                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 March 16, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                               FOR THE TENTH CIRCUIT


    MERY JULIANA MARPAUNG;
    SAIBUN SIMANJUNTAK,

                Petitioners,
                                                        No. 09-9545
    v.                                              (Petition for Review)

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

                Respondent.


                               ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HOLMES, Circuit Judges.



         Petitioners Mery Juliana Marpaung and Saibun Simanjuntak, natives and

citizens of Indonesia, petition for review of the Board of Immigration Appeals’

(BIA) decision affirming the immigration judge’s (IJ) denial of Ms. Marpaung’s

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



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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). 1 We have jurisdiction to consider the petition under

8 U.S.C. § 1252(a). For the following reasons, we deny the petition.

                               I. BACKGROUND

      Ms. Marpaung is of Batak ethnicity and is Christian. She sought asylum

based on her religion, but she also described her fear of persecution based on her

Chinese-like appearance. In her asylum application and at her hearing, she

described the incidents that formed the basis for her asylum claim. When she was

in elementary school she attended a Christian school. She recalled an incident in

1974 when she was in an inter-school competition and her team won a game of

tug-of-war. The losing students were “native Indonesians” and they accused

Ms. Marpaung’s team of cheating because they were Christian. Admin. R. at 491.

The losing students then got angry and threw rocks at Ms. Marpaung and the

other Christian students.

      On May 13, 1998, she was at work for a Chinese business when an

anti-Chinese riot started. She was scared because her facial features look Chinese

and she was afraid to be mistaken for a Chinese woman. Ms. Marpaung hid

during the riot but she was able to see the rioters looting and destroying the

buildings around where she was hiding. She returned home safely later that night.



1
      Ms. Marpaung was the lead respondent in the immigration proceedings and
her husband, Mr. Simanjuntak, was treated as a derivative beneficiary of her
application.

                                         -2-
In November of that year, her church was attacked as she was working with a

group of children in preparation for a Christmas pageant. Her friend was badly

injured but she was able to escape safely with the children. Two years later, on

December 24, 2000, Ms. Marpaung was injured when a bomb exploded in the

parking lot of the church where she was attending services. She cut her hands on

shards of broken glass and she had to receive medical treatment. In addition, her

car was destroyed because it was parked next to the car that exploded.

      The IJ concluded that Ms. Marpaung’s testimony was credible, but he

determined that her experiences were not sufficient to constitute past persecution

or a well-founded fear of future persecution. He also stated that Ms. Marpaung

and her husband could relocate to a predominantly Christian area of Indonesia and

that Ms. Marpaung’s mother and siblings had all remained in Indonesia without

harm. Finally, the court noted that Ms. Marpaung had failed to show that the

government had acquiesced in her alleged persecution. Accordingly, the IJ

denied asylum, restriction on removal, and relief under the CAT.

      On appeal, the BIA affirmed the IJ’s finding that Ms. Marpaung had not

shown past persecution or a well-founded fear of future persecution. The BIA

also concluded that Ms. Marpaung “could reasonably avoid future persecution by

living in parts of Indonesia where there is minimal risk of attacks against

Christians.” Admin. R. at 4. Finally, the BIA affirmed the IJ’s determination that




                                         -3-
Ms. Marpaung was not entitled to restriction on removal or relief under the CAT.

Petitioners now seek review of the BIA’s decision.

                                 II. ANALYSIS

      A. Standard of Review

      The BIA affirmed the IJ’s decision in a single-member brief order. See

Admin. R. at 2-5; 8 C.F.R. § 1003.1(e)(5). In these circumstances, the BIA’s

decision is the final order under review. See Uanreroro v. Gonzales, 443 F.3d

1197, 1204 (10th Cir. 2006). “We review the BIA’s legal determinations de novo,

and its findings of fact under a substantial-evidence standard.” Niang v.

Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). “The BIA’s findings of fact are

conclusive unless the record demonstrates that any reasonable adjudicator would

be compelled to conclude to the contrary.” Id. (quotation omitted). “In this

circuit, the ultimate determination whether an alien has demonstrated persecution

is a question of fact, even if the underlying factual circumstances are not in

dispute and the only issue is whether those circumstances qualify as persecution.”

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

omitted).

      B. Asylum and Restriction on Removal

      In order to be eligible for the discretionary relief of asylum, Ms. Marpaung

must show that she suffered past persecution or she has a well-founded fear of

future persecution on account of her race, religion, nationality, membership in a

                                         -4-
particular social group, or political opinion. See 8 C.F.R. § 1208.13(b)(1),(2). In

order to be eligible for restriction on removal, Ms. Marpaung must show that she

suffered past persecution or that it is more likely than not that she will be subject

to persecution if she returns to her native country. Id. § 1208.16(b)(1),(2).

