                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        August 15, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
KAREL ADAM; IVONNE UMBOH;
RONALDO ADAM,

             Petitioners,

v.                                                          No. 14-9508
                                                        (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before KELLY, PORFILIO, and MATHESON, Circuit Judges.


      Petitioners, Indonesian citizens and natives, seek review of a Board of

Immigration Appeals (BIA) decision dismissing their appeal from the Immigration

Judge’s (IJ) denial of Karel Adam’s application for asylum, restriction on removal,

and relief under the Convention Against Torture (CAT). Exercising jurisdiction

under 8 U.S.C. § 1252(a)(1), we deny the petition.

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                I. BACKGROUND

       Petitioners entered the United States in June 2000 as nonimmigrant visitors.

Their authorization to remain expired in December 2000. In 2003, Mr. Adam applied

for asylum based on his political opinion and membership in a political opposition

group – FKM-USA. The other Petitioners, his wife and son, are derivative

applicants.1 The Department of Homeland Security denied the asylum request and

placed the Petitioners in removal proceedings.

       The IJ explained a delay in the proceedings from 2003 to 2010: “Proceedings

in this matter changed venue multiple times between Los Angeles and Denver until

this Court denied further motions to change venue and required the [Petitioners] to

appear at a master calendar hearing.” Admin. R. at 124. At that hearing, Mr. Adam

said he would file a new asylum application, which he did in November 2010. The

new application alleged fear of persecution based on the Petitioners’ Christian

religion.

       At the merits hearing in 2012, Mr. Adam disavowed his 2003 asylum

application as inaccurate. He then testified as follows. Mr. Adam is a lifelong

Seventh Day Adventist. He met and married his wife, Ivonne Umboh, during


       1
        Mr. Adam’s daughter, Thalia, was originally a derivative applicant. During
the proceedings, however, she reached adult age and filed a separate application for
asylum and restriction on removal. The cases were consolidated for the merits
hearing. During the appeal to the BIA, Thalia moved to sever to allow her to pursue
adjustment of status based on her marriage to a United States citizen. The BIA
granted the motion. Thalia is no longer a party to these proceedings.


                                         -2-
college. In 1998, when living in Jakarta, Mr. Adam decided to transfer their

daughter, Thalia, from public school to a Seventh Day Adventist school so she could

“learn more about [her] own religion,” id. at 191, and avoid conflict over whether she

could be excused from Saturday morning classes to participate in “religious

activities,” id. at 192. According to Mr. Adam, the public school headmaster

suggested Thalia engage in religious activities on Saturday afternoons. Mr. Adam

rejected the suggestion and decided to transfer Thalia.

      In April 1998, an after-school clash occurred between students at the public

and Seventh Day Adventist schools. Mr. Adam testified, “Every day I had to pick up

my kids from school. When I was parking the car in front of the school I saw [the

Seventh Day Adventist students] getting out [of] school . . . . [T]here were 50 other

kids behind them . . . and they were all wearing [public school] uniforms.” Id. at

194. The public school students “started hitting the [Seventh Day Adventist] high

school children.” Id. Mr. Adam got his daughter into the car but could not leave

before someone hit the rear window with a baseball bat. He also witnessed “a few

kids who [got] beaten up.” Id. at 197. The police were called and “came to disperse

the crowd.” Id. at 238. That evening he learned that two Seventh Day Adventist

students were killed in the melee. Mr. Adam did not report the damage to his car to

the authorities. Thalia stayed home from school the following week. “[B]ecause of

the incident the Adventist school took a step to change the schedule so they started




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early and finished . . . early.” Id. at 195. A few months later, Mr. Adam moved his

family from Jakarta to Mataram.

      Because there were no Seventh Day Adventist schools in Mataram, Mr. Adam

enrolled Thalia in a Catholic school. His family worshipped at a Seventh Day

Adventist church without interference. Things were peaceful until early 2000, when

three men accosted Thalia on a bus. They spit on her and burned the symbol of a

cross on her arm with a cigarette. Mr. Adam was away from home that day. His

wife told him she did not take Thalia to the doctor because she was “afraid.” Id. at

205. Mr. Adam decided to treat the wound at home and did not call the police or

seek outside medical care. He did not know the men who committed the assault. He

testified it would have been futile to file a police report because “[b]ased on the

history that had happened to other Christians and to my close friends the police

[would] not do anything.” Id. at 249.2

      A few days later, eight Christian churches in Mataram were burned down,

including the Seventh Day Adventist church. Mr. Adam had no idea “who was

behind all this stuff, but the situation was very heated, especially because [several

churches had also been burned down] in Jakarta.” Id. at 208. A few weeks later,

Mr. Adam quit his job and the family moved back to Jakarta, where he spent the next

three months looking for work and Thalia refused to return to school.


      2
        This testimony conflicts with Mr. Adam’s earlier statement that police came
and dispersed the crowd at the school incident.


                                          -4-
       Although still able to attend church, Mr. Adam and his family left Indonesia

for the United States. “I basically came to the United States . . . to live . . .

temporarily until . . . my family was feeling safe.” Id. at 214. Plans changed,

however, when relatives in Indonesia warned Mr. Adam not to return because “the

situation in Indonesia was getting worse,” id. at 215. He admitted, however, that

none of his relatives, all of whom are Christians, have been harmed or threatened.

Still, he cited instances in Jakarta and Java, “[m]ost of them [not reported] by the

media,” of Muslims attacking Christians. Id. at 243.

