                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      July 19, 2006
                     UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                            FO R TH E TENTH CIRCUIT                    Clerk of Court



    CHANDRA ISM AIL; RASM ILIA
    CH AN DR A; SYIFARIZA
    ALD AM ILIA; ZAN NY ZAPATA
    C HA N D RA ,
                                                       No. 05-9591
             Petitioners,                  (Nos. A97-192-114 A97-192-113
                                               A97-192-115, A97-192-055)
    v.                                             (Petition for Review)

    B UREA U O F IM M IG RA TIO N AND
    CUSTOM S ENFORCEM ENT, a
    Federal Government Agency; NURIA
    PRENDES, Field Office Director for
    Detention and Removal, ALBERTO
    GONZALES, Attorney General of the
    United States,

             Respondents.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. 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.
      M embers of the Chandra family, who are citizens of Indonesia and

members of the Islamic faith, seek review of a Final Order of Removal issued by

the Bureau of Immigration Appeals (BIA). In particular, they claim error in the

denial of their request for restriction on removal, also known as withholding of

removal. 1 W e deny the petition for review.

                                           I.

      Rasmilia Chandra, the wife and mother of the family, filed a Form I-589

Application for Asylum and for W ithholding of Removal for herself; her husband,

Chandra Ismail; and her minor daughter, Syifariza Aldamilia. Zanny Zapata

Chandra, one of Rasmilia’s two adult sons, filed an independent application

which was considered at the same time. 2

      From the parties’ filings and testimony about conditions in Indonesia, a

picture of general civil disorder emerges. Chandra Ismail portrays himself as an

individual with moderate, democratic views who has lived through various

difficulties over the last four decades. After a 1974 student demonstration against

the military junta, he was detained and questioned for a week. W hile employed



1
       The Immigration and Naturalization Act referred to “restriction on
removal” as “withholding of removal prior to the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996.” Elzour v. Ashcroft, 378 F.3d 1143, 1148
n.5 (10th Cir. 2004). Agency regulations and forms, however, still refer to the
relief as “withholding of removal.” See, e.g., 8 C.F.R. § 1208.3(a).
2
       The status of another adult son, Giribaldi Chandra, is not at issue in this
petition for review .

                                         -2-
as a business and banking journalist for Infobank M agazine, he joined Yapila, an

Islamic organization. In 1994, he recognized that the organization was becoming

more radical. He withdrew from the organization, accepted an Infobank

scholarship to study in the United States, and traveled with his family to

Oklahoma City. In 1997, Ismail, his wife, and daughter returned to Indonesia, but

the older sons remained in the United States as students.

      Shortly after the family’s return, Indonesia was engulfed in demonstrations,

riots, economic tumult, and ethnic animosity. Rasmilia Chandra wears a veil,

which may make her a target of non-Islamic people. During a major riot in 1998,

she was injured and her brother was killed in her presence. In February 2000, she

was hit by a thrown rock in a market riot.

      In M ay 2000, Chandra Ismail was fired from his job at Infobank. The same

year, the family traveled to the United States, then returned to Indonesia. W hile

job-seeking in Indonesia, Ismail wrote freelance articles about the advantages of

democracy and the dangers of extremist groups. These articles offended members

of radical Islamic organizations. His former group, Yapila, intimidated him by

asking for donations, and, when he refused the request, by threatening the safety

of his family. In the summer of 2001, the family visited the sons in Oklahoma

City and remained there. Though they overstayed their visas, family members did

not seek a change in immigration status until 2003, when they applied for asylum,

withholding of removal, and relief under the Convention Against Torture.

                                         -3-
                                           II.

       At the opening of the merits hearing, the Immigration Judge (IJ)

commented that he “wanted to do [the hearing] right,” but asked for the parties’

assistance in expediting it. Admin. R. at 188. Chandra Ismail testified as the

principal witness, who was familiar with the circumstances of all family

members. He explained that the family’s application was filed over one year after

their visas expired because he w as a full-time care giver w hile Rasmilia Chandra

suffered from severe depression. The thrust of his substantive testimony was that,

as a journalist and moderate M uslim, he would be killed if required to return to

Indonesia. He was concerned that his sons would be recruited by extremists and

his daughter would be sexually harassed.

      Rasmilia Chandra testified about her own reasons for not going back:

danger to her husband, fear arising from the death of her brother and her own

injuries, extremist recruitment of her sons, risks to her daughter, and the fact that

she no longer had parents there. After Rasmilia’s testimony, counsel for the

family stated that further w itnesses would provide only “corroboration of w hat’s

already been said.” Admin. R. at 212. The IJ declared that he did not see a need

for repetitive testimony. No other family members testified.

      After the attorneys made their closing statements, the IJ announced his oral

decision. He determined that all family members were ineligible for asylum

because they failed to file their applications w ithin one year of their arrival in this

                                           -4-
country and they presented no statutorily sufficient justification for the delay.

See 8 U.S.C. § 1158(a). Additionally, the IJ evaluated the evidence and

concluded that there was no showing of “past persecution in the many years and

decades that the parents resided [in Indonesia]” and, in the future, no “significant

prospect that they’d be singled out or that they would have greater danger in

Indonesia than any other ethnic Indonesian M uslim would likely face.” Admin.

R. at 134-35. The IJ therefore denied the application for asylum, withholding of

removal, and protection under the Convention Against Torture.

      The family then appealed to the BIA, raising three issues. Their claims

were that (1) one family member’s depression justifies delay of an asylum

request; (2) reasonable people in the family’s circumstances would fear

persecution; and (3) Zanny Zapata C handra’s due process rights arising from his

independent application were violated by the lack of his testimony. In a per

curiam order, the BIA agreed with the IJ’s factual findings and legal conclusions

concerning the untimeliness of the asylum claim and the lack of eligibility for the

requested relief from removal. It also determined that Zanny Zapata Chandra had

an adequate opportunity to present his claims.

