                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         July 6, 2006
                               FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                         Clerk of Court

    A N D RI B ASTIA N ,

                 Petitioner,

    v.                                                    No. 05-9539
                                                       (No. A96-423-878)
    ALBERTO R. GONZA LES,                             (Petition for Review)
    Attorney General,

                 Respondent.



                               OR D ER AND JUDGM ENT *


Before M cCO NNELL, A ND ER SO N, and BALDOCK , Circuit Judges.




         Petitioner Andri Bastian, a native and citizen of Indonesia, seeks review of

a final order of removal issued by the Bureau of Immigration Appeals (BIA ).

Specifically, M r. Bastian is appealing the decision of the Immigration Judge (IJ)

denying his application for asylum based on his Chinese ethnicity and his




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Christian religion. 1 W e dismiss M r. Bastian’s petition for review for lack of

jurisdiction insofar as it relates to his time-barred ethnicity claim and deny the

petition on the merits as it relates to his more recently accrued religion claim.

      I. Asylum Claim B ased On Chinese Ethnicity.

      Congress has imposed a one-year limitations period on the filing of

applications for asylum. 8 U.S.C. § 1158(a)(2)(B). The one-year filing period

comm ences either on the date of the alien’s last arrival in the United States or on

April 1, 1997, whichever is later. 8 C.F.R. § 208.4(a)(2)(ii). An asylum

application that is filed outside of the one-year limitations period may,

nevertheless, be considered if the applicant shows “changed circumstances

which materially affect the applicant’s eligibility for asylum.” 8 U.S.C.

§ 1158(a)(2)(D). Under the asylum statute, however, we “do not have

‘jurisdiction to review any determination’ on whether the alien filed his

application within a year of entry or whether ‘changed circumstances’ exist

‘which materially affect the applicant’s eligibility for asylum.’” Tsevegmid v.

Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003) (quoting 8 U.S.C. §§ 1158(a)(3)

and (a)(2)(D)).



1
      The IJ also denied M r. Bastian’s applications for: (1) restriction on removal
under 8 U.S.C. § 1231(b)(3); and (2) withholding of removal under the
Convention Against Torture, see 8 C.F.R. § 208.16(c). M r. Bastian has not made
any arguments in this appeal challenging the IJ’s rulings with regard to these
applications. As a result, he has waived all issues relating to them. See Krastev
v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002).

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      It is undisputed that M r. Bastian is of Chinese ethnicity, and he claims that

“[a]s an ethnic Chinese Indonesian, . . . he was often mistreated and discriminated

against” during the time that he lived in Indonesia. Pet. Br. at 5. M r. Bastian

also claims that he has a well-founded fear of future persecution in Indonesia

based on his Chinese ethnicity should he be forced to return there. The threshold

question here, however, is whether the IJ determined that M r. Bastian’s asylum

claim is barred by the one-year limitations period in § 1158(a)(2)(B) to the extent

that it is based on his Chinese ethnicity.

      Because it is undisputed that M r. Bastian arrived in the United States prior

to April 1, 1997, M r. Bastian was required to file his asylum application by April

1, 1998. See 8 C.F.R. § 208.4(a)(2)(ii). M r. Bastian did not file his asylum

application until September 30, 2003, however, and his application was therefore

untimely unless there existed “changed circumstances which materially affect[ed

his] eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(D).

      Although the IJ’s decision is somewhat difficult to follow due to the fact

that the IJ also addressed the merits of M r. Bastian’s ethnicity claim, see Admin.

R. at 37-38, we conclude that the IJ determined that M r. Bastian’s asylum claim

was barred by the one-year limitations period to the extent that it is based on his

Chinese ethnicity, id. at 38 (stating that M r. Bastian “fail[ed] to timely pursue”

his ethnicity claim). In addition, we note that, in contrast to his religion claim,

there is no indication in the administrative record that M r. Bastian has ever

                                             -3-
claimed that there existed changed circumstances which affected his eligibility for

asylum based on his Chinese ethnicity.

