“[Appellant’s]
argument . . . must contain appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.”
(emphasis added)).

                                          -6-
Because Mr. Simangunsong has not shown past persecution, and because the

alleged future persecution would be by Muslims and not by the Indonesian

government or government-sponsored group, it is his burden—not the

Government’s—to establish that relocation would be unreasonable. See 8 C.F.R.

§ 1208.13(b)(3)(I); Tulengkey, 425 F.3d at 1281. Here, the BIA concluded that

Mr. Simangunsong did not meet his burden, and our review of the record does not

compel us to conclude otherwise. Likewise, Mr. Simangunsong’s subjective

belief that he could not “safely relocate within Indonesia,” Pet’r Br. at 7, falls far

short of demonstrating that “any reasonable adjudicator would be compelled to

conclude” the BIA erred on this point, Sarr, 474 F.3d at 788-89 (quotation

omitted).

      The BIA held that Mr. Simangunsong did “not establish[] that he merits

[restriction on removal].” Admin. R. at 2. Our review of the record confirms this

determination.

B.    Convention Against Torture

      “To receive the protections of the CAT, an alien must demonstrate that it is

more likely than not that he will be subject to torture by a public official, or at the

instigation or with the acquiescence of such an official.” Sidabutar, 503 F.3d

at 1125 (quotation omitted). A CAT claim differs from a restriction on removal

claim in that “there is no requirement that the petitioner[] show that torture will

occur on account of a statutorily protected ground.” Id. (quotation omitted).

                                          -7-
      Mr. Simangunsong asserts, again in conclusory fashion, see supra n.1, that

he qualifies for CAT relief for the same reasons that he qualifies for restriction on

removal. We see no basis to disturb the BIA’s decision to deny

Mr. Simangunsong’s application for protection under the CAT. He has not

established a clear probability of torture by or at the instigation of or with the

consent and acquiescence of the Indonesian government.

                                   III. Conclusion

      The BIA did not err in dismissing Mr. Simangunsong’s claims for

restriction on removal and CAT relief. The petition for review is therefore

DENIED.



                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge




                                          -8-
