F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 4, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M INATI M ONDAL; SH AM SUDDIN
AHM AN; CEEH AM SHAM S;
Petitioners,
No. 05-9600
v. (No. A 97 936 974)
(Petition for Review)
ALBERTO R. GONZALES, Attorney
General,
Respondent.
OR D ER AND JUDGM ENT *
Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.
M embers of the M ondal family, citizens and nationals of Bangladesh,
petition for review of a decision of the Board of Immigration Appeals (BIA or
Board) denying their claims for asylum and for restriction on removal. W e have
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
jurisdiction to review the agency’s decision under 8 U.S.C. § 1252(a)(1), and we
deny the petition for review .
I. Background
M inati M ondal, the lead petitioner and mother of the family, is a lifelong
Christian. The other petitioners are Dr. Shamsuddin A hman, M s. M ondal’s
M uslim husband, and Ceeham Shams, the couple’s adult Christian daughter. The
family’s application for asylum, restriction on removal, and protection under the
Convention Against Torture is premised on the lack of toleration in Bangladesh
for the parents’ interfaith marriage.
At the hearing before the Immigration Judge (IJ), the parties offered
testimony from M s. M ondal and also expert testimony from John Adams, a retired
university professor and current consultant on economics and salvation studies.
M s. M ondal described religious clashes w hile living with her husband’s family in
Bangladesh. Her in-laws pressured her to follow the precepts of the Islamic faith,
changed her name, teased her, pushed and hit her, pulled her hair, threatened her,
refused to eat with her, and forced her to do all the chores. “The worst incident
of [her] life,” occurred when she refused to fast on a day during the month of
Ramadan, February 1994. Admin. R. at 210. Her brother-in-law pushed her
against a wall and attempted to choke her. M s. M ondal and Dr. Ahman decided
that the situation was intolerable and that she should leave Bangladesh.
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M s. M ondal entered the United States in M ay 1994 and Dr. Ahman and
M s. Shams followed in August 1995. M s. M ondal was approved for student
status; her husband and daughter were classified as student-dependents. Both
parents registered with educational institutions and began programs of instruction.
As of M arch 1, 2003, however, they had stopped attending classes and the
family’s legal status lapsed. After discussing the situation with an attorney,
M s. M ondal gathered documentation, and on September 12, 2003, attempted to
file an application for asylum and restriction.
In support of her application, M s. M ondal testified that if she returned to
Bangladesh, her family problems would re-erupt, fundamentalists would attempt
to kill her, and the government would not protect her. She also offered expert
testimony from Dr. Adams, who has traveled to Bangladesh and also prepared
talks and articles on the country. Dr. Adams testified that an interfaith couple in
Bangladesh would be shunned by M uslim family members. If the couple moved
to another part of Bangladesh, there would still be “a very high risk” that
M s. M ondal, as the non-Islamic partner in an interfaith marriage, would be
subject to “intimidation, violence, rape, and possibly murder.” Admin. R. at 139.
At the close of testimony, the IJ reviewed the evidence and concluded that
the asylum application was not timely filed. He noted that, when M s. M ondal’s
status lapsed in M arch 2003, she had been attending college and university
classes in the United States for nine years. Under these circumstances, the IJ
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found, she should have been able to file an asylum application “w ithin a short
period after falling out of status,” and that the September 2003 asylum application
was not filed within a reasonable time. Id. at 61. He also determined that there
was no significant change in country conditions during the relevant period.
Accordingly, the family members were statutorily ineligible for asylum.
The IJ then determined that the record failed to show past persecution or a
probability of future persecution. He therefore denied the family’s applications
for restriction on removal and protection under the Convention Against Torture,
as being “without any merit whatsoever.” Id. at 64. On appeal, the BIA adopted
and affirmed the IJ’s denial of relief. In response to the family’s argument that
the transcript of the hearing was inadequate, the BIA acknowledged that the
transcript of the hearing “contain[ed] numerous ‘Indiscernible’ entries,” but
concluded that it was “sufficiently complete upon which to base a determination.”
Id. at 890.
II. Discussion
A. Timeliness of Asylum Application
Petitioners seek review of the finding that M s. M ondal’s application was
untimely. Generally, an alien must file an asylum application “within 1 year after
the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
The Attorney General, however, may accept an otherwise untimely application if
the alien demonstrates either (1) “the existence of changed circumstances which
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materially affect [her] eligibility for asylum” or (2) “extraordinary circumstances
relating to the delay in filing an application within the period specified.”
§ 1158(a)(2)(D ). The term “changed circumstances” includes “[c]hanges in
conditions in the applicant’s country of nationality.” 8 C.F.R.
§ 208.4(a)(4)(i)(A). The “extraordinary circumstances” exception applies to an
asylum applicant who was in lawful status during the one-year period after
arrival, then filed within a “reasonable period” following the lapse of status.