       Thalia testified to the same events her father described, and confirmed the

details. Like her father, she feared returning to Indonesia because Christians are “not

able to freely express . . . freedom [of] religion and the police are just standing by[,]

just watching.” Id. at 275-76.

       The IJ denied relief. He found Mr. Adam and Thalia credible and the 2003

asylum application not frivolous. But he found Petitioners ineligible for asylum

because the application was not filed within one year of their arrival in the United

States and no changed or extraordinary circumstances excused the untimely filing.

He also concluded Petitioners were not eligible for restriction on removal or CAT

protection.

       The BIA dismissed the appeal. It agreed with the IJ that the 2003 asylum

application was untimely. It also agreed Petitioners are not entitled to restriction on

removal or CAT protection.


                                            -5-
                                    II. DISCUSSION

      The BIA issued a single board member’s brief order, so we review it 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). “In this circuit, the determination whether an alien has demonstrated

persecution is a question of fact.” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir.

2011) (ellipses omitted) (internal quotation marks omitted). The burden to obtain a

reversal is steep because, “in reviewing the BIA’s factual findings, we are bound by

Congress’s directive that ‘administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.’” Barrera-

Quintero v. Holder, 699 F.3d 1239, 1244 (10th Cir. 2012), quoting 8 U.S.C. §

1252(b)(4). We review the agency’s legal conclusions de novo. Tulengkey v.

Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005).

      This appeal concerns only the denial of restriction on removal.3 “To obtain

restriction on removal, the alien must demonstrate that [his] ‘life or freedom would

be threatened in [the proposed country of removal] because of [his] race, religion,

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

Tulengkey, 425 F.3d at 1280 (quoting 8 U.S.C. § 1231(b)(3)(A)).



      3
       Petitioners do not appeal dismissal of their asylum request. They waived
review of the denial of CAT protection by failing to raise this issue in their opening
brief.


                                          -6-
       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) (citations and

internal quotation marks omitted).

       “Persecution is 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.” Ritonga, 633 F.3d at 975

(internal quotation marks omitted). “We do not look at each incident in isolation, but

instead consider then collectively, because the cumulative effects of multiple

incidents may constitute persecution.” Id.

                                     A. Past Persecution

       As to past persecution, what Mr. Adam described in his testimony is

regrettable and troubling, but our precedent makes it difficult for Petitioners to

prevail. Even when an alien “suffered repeated robberies and some minor injuries,”

we have upheld a finding of no past persecution. Sidabutar, 503 F.3d at 1124.

Similarly, we have said “[an alien’s] descriptions of . . . riots and . . . church

burning[s] do not mandate relief.” Witjaksono v. Holder, 573 F.3d 968, 977 (10th

Cir. 2009). Here, the IJ found, and the BIA agreed, that Mr. Adam did not show

enough under applicable precedent that he was the victim of harm or suffering and

therefore did not establish past persecution. Based on the record, our limited and

                                           -7-
demanding standard of review, and binding precedent, we cannot conclude that any

reasonable adjudicator would be compelled to reach a contrary determination.

                                  B. Future Persecution

      As to future persecution, an applicant can qualify for restriction on removal by

establishing that “it is more likely than not that he . . . would be persecuted on

account of race, religion, nationality, membership in a particular social group, or

political opinion upon removal to that country.” 8 C.F.R. § 1208.16(b)(2); see also

Witjaksono, 573 F.3d at 977 (same). An applicant must demonstrate a “clear

probability of persecution.” Elzour v. Ashcroft, 378 F.3d 1143, 1149 (10th Cir.

2004). For a fear of future persecution to be well-founded, it must be both

subjectively genuine and objectively reasonable.” Ritonga, 633 F.3d at 976.

      An applicant can establish an objectively reasonable fear by showing (1) it is

likely he or she would suffer persecution due to being part of a group that has

suffered a pattern or practice of religious persecution, or (2) that he or she likely

would be singled out for persecution. See 8 C.F.R. § 1208.16(b)(2). As to either (1)

or (2), “the persecution must be committed by the government or forces the

government is unwilling to control.” Neri-Garcia v. Holder, 696 F.3d 1003, 1009

(10th Cir. 2012) (internal quotation marks omitted). Mr. Adam’s application fails on

this latter requirement, and we therefore do not address (1) or (2).

      The IJ found, and the BIA agreed, that Mr. Adam did not establish that his fear

was “objectively reasonable.” Under our strict standard of review, we conclude the


                                           -8-
IJ reasonably found Mr. Adam did not show acts committed by the Indonesian

government or a group that the government is unwilling or unable to control.

Further, the evidence showed Mr. Adam and his family were able to attend church

until they left Indonesia, Indonesia’s constitution protects religious freedom, and his

relatives in Indonesia have continued to attend a Seventh Day Adventist church

without harm. This evidence counters Mr. Adam’s alleged fear of future persecution.

See, Ritonga, 633 F.3d at 977. We cannot conclude any reasonable adjudicator

would be compelled to reach a determination on fear of future persecution contrary to

the IJ’s.4

       The petition for review is denied.


                                                  Entered for the Court


                                                  Scott M. Matheson, Jr.
                                                  Circuit Judge




       4
         Petitioners urge this court to adopt the “disfavored group” analysis employed
by the Ninth Circuit in Sael v. Ashcroft, 386 F.3d 922, 925-29 (9th Cir. 2004). But
Petitioners failed to raise this issue with the BIA, and we therefore lack jurisdiction
to consider it. See 8 U.S.C. § 1252(d)(1) (requiring administrative exhaustion as a
jurisdictional prerequisite); see also Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th
Cir. 1999) (same).


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