FILED
United States Court of Appeals
Tenth Circuit
July 19, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KHATANBAATAR ZORIG;
OTGONCHULUUN PANDAAN;
TULGA KHATANBAATAR;
MARAL KHATANBAATAR,
Petitioners,
v. No. 09-9552
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.
Petitioners, citizens of Mongolia, sought asylum, restriction on removal,
and protection under the Convention Against Torture (CAT) in 2004. They
asserted that the lead petitioner, Khatanbaatar Zorig, had been persecuted based
*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
on his political opinion and would be subjected to torture if he were returned to
Mongolia. The other petitioners are Mr. Zorig’s wife, Otgonchuluun Pandaan,
and their children, Tulga and Maral Khatanbaatar, whose petitions are derivative
of Mr. Zorig’s. An immigration judge (IJ) rejected their application; the Board of
Immigration Appeals (BIA) dismissed the appeal on October 24, 2008; and
petitioners appealed to this court. While that appeal was pending, petitioners
filed a timely motion to reopen, alleging newly discovered evidence of
translation errors and the deteriorating political situation in Mongolia. The BIA
denied the motion to reopen on August 7, 2009. On October 15, 2009, this court
affirmed the BIA’s determination that Mr. Zorig had not established persecution
based on political opinion or that he would have been “subjected to harm at the
hands of government officials,” and denied the petition for review. Zorig v.
Holder, 349 F. App’x 306, 311–12 (10th Cir. 2009) (Zorig I).
Petitioners now appeal the BIA’s order denying their motion to reopen.
They have also filed a motion to consolidate this appeal with Zorig I and a motion
to recall the mandate in Zorig I. They contend that the newly discovered
evidence compels this court to revisit the Zorig I result. The motion to recall the
mandate has been denied by the Zorig I panel, and we thus deny the motion to
consolidate as moot.
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BACKGROUND
The underlying facts were set out in Zorig I; consequently, we provide only
a brief summary necessary to our review. Mr. Zorig was a member of the
Mongolian Democratic Party (MDP), the ruling party until 2000, when the
Mongolian People’s Revolutionary Party (MPRP) returned to power. Under the
MPRP, Mr. Zorig was repeatedly questioned by police about the land on which he
operated a restaurant. He was also fired from his job as a pilot for the
government-owned civil airline. In 2003 the police took him from his house to a
detention center where they referred to his MDP membership and accused him of
obtaining the restaurant land illegally. The police informed him that his land
would be taken away when a new land law took effect so he should sign away his
right to it. When Mr. Zorig refused, he was beaten so severely that he required
two weeks’ hospitalization. After his release from the hospital, he and his family
traveled to the United States, where they timely requested asylum, restriction on
removal, and CAT protection.
Petitioners asserted that Mr. Zorig was persecuted because of his political
beliefs. The IJ disagreed, concluding that although government officials wanted
to take Mr. Zorig’s land, their motive was commercial or financial, rather than
political. The IJ also rejected the CAT claim, finding that once the government
obtained the land, the police would no longer be interested in harming Mr. Zorig.
The BIA denied review, “reject[ing] the asylum and restriction-on-removal claims
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for failure to link mistreatment to political motives and further stat[ing] Zorig had
not demonstrated a sufficient likelihood of persecution necessary for asylum.”
Zorig I, 349 F. App’x at 309 (internal quotation marks omitted). Mr. Zorig then
filed a notice of appeal with this court.
Before this court issued the decision in Zorig I, petitioners engaged an
interpreter to review the tapes of the agency hearings. Asserting that four
translation errors in the original hearing caused the BIA to fail to recognize the
nexus between Mr. Zorig’s political opinion and the government’s plan to take his
land, and that news articles strengthened their claim that he would be tortured if
returned to Mongolia, they filed the present motion to reopen, which the BIA
denied. 1 Then this court decided Zorig I, holding that the BIA correctly applied
1
Petitioners have focused on the following four alleged translation errors:
(1) Mr. Zorig’s attorney asked him if the police accused him of any illegal
activity. He responded:
Original translation: “To get this land you didn’t follow the rules that’s
what they kept saying.” Admin. R. at 190.
Mr. Zorig’s translation: “[T]hey were trying to say that I didn’t get this
land by it’s [sic] procedure.” Id. at 17.
(2) After Mr. Zorig described the police beating that resulted in his
hospitalization, he said it was because he would not sign a land contract. His
attorney asked him why they were trying to get him to sign a land contract. He
responded:
Original translation: “It must be organized from somewhere else. Still
now I wonder who organized this. I wonder. It must be organized from – by
somewhere else – someone else. Maybe a member of the Mongolian Republic
Party want to have his business on my land.” Id. at 197.
Mr. Zorig’s translation: “I still wonder who ordered this, it must have been
(continued...)
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the “mixed-motive” standard, which requires the applicant to show that “his
mistreatment was motivated, at least in part, by political opinion rather than
1
(...continued)
ordered from somewhere else. Maybe someone at the Revolutionary Party wanted
the land we are at and do some business.” Id. at 18.
