                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 5, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                              FOR THE TENTH CIRCUIT


    RUDDY TANUWIDJAJA,

                Petitioner,

    v.                                                  No. 09-9511
                                                    (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.



         Ruddy Tanuwidjaja, a Chinese Christian native and citizen of Indonesia

representing himself before this court, petitions for review of the Board of

Immigration Appeals’ (BIA) decision affirming the immigration judge’s (IJ)

denial of asylum, withholding of removal (properly known as restriction on




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
removal), and relief under the Convention Against Torture (CAT). Construing the

pro se petition liberally, we deny it.

                                     Background

      Petitioner was born into a Chinese Christian family in Jakarta, Indonesia.

He has a wife and two children, as well as three siblings, all of whom are

Christian and all of whom remain in Indonesia. He overstayed his visa after

entering the United States in December 2000. In November 2003, after being

placed in removal proceedings, he applied for relief.

      His petition was based primarily on his experiences during the riots in

Indonesia in 1998. A group of approximately fifteen Muslim radicals attacked his

small sundries store, breaking the glass counter, stealing items, and demanding

money. They were screaming, “kill the Chinese.” Admin. R. at 69. When he did

not immediately hand over the money kept at the store, the attackers kicked his

wife in the chest and cut his right thumb with a knife, leaving a scar about one

centimeter long. He and his wife received medical treatment for their injuries,

and he reported the attack to the police. (His records from the hospital and the

police, however, were destroyed in a 2001 flood of his home.) In addition, during

the 1998 riots, his church was destroyed. His congregation transferred their

services to his home.

      The IJ denied relief, finding that the request for asylum was filed after the

statutory one-year deadline and that petitioner had failed to establish a basis for

                                          -2-
restriction on removal or relief under the CAT. On appeal, the BIA affirmed the

IJ’s determination that petitioner’s asylum request was untimely. Addressing

restriction on removal, the BIA assumed petitioner was credible, but held that the

1998 incident was not sufficiently severe to constitute past persecution. Noting

that petitioner’s wife, children, and three siblings had remained in Indonesia

unharmed, the BIA also held that the evidence of record did not establish an

objectively reasonable basis for concluding that petitioner would more likely than

not be harmed in the future because of his ethnicity or religion. It found no

reason to grant relief under the CAT, because petitioner had not demonstrated that

he had been tortured or that the government would acquiesce to the harm he

feared if he were returned to Indonesia. Finally, addressing petitioner’s assertion

that his due process rights were violated because the IJ was biased against him,

the BIA found that IJ had not stepped outside his role as a neutral arbiter.

Accordingly, the BIA dismissed the appeal.

                                      Analysis

      Because the BIA issued its own brief single-member order, its decision is

the final agency decision that we review. Uanreroro v. Gonzales, 443 F.3d 1197,

1204 (10th Cir. 2006). “Our duty is to guarantee that factual determinations are

supported by reasonable, substantial and probative evidence considering the

record as a whole.” Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)

(alteration and quotation omitted). “In this circuit, the ultimate determination

                                         -3-
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). We may reverse the BIA’s

decision “‘only if the evidence presented by [the alien] was such that a reasonable

factfinder would have to conclude that the requisite fear of persecution existed.’”

Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

                                     A. Asylum

      Petitioner filed for asylum well after the statutory one-year limit for asylum

applications, see 8 U.S.C. § 1158(a)(2)(B), and the agency denied the application

as untimely. We generally cannot review an asylum claim denied as untimely.

See id. § 1158(a)(3); Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006);

Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003). But we do retain

jurisdiction to review constitutional claims. See 8 U.S.C. § 1252(a)(2)(D); Ferry,

457 F.3d at 1130. Petitioner submitted a due process argument to the BIA,

claiming the IJ was biased. To the extent that petitioner’s pro se filings can be

broadly construed to include this issue here, however, we are not convinced that

the BIA erred in rejecting the due process argument. See Mangels v. Pena, 789

F.2d 836, 838 (10th Cir. 1986) (“Due process is violated only when the risk of

unfairness is intolerably high under the circumstances of a particular case.

Because honesty and integrity are presumed on the part of a tribunal, there must

                                         -4-
be some substantial countervailing reason to conclude that a decisionmaker is

actually biased with respect to factual issues being adjudicated.” (quotation and

citations omitted)).

                             B. Restriction on Removal

      We retain jurisdiction to review the denial of restriction on removal. See

Tsevegmid, 336 F.3d at 1235. For this relief, Mr. Tanuwidjaja must show that his

“life or freedom would be threatened” in Indonesia because of his Christian

religion or his Chinese ethnicity. 8 U.S.C. § 1231(b)(3)(A). He can satisfy this

standard by showing that he experienced “past persecution” on enumerated

grounds or that “it is more likely than not” that he would be persecuted in the

future. 8 C.F.R. § 1208.16(b)(1), (2); Sidabutar, 503 F.3d at 1123-24.

                                1. Past Persecution

      Persecution “requires more than just restrictions or threats to life and

liberty.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (quotation

omitted). It is “an extreme concept that does not include every sort of treatment

our society regards as offensive.” Korablina v. INS, 158 F.3d 1038, 1044

(9th Cir. 1998) (quotation omitted). In Tulengkey, we concluded that not every

reasonable factfinder would be compelled to find persecution based on two

incidents involving a Chinese Christian woman from Indonesia, one in which she

was robbed and fondled and one in which she witnessed a Muslim mob attacking

a Christian wedding, stealing the food and beating some guests. 425 F.3d at

                                         -5-
1280-81. Similarly, in Sidabutar v. Gonzales, we concluded that an Indonesian

Christian man who had suffered repeated beatings by Muslim classmates and

street robberies had not established past persecution. 503 F.3d at 1124. Because

“[w]e cannot conclude that every reasonable fact-finder would be compelled to

find persecution” based on the incident that petitioner describes, we cannot

disturb the BIA’s determination that he has not shown he suffered past

persecution. Tulengkey, 425 F.3d at 1281.

                   2. Well-Founded Fear of Future Persecution

      A well-founded fear of future persecution “must be both subjectively

genuine and objectively reasonable.” Id. The possibility of relocation within the

country of origin, however, negates a well-founded fear of persecution, if it is

reasonable to expect such relocation. Id.; 8 C.F.R. § 1208.13(b)(2). “Where, as

here, the asylum applicant has not shown past persecution and the alleged future

persecution is not by a government or a government-sponsored group, the asylum

applicant bears the burden of establishing that relocation would be unreasonable.”

Tulengkey, 425 F.3d at 1281; see also 8 C.F.R. § 1208.13(b)(3)(i). Evidence in

the administrative record indicates that Christians predominate and Muslims are a

minority in certain parts of Indonesia, and petitioner has not shown why he cannot

relocate to those areas. Accordingly, “[his] claim of a well-founded fear of future

persecution necessarily fails.” Tulengkey, 425 F.3d at 1282.




                                         -6-
                                    C. CAT Relief

       Petitioner has not established that it is more likely than not that he would

be tortured in Indonesia by or with the acquiescence of a governmental official,

and thus the BIA’s decision to deny relief under the CAT is supported by

substantial evidence. See Sidabutar, 503 F.3d at 1125-26.

                                     Conclusion

      Petitioner’s implied request to supplement the administrative record through

his July 14, 2009, submission of documents and photographs to this court is

DENIED because we may review only the record before the BIA. See 8 U.S.C.

§ 1252(b)(4)(A). The petition for review is DENIED.


                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




                                          -7-
