Ritonga v. Holder

• Decision Date: 28 January 2011
• Docket Number: No. 09–9539.,09–9539.
• Citation: 633 F.3d 971
• Parties: Roozana Maria RITONGA; Nelson Estomihi Simanungkalit, Petitioners,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

633 F.3d 971

Roozana Maria RITONGA; Nelson Estomihi Simanungkalit, Petitioners,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09–9539.

United States Court of Appeals, Tenth Circuit.

Jan. 28, 2011.

David M. Haghighi of VHF Law Group, Los Angeles, CA, for Petitioners.Thomas B. Fatouros, Senior Litigation Counsel, Office of Immigration Litigation, and Annette M. Wietecha, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.Before TYMKOVICH, SEYMOUR and BALDOCK, Circuit Judges.SEYMOUR, Circuit Judge.

Roozana Maria Ritonga, joined by her husband Nelson Estomihi Simanungkalit, petitions for review of a final order of the Board of Immigration Appeals (“BIA”) denying her application for asylum and restriction on removal under the Immigration and Nationality Act (“INA”), and request for protection under the United Nations Convention Against Torture (“CAT”). We have jurisdiction to review the BIA's final orders of removal, deportation, and exclusion under 8 U.S.C. § 1252(a). We deny Ms. Ritonga's petition.

I.

Ms. Ritonga was born and raised Christian in Indonesia. She testified that Muslims often screamed at and taunted her for being Christian when she was at school or leaving church. She attended school in England between 1991 and 1996. After completing her studies, she returned to Indonesia to work in the tourism industry.

In 1998, Indonesia experienced anti-Christian, anti-Chinese rioting. During this period of unrest, the lobby and restaurant of the hotel where Ms. Ritonga worked “were destroyed by Muslim radicals,” although she was not at the hotel the day this occurred. Rec., vol. I at 133. During the riots, there was violence in the streets; stores and buildings near her home were robbed and set on fire. She feared her apartment building also would be burned.

Members of her family also were subject to violence during this period. For example, in 1997, two of her brothers were beaten. During the 1998 riots, her aunt's bakery was robbed and burned.

In 2000, three Muslims forced their way into Ms. Ritonga's home, asked her if she was a Christian, and broke and stole many of her possessions. They also pushed her against the wall, causing her head to bleed. The police arrived thereafter and apprehended the men. Ms. Ritonga sought medical attention for her head injury. On December 24 that year, Ms. Ritonga and her family were at church when a Catholic church nearby was bombed. Her church was spared because it had paid police to guard it. In March 2001, Ms. Ritonga was stopped in her car by a train at a railroad crossing. She testified that Muslim men, upon seeing a Christian cross in her car, hit the doors and windows of her car with clubs, trying to force her to get out of the car. She was able to escape without injury.

Before and after the riots, Ms. Ritonga made visits to the United States. She vacationed in the United States in 1990 and 1992, and returned home to Indonesia after each trip. In May 1999, she made a third trip to the United States to watch one of her brothers graduate. She again returned to Indonesia with her parents, with the expectation that she would not be living in Indonesia much longer. She believed her employer would allow her to transfer her job to a Singapore hotel. The transfer never occurred.

Mr. Simanungkalit entered the United States on May 21, 2000, with permission to stay in the country until November 20, 2000. Ms. Ritonga entered the United States in June 2001 as a non-immigrant B2 visitor with authorization to remain in the United States until June 25, 2002. Ms. Ritonga and her husband overstayed their visas and remained in the United States without authorization, where they remain today.¹

Ms. Ritonga timely filed her application for asylum and restriction on removal in June 2002, claiming she had been persecuted based on her Christian faith. Ms. Ritonga's parents and two of her four siblings still live in Indonesia. One sibling now lives in Singapore; another lives in the United States.

In his review of Ms. Ritonga's asylum petition, the Immigration Judge (“IJ”) found she lacked credibility, in part because she returned to Indonesia after trips to England and the United States. On appeal, the BIA rejected the IJ's determination that Ms. Ritonga was not credible. Nevertheless, even accepting Ms. Ritonga's claims at face value, the BIA determined that she failed to meet her burden of proof for asylum or restriction on removal. Ms. Ritonga has petitioned for our review.