(3) Mr. Zorig’s attorney asked him why he thought the police accused him
of getting the land illegally. He responded:
Original translation: “I have no idea until now I wonder about it. I still
wonder why do I must – must I have been target. Why was I targeted?” Id. at
193.
Mr. Zorig’s translation: “I don’t know, I still wonder about it myself. Why
exactly I was within there. I myself wonder about it.” Id. at 19.
(4) The government attorney posed a question to Mr. Zorig that he asserts
was mistranslated as a statement. His “yes” response, therefore, was intended
only as an acknowledgment of the statement, not as agreeing with it. The two
versions are:
Original translation: “Sir, I’m wondering if you – this whole business with
the police where you were brought in several times and then detained, I’m
wondering if it had to do strictly with the land because somebody else wanted
your business or they wanted to intimidate you out of business.” Id. at 227.
Mr. Zorig’s translation: “[T]he[y] called you and questioned you at the
police but I wonder that I think that somebody wanted to take your land and that’s
why they wanted to pressure you so take your land away.” Id. at 18. (Petitioners’
reply brief asserts error in the omission from the government attorney’s question
of the language that the police harassment “had to do ‘strictly with the land.’”
Aplt. Reply Br. at 23. But the brief gets things backwards. The original
translation contained this language; his translation did not.)
In their reply brief, petitioners assert for the first time that the original
interpreter inserted a phrase that Mr. Zorig did not utter. Because they did not
raise this issue with the BIA, we lack jurisdiction to consider it. See 8 U.S.C.
§ 1252(d)(1) (providing reviewing court with jurisdiction only over claims alien
has exhausted administratively); Ribas v. Mukasey, 545 F.3d 922, 930–31
(10th Cir. 2008) (appellate court was without jurisdiction to consider issue not
exhausted by presentation to the BIA).
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economic considerations.” Id. at 311. We further held that substantial evidence
supported the BIA’s findings and denied the petition for review.
In denying petitioners’ motion to reopen, the BIA determined that “the
alleged errors in translation [were] not substantive or material, and [Mr. Zorig]
ha[d] not demonstrated that the corrections would alter the outcome of the
proceeding or that he was otherwise unfairly prejudiced.” Admin. R. at 3-4. The
BIA further concluded that the news articles describing a riot following the 2008
election did not show that Mr. Zorig was entitled to CAT protection.
On appeal, petitioners claim that the BIA erred in failing to recognize that
the mistakes in translation likely would have changed the outcome of their initial
asylum proceeding because the correct translation was unequivocal as to
Mr. Zorig’s position that he was tormented, fired from his job, and had his
property taken because of his political opinion. They argue that the IJ and the
BIA in the initial proceedings specifically relied on the incorrect translation,
thus showing that the mistranslation materially contributed to an erroneous
result, which violated their rights to due process. In addition, they claim that
the new evidence in the form of news articles shows that Mr. Zorig likely will
be tortured if he is removed to Mongolia.
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ANALYSIS
An alien may file one motion to reopen to permit the agency to consider
new information. The alien must “state the new facts that will be proven at a
hearing to be held if the motion is granted.” 8 U.S.C. § 1229a(c)(7)(B); accord
8 C.F.R. § 1003.2(c)(1). “We have jurisdiction to review BIA orders denying
motions to reopen removal proceedings. Our review is for an abuse of
discretion.” Wei v. Mukasey, 545 F.3d 1248, 1254 (10th Cir. 2008) (citation
omitted).
When translation is “less than perfect,” remand is appropriate only if the
alien can demonstrate that translation errors unfairly prejudiced him or prevented
him from presenting his case. Hadjimehdigholi v. INS, 49 F.3d 642, 650
(10th Cir. 1995). On review of the alleged mistranslations in the context of the
full hearing transcript, we conclude that the BIA did not abuse its discretion in
holding that there was no material difference in the translations. Accordingly, the
BIA correctly determined that petitioners had not shown a violation of their due
process rights caused by any translation errors. And the alleged errors did not
“materially affect [their] ability to obtain meaningful review.” Witjaksono v.
Holder, 573 F.3d 968, 975 (10th Cir. 2009) (internal quotation marks omitted).
We likewise reject petitioners’ contention that the BIA abused its discretion
in denying reopening of the CAT claim based on unspecified translation errors
and news articles published after the IJ’s decision. They argue that the articles
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show that it is more likely than not that Mr. Zorig will be tortured if he is
removed to Mongolia. But the BIA could reasonably decide that the articles, even
taken together with the evidence at the hearing before the IJ, do not indicate that
Mr. Zorig would be subject to torture “by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity,” as required to qualify for CAT protection. 8 C.F.R. § 1208.18(a)(1).
Nor are the translation errors pointed out to the BIA sufficient to require a
rehearing on the CAT claim. The BIA did not abuse its discretion in refusing to
reopen the case on these grounds.
CONCLUSION
Petitioners’ motion to consolidate this appeal with Zorig I is DENIED. The
petition for review is also DENIED.
Entered for the Court
Harris L Hartz
Circuit Judge
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