United States Court of Appeals
For the First Circuit
No. 08-1291
EDUARDO MUÑOZ-MONSALVE,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Walter J. Gleason on brief for petitioner.
Gregory G. Katsas Assistant Attorney General, Civil Division,
Emily Anne Radford, Assistant Director, Office of Immigration
Litigation, and Vanessa O. Lefort, Attorney, Office of Immigration
Litigation, on brief for respondent.
December 12, 2008
SELYA, Circuit Judge. The petitioner, Eduardo Muñoz-
Monsalve, sees due process violations at every twist and turn. We
distill his wide-ranging array of arguments into three claims of
error; namely: (i) that the immigration judge (IJ) failed to
initiate a competency hearing: (ii) that the Board of Immigration
Appeals (BIA) incorrectly affirmed the IJ's adverse credibility
determination: and (iii) that the BIA adjudicated his
administrative appeal despite a gap in the administrative record.1
Discerning no merit in any of these claims, we deny the instant
petition for judicial review.
I. BACKGROUND
The facts, which we draw mainly from the IJ's decision
and the exhibits referenced herein, are uncomplicated.
The petitioner is a native and citizen of Colombia. He
was apprehended while attempting to enter the United States, using
his brother's passport, in October of 2001. An immigration officer
interviewed him at the point of entry — a Miami airport. In a
sworn statement given to this interviewer, the petitioner stated
that his motivation for repairing to the United States was largely
economic; he had been out of work in his native land and wanted a
1
At various points in his brief, the petitioner seems to
imply that he is contesting the agency's failure to grant
withholding of removal and/or relief under the United Nations
Convention Against Torture. Because the petitioner has not set
forth any developed argumentation anent these issues, we deem them
waived. See Nikijuluw v. Gonzales, 427 F.3d 115, 120 n.3 (1st Cir.
2005). Thus, we make no further mention of either issue.
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job. As an apparent aside, he also mentioned some vaguely defined
trouble with the National Liberation Army (ELN), a paramilitary
guerilla group. According to country reports admitted into
evidence, the ELN exercised some significant control over parts of
Colombia notwithstanding the Colombian government's efforts to curb
the group's demonstrated penchant for violence.
Two days later, a different immigration officer conducted
a so-called "credible fear" interview. During that session, the
petitioner denied having an affiliation with any political faction,
describing the ELN's interactions with him as attempted extortion
that came about after ELN members mined the records of the local
Chamber of Commerce in search of deep-pocket prospects.
Immigration officials referred the matter to the
immigration court. Removal proceedings were instituted, and the
petitioner cross-applied for asylum.
At a hearing held in November of 2005, the petitioner
told a new and different story. He explained that he had been a
Liberal Party activist in Colombia from 1991 forward. In that
capacity, he had spent his weekends campaigning year after year for
various Liberal Party candidates. His duties included making
speeches, handing out political t-shirts, counting votes, and
monitoring elections. He testified that, on two occasions in 1991,
ELN members directed him to curtail his political involvement and
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ordered him to give them money. He paid off his tormentors but did
not forgo participation in partisan politics.
The petitioner further testified that his brother, a
fellow Liberal Party member, was shot and killed in 1991. The
petitioner witnessed the slaying. He asserted that his family
subsequently received a letter from the ELN taking credit for the
homicide and linking it to the family's political activism.
The petitioner's grisly tale did not end there. He said
that his brother-in-law was killed in 1993 — a killing that he also
attributed to the ELN, citing his family's receipt of a letter to
that effect.
Notwithstanding these alleged maraudings, the petitioner
recounted that he remained in Colombia and persisted in his
political activities. In 2001, however, he claimed to have been
shot twice during a confrontation with the ELN. He complained to
both the police and the army, but to no avail. Shortly thereafter,
he fled to the United States.
The IJ considered the petitioner's testimony, the country
reports, and other documentary evidence. He emphasized the stark
contrast between the petitioner's hearing testimony and the
petitioner's earlier statements as well as the utter absence of any
extrinsic evidence corroborating either the petitioner's political
involvement or any politically-based problems with the ELN. On
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that basis, the IJ found the petitioner's testimony incredible,
denied his request for asylum, and ordered his removal.
