*

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

unanimously that oral argument would not materially assist in the determination

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

therefore submitted without oral argument. This order and judgment is not

binding precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 29, 2008

Elisabeth A. Shumaker

Clerk of Court

FILED

United States Court of Appeals

Tenth Circuit

August 29, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SARWO EDDY SIAHAAN,

Petitioner, No. 07-9572

v. Board of Immigration Appeals

MICHAEL B. MUKASEY,

Respondent.

ORDER AND JUDGMENT*

Before TACHA, KELLY and McCONNELL, Circuit Judges.

Sarwo Eddy Siahaan, a native and citizen of Indonesia, filed a petition for

review challenging a Board of Immigration Appeals’ (BIA) final order of removal

following the denial of his application for asylum, restriction on removal under 8

U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against
-2-

Torture (CAT). An immigration judge (IJ) denied his application, which the BIA

affirmed.

I. Background

Mr. Siahaan entered the United States on or about December 11, 1990, as a

non-immigrant visitor. Although he had authorization to remain only until June

11, 1991, he remained in the country far past that deadline. On April 17, 2003, he

filed for asylum. This request was denied by an asylum officer and then referred

to the immigration court. The Department of Homeland Security began removal

proceedings pursuant to 8 U.S.C. § 1227(a)(1)(B) for his remaining in the country

longer than permitted. 

Mr. Siahaan appeared before the IJ on August 20, 2003, where he conceded

his removability but petitioned for asylum, restriction on removal, and relief

under CAT. He claimed that he could not return to Indonesia for fear he would

be persecuted for his Christian religion and Batak ethnicity. He tried to establish

the requisite fear of persecution by showing past persecution. Mr. Siahaan, now

forty-seven, told how men who appeared to be Betawi Muslims repeatedly

harassed and threatened him as he walked to his high school as an Indonesian

youth. A man later told him that the harassment was on account of his being

Christian and Batak. A.R. 139. Mr. Siahaan also said that when he was sixteen

or seventeen years old he was robbed and beaten, though he never said whether
-3-

the robbery was related to the prior harassment or on account of his being a Batak

Christian. A.R. 75-76.

The IJ denied Mr. Siahaan’s applications for asylum, restriction on

removal, and CAT protection. He denied the asylum application because Mr.

Siahaan had failed to file it within one year of his arrival and could show no

exceptional circumstances to excuse the late filing. He also found Mr. Siahaan

ineligible for asylum because, though Mr. Siahaan’s testimony was credible, the

evidence was not sufficient to show past persecution or a fear of future

persecution. A.R. 50. For the same reason the IJ declined Mr. Siahaan’s

restriction on removal application. A.R. 51. The IJ then ordered Mr. Siahaan’s

removal from the United States. 

Mr. Siahaan appealed the decision, and on August 31, 2007, the BIA

dismissed his appeal. The BIA agreed with the IJ that Mr. Siahaan’s application

for asylum was time-barred. It also held that the evidence of persecution was not

sufficient for a grant of restriction on removal and that the evidence did not show

a likelihood that he would be tortured if returned to Indonesia, as required for

protection under CAT. A.R. 02-03. Mr. Siahaan filed a timely petition for

review.

II. Issues on Appeal

Mr. Siahaan does not appeal the denial of his asylum application,

apparently recognizing its untimeliness. He does, however, appeal the decisions
-4-

not to grant restriction on removal or CAT protection. Pet. Br. 4-5. Specifically,

he argues that the evidence was sufficient to show past persecution and fear of

future harm or torture. Id. According to Mr. Siahaan, the fact that the IJ found

his testimony to be credible was sufficient to meet his burden of proof, and the IJ

erred by requiring something more.

III. Standard and Scope of Review

When reviewing the factual basis of a BIA decision, we review for

“substantial evidence” supporting the board’s decision. See Kabba v. Mukasey,

530 F.3d 1239, 1244 (10th Cir. 2008); Sidabutar v. Gonzales, 503 F.3d 1116,

1122 (10th Cir. 2007). BIA factual findings are “conclusive unless the record

demonstrates that any reasonable adjudicator would be compelled to conclude to

the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir. 2007). 