      1. Past Persecution

      To establish eligibility for asylum or restriction on removal based on past

persecution, an applicant must show: (1) an incident or incidents of persecution;

(2) that is on account of one of the statutorily protected grounds; and (3) is

committed by the government or forces the government is unable to control.

Niang, 422 F.3d at 1194-95. The BIA determined that

      the incidents [Ms. Marpaung] described—including having rocks
      thrown at her after winning a game in school, witnessing the riots
      against ethnic Chinese Indonesians in May 1998, cutting her hands
      on glass after a bomb was set in a car outside her church, and
      witnessing vandalism and an attack on her friend at her church—are
      insufficient to constitute past persecution.

Admin. R. at 3 (record citations omitted). Ms. Marpaung argues that the BIA

erred in making this determination because the cumulative effect of the incidents

she described is sufficient to show past persecution on account of her religion and

her physical appearance. In support of her argument, Ms. Marpaung relies on

Korablina v. I.N.S, 158 F.3d 1038, 1045 (9th Cir. 1998), a case in which the

Ninth Circuit reversed the BIA’s decision because “[c]umulatively, the

experiences suffered by Korablina compel the conclusion that she suffered


                                          -5-
persecution.” First, we are not bound by a decision from the Ninth Circuit. But,

more importantly, the incidents described in Korablina were much more severe

than those described by Ms. Marpaung, and the petitioner in that case was the

victim of a violent attack targeted at her specifically. Id. at 1044-1045

(describing incidents where the petitioner witnessed violence against fellow Jews,

including her boss who “disappeared” after he was beaten and the office was

repeatedly ransacked; and where the petitioner was attacked, tied to a chair with a

noose around her neck, and threatened with death).

      “[W]e have held that a finding of persecution requires the infliction of

suffering or harm upon those who differ (in race, religion, or political opinion) in

a way regarded as offensive and must entail more than just restrictions or threats

to life and liberty.” Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007)

(quotation omitted). Because we cannot conclude that a reasonable factfinder

would be compelled to find persecution based on the incidents Ms. Marpaung

described, we must uphold the BIA’s determination that Ms. Marpaung failed to

establish past persecution. See Hayrapetyan, 534 F.3d at 1335.

      2. Future Persecution

      Ms. Marpaung next argues that she is entitled to asylum and restriction on

removal because she has demonstrated a well-founded fear of future persecution

and that it is more likely than not that she will be subject to future persecution.




                                         -6-
The BIA found that Ms. Marpaung had not established a well-founded fear of

future persecution because although

      [t]he United States Department of State’s Country Reports on Human
      Rights Practices for Indonesia for 2004, and the United States
      Department of State’s 2006 International Religious Freedom Report
      for Indonesia indicate that some religious violence continues, [the]
      incidents are sporadic and limited to specific parts of Indonesia such
      as central Sulawesi and the Malukus [sic].

Admin. R. at 4. The BIA noted that Ms. Marpaung had submitted “[a] few

documents [that] identify harassment of Christians or isolated incidents of

violence, but the record does not document ongoing widespread mistreatment of

Christians.” Id.

      Ms. Marpaung asserts that the BIA erred in its assessment of the Country

Reports and the Religious Freedom Report and that she would be subject to

persecution on the basis of her religion throughout Indonesia. 2 We disagree. The

Country Reports advised that the Indonesian Constitution continued to provide for

religious freedom, that the government generally respected that constitutional

provision, and that Christianity (i.e., Catholicism and Protestantism) continued to

enjoy recognition as one of the five official religions in Indonesia. See Admin. R.



2
      As part of this argument, Ms. Marpaung appears to assert a claim that
Indonesian Christians are subject to a pattern and practice of persecution, see
Pet’r Br. at 22-23, but this claim was not presented to the BIA, see Admin. R. at
48-54, 77-78. Accordingly, we cannot consider it because Ms. Marpaung failed
to exhaust her administrative remedies with respect to this claim. See Ribas v.
Mukasey, 545 F.3d 922, 930-31 (10th Cir. 2008).

                                        -7-
at 238. The Country Reports indicated also that there was a “sharp drop” in

violence between Christians and Muslims in Central Sulawesi and the Moluccas,

and “inter-religious tolerance and cooperation improved during the year.” Id. at

238. While Ms. Marpaung claims that the Country Reports “show[ed] that church

bombings occurred with alarming frequency,” Pet’r Br. at 20, the Reports actually

showed a significant drop in church bombings from the year before, see Admin.