The petitioner's attempt to appeal to the BIA was at
first stymied because the administrative record had disappeared.
When the record was located, the petitioner claimed that it was
incomplete inasmuch as it did not contain the transcript of a
master calendar conference, held on a date not specified by the
petitioner, at which he purportedly appeared with a high fever and
handed the IJ notes from the emergency room records of a local
hospital. The petitioner described this conference as "brief" and
acknowledged that the only business transacted was the rescheduling
of the merits hearing.
Deeming the record sufficiently intact to permit
intelligent review, the BIA overruled the petitioner's objection
and processed his appeal. In the end, it affirmed the IJ's ukase.
This timely petition for judicial review followed.
II. STANDARD OF REVIEW
Following the filing of a petition for judicial review of
a final order of removal, this court typically reviews the decision
of the BIA. But when, as now, the BIA adopts portions of the IJ's
opinion, we review those portions of the IJ's opinion as well.
Bebri v. Mukasey, 545 F.3d 47, 49-50(1st Cir. 2008); Romilus v.
Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
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Findings of fact, including credibility determinations,
are reviewed under the familiar substantial evidence rubric. Under
this deferential formulation, contested findings will be upheld as
long as they are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." Segran v.
Mukasey, 511 F.3d 1, 5 (1st Cir. 2007) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). This means that the agency's
determination must stand unless the facts, taken in the aggregate,
"point[] unerringly in the opposite direction," Laurent v.
Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004), or "compel[] a contrary
conclusion," Segran, 511 F.3d at 5. Given these precepts, a
credibility determination will endure if and to the extent that the
IJ has given reasoned consideration to the evidence and has
provided a cogent explanation for his finding. Chhay v. Gonzales,
540 F.3d 1, 5 (1st Cir. 2008); Pan v. Gonzales, 489 F.3d 80, 87
(1st Cir. 2007).
We review most legal questions, including the due process
challenges launched here, de novo. See Aguilar-Solis v. INS, 168
F.3d 565, 568 (1st Cir. 1999). We accord deference, however, to
the agency's reasonable interpretations of statutes and regulations
that it administers. See Segran, 511 F.3d at 5; see also Chevron
U.S.A., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837,
843-44 (1984).
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III. ANALYSIS
The petitioner's brief is not a model of clarity. As
best we can tell, he appears to be making three basic claims of
error. We address these claims sequentially.
A. Competency.
The petitioner's most loudly bruited claim is that his
mental impairment was so obvious throughout the course of the
proceedings that the IJ, acting sua sponte, should have initiated
a competency evaluation. In the petitioner's view, this failure
transgressed the Due Process Clause. We do not agree.
As a matter of background, it is important to recognize
that not every trial error sinks to the level of a due process
violation. This principle has special relevance in asylum
proceedings, in which the relief sought comprises a discretionary
grant by the Attorney General. See Laurent, 359 F.3d at 61-62; see
also 8 U.S.C. § 1158(b)(1)(A). Aliens seeking asylum are entitled
to basic procedural protections and to a fair hearing — but not to
a letter-perfect one. See Puliser v. Mukasey, 524 F.3d 302, 311
(1st Cir. 2008); Brue v. Gonzales, 464 F.3d 1227, 1233 (10th Cir.
2006).
In this context, fundamental fairness means in general
terms that the alien must have a meaningful opportunity to present
evidence and be heard by an impartial judge. See, e.g., Sok v.
Mukasey, 541 F.3d 43, 47-48 (1st Cir. 2008); Aguilar-Solis, 168
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F.3d at 568-69. In managing an asylum hearing, however, an IJ may
work within "wide margins" without "offend[ing] the principle of
fundamental fairness." Laurent, 359 F.3d at 62.
