* 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 for John Ashcroft as the

Respondent in this action. 

** This order and judgment is not binding precedent, except under the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

APR 12 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LUKITO TANDYAWASESA;

YACOB AUGUSTINUS,

Petitioners,

v.

ALBERTO R. GONZALES, Attorney

General, *

Respondent.

No. 04-9509

(Nos. A95 216 005 

& 95 216 006)

(Petition for Review)

ORDER AND JUDGMENT **

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

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

unanimously to grant the parties’ request for a decision on the briefs without oral
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argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 

Lukito Tandyawasesa and his son, Yacob Augustinus, citizens of Indonesia,

petition for review of a final order of removal issued in December 2003. The

Board of Immigration Appeals (BIA) dismissed their appeal from an Immigration

Judge’s (IJ) decision denying their applications for asylum and for withholding of

removal under the INA and the Convention Against Torture. See 8 U.S.C. 

§ 1158(b) (conditions for granting asylum); 8 U.S.C. § 1231(b)(3) (withholding of

removal); 8 C.F.R. § 208.16(c)(2) (withholding of removal under Convention

Against Torture). Our jurisdiction arises under 8 U.S.C. § 1252(a)(1) (authority

to review final orders of removal), and 8 U.S.C. § 1252(a)(2)(B)(ii) (permitting

review of decision on asylum claims).

I.

A notice to appear was filed in January 2002, thus this petition for review

is governed by the permanent rules of the Illegal Immigration Reform and

Immigrant Responsibility Act. See 8 C.F.R. § 1239.1(a); Tsevegmid v. Ashcroft ,

336 F.3d 1231, 1234 n.3 (10th Cir. 2003). The IJ conducted hearings in July

2002. Petitioners admitted that they had legally entered the United States in

November 2000, but illegally remained here past their departure date of July 15,

2001. They conceded their removability. R. at 47. But petitioners argued that
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they should be allowed to remain in the United States, testifying that they feared

being persecuted on account of their Chinese ethnicity and Christian religious

affiliation if they returned to Indonesia. The IJ denied their applications. In

December 2003, the BIA adopted the decision of the IJ, indicating that “the

Board’s conclusions upon review of the record coincide with those of the

Immigration Judge articulated in his or her decision.” R. at 2 (internal quotation

marks omitted). The BIA affirmed the IJ’s determination that petitioners had

failed to carry their burden of proof to demonstrate refugee status as defined in 8

U.S.C. § 1101(a)(42)(A) by establishing either past persecution or a well-founded

fear of future persecution on account of a protected ground if they are returned. 

See id. ; and see §1158(b)(1) (asylum may be granted to alien only if Attorney

General first determines that alien is a refugee within the meaning of 

§ 1101(a)(42)(A)). The BIA’s order, which includes the IJ’s decision, is the final

order that we review on appeal. See 8 C.F.R. § 3.1(e)(5) (2003) (providing that

single Board member may issue brief order affirming the IJ’s decision); Batalova

v. Ashcroft , 355 F.3d 1246, 1253 n.8 (10th Cir. 2004) (noting that we “directly

review” an IJ’s decision that has been adopted by a single Board member in his

order affirming the IJ’s decision).
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II.

In support of his claim that he and his son are refugees eligible for asylum,

Mr. Tandyawasesa claimed that his business was burned and looted in 1998

during some riots and that his son was pushed off his motorbike and injured by

non-Chinese Indonesians in May 1998 because of their ethnicity. He claimed that

he was hit and threatened by Indonesian Muslims in 1995 because he was

evangelizing, and that Muslims bombed the church his family attended on

Christmas Day, 2000. But he testified that he and his son stayed in Indonesia,

living off of savings, until November 2000. He testified that his wife told him

that she had been robbed in May 2003 because she is Chinese, and that he had

been unable to obtain visas for her and his daughters. 

The IJ found petitioners’ claimed fear of persecution not to be credible for

several reasons. The IJ noted that Mr. Tandyawasesa left his wife and daughters

in Indonesia, where they still reside and work, and, except for the robbery

incident, that there is no claim that they are being persecuted for their ethnicity. 

The IJ stated that a person who was genuinely concerned about safety “would

have gotten [his family] on the plane immediately or soon thereafter, after the

riots” instead of waiting for a year and a half. See id. at 56. The IJ stated that the

pictures Mr. Tandyawasesa submitted in support of his claim that his business had

been looted and burned in 1998 looked “like an empty warehouse, . . . not . . . like
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a business . . . that was destroyed by anybody.” Id. at 55. Further, the IJ

concluded from their activities that petitioners came to the United States solely

for “purposes of working.” Id. at 57.

Mr. Tandyawasesa’s brother is a pastor in Jakarta and his sister is a doctor

in another Indonesian city. The IJ held that petitioners had not demonstrated that

they would have the same fear of persecution if they moved to another area in

Indonesia. And he noted that the President of Indonesia had accomplished a

change in country circumstances since 1998 by trying to protect the Chinese,

involving the Chinese in legislative procedures and practices, and permitting all

Indonesians to practice their religions, celebrate their holidays, and speak their

languages. Id.

III.

Petitioners challenge only the denial of their application for asylum in their

brief-in-chief, arguing that the IJ erred in finding that petitioners lacked

credibility and in finding that they came to the United States for economic

reasons, and that the decision denying asylum is not supported by substantial

evidence. We review the BIA’s findings and conclusions, which include those

made in the adopted IJ’s decision, for substantial evidence. See Batalova , 355

F.3d at 1254. 

Because the IJ determined that petitioners failed to establish refugee

status, we need only review that initial question. We review that
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decision to determine whether the record on the whole provides

substantial support for that determination or, rather, is so decisively

to the contrary that a reasonable factfinder would have concluded

petitioners are refugees.

Id. (quotation marks and brackets omitted). But we do not “weigh the evidence or

. . . evaluate the witnesses’ credibility.” Woldemeskel v. INS , 257 F.3d 1185,

1189 (10th Cir. 2001) (quotation marks omitted). Under the permanent rules,

“administrative findings of fact are conclusive unless [the record demonstrates

that] any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B); see also Sviridov v. Ashcroft , 358 F.3d 722, 727

(10th Cir. 2004). The credibility findings must be upheld if they are

“substantially reasonable” and the IJ has given “specific, cogent reasons for

disbelieving” the alien’s testimony. Sviridov , 358 F.3d at 727.

 Applying these standards, we conclude that the petition for review must be

denied. The administrative findings are supported in the record and the IJ gave

cogent reasons for disbelieving petitioners’ claims of fear of persecution, thus his

credibility findings were not substantially unreasonable. We cannot say that the

IJ’s conclusion that petitioners failed to qualify as refugees is “contrary to what a 
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reasonable factfinder would have been compelled to conclude.” Batalova , 355

F.3d at 1255 (quotation marks omitted). 

The petition for review is DENIED .

Entered for the Court

Michael R. Murphy 

Circuit Judge