Kawuwung v. Holder, 121709 FED6, 08-4586

Docket Nº:08-4586
Opinion Judge:SILER, GILMAN, and ROGERS, Circuit Judges
Party Name:ALBERT KAWUWUNG; TUTI MONITA; BILLY MARZEL KAWUWUNG, Petitioners, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
Judge Panel:BEFORE: SILER, GILMAN, and ROGERS, Circuit Judges.
Case Date:December 17, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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ALBERT KAWUWUNG; TUTI MONITA; BILLY MARZEL KAWUWUNG, Petitioners,

v.

ERIC H. HOLDER, Jr., Attorney General, Respondent.

No. 08-4586

United States Court of Appeals, Sixth Circuit

December 17, 2009

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

BEFORE: SILER, GILMAN, and ROGERS, Circuit Judges.

ROGERS, Circuit Judge.

Petitioners Albert Kawuwung, Tuti Monita, and Billy Marzel Kawuwung—husband, wife, and son respectively—petition for review of the decision of the Board of Immigration Appeals (BIA) that affirmed the removal order of the Immigration Judge (IJ). Petitioners are citizens of Indonesia who request relief from removal because they are Seventh Day Adventists who claim to fear returning to Indonesia. They argue that the IJ ought to have recused herself because she was the Chief Counsel of the Department of Homeland Security Office in Detroit, Michigan, when that office initiated the present immigration removal proceedings. Petitioners further argue that they are entitled to withholding under 8 U.S.C. § 1231(b)(3). Because petitioners failed to exhaust their claim that the IJ should have recused herself, and because the decisions of the IJ and the BIA were supported by substantial evidence, petitioners are not entitled to relief.

Petitioners entered the country as non-immigrant visitors on February 25, 2001. They overstayed their visas, and the Department of Homeland Security (DHS) served each of the petitioners with a notice to appear. Petitioners conceded that they were subject to removal and requested withholding of removal and protection under the Convention Against Torture (CAT).1Petitioners contend that they fear returning to Indonesia because they are Seventh Day Adventists and because of a series of incidents that occurred before they left that country. Albert Kawuwung testified at the December 8, 2006, hearing that he was fifty-nine years old and had been a Seventh Day Adventist since 1967. He recounted specifically that in July, 2000, when he was the elder of his church, a church custodial worker found a threatening pamphlet hung on the fence of the church. The pamphlet threatened that churches would be burned and implied that congregation leaders and their families would be harmed. Mr. Kawuwung presented the letter to the chief of the village, and the chief arranged for police protection of the church. The church was never harmed.

Mr. Kawuwung further testified that in September, 1999, Billy Kawuwung and his older brother Maikel were returning home from Bible class at church when some people stopped them and requested a cigarette. Maikel told the people that he and his brother were Adventists and did not smoke, at which point someone "pushed [the] oldest son and then said it's not necessary to go to church." At this time, a car approached the group, and the people confronting the two brothers scattered. Mr. Kawuwung testified that he believed that the people would have hit his sons if not for the intervening car. Mr. Kawuwung had not witnessed this event, but had only heard of it from his sons and from the people whose car had approached. Tuti Monita testified that her sons had given her the same account of the...

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