R. at 238 (noting that there were 7 church attacks nationwide in 2003, down from

20 in 2002).

      As for the Religious Freedom Report, it advised that the Indonesian

government and the public generally respected religious freedom. Id. at 158.

But, as the BIA recognized, the report noted continued religious violence in two

areas of Indonesia, the Moluccas and Central Sulawesi. The report explained that

“[r]eligiously-motivated violence and vigilante acts in Maluku and North Maluku

[collectively, “the Moluccas”] declined significantly, although, as in past years,

Central Sulawesi experienced sporadic bombings, shootings and other violence

despite efforts to restore security and promote reconciliation.” Id. The report

further stated that “[g]overnment officials worked with Muslim and Christian

community leaders to diffuse tensions in conflict areas, particularly in Central

Sulawesi and the Moluccas.” Id. We agree with the BIA that the sporadic and

relatively isolated incidences of violence described in the Country Reports and

the Religious Freedom report are not enough to establish that Ms. Marpaung

                                         -8-
would be subject to persecution throughout Indonesia. Central Sulawesi and the

Moluccas are islands far removed from where Ms. Marpaung used to live in

Jakarta. See id. at 266. As the BIA noted, “the localized nature of harm to

Christians indicates that the [petitioners] could reasonably avoid future

persecution by living in parts of Indonesia where there is minimal risk of attacks

against Christians.” Id. at 4.

      The BIA’s decision is also supported by other evidence in the record. First,

the record shows that the Indonesian government responded promptly to the

church bombing in 2000 that Ms. Marpaung described. The government

confirmed that there had been a series of church bombings on Christmas Eve 2000

by unknown terrorists and it formed a special interagency team to investigate the

bombings, which led to the successful prosecution of one of the terrorists. See id.

at 588. Second, Ms. Marpaung lived safely in Indonesia from December 25,

2000, until her departure in October 2002. Finally, Ms. Marpaung’s mother and

six siblings, all Christians, continue to live without harm in Indonesia. See Decky

v. Holder, 587 F.3d 104, 112-13 (1st Cir. 2009) (upholding finding that petitioner

did not have a well-founded fear of persecution in Indonesia when his siblings

remained there “without significant mistreatment”). Accordingly, we conclude

the BIA did not err in its assessment of the country conditions in Indonesia and

substantial evidence supports the BIA’s decision that Ms. Marpaung failed to

establish a well-founded fear of future persecution.

                                         -9-
      Because Ms. Marpaung failed to meet the asylum standard of showing a

well-founded fear of persecution, she necessarily failed to meet the higher

standard for restriction on removal. See Ba v. Mukasey, 539 F.3d 1265, 1271

(10th Cir. 2008). We therefore affirm the BIA’s conclusion that Ms. Marpaung

failed to establish her eligibility for restriction on removal.

      C. Relief Under the CAT

      “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). Ms. Marpaung contends that the BIA erred by

improperly conflating the requirements for asylum relief with those for

withholding of removal under the CAT. We recently considered and rejected a

similar argument in Witjaksono v. Holder, 573 F.3d 968, 978 (10th Cir. 2009).

Here, the BIA’s decision states:

      Because the [petitioners] have not established eligibility for asylum,
      it follows that they have failed to satisfy the higher clear probability
      standard of eligibility required for withholding of removal.
      Similarly, the [petitioners] have not established that it is more likely
      than not that they will be tortured upon return to Indonesia.

Admin. R. at 4 (citations omitted). As in Witjaksono, although the BIA’s analysis

of the CAT claim is “sparse,” the BIA correctly stated the legal standards

applicable to the two different claims. 573 F.3d at 978. And, as we explained in

Witjaksono, the BIA “has no duty to write an exegesis on every contention,” as

                                          -10-
long as the decision is announced in terms sufficient to enable this court to review

it. Id. (quotation omitted). The BIA’s decision on Ms. Marpaung’s CAT claim is

sufficient for our review. Ms. Marpaung relied on the same incidents for her

CAT claim as she did for her claim of persecution, and, as the BIA correctly

concluded, that evidence does not indicate that the Indonesian government will

torture her or acquiesce in her torture if she returns to Indonesia. See also

Sidabutar, 503 F.3d at 1125-26 (“Since we affirmed the BIA’s finding that it is

unlikely that [petitioner] would face future persecution at the hands of the

government or a non-governmental group that ‘the government is unwilling or

unable to control,’ it is likewise against the odds that [petitioner] would be

tortured by the government or a proxy for the government.”).

                                III. CONCLUSION

      The petition for review is DENIED.


                                                     Entered for the Court


                                                     Jerome A. Holmes
                                                     Circuit Judge




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