An incompetent alien is entitled to additional procedural
safeguards to help ensure the realization of his due process right
to a fundamentally fair hearing. As authorized by statute, 8
U.S.C. § 1229a(b)(3), the Attorney General has promulgated
regulations that spell out the additional rights of aliens who are
handicapped by mental incompetency. See 8 C.F.R. §§ 1240.4,
1240.10(c). As we shall explain, this case does not require us to
probe those regulations.2
Whether an alien is competent is a different question.
The petitioner here was represented by counsel — and in the first
instance, it is the advocate's role, not the IJ's, to broach the
issue of mental competence. See Brue, 464 F.3d at 1233; see also
Sok, 541 F.3d at 47-48. In this instance, the petitioner's counsel
failed to raise the issue of competency in the immigration court,
nor did he request that an evaluation of the petitioner's
competency be undertaken. The failure to raise a competency issue
in a timely manner renders an ensuing claim of error particularly
weak. See Sok, 541 F.3d at 47-48. Put another way, where as here
2
The petitioner hints that the statute and regulations are
inadequate on their face. This argument is undeveloped and, hence,
waived. See Nikijuluw v. Gonzales, 427 F.3d 115, 20 n.3 (1st Cir.
2005).
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a petitioner fails to bring the possibility of incompetence to the
attention of the immigration court, an IJ is not normally expected
to initiate evaluative proceedings sua sponte. See id.
Of course, exceptional circumstances may require
extraordinary measures. Here, however, the circumstances are not
exceptional. The record contains no significantly probative
evidence of any lack of competency on the petitioner's part.
Certainly, the petitioner submitted none. His plea for relief is
further undercut because he did not ask the BIA to allow him to
reopen to present new evidence of incompetency, nor did he make a
proffer of what the new evidence might have shown. Finally, he
continues to refrain from offering any such enlightenment in this
venue.
When all is said and done, the petitioner's claim seems
to rest entirely on the premise that his incompetence is evident
from the record of the hearing. We have scoured the record and
find that it belies the petitioner's premise. Reading the hearing
transcript, the most that we could expect the IJ to have seen is
that, on a few isolated occasions, the petitioner stumbled over his
answers and that his statements, overall, were inconsistent with
those given during prior interviews. In our view, these glitches
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are more consistent with a prevaricating petitioner than with a
mentally incompetent one.3
This leaves the bare assertions of the petitioner's
counsel. Those assertions simply cannot carry the weight of a due
process claim. An attorney's conclusory statements regarding his
client's mental incompetence, proffered for the first time in an
appellate brief, are not a substitute for proof.4
If more were needed — and we doubt that it is —
succeeding on a due process claim would require a showing of
prejudice; that is, a showing that the faulty practice prejudiced
the conduct of the hearing in some material way, such that it
affected the outcome. See Puliser, 524 F.3d at 311. A petitioner
3
To be sure, the petitioner claimed to have been shot in
2001, and his counsel alleges for the first time in his brief in
this court that the shooting resulted in a head wound. Even if
this is so — the hearing transcript itself is unclear on this point
— that wound occurred years before and the record contains no link
between the purported head wound and a subsequent mental
impairment. Furthermore, the petitioner testified that he suffered
no lasting medical aftereffects from the shooting other than a
slight hearing loss and occasional headaches. This symptomology
alone is much too slender a reed on which to rest a claim of mental
incompetence. Cf. Nelson v. INS, 232 F.3d 258, 262 (1st Cir. 2000)
(noting that complaints of pain and poor memory do not rise to the
level of mental incompetence in an immigration case).
4
The petitioner's attorney claims to have been aware of his
client's incompetence but to have stood mute because the client
would have denied any impairment. We refer counsel to the
Massachusetts Rules of Professional Conduct, R. 1.14: if an
attorney who believes that his client's mental capacity is
diminished such that he is exposed to harm, cannot act in his own
interest, or cannot make an adequately considered decision
regarding issues in his representation, his attorney should take
"reasonably necessary protective action."
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can carry his burden only by a specific showing that the challenged
practice likely affected the result of the hearing. See id.; see
also Teng v. Mukasey, 516 F.3d 12, 17-18 (1st Cir. 2008).