      Finally, the IJ’s determination of the timeliness issue was not affected by

the B IA’s per curiam order adopting and affirming the IJ’s decision, as the BIA

stated that its conclusions “coincide with those which the [IJ] articulated in

his . . . decision.” Id. at 2 (quoting M atter of Burbano, 20 I& N Dec. 872, 874

(BIA 1994)). Accordingly, because the BIA affirmed the IJ’s determination that

M r. Bastian’s ethnicity claim was time-barred, we have no jurisdiction to review

that aspect of his asylum claim, and that part of M r. Bastian’s petition for review

must be dismissed. 2




2
       On M ay 11, 2005, the REAL ID Act of 2005 took effect. Among its other
provisions, the REAL ID Act provides that “[n]othing in . . . any . . . provision of
this A ct (other than this section) which limits or eliminates judicial review , shall
be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in
accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). This case raises an
issue as to whether the REAL ID Act’s grant of jurisdiction to review “questions
of law” has any impact on the jurisdictional bar in 8 U.S.C. § 1158(a)(3). Under
the circumstances of this case, we conclude that it does not, as we are dealing
here with factual determinations, and we recently held that the term “questions of
law” as used in § 1252(a)(2)(D) refers only to a narrow category of issues
regarding statutory construction. See Diallo v. Gonzales, 447 F.3d 1274, 1282
(10th Cir. 2006).

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      II. Asylum Claim Based O n Christian Religion.

      The IJ appears to have found M r. Bastian’s application for asylum based on

religion to be timely because of a changed circumstance. See Admin. R. at 37.

The changed circumstance is M r. Bastian’s conversion to Christianity, as

evidenced by his baptism on September 14, 2003. Id. at 35-37. Although the

opinion of the IJ is not entirely clear on the point, he seems to have assumed

arguendo that there was a changed circumstance, which meant that M r. Bastian’s

religion claim was not time-barred, id. at 37, and thus addressed the merits of the

claim. As a result, we have jurisdiction to review M r. Bastian’s application for

asylum to evade religious persecution in Indonesia. 3

      W e review the IJ’s decision under a “substantial evidence standard,” Yuk v.

Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004), asking whether the decision was

“supported by reasonable, substantial and probative evidence on the record as a

whole.” Krastev v. INS, 292 F.3d 1268, 1275 (10th Cir. 2002). The applicant for

asylum “has the burden to prove his or her statutory eligibility for asylum by

establishing that he or she is a ‘refugee.’” Krastev, 292 F.3d at 1270.

A “refugee” is defined as any person who is outside the country of that person’s



3
       W e note in passing the wisdom of the IJ’s decision to assume the changed
circumstance and address the merits of the claim. For a judge to decide the
timing of a religious conversion— specifically, in this case, to decide w hether M r.
Bastian had been a Christian for many years, or a few years, or had become one at
or near the time of his baptism— is to take a position on controverted questions of
religious doctrine that are not properly resolved by federal courts.

                                         -5-
nationality “who is unable or unwilling to return to . . . that country because of

persecution or a well-founded fear of persecution on account of race, religion,

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

8 U.S.C. § 1101(a)(42)(A). Under the controlling regulations, an applicant for

asylum may thus qualify as a refugee “either because he or she has suffered past

persecution or because he or she has a well-founded fear of future persecution.”

8 C.F.R. § 208.13(b). The persecution “must be imposed by the government or by

groups which the government is unwilling or unable to control.” Vatulev v.

Ashcroft, 354 F.3d 1207, 1209 (10th Cir. 2003) (quotation omitted).

      To establish a well-founded fear of future persecution, M r. Bastian was

required to prove either: (1) that he “would be singled out personally for

persecution” if he returned to Indonesia; or (2) that he had “a reasonable fear of

persecution because of [his] membership in a group subject to a pattern or

practice of persecution.” Woldemeskel v. INS, 257 F.3d 1185, 1190 (10th Cir.

