* This order and judgment is not binding precedent, e xcept under the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 

### November 14, 2005

Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TURMAN MANAOR HUTAHAEAN, Petitioner,

v. ALBERTO GONZALES, Attorney General, Respondent. No. 05-9515 (Agency No. A95-221-576) (Petition for Review)

ORDER AND JUDGMENT *

Before TYMKOVICH , PORFILIO , and BALDOCK , 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. Petitioner Turman Manaor Hutahaean is a native and citizen of Indonesia. He challenges the Board of Immigration Appeals’ (BI A’s) decision denying his-2-

request to reopen and reconsider his application fo r asylum, restriction on removal and protection under the Convention AgainstTorture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for review. B ACKGROUND Mr. Hutahaean was admitted to the United States on December 10, 2000, on a nonimmigrant tourist visa with authorization to r emain for six months. After overstaying his visa, he appeared before an asylum officer and submitted an application for asylum, restriction on removal and protection under the CAT. On the application form, Mr. Hutahaean stated that he is a Christian and “would face death if forced to return to Muslim controlled Indo nesia,” A.R. 1172. On September 4, 2002, Mr. Hutahaean testified befor e an Immigration Judge (IJ) that after he moved to Jakarta, he was r obbed three times over a three year period because he was a Christian and was twic e involved in Christian religious services that were stopped because of thr eats or intimidation. But Mr. Hutahaean also testified that neither he nor hi s father and siblings were ever physically harmed in his hometown, Pematang Siantar , where his father is a retired police sergeant. In an oral decision, the IJ denied Mr. Hutahaean relief from removal, reasoning that Mr. Hutahaean had beensubjected to random criminal activity rather than persecution, and thathe could return to his hometown-3-

to avoid any future persecution. Consequently, the IJ ordered Mr. Hutahaean removed to Indonesia. Mr. Hutahaean appealed to the BIA, which affirmed t he IJ’s decision and dismissed the appeal on September 20, 2004. Mr. Hutahaean then filed with the BIA a “Motion to Reopen & Reconsider,” stating thathe “fear[s] for [his] life if forced back to Indonesia because the Muslim extremi sts are everywhere,” A.R. at 6, and that “relocation is not a viable or even rea sonable solution to surviving in Indonesia,” A.R. at 7. The BIA denied the motion o n February 7, 2005, observing that Mr. Hutahaean did “not specifically address [t he] affirmance of the [IJ’s] finding that [Mr. Hutahaean’s] father, a former pol ice officer, and other family members who are also Christians, have not been harm ed and have safely resided within his hometown.” A.R. 2-3. Mr. Hutahaean pet itioned this court for review on March 7, 2005. D ISCUSSION “To be eligible for asylum, an alien must be a refu gee, meaning that he or she must generally be outside his or her country of nationality and unable or unwilling to return to that country because of pers ecution or a well-founded fear of persecution on account of race, religion, nation ality, membership in a particular social group or political opinion.” Elzour v. Ashcroft , 378 F.3d 1143, 1148-49 (10th Cir. 2004) (quotation marks omitted). To obtain a restriction on-4-

removal, an alien must show that his or her “life o r freedom would be threatened in [the proposed country of removal] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 1208.16(b). The CAT prohibits the return of an alien to a country where “it is more l ikely than not that he or she would be tortured.” 8 C.F.R. § 1208.16(c)(2). Preliminarily, we note that our jurisdiction in thi s matter is limited to reviewing the BIA’s denial of Mr. Hutahaean’s “Moti on to Reopen & Reconsider.” No petition was filed in this court t o review the BIA’s decision affirming the IJ’s decision and dismissing Mr. Hutahaean’s administrative appeal, and the time to file expired roughly five months be fore the instant petition was filed. See 8 U.S.C. § 1252(b)(1) (requiring that a petition f or review be filed no later than 30 days after the date of the final removal order); Stone v. INS , 514 U.S. 386, 405 (1995) (stating that a motion to reco nsider does not affect a removal order’s finality); 8 C.F.R. § 1241.1(a) (pr oviding that a removal order becomes final upon the BIA’s dismissal of an asylumapplicant’s appeal). Consequently, insofar as Mr. Hutahaean challenges m ore than the BIA’s denial of his motion, we lack jurisdiction. A motion to reopen seeks to present evidence that “ is material and was not available and could not have been discovered or pre sented at the former hearing.”-5-

8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B). A motion to reconsider, on the other hand, is available to rais e errors of fact or law committed by the BIA in its prior decision, and must be suppo rted by pertinent authority. 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). “The decision to grant or deny a motion to reopen or reconsider is within the [BIA’s] discretion.” 8 C.F.R. § 1003.2(a). We will reverse only if the BIA’s “de cision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Osei v. INS , 305 F.3d 1205, 1208 (10th Cir. 2002) (quotation marks o mitted). In his motion, Mr. Hutahaean sought relief based onreports from the United States Department of State and news agencies purportedly showing a pattern and practice of persecution against Christi ans in Indonesia. But the IJ admitted over one thousand pages of such reports du ring the removal hearing, and Mr. Hutahaean failed to indicate in his motion how any reports issued after the hearing would have compelled the BIA to reverse the IJ. Further, Mr. Hutahaean did not address how any report undermined the IJ’s finding that Mr. Hutahaean could avoid persecution by returning to Pematang Si antar, where his family has resided without physical harm. An asylum applicantsuch as Mr. Hutahaean who1 Persecution involves “the infliction of suffering o r harm upon those who

differ (in race, religion, or political opinion) in a way regarded as offensive and requires more than just restrictions or threats to life and liberty.” Chaib v. Ashcroft , 397 F.3d 1273, 1277 (10th Cir. 2005) (quotation m arks omitted). The “Motion to Reopen & Reconsider” did not challenge t he IJ’s past persecution findings. See Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991) (“Judicial review does not extend to points the ali en could have made before the Board but did not.”). And to the extent the motion sought reconsideration because the BIA affirmed the IJ’s decision and dism issed Mr. Hutahaean’s appeal in only five sentences, the motion was barred. See 8 C.F.R. § 1003.2(b)(3).

2 Because the BIA acted within its discretion in deny ing reopening and reconsideration in the asylum context, it follows that there was no abuse of discretion in the context of restriction on removal. See Krastev v. INS , 292 F.3d 1268, 1271 (10th Cir. 2002). Nor has there been any demonstration of an abuse of discretion with respect to reopening or reconsid eration under the CAT. -6- has not demonstrated past persecution 1 cannot qualify for asylum under the “wellfounded fear of persecution” alternative if he “cou ld avoid persecution by relocating to another part of [his] country of nati onality . . . [and] if under all the circumstances it would be reasonable to expect [him ] to do so.” 8 C.F.R. § 208.13(b)(2)(ii). Mr. Hutahaean bore the burden of showing that his relocation to Pematang Siantar would be unreasonable. See 8 C.F.R. § 208.13(b)(3)(I). As the BIA cited its unchallenged affirmance of the IJ ’s relocation finding as a basis for denying Hutahaean’s motion, we cannot conclude that the BIA abused its discretion. 2-7-

Accordingly, the petition for review is denied. Entered for the Court
Bobby R. Baldock Circuit Judge