Sidabutar v. Gonzales

• Decision Date: 21 September 2007
• Docket Number: No. 06-9576.,06-9576.
• Citation: 503 F.3d 1116
• Parties: Tingkos Timoteus SIDABUTAR, and Mona Lisa Sirongo Ringo, Petitioners, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

503 F.3d 1116

Tingkos Timoteus SIDABUTAR, and Mona Lisa Sirongo Ringo, Petitioners, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 06-9576.

United States Court of Appeals, Tenth Circuit.

September 21, 2007.

Armin A. Skalmowski, Alhambra, CA, for Petitioners.

Jesse Lloyd Busen, Attorney (Emily Anne Radford, Assistant Director, with him on the brief) Office of Immigration Litigation, Department of Justice, Washington, D.C., for Respondent.

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.^*

TYMKOVICH, Circuit Judge.

Tingkos T. Sidabutar and Mona Lisa S. Ringo, both natives and citizens of Indonesia, filed a petition for review challenging a Board of Immigration Appeals' (BIA or Board) final order of removal following the denial of their application for asylum, restriction on removal under 8 U.S.C. § 1231(b)(3),¹ and relief under the United Nations Convention Against Torture (CAT). The petitioners are married, with Sidabutar serving as the main applicant for asylum and Ringo as a derivative applicant. See 8 U.S.C. § 1158(b)(3). An immigration judge (IJ) denied their applications, which the BIA affirmed.

In this petition, they assert five claims: (1) the BIA improperly engaged in de novo factfinding in concluding Sidabutar did not suffer "past persecution" for purposes of seeking a restriction on removal, (2) Sidabutar in fact suffered "past persecution" entitling him to restriction on removal, (3) Sidabutar also met the clear probability of future persecution for restriction on removal, (4) the BIA engaged in improper de novo factfinding in determining that Sidabutar failed to show that he could not relocate to another part of Indonesia, negating his restriction claim, and (5) the BIA erred in affirming the IJ's denial of protection under the CAT. We exercise jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and DENY this petition for review.

I. Background

Sidabutar entered the United States on July 27, 1997, with a non-immigrant visa permitting him to stay in the country for six months. Ringo arrived in the United States as a non-immigrant visitor with a six-month visa on July 16, 1999. The two were married on September 30, 1999, in the United States and have three boys born as American citizens. Sidabutar submitted an application for asylum on April 15, 2003, which the Department of Homeland Security (DHS) declined.

On June 2, 2003, DHS commenced removal proceeding against Sidabutar under 8 U.S.C. § 1227(a)(1)(B), charging him with remaining in the United States beyond his permitted time. During proceedings before the IJ, Sidabutar conceded his removability but testified in support of his applications for asylum, restriction on removal, and protection under the CAT. As a Christian in predominantly-Muslim Indonesia, he claimed past beatings and robberies at the hands of Muslims and expressed fear of returning to the country based on his religion and connections to the United States.

On March 11, 2005, an IJ denied Sidabutar's application but granted him voluntary departure with an alternative order of removal to Indonesia. On appeal to the BIA, Sidabutar and Ringo challenged only the IJ's determinations regarding the denial of asylum. They argued that the IJ erred in concluding they were ineligible for asylum based on their failure to comply with the application's one-year filing deadline under 8 U.S.C. § 1158(a)(2)(B). On August 2, 2006, the BIA adopted and affirmed the IJ's denial of Sidabutar's asylum application. The BIA also concluded that the IJ properly denied Sidabutar's restriction on removal and CAT applications. Sidabutar and Ringo filed a timely petition for review.

II. Jurisdiction

This Court may only retain jurisdiction over claims challenging a final order of removal "if the alien has exhausted all administrative remedies available ... as of right." 8 U.S.C. § 1252(d)(1). "We have recognized that neglecting to take an appeal to the BIA constitutes a failure to exhaust administrative remedies as to any issue that could have been raised, negating the jurisdiction necessary for subsequent judicial review." Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007) (internal quotation omitted). Accordingly, we generally assert jurisdiction only over those arguments that a petitioner properly presents to the BIA.

