* On February 4, 2005, Alberto R. Gonzales became the United States

Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mr. Gonzales is substituted fo r John Ashcroft as the Respondent in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 8 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DAUD AGUSTINUS SUTANTO,

Petitioner,

v. ALBERTO R. GONZALES, Attorney General, * Respondent. No. 04-9501 (No. A79 469 893) (Petition for Review)

ORDER AND JUDGMENT **

Before TACHA , Chief Judge, HENRY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Petitioner Daud Agustinus Sutanto, a native and cit izen of Indonesia, appearing pro se , petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ ) denial of his request for asylum and restriction on removal. We dismiss the petition for review for asylum for lack of jurisdiction, and we deny the petition for restriction on removal. Background Because removal proceedings against petitioner comm enced after April 1, 1997, this case is governed by the permanent rules of the Illegal Immigration and Immigrant Responsibility Act (IIRIRA). See Tsevegmid v. Ashcroft , 336 F.3d 1231, 1234 n.3 (10th Cir. 2003). Petitioner entere d the United States on January 28, 2000, and overstayed his thirty-day transit visa. He filed an application for asylum on May 3, 2001, outside the one year time limit applicable to such requests. See 8 U.S.C. § 1158(a)(2)(B). Asylum In his asylum application and interview, petitionerfalsely stated that he had entered the United States on May 1, 2000, but when confronted with evidence that he had actually arrived on January 28, 2000, he adm itted that he had arrived on that date and had falsified his arrival records. T he IJ found that petitioner had failed to timely file his asylum application, that no extraordinary circumstances existed to excuse the late filing, and, therefore, that petitioner’s application for1 Restriction on removal was referred to as “withhold ing of removal” before

amendments to the Immigration and Nationality Act m ade by the Illegal Immigration Reform and Immigrant Responsibility Actof 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009. Although both parties and the IJ refer to (continued...) -3- asylum was time-barred. Petitioner does not disput e that the application was untimely, but argues that he established changed ci rcumstances and therefore falls within an exception to the statutory filing deadlin e. Under 8 U.S.C. § 1158(a)(3), federal courts “do nothave ‘jurisdiction to review any determination’ on whether the alien file d his application within a year of entry or whether ‘changed circumstances’ exist ‘ which materially affect the applicant’s eligibility for asylum or extraordinarycircumstances [exist] relating to the delay in filing an application.’” Tsevegmid , 336 F.3d at 1235 (quoting 8 U.S.C. § 1158(a)(3)). Therefore, we are preclude d from exercising jurisdiction over petitioner’s asylum claims. Restriction on Removal Asylum is not the only protection offered to applic ants who claim some form of persecution in their homeland. Petitioner also applied for restriction on removal under 8 U.S.C. § 1231(b)(3), pursuant to wh ich the Attorney General may not remove an alien if the alien is able to est ablish “a clear probability of persecution” in the country to which he would be returned. Tsevegmid , 336 F.3d
at 1234. 1 The IJ considered and rejected petitioner’s restr iction on removal1 (...continued)

withholding of removal, we will use the term “restr iction on removal” because this claim was filed after IIRIRA’s effective date. -4- claims on the merits, and the BIA summarily affirme d. Section 1158(a)(3) does not strip this court of its jurisdiction to review the IJ’s decision on petitioner’s request for restriction on removal. Id . at 1235. A claim for restriction on removal requires a more demanding standard of proof than asylum claims: asylum requires proof of a “well-founded fear” of persecution whereas restriction requires proof thatpersecution is “more likely than not.” Elzour v. Ashcroft , 378 F.3d 1143, 1149 (10th Cir. 2004). Petitioner can meet this burden in one of two ways. First, he can demonstrate that he suffered past persecution in Indonesia, thus raisin g a presumption that his life or freedom would be threatened in the future. 8 C.F.R . § 208.16(b)(1). Second, if he cannot show past persecution, he can establish that his life or freedom would be threatened in the future by demonstrating that i t is more likely than not that he would be persecuted on account of a protected ground. Id . § 208.16(b)(2). Petitioner is Christian, which puts him in the reli gious minority in Indonesia. The IJ found that petitioner is Javanes e, which is the ethnic majority in Indonesia, and that petitioner is therefore not subject to persecution based on his appearance. The IJ relied on the State Departm ent’s report, which indicated that there are as many as twenty million Christians in Indonesia–about ten percent-5-

of the population. Although the IJ noted that ther e is religious hatred and violence in Indonesia, the sheer number of Indonesi an Christians prevented the IJ from concluding that the whole group would be entit led to asylum. Further, petitioner’s testimony showed that his individual e xperience of anti-Christian hostility was minor and isolated, and, therefore, h e had not demonstrated an individualized fear of past persecution. The IJ fo und that petitioner had also failed to demonstrate a well-founded fear of future persecution, and noted that petitioner could live in a city that is predominant ly Christian to avoid Muslim violence. The IJ therefore concluded that petition er was not entitled to restriction on removal. “Where . . . the BIA summarily affirms or adopts an immigration judge’s decision, this court reviews the [IJ’s] analysis as if it were the BIA’s.” Tsevegmid , 336 F.3d at 1235. We do not weigh the evidence, nor do we evaluate the credibility of witnesses. Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004). “The [IJ’s] findings of fact are conclusive unless the record demonstrates that ‘any reasonable adjudicator would be compelledto conclude to the contrary.’” Tsevegmid , 336 F.3d at 1235 (citations omitted). Petitioner makes only generalized arguments that he fears persecution if he returns to Indonesia. He testified that his churchwas vandalized in 1992, that he was hit by a rock thrown by a Muslim in 1996, and that he suffered a cut from-6-

broken glass during the Indonesian riots in May 199 8. We agree with the IJ that the facts presented by petitioner are insufficient to rise to the level of persecution, and do not meet the high standard required for a re striction on removal. “Mere generalized lawlessness and violence between divers e populations, of the sort which abounds in numerous countries and inflicts mi sery upon millions of innocent people daily around the world, generally i s not sufficient to permit the Attorney General to grant asylum. . . .” Singh v. INS , 134 F.3d 962, 967 (9th Cir. 1998). “Discrimination on the basis of race or rel igion, as morally reprehensible as it may be, does not ordinarily amount to ‘persec ution’ within the meaning of the Act.” Ghaly v. INS , 58 F.3d 1425, 1431 (9th Cir. 1995). We agree wit h the IJ’s finding that petitioner is ineligible for restriction on removal. The petition for review is DISMISSED IN PART and DENIED IN PART. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha Chief Judge