II.

The scope of our review is governed by the form of the BIA decision. Sidabutar v. Gonzales, 503 F.3d 1116, 1122–23 (10th Cir.2007). Where the BIA issues its own opinion dismissing the appeal in a single-member decision pursuant to 8 C.F.R. § 1003.1(e)(5), the order “constitutes the final order of removal under 8 U.S.C. § 1252(a).” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006) (citation omitted). Although we review the BIA's opinion, we also may consult the IJ's explanation. Id. This is especially appropriate in three circumstances:

(1) where the BIA incorporates by reference the IJ's rationale, (2) where the BIA repeats a condensed version of [the IJ's] reasons while also relying on the IJ's more complete discussion, and (3) where the BIA reasoning is difficult to discern and the IJ's analysis is all that can give substance to the BIA's reasoning.

Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir.2007) (quoting Uanreroro, 443 F.3d at 1204) (internal quotation marks omitted) (alteration in original).

In our review of the agency's decision, we decide purely legal questions de novo. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004). Agency findings of fact are reviewed under the substantial evidence standard. Id. Under this standard of review, agency “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). In this circuit, the “determination whether an alien has demonstrated persecution is a question of fact....” Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir.2008) (internal quotation marks omitted).

“[O]ur review is confined to the reasoning given by the [agency], and we will not independently search the record for alternative bases to affirm.” Elzour, 378 F.3d at 1150; see also SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (explaining that a court “must judge the propriety of [agency] action solely by the grounds invoked by the agency”).

A. Asylum

To be eligible for a discretionary grant of asylum by the Attorney General, an alien must first establish she is a refugee. 8 U.S.C. § 1158(b)(1)(A). A refugee is an individual who is “outside” the country of his or her nationality, and “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).² A petitioner can establish refugee status by establishing either “past persecution” or a “well-founded fear of future persecution.” 8 C.F.R. § 1208.13(b).

1. Past Persecution

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. Such persecution may be inflicted by the government itself, or by a non-governmental group that the government is unwilling or unable to control.” Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir.2004) (internal quotation marks and citations omitted). We do not look at each incident in isolation, but instead consider them collectively, because the cumulative effects of multiple incidents may constitute persecution. See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.2009) (considering incidents cumulatively); see also Fei Mei Cheng v. Att'y Gen. of the U.S., 623 F.3d 175, 192 (3d Cir.2010) (holding that “incidents alleged to constitute persecution ... must be considered cumulatively” (alteration in original) (internal quotation marks omitted)); Chen v. Holder, 604 F.3d 324, 333–34 (7th Cir.2010) (similar); Ngengwe v. Mukasey, 543 F.3d 1029, 1036 (8th Cir.2008) (similar); Delgado v. U.S. Att'y Gen., 487 F.3d 855, 861 (11th Cir.2007) (similar); Edimo–Doualla v. Gonzales, 464 F.3d 276, 283 (2d Cir.2006) (similar); Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998) (similar).

The BIA held that although Ms. Ritonga was credible, there was “no error in the Immigration Judge's alternate determination that the respondent failed to meet her burden of proof for the requested relief.” Rec., vol. I at 3. Ms. Ritonga disputes that the IJ made such an alternative finding, which would have accepted her testimony at face value. Consequently, she contends the BIA erred by affirming the IJ's denial of asylum without “support[ing] its decision with any independent facts or analysis.” Aplt. Br. at 15.

Although Ms. Ritonga correctly characterizes the IJ's opinion, we are not persuaded the BIA provided insufficient analysis and findings to support its decision. The opinion, taken as a whole, provides sufficient findings and analysis to facilitate our review. See Becerra–Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir.1987) (“What is required is merely that [the BIA] consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” (internal quotation marks omitted)). Here, the BIA explained, “the respondent's assertions, even taken at face value, did not make out a claim of either past persecution or a well-founded fear of persecution on account of a protected ground.” Rec., vol. I at 4. After reviewing the record, we conclude the BIA's determination that Ms. Ritonga failed to establish past persecution is...