* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 11 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RONNY JONATHAN RANTUNG;

BARISAN GRAC PITU

NAPITUPULU,

Petitioners,

v.

JOHN ASHCROFT,

Respondent.

No. 03-9547

(BIA Nos. A76-943-564 &

A76-943-565)

(Petition for Review)

ORDER AND JUDGMENT *

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1 Petitioners have waived any argument with respect to the immigration

judge’s denial of their request for withholding of removal under the United

Nations Convention Against Torture because they did not raise it before the BIA. 

See Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991).

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Ronny Jonathan Rantung and Barisan Grac Pitu Napitupulu petition, pro se,

for review of an order of the Board of Immigration Appeals (BIA) affirming the

immigration judge’s (IJ) denial of petitioners’ request for asylum, withholding of

removal under the Immigration and Nationality Act (INA), and withholding of

removal under the United Nations Convention Against Torture. We must construe

a pro se petitioner’s pleadings liberally. See George v. Perrill , 62 F.3d 333, 335

(10th Cir. 1995). Petitioners appear to challenge the BIA’s summary affirmance

on unspecified grounds, the IJ’s determination that petitioners were ineligible for

asylum because their application was untimely, and the IJ’s factual findings about

petitioners’ withholding of removal request. 1

 We dismiss the petition for review

for asylum for lack of jurisdiction. We deny the petition for withholding of

removal under the INA.

Summary Affirmance

Petitioners appear to challenge the BIA’s summary affirmance of the IJ’s

decision arguing that the BIA was pressured to clear its backlog and that a

two-line decision by one judge as opposed to a three judge panel demonstrates

that the BIA did not truly consider their case. Although it is not clear what legal
-3-

grounds this challenge is based upon, because petitioners are proceeding pro se,

we will construe it as a due process challenge. We recently upheld the

constitutionality of these summary affirmance procedures in Batalova v. Ashcroft ,

355 F.3d 1246, 1253-54 (10th Cir. 2004) (rejecting due process challenge to

summary affirmance procedure in 8 C.F.R. § 3.1(e)(5)). See also Sviridov v.

Ashcroft , No. 02-9574, 2004 WL 238854, at *4 (10th Cir. Feb. 10, 2004)

(rejecting due process challenge to summary affirmance procedure in 8 C.F.R.

§ 3.1(e)(4)); Hang Kannha Yuk v. Ashcroft , 355 F.3d 1222, 1232 (10th Cir. 2004)

(rejecting due process challenge to summary affirmance procedure in 8 C.F.R.

§ 3.1(a)(7)). Accordingly, petitioners’ challenge to the summary affirmance

procedure fails.

Asylum

The immigration judge determined that petitioners had failed to timely file

their asylum application. Petitioners do not dispute that the application was

untimely, but they argue that they established changed circumstances and

therefore fall within an exception to the statutory filing deadline. We lack

jurisdiction to review the IJ’s determination that petitioners are ineligible for

asylum because of the untimeliness of their application. Tsevegmid v. Ashcroft ,

336 F.3d 1231, 1234-35 (10th Cir. 2003); 8 U.S.C. § 1158(a)(3).
2 Mr. Rantung is the lead petitioner and his wife was included on his

application. 

-4-

Withholding of Removal

Section 1158(a)(3) does not strip this court of its jurisdiction to review the

BIA’s decision on petitioners’ request for withholding of removal. Tsevegmid ,

336 F.3d at 1235. Because the BIA summarily affirmed the IJ’s decision, this

court reviews the IJ’s analysis as if it were the BIA’s. Id. “The BIA’s findings of

fact are conclusive unless the record demonstrates that ‘any reasonable

adjudicator would be compelled to conclude to the contrary.’” Id. (citations

omitted). Further, “we will not question the immigration judge’s or BIA’s

credibility determinations so long as they are substantially reasonable.” Batalova ,

355 F.3d at 1254 (quotation omitted). Petitioners must establish that “it is more

likely than not that [they] would be persecuted on account of race, religion,

nationality, membership in a particular social group, or political opinion upon

removal to that country.” 8 C.F.R. § 208.16(b)(2). Petitioners have the burden of

showing a “clear probability of persecution,” which is a higher standard than that

for asylum. Krastev v. INS , 292 F.3d 1268, 1271 (10th Cir. 2002).

The IJ concluded that the lead petitioner’s 2

 evidence did not “establish that

if he were now to return with his wife to Indonesia that [it] is more likely than not

that he would be subject to persecution.” Admin. R. at 60. In so doing, the IJ
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found that the lead petitioner’s testimony “was not sufficiently detailed,

consistent, or believable to provide a coherent account of the basis of his

fears . . . .” Id. at 58-59. In support of this conclusion, the IJ noted that although

the lead petitioner was Christian, he was able to get through school fairly well

and was even able to receive post-high school education at a private civil aviation

school, in contrast to the IJ’s experience with other Indonesian immigrants who

have testified that it is very difficult to receive higher education in Indonesia if

you are not Muslim. The IJ also found it troubling that the petitioners waited

almost eleven years to apply for asylum even though there have been problems in

Indonesia for many years including riots in 1989, 1990, 1993, 1996, and 1997. 

The IJ’s credibility determination was also impacted by the fact that petitioner

had lost the identification card that allegedly identified him as a Christian and

that he had testified at the hearing about an additional beating that he had not

included in his original affidavit. Finally, the IJ indicated that he had read about

the situation in Indonesia in the 2000 State Department Report and found that

although there are still problems with the treatment of Christians and the

ethnic-Chinese, the new government is trying to take the right steps to protect

everyone in the country.

In petitioners’ pro se brief, they argue generally that “we will suffer future

acts of persecution based on our Christian religion.” Pet’rs Br. at ¶ 2. They do
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not, however, explain how the IJ erred in reaching the opposite conclusion other

than to complain that although the “Indonesian Government has taken steps

to improve or better our situation in Indonesia . . . . Nothing has truly changed

. . . .” Id. ¶ 5. Finally, petitioners themselves construe the likelihood of their

future persecution as “more than a one-in-ten chance.” Id. ¶ 2. A better than ten

percent chance of persecution does not qualify as “more likely than not.” 

8 C.F.R. § 208.16(b)(2). After reviewing the record in accordance with the

prescribed deferential standard of review, we cannot conclude that a reasonable

adjudicator would be compelled to reject the IJ’s findings of fact nor can we say

that his credibility findings were substantially unreasonable.

This court will not consider respondent’s motion for summary denial

of review petition in lieu of answering brief because it does not comply with

10th Cir. R. 27.2. We DISMISS the petition for review of petitioners’

asylum application for lack of jurisdiction. We DENY the petition for review

of petitioners’ request for withholding of removal and we AFFIRM the

BIA’s decision.

Entered for the Court

Bobby R. Baldock

Circuit Judge