2001) (quotation omitted); see also 8 C.F.R. § 208.13(b)(2)(iii)(A )-(B).

“A pattern or practice of persecution has been defined as something on the order

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

at 1191 (quotation omitted).

      In the present case, the IJ denied M r. Bastian’s religious asylum claim

because anti-Christian violence in Indonesia appears to be decreasing and is not




                                          -6-
concentrated in the area in which M r. Bastian has lived and to which he would

presumably return:

              W ith regard to respondent’s religious conversion, the C ourt
      would note that the background materials and background
      information submitted confirm that there continues to be violence
      directed at the Christian community residing in Indonesia. However,
      this is not a situation which apparently exists nationwide. Looking at
      the information in the State Department reports, the attacks against
      the churches not only have declined in frequency in recent years, but
      they occur in outlying areas and outlying islands, and do not seem to
      be in existence or prevalent in Jakarta, where respondent had resided
      prior to coming to the United States and where his family continues
      to reside. Though there is a strong Islamic fundamentalist movement
      in Indonesia, efforts to impose Sharia law nationally have not been
      successful . . . .

Admin. R. at 38. Although the IJ did not specifically address M r. Bastian’s

refugee status, these findings are tantamount to a determination that M r. Bastian

failed to establish a well-founded fear of future persecution based on his Christian

religion. And only future persecution is before us, because no evidence suggests

that M r. Bastian has previously been persecuted in Indonesia as a Christian.

      Having review ed the administrative record and, in particular, the State

Department’s Country Report for Indonesia for 2002, id. at 265, we conclude that

the IJ’s finding that M r. Bastian does not have a well-founded fear of future

persecution based on his Christian religion is supported by substantial evidence in

the administrative record. As the IJ found, while there continues to be violence in

Indonesia directed at the Christian community from various M uslim groups, the

violence has been decreasing due to the government’s attempts to quell it, and, for

                                         -7-
the most part, the violence has been concentrated in the outlying eastern

provinces of M aluku, North M aluku, and Central Sulawesi. (W e also note that

the State Department’s most recent reports, the Country Report on Human Rights

Practices 2005 and the International Religious Freedom Report 2005, suggest that

the violence has continued to abate and remains concentrated in the areas

mentioned.) The record therefore supports the IJ’s conclusion that M r. Bastian

would not be singled out individually for persecution and would not face a pattern

or practice of persecution based on his Christian religion if he were to return to

the capital city of Jakarta, the city where he resided for nine years prior to

departing for the U nited States.

      Finally, we need not decide whether Chinese or Christian residents of

Indonesia are a “disfavored group” who can establish refugee status based on a

“comparatively low” level of individualized risk of future persecution. See Sael

v. Ashcroft, 386 F.3d 922, 925-29 (9th Cir. 2004); but see Lie v. Ashcroft,

396 F.3d 530, 538 n.4 (3d Cir. 2005) (rejecting the N inth Circuit’s lower standard

for future persecution of members of “disfavored groups”). As discussed above,

we have no jurisdiction over M r. Bastian’s claim to asylum on the basis of

Chinese ethnicity. And, even if we did adopt the N inth Circuit’s lower standard

for “disfavored groups” and chose to apply it to Christians or Chinese Christians

in Indonesia, M r. Bastian has not shown that he, “in particular, is likely to be

targeted as a member of that group.” Sael, 386 F.3d at 925. The “personal

                                          -8-
connection to the general persecution” that was abundantly present in Sael,

386 F.3d at 929, is lacking in this case. W e thus have no occasion to accept or

reject the “disfavored groups” approach of Sael.

      The petition for review is DISM ISSED as to M r. Bastian’s claim that he is

entitled to asylum based on his Chinese ethnicity. The petition for review is

D EN IE D as to M r. Bastian’s claim that he is entitled to asylum based on his

Christian religion.


                                                    Entered for the Court


                                                    M ichael W . M cConnell
                                                    Circuit Judge




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