Rotinsulu v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-1516

DENNY STENLY ROTINSULU,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Gelpi,** District Judge.

Wei Jia and Law Office of Wei Jia on brief for
petitioner.

Peter D. Keisler, Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Corey L. Farrell, Trial Attorney,
Office of Immigration Litigation, on brief for respondent.

February 8, 2008

*
Of the District of Puerto Rico, sitting by designation.
 SELYA, Senior Circuit Judge. The petitioner, Denny

Stenly Rotinsulu, an Indonesian national, is an Adventist

Christian. He seeks judicial review of a decision of the Board of

Immigration Appeals (BIA) denying his requests for asylum,

withholding of removal, and protection under the United Nations

Convention Against Torture (CAT). We deny the petition.

The background facts are not seriously disputed. The

petitioner is a native of Manado, a city in the Indonesian province

of North Sulawesi. He arrived lawfully in the United States as a

non-immigrant visitor on March 13, 1995, and was authorized to

remain until September 13, 1995. He overstayed.

Roughly eight years went by before federal authorities

commenced removal proceedings. See 8 U.S.C. § 1227(a)(1)(B). The

petitioner conceded removability and cross-applied for asylum,

withholding of removal, and protection under the CAT.

At a hearing before an immigration judge (IJ), the

petitioner testified that he feared persecution on account of his

religion should he be remitted to Indonesia. In support of this

claim, he recounted that he had dated a young Muslim woman from

1990 to 1992, but eventually declined her importunings that they

marry. The woman's family members reacted badly to this perceived

slight. Believing that the couple had engaged in extra-marital

relations, they became enraged by the petitioner's refusal to

plunge into matrimony and repeatedly threatened to kill him.

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 Despite the fact that these death threats began in 1992,

the petitioner stayed put until sojourning to the United States in

1995. He at no point during that three-year interval sought either

the assistance or the protection of the police.

At the conclusion of the hearing, the IJ decided the case

ore tenus. The petitioner's testimony was unrebutted and the IJ

generally credited it. He nonetheless rejected all three of the

petitioner's claims for relief. In the IJ's view, asylum was time-

barred and no entitlement to either withholding of removal or

protection under the CAT had been proven.

The petitioner appealed to the BIA, which affirmed the

IJ's decision. This timely petition for judicial review followed.

Before us, the petitioner has abandoned his asylum claim.

That is a wise decision, as we lack jurisdiction to review the

BIA's determination in regard to the timeliness of a petition for

asylum. See 8 U.S.C. § 1158(a)(3); Lumanauw v. Mukasey, 510 F.3d

75, 76-77 (1st Cir. 2007); Pan v. Gonzales, 489 F.3d 80, 84 (1st

Cir. 2007).

The petitioner's brief similarly fails to spell out any

challenge to the BIA's disposition of his CAT claim. Accordingly,

we deem that claim — like his asylum claim — to be abandoned. See

Aguilar v. U.S. ICE, 510 F.3d 1, 13 n.3 (1st Cir. 2007); see also

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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 This leaves only the claim for withholding of removal.

To gain perspective, we pause to delineate the nature of this

claim.

Under the Immigration and Nationality Act, an alien may

qualify for withholding of removal by showing a clear probability

that, upon repatriation, he will be persecuted on account of a

protected ground. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. §

1208.16(b); see also INS v. Stevic, 467 U.S. 407, 429-30 (1984).

An alien can make this showing by demonstrating that, more likely

than not, he will be persecuted if returned to his homeland. See,

e.g., Pan, 489 F.3d at 85-86. The regulations place the devoir of

persuasion squarely on the alien and direct an inquiring court to

evaluate whether the evidence proffered by the alien satisfies the

regulatory criteria. 8 C.F.R. § 1208.16(b).

If the alien cannot make a direct showing as to the

likelihood of future persecution, he nonetheless may qualify for

withholding of removal by making an indirect showing. This course

entails proving that he was the victim of past persecution on

account of a protected ground, thereby triggering a rebuttable

presumption that he harbors a well-founded fear of future

persecution. 8 C.F.R. § 1208.16(b)(1). Once triggered, that

presumption shifts the burden to the government to prove that the

alien can return safely to his native land. See Ang v. Gonzales,

430 F.3d 50, 55 (1st Cir. 2005).

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 With this framework in place, we turn to the claim at

hand. Notably, the petitioner eschews any challenge to the merits

of the BIA's denial of withholding of removal. Rather, he alleges

that the BIA impermissibly engaged in de novo factfinding when it

affirmed the IJ's ruling. This challenge is legal in nature.

Consequently, our review is plenary, with deference to the BIA's

interpretation of the regulations under which it operates. See

Pan, 489 F.3d at 85.

An agency has an obligation to abide by its own

regulations. See Accardi v. Shaughnessy, 347 U.S. 260, 265-67

(1954). The failure to follow an applicable regulation may be a

sufficient ground for vacation of an agency's decision, resulting

in a remand. See Picca v. Mukasey, ___ F.3d ___, ___ (2d Cir.

2008) [2008 WL 80402, at *4]; Nelson v. INS, 232 F.3d 258, 262 (1st

Cir. 2000). The petitioner's argument hinges on these principles.