                                         III.

      On petition for review in this court, the family has abandoned its asylum

claim. See 8 U.S.C. § 1158(a)(3) (providing that the federal courts lack

“jurisdiction to review any determination” on whether alien filed asylum request

                                          -5-
within a year of entry or whether changed or extraordinary circumstances excused

delay). Instead, the family asserts that it is entitled to withholding of removal and

also argues that the BIA should have remanded the case for further proceedings,

allowing Zanny Zapata Chandra an opportunity to testify.

      As a threshold matter, respondents argue that this court may not exercise

jurisdiction over a challenge to the denial of withholding of removal because the

fam ily’s BIA appeal w as confined to asylum issues. This court “may review a

final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right.” Id. § 1252(d)(1). W e have previously

recognized that “[t]he failure to raise an issue on appeal to the [BIA] constitutes

failure to exhaust administrative remedies” and “deprives the Court of Appeals of

jurisdiction to hear the matter.” Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2

(10th Cir. 1991).

      Respondents’ exhaustion argument is unpersuasive. An alien applies for

asylum on a “Form I-589, Application for Asylum and for W ithholding of

Removal.” The form is “deemed to constitute at the same time an application for

withholding of removal.” 8 C.F.R. § 1208.3(a), (b). The family expressed their

BIA -appeal issues in the context of “an asylum application.” Admin. R. 13-14.

In light of the controlling regulations, the appeal encompassed matters related to

withholding of removal. Accordingly, family members exhausted their available




                                          -6-
administrative remedies and this court has jurisdiction to review the substance of

the issues raised in their petition for review.

      For purposes of our review, the BIA’s per curiam order is the final order of

removal, but we also look to the IJ’s decision for its fuller explanation of the

grounds of decision affirmed by the BIA . See U anreroro v Gonzales, 443 F.3d

1197, 1204 (10th Cir. 2006). W e review all legal determinations de novo and all

factual determinations for substantial evidence. Niang v. Gonzales, 422 F.3d

1187, 1196 (10th Cir. 2005). The factual findings are conclusive unless the

record demonstrates that “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

      To obtain the relief of withholding or restriction on removal, a petitioner

must show “a clear probability of persecution attributable to race, religion,

nationality, membership in a particular social group, or political opinion.”

Sviridov v. Ashcroft, 358 F.3d 722, 729 (10th Cir. 2004) (quotation omitted). “A

‘clear probability’ means the persecution is more likely than not to occur upon

return.” Uanreroro, 443 F.3d at 1202 (quoting Elzour v. Ashcroft, 378 F.3d

1143, 1149 (10th Cir. 2004)). After a careful review of the administrative record,

we conclude that substantial evidence supports the BIA’s determination that the

family members did not demonstrate a clear probability of persecution in

Indonesia.




                                           -7-
      The IJ based its decision on several factors. First, the family members only

expressed generalized concerns about their fears of forced recruitment in radical

groups. The evidence of violence they testified about was directed more at

tourists from other countries and not at indigenous M uslims. In addition, Ismail

provided no published copies of his magazine articles that he claimed made him a

target of retribution. In any event, the articles w ere over four years old and the IJ

concluded that Ismail had not shown a particularized concern at the present time

for persecution arising from them. Even Ismail’s testimony about his former

group, Yapila, does not clearly suggest that he was singled out for threats because

of the articles. Finally, Ismail continued to travel without incident to Indonesia

several times before deciding to file an (untimely) petition for asylum. Nothing

suggests that the Indonesian government was a part of the threats made to Ismail,

or is unable to respond to claims of violence. Because we are not compelled to

reverse the BIA’s factual findings on this record, we affirm its ruling on

withholding of removal.

      Next, we turn to Zanny Zapata C handra’s claim that the IJ’s interest in

expediting the merits hearing resulted in a violation of the controlling regulations

and an infringement of his due-process rights. Specifically, he claims that he was

not “examined under oath on his . . . application” or allowed to “present evidence

and witnesses in his . . . behalf, ” 8 C.F.R. §§ 1240.11(c)(3)(iii),

1240.49(c)(4)(iii), and thus deprived of “an opportunity to be heard at a

                                          -8-
meaningful time and in a meaningful manner,” Woldemeskel v. INS, 257 F.3d

1185, 1193 (10th Cir. 2001) (quotations omitted). To establish a due process

violation, an alien must show that an error resulted in prejudice “implicat[ing] the

fundamental fairness of the proceeding.” M ichelson v. INS, 897 F.2d 465, 468

(10th Cir. 1990).

       Zanny Zapata was sworn in and asked to affirm the veracity of the

information on his application. He was not precluded from testifying. Though

the IJ urged petitioners and their counsel to be expeditious, he also stated he

wished to conduct a proper hearing. After Chandra Ismail and Rasmilia Chandra

testified at the merits hearing, the family’s attorney did not present any further

witnesses. According to the attorney, the children based their claims on the

parents’ situation, and additional testimony would be corroborative.

      The record demonstrates no prejudice flowing from the lack of Zanny

Zapata’s testimony. M oreover, his attorney waived his right to testify on his own

behalf. W e conclude that Zanny Zapata has received all the process due to him.




                                          -9-
      The petition for review is DENIED. W e lack jurisdiction to consider

petitioners’ alternative request for relief from this court: reinstatement of the

BIA ’s expired grant of voluntary departure. See Castaneda v. INS, 23 F.3d 1576,

1580 (10th Cir. 1994).



                                                     Entered for the Court



                                                     Timothy M . Tymkovich
                                                     Circuit Judge




                                         -10-