In this case, the government argues that petitioners failed to exhaust their administrative remedies because they did not challenge the IJ's denial of their restriction on removal and CAT application — the basis of this petition for review — before the BIA. The government contends that we therefore do not have jurisdiction to consider this petition. In their notice of appeal and brief before the BIA, Sidabutar and Ringo assert multiple claims against the IJ's determination that they were ineligible for political asylum based on their failure to meet the one-year filing deadline under 8 U.S.C. § 1158(a)(2)(B). See Admin. R. at 72-89, 132-35.² Neither their notice of appeal nor their brief, however, indicated a challenge to the IJ's decision to deny them restriction on removal or protection under the CAT.

Ordinarily, we would hold the petitioners' failure to present these two issues to the BIA was a failure to exhaust administrative remedies, Torres de la Cruz, supra, precluding our review. Nevertheless, in this case, the BIA sua sponte addressed and ruled on both the restriction on removal and CAT claim. In its August 2, 2006 decision, the BIA "adopt[ed] and affirm[ed]" the IJ's entire March 11, 2005 decision. Admin. R. at 2. After agreeing with the IJ's conclusion that Sidabutar was not eligible for asylum, the BIA "concurred" with the IJ that (1) Sidabutar failed to show "past persecution" or a clear probability that his life or freedom would be threatened if returned to Indonesia, negating his claim for restriction on removal; and (2) Sidabutar did not establish that he was more likely than not to be tortured by, or with the acquiescence of, the Indonesian government, to gain the protection of the CAT. Id. at 2-4. The BIA then summarized the IJ's factual findings and conclusions and, in some instances, provided its own independent grounds for some of the claims.

Despite the BIA's consideration of the issues the petitioners raise before this Court, the government still argues that we lack jurisdiction based on the failure to exhaust. It relies on an Eleventh Circuit case holding that the BIA's sua sponte consideration of an issue does not preserve it for appellate review in the courts of appeals. See Amaya-Artunduaga v. United States AG, 463 F.3d 1247, 1249-1251 (11th Cir.2006) (per curiam). In Amaya-Artunduaga, the court held that the "goals of exhaustion are better served by our declining to review claims a petitioner, without excuse or exception, failed to present before the BIA, even if the BIA addressed the underlying issue sua sponte." Id. at 1251. According to the court, the purpose of the exhaustion requirement is threefold: (1) to avoid premature interference with administrative processes, (2) to allow the agency the full opportunity to consider petitioner's claims, and (3) to allow the BIA to compile an adequate record for judicial review. Id. The court found that claiming jurisdiction where the BIA only sua sponte considered an issue frustrates those purposes because it could not say "the BIA fully considered the petitioner's claims, as it had no occasion to address the relevant arguments with respect to the issue it reviewed, nor can [the court] say there is any record, let alone an adequate record, of how the administrative agency handled the claim in light of the arguments presented." Id.; see also Socop-Gonzalez v. INS, 272 F.3d 1176, 1199 (9th Cir.2001) (O'Scannlain, J., dissenting) (opining that circuit courts have no jurisdiction over claim petitioner did not actually raise before the BIA despite the BIA's sua sponte review).³ We respectfully disagree with these cases.

First, while § 1252(d)(1) requires that an alien exhaust "all administrative remedies," the BIA has the authority to determine its agency's administrative procedures. If the BIA deems an issue sufficiently presented to consider it on the merits, such action by the BIA exhausts the issue as far as the agency is concerned and that is all § 1252(d)(1) requires to confer our jurisdiction. Where the BIA determines an issue administratively-ripe to warrant its appellate review, we will not second-guess that determination. Indeed, it is a touchstone of administrative law that "the formulation of procedures [is] basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Administrative agencies "should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 84 L.Ed. 656 (1940). Cf. Weinberger v. Salfi, 422 U.S. 749, 767, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (holding that an agency may waive internal exhaustion requirements).

In this case, the BIA determined under its own rules that it had enough information on the record to issue a "discernible substantive discussion," Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006), on the two unbriefed issues. Under 8 C.F.R. § 1003.3(b) ("specificity requirement"), an alien taking an appeal of an IJ decision "must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged." Nothing in the agency's regulations preclude the BIA from waiving this requirement. Indeed, the BIA has discretionary authority to dismiss (and conversely, accept) appeals lacking in specificity. See 8 C.F.R. § 1003.1(d)(2)(i) ("A...