8 C.F.R. § 208.4(a)(5)(iv).
A federal court lacks jurisdiction to review the denial of an asylum
application for untimeliness if the petitioner challenges discretionary decisions or
findings of fact, but it may resolve constitutional claims or matters of statutory
construction. Ferry v. Gonzales, Nos. 03-9526, 04-9555, 05-1014, 2006 W L
2258805, at *9 (10th Cir. Aug. 8, 2006). However, this court will reject an
attempt “to shoehorn [a] claim into the ‘question of law ’ category” that “simply
does not fit there.” Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005).
In recognition of this court’s limited jurisdiction, the family members
couch their issues as questions of law. They assert that the IJ committed legal
error in failing to recognize a change in country conditions: the rise in
fundamentalism in Bangladesh since the W orld Trade Center attacks on
September 11, 2001, and the invasion of Iraq in M arch 2003 (which coincided
with M s. M ondal’s leaving her studies).
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Analytically, “the existence of ‘changed circumstances’ that materially
affect eligibility for asylum is a predominately factual determination, which will
invariably turn on the facts of a given case.” Ram adan v. Gonzales, 427 F.3d
1218, 1221-22 (9th Cir. 2005). Thus, this aspect of the family’s petition for
review is “directed solely at the agency’s discretionary and factual
determinations” and it “remain[s] outside the scope of judicial review.” Ferry,
2006 W L 2258805, at *9 (quotations omitted).
Similarly, the family asserts that, as a matter of law, M s. M ondal’s asylum
application was timely because it was filed within a reasonable time after the
lapse of her student status. W e conclude that the BIA and the IJ did not
misinterpret the law. Indeed, M s. M ondal’s application, filed over six months
after her lapse of status, was treated in accordance with the agency’s
interpretation of its regulation, 8 C.F.R. § 208.4(a)(5)(iv). An asylum applicant is
expected to file as soon as possible after termination of a lawful immigration
status. Asylum Procedures, 65 Fed. Reg. 76121, 76123 (Dec. 6, 2000). A delay
of six months or longer is usually not considered reasonable. Id. at 76124. This
question also challenges a discretionary determination and is not reviewable.
A final challenge to the timeliness determination arises from the condition
of the hearing transcript. The family contends that the transcript is so replete
with entries of “indiscernible” and “no audible response” that it amounts to a due
process violation. The BIA’s rejection of this argument is a legal determination,
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which we review de novo. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.
2005).
Due process requires that an alien at a removal hearing must have “an
opportunity to be heard, to cross-examine witnesses against him, and to produce
evidence . . . and that the decision be supported by substantial evidence.”
Hadjimehdigholi v. INS, 49 F.3d 642, 649 (10th Cir. 1995) (internal quotation
marks omitted). One of an applicant’s rights in an immigration proceeding is that
“a complete record shall be kept of all testimony and evidence produced at the
proceeding.” 8 U.S.C. § 1229a(b)(4)(C). It is the government’s “duty to prepare
a reasonably accurate, reasonably complete transcript.” Ortiz-Salas v. INS, 992
F.2d 105, 106 (7th Cir. 1993). The absence of a “reasonably complete transcript”
can “hamper[] the ability of an alien to mount a challenge to the proceedings that
were conducted before the IJ” and “foreclose effective administrative and judicial
review.” Kheireddine v. Gonzales 427 F.3d 80, 84 (1st Cir. 2005) (quotation
omitted).
To a establish a due process violation based on an “inaccurate or
incomplete transcription,” however, an alien must show “specific prejudice to his
ability to perfect an appeal.” Id. at 85 (quotation omitted). “[P]rejudice to
warrant a remand cannot be shown if the transcription failure does not make any
difference to the outcome of the review.” Id. at 86. In other words, prejudice
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requires a showing “that a complete and accurate transcript would have changed
the outcome of the case.” Ortiz-Salas, 992 F.2d at 106.
Here, there is no question that the agency failed to fulfill its responsibility
to prepare a reasonably complete transcript. The transcript contains numerous
entries of “no audible response” or “indiscernible,” particularly during
M s. M ondal’s testimony. Indeed, there are 211 such entries in her testimony
alone, rendering some dialogues incomprehensible. 1 W e do not condone the
agency’s careless preparation of the record: the poor quality of the transcript is
disturbing. 2
Nevertheless, the transcript’s shortcomings do not significantly affect the
agency’s decision to consider her asylum application untimely. The existing
transcript provides M s. M ondal’s account of her reasons for not filing earlier.
According to her testimony, she used the time between M arch and September
2003 to talk to her attorney, gather documents from Bangladesh, and prepare the
application. Admin. R. at 107-08. She does not assert that a complete transcript
1
Additionally, the transcript contains unjustifiable misspellings like “Lybia”
for the country Libya, Admin. R. at 86-88, 93, 104; “mosk” for mosque, id. at
139; “Docka” for D haka, the capital of Bangladesh, id. at 136, and “bazaar” for
the word bizarre, id. at 63.