Refined to bare essence, his argument is that the BIA

engaged in improper factfinding in contravention of one of its own

regulations, thus tainting its decision and necessitating a remand.

That regulation prohibits the BIA, with exceptions not applicable

here, from "engag[ing] in factfinding in the course of deciding

appeals." 8 C.F.R. § 1003.1(d)(3)(iv). The petitioner asseverates

that the BIA transgressed this prohibition when it concluded, in

its written decision, that the death threats described by the

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petitioner did not rise to the level of past persecution. This

position is without merit.

To begin, the petitioner's contention is based on the

premise that the BIA engaged in de novo factfinding because the IJ

had not decided the issue of past persecution. As we explain

below, that premise is faulty.

It is clear beyond hope of contradiction that the IJ

addressed the lack of any likelihood that the petitioner would face

persecution upon his return to Indonesia. He found unambiguously

that the petitioner "ha[d] not met his burden of proving that it is

more likely than not, or in other words, that there is a clear

probability that he will be subjected to persecution on account of

his religion or any of the [other] enumerated grounds if he were to

return to Indonesia." This finding seemingly subsumes the question

of past persecution. Implicit in it is a subsidiary finding that

the petitioner's evidence did not suffice to trigger a rebuttable

presumption. That is just another way of saying that there was no

cognizable showing of past persecution.

This conclusion is buttressed by the fact that the IJ at

one point commented specifically on the question of past

persecution. Referring to the petitioner's proffer, the IJ noted

that the petitioner, on cross-examination, had virtually conceded

that his girlfriend's relatives "essentially [were] upset because

he refused to marry [her] after he had engaged in sexual relations

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with her." Fairly read, this comment is tantamount to a finding

that the death threats were anchored in the petitioner's

philandering, not in his religion.

The petitioner argues that the IJ was obliged to make a

more explicit finding as to past persecution. This argument

elevates hope over reason. Although we expect an immigration judge

to make findings on all grounds that are necessary to support his

decision, those findings can be either explicit or implicit. See

Un v. Gonzales, 415 F.3d 205, 209 (1st Cir. 2005). The IJ's

express determination that the petitioner failed to carry his

burden of proof on the issue of future persecution, read in

conjunction with his depiction of the petitioner's past experiences

as no more than the aftermath of a soured romance, suffices to show

that the IJ, at least by implication, resolved the issue of past

persecution.1

There is a second reason why we deem the petitioner's

contention unconvincing: it misconstrues the regulation in

question, which was promulgated as part of an effort to restrict

the "introduction and consideration of new evidence in proceedings

before the [BIA]." BIA Procedural Reforms to Improve Case

1
Typically, we have found the absence of specific findings
problematic in cases in which such a void hampers our ability
meaningfully to review the issues raised on judicial review. See,
e.g., Hernández-Barrera v. Ashcroft, 373 F.3d 9, 25 (1st Cir.
2004). There is no such concern here; the IJ's decision, while
brief, provides an adequate roadmap for judicial review.

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Management, 67 Fed. Reg. 54,878, at 54,891 (Aug. 12, 2002). The

regulation was not intended to restrict the BIA's powers of review,

including its power to weigh and evaluate evidence introduced

before the IJ. See Belortaja v. Gonzales, 484 F.3d 619, 624-25 (2d

Cir. 2007). Here, the BIA did not supplement the record by

considering new evidence but, rather, merely analyzed the evidence

that had been presented in the immigration court.

The petitioner's reliance on cases such as Ramirez-Peyro

v. Gonzales, 477 F.3d 637 (8th Cir. 2007), and Chen v. Bureau of

Citiz. & Immig. Servs., 470 F.3d 509 (2d Cir. 2006), is mislaid.

Each of those courts was confronted with a situation in which the

BIA overturned an IJ's ruling after failing to cede proper

deference to the IJ's findings of fact. See Ramirez-Peyro, 477

F.3d at 641; Chen, 470 F.3d at 515. In contrast, the BIA in this

case did not in any way impeach, impugn, or denigrate the IJ's

factual findings; it simply explained, based upon its review of the

record, why it considered the IJ's decision to be supportable. We

cannot say that the BIA, in following that course, violated its own

regulations.

We add a coda. If there were any material deficiency in

the BIA's decision — and we discern none — that error would have

been harmless. The petitioner's evidence, taken in the light most

favorable to him, suggests no more than a private squabble between

him and the family of his quondam lover. Given the well-settled

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rule that withholding of removal cannot be premised on what is

essentially a personal dispute, Da Silva v. Ashcroft, 394 F.3d 1,

6 (1st Cir. 2005), no finding of past persecution could have been

made. See, e.g., Pieterson v. Ashcroft, 364 F.3d 38, 45 (1st Cir.

2004). And, finally, the record is barren of any evidence

sufficient to build a bridge between the threats complained of and

any government action or inaction. That gap in the record, in and

of itself, suffices to doom the petitioner's claim of past

persecution. See, e.g., Nikijuluw v. Gonzales, 427 F.3d 115, 120-

21 (1st Cir. 2005).

We need go no further. For the reasons elucidated above,

we conclude that the BIA's ukase must be upheld.

The petition for review is denied.

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