A point of contention in this case is how far the scope of our substantialevidence review should extend. Mr. Siahaan’s attacks focus not on the decision

of the BIA, but the decision of the IJ. He argues that the IJ applied the wrong

burden of proof analysis when that judge found his testimony credible but

nonetheless failed to find that evidence sufficient to grant his requests. Pet. Br.

5-6. If the BIA had summarily affirmed the IJ decision without any opinion of its

own, then Mr. Siahaan would be correct that this court would look to the IJ

opinion to determine the rationale behind the order. See Sidabutar, 503 F.3d at

1123. Here, however, the BIA has issued an opinion of its own. We therefore
-5-

restrict our review to the BIA opinion, and will not look to the grounds cited by

the IJ unless the BIA opinion specifically refers to them. Id. 

IV. Restriction on Removal

An alien is entitled to restriction on removal if his “life or freedom would

be threatened in th[e] 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). He can create a rebuttable presumption of eligibility by

showing either “past persecution,” 8 C.F.R. § 1208.16(b)(1), or that “it is more

likely than not that [he] would be persecuted on [one of the specified grounds]”

upon returning to the country of removal, 8 C.F.R. § 1208.16(b)(2). 

The BIA reviewed the evidence and agreed with the IJ that Mr. Siahaan had

failed to show past persecution. A.R. 03. The Board acknowledged Mr.

Siahaan’s testimony that he had been harassed and threatened by Muslims as he

walked to high school because he was Christian and Batik, and that he had once

been robbed and beaten by Betawi people when he was a teenager. A.R. 02. The

BIA did not inquire into Mr. Siahaan’s credibility but rather treated the

statements as true, finding that even if accurate, this evidence alone did not

amount to past persecution. A.R. 02-03.

The BIA’s conclusion that Mr. Siahaan did not suffer from past persecution

is consistent with our case law. To qualify as past persecution the harm must rise

to a certain level. “[A] finding of persecution requires the infliction of suffering
-6-

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.” Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) (internal

quotation omitted). See also Sidabutar, 503 F.3d at 1124 (finding no past

persecution for Indonesian Christian who was beaten repeatedly by Muslim

classmates in school and robbed by Muslims outside of school). The harm also

“must be inflicted by the government or by a non-governmental group that the

government is unwilling or unable to control.” Id. (internal quotations omitted). 

We do not doubt that Mr. Siahaan suffered from the harassment and the robbery,

but the BIA was not unreasonable in finding that these actions did not rise to the

level of past persecution.

Mr. Siahaan could also demonstrate entitlement to restriction on removal

by showing it is “more likely than not” that he would be persecuted for his

religion or ethnicity upon returning to Indonesia. 8 C.F.R. § 1208.16(b)(2). The

BIA, however, found that Mr. Siahaan “presented no evidence to establish that his

life would be threatened if he is removed to Indonesia.” A.R. 03. The only

evidence Mr. Siahaan points to in support of his claim of likely future persecution

is a State Department report that lists several isolated acts of violence against

Christians that have taken place in Indonesia. Pet. Br. 9; A.R. 97. A factfinder

would be reasonable in finding that this evidence does not establish a likelihood

that Mr. Siahaan would be persecuted upon his return to Indonesia. See
-7-

Sidabutar, 503 F.3d at 1125 (affirming a BIA finding that the country conditions

affecting Christians in Indonesia do not create a probability of future persecution,

based largely on State Department reports). We therefore cannot say that the

BIA’s refusal to grant restriction on removal fails to meet the highly deferential

substantial-evidence standard.

V. Convention Against Torture

To receive protection under CAT, Mr. Siahaan must show that it is “more

likely than not that he will be subject to torture by a public official, or at the

instigation or with the acquiescence of such an official.” Cruz-Funez v. Gonzales,

406 F.3d 1187, 1192 (10th Cir. 2005). The BIA found that Mr. Siahaan had

“presented no evidence that he would be tortured by or at the instigation of, or

with the consent or acquiescence of, public officials of the Indonesian

government if he is returned to that country.” A.R. 03. Given the prior

discussion of the nature and probability of the threats to Mr. Siahaan, we cannot

say that the BIA was unreasonable in this finding.

For the reasons set forth above, we AFFIRM.

Entered for the Court,

Michael W. McConnell

Circuit Judge