2
The Attorney General has apparently recognized that flaw ed transcripts
may be a systemic problem. In a recent press release, he announced plans to
improve “the Immigration Courts’ ability to record, transcribe, and interpret court
proceedings.” Dep’t of Justice, Attorney General Alberto R. Gonzales Outlines
Reform s for Im migration Courts and Board of Immigration Appeals (Aug. 9,
2006) (available at http://w ww.usdoj.gov/opa/pr/2006/A ugust/06_ag_520.html).
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would show other barriers to filing. W e reject the due process claim as it relates
to the timeliness of her application and therefore do not reach the family’s
contentions on their entitlement to asylum.
B. Restriction on Removal
In addition, the family seeks review of the IJ’s and BIA’s denial of their
requests for restriction on removal. This type of relief requires a showing that the
alien’s “life or freedom would be threatened in [the proposed country of removal]
because of [her] race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An alien’s life or
freedom is presumed to be threatened if she “is determined to have suffered past
persecution in the proposed country of removal.” 8 C.F.R. § 208.16(b)(1)(i).
Otherwise, the alien must show “it is more likely than not” that she would be
persecuted upon removal. Id. § 208.16(b)(1)(iii).
The family’s due process argument, asserted in the context of the asylum
timeliness determination, is also applicable to restriction on removal. The
question is w hether the flaw ed hearing transcript prejudiced the family’s ability to
appeal the denial of restriction on removal to the BIA or to seek review in this
court. This is a legal question which we subject to de novo review. See Niang,
422 F.3d at 1196.
Our review of the record for information germane to restriction on removal
reaffirms our conviction that the transcript is unsatisfactory. Nonetheless, a clear
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outline of M s. M ondal’s narrative emerges from a reading of her testimony.
M oreover, the family does not claim that her “indiscernible” statements could
have supplied outcome-changing facts. 3 W ithout a showing that transcription
errors prejudiced the family’s ability to present their argument, we must conclude
that the transcript’s deficiencies do not amount to a due process violation. See
Ortiz-Salas, 992 F.2d at 106-07 (holding that hearing transcript with 292
“inaudible” or “indiscernible” notations did not violate applicant's due process
rights because he could not demonstrate prejudice).
As to the factual determinations relevant to restriction on removal, this
court does not weigh the evidence or evaluate the credibility of witnesses. Yuk v.
Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004). “[F]indings of fact are
conclusive unless the record demonstrates that ‘any reasonable adjudicator w ould
3
In many instances, the substance of the obscured testimony is evident from
its context. An example is the following colloquy on cross-examination:
Q. But you agreed to get married in a M uslim (indiscernible),
correct?
A. Yes. . . .
Q. Did you change your name to a M uslim name?
A. Yes (indiscernible).
.
Q Okay. So it looks like, to the in-laws, that you were becoming a
M uslim, correct?
A. Yes, (indiscernible).
Q. But then when you didn’t that’s w hen the problem started, right?
A. (indiscernible).
Q. All right. . . .
R., at 114-15.
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be compelled to conclude to the contrary.’” Ferry, 2006 W L 2258805, at *10
(quoting 8 U.S.C. § 1252(b)(4)(B)). Because the BIA adopted and affirmed the
IJ’s decision in a brief opinion, we review the BIA’s opinion by “consulting the
IJ’s more complete explanation of those same grounds.” Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006).
The IJ based his denial of restriction on removal on specific findings. H e
found that the record did not show past persecution of M s. M ondal: she “resided
in her country for a good part of her adult life and her most serious problem w as
[the] bout with the brother-in-law.” Admin. R. at 64. Also, the IJ determined,
Dr. Adams’ testimony concerning the basis for M s. M ondal’s fear of future
persecution was unsupported. Indeed, the IJ found that Dr. Adams’ opinion was
“a bazaar [sic] statement for an academic person to make.” Id. at 63. In sum, the
IJ denied the requested relief because he determined that the case “falls
dramatically short of being anything that could properly be granted.” Id. at 64.
A careful review of the record reveals that substantial evidence supports the
IJ’s factual findings. In their brief, the family members essentially ask this court
to substitute their view of M s. M ondal’s testimony and the expert’s opinions for
that of the IJ and the BIA. Given the deferential standard of review applicable to
these proceedings, we cannot take this course.
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III. Conclusion
To the extent that the family challenges discretionary decisions or findings
of fact relating to untimeliness of M s. M ondal’s asylum application, we DISM ISS
the petition for review for lack of appellate jurisdiction. W e DENY the remainder
of the petition for review.
Entered for the Court
Robert H. Henry
Circuit Judge
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