In this case, it is unclear how the lack of a competency
evaluation could have prejudiced the petitioner's substantial
rights. For one thing, there is nothing to indicate that the
petitioner either is or would have been found to be incompetent.
For another thing, incompetency is not a basis for a grant of
asylum,5 see Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir.
1977), and there has been no showing that a guardian would have
been able to offer proof that would have established the
petitioner's case.
That ends this aspect of the matter. For aught that
appears, the petitioner had the hearing that due process required.
He was represented by counsel, presented testimony and evidence,
plainly understood the questions posed to him, and seems to have
appreciated the consequences attendant to the hearing. As a matter
of procedural due process, no more was exigible. See id.; Aguilar-
Solis, 168 F.3d at 568-69.
5
Indeed, incompetence may in certain circumstances constitute
a ground for either exclusion or removal of an alien. See 8 U.S.C.
§ 1182(a)(1) (2008); see also Nelson v. INS, 232 F.3d 258, 262 (1st
Cir. 2000).
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B. Credibility.
An applicant for asylum has the burden of proving that he
is a refugee because of either past persecution or a well-founded
fear of future persecution on account of a statutorily protected
ground such as race, religion, nationality, membership in a
particular social group, or political opinion. See 8 U.S.C. §
1101(a)(42)(A); 8 C.F.R. § 208.16(b)(2). Although an applicant's
credible testimony may be sufficient to carry his burden of proof,
an IJ is entitled to evaluate the asylum-seeker's credibility and
to require corroboration of self-serving testimony when such
corroboration appears to be readily obtainable. See Chhay, 540
F.3d at 6. Material inconsistencies between an early immigration
interview and later testimony may form the basis for an adverse
credibility determination. See, e.g., Bebri, 545 F.3d at 48; Pan,
489 F.3d at 86.
To a large extent, determining credibility is a matter of
sound judgment and common sense. Thus, when an alien's earlier
statements omit any mention of a particularly significant event or
datum, an IJ is justified — at least in the absence of a compelling
explanation — in doubting the petitioner's veracity. See, e.g.,
Segran, 511 F.3d at 7. After all, an alien's testimony "need not
be taken at face value." Bebri, 545 F.3d at 49 n.2.
We add, moreover, that an IJ is entitled to consider the
context and the totality of the circumstances in evaluating
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credibility. See id. So too the IJ is warranted in weighing in
the balance the existence and availability of corroborating
evidence, and the effect of its non-production. See Chhay, 540
F.3d at 6; Kho v. Keisler, 505 F.3d 50, 57 (1st Cir. 2007).
Finally, a credibility determination is not necessarily an all-or-
nothing proposition; an IJ may choose to believe one part of an
alien's testimony, disbelieve other parts, and accord different
weight to different pieces of testimony. See Chhay, 540 F.3d at 8.
Here, the petitioner tries to cloak this claim of error
in the raiment of due process. This masquerade does not alter the
standard of review. Although the petitioner uses the vocabulary of
due process, his attack, stripped to its bare essence, is on the
IJ's factfinding. As such, the substantial evidence standard
governs. See Pan, 489 F.3d at 84.
So viewed, the petitioner's claim fails. Merely weighing
the evidence in a way that is unfavorable to the petitioner's
interests is neither a violation of due process nor a badge of
error. Chhay, 540 F.3d at 8. Simply put, this is a case in which
the petitioner has told different tales at different times. In
that circumstance, a judge is entitled to "sharply discount" the
testimony. Pan, 489 F.3d at 86; see Nikijuluw v. Gonzales, 427
F.3d 115, 121 (1st Cir. 2005). And the utter lack of
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corroboration, easily obtainable were the petitioner's tale true,6
supports the adverse credibility determination.
To cinch matters, the IJ explained his reasoning
persuasively and in great detail. That explanation focused on the
petitioner's failure to mention any of his supposedly "extensive"
political activities in either of his original immigration
interviews. The IJ noted as well that the petitioner did not see
fit to refer to the two murders of family members until the
hearing. The IJ was understandably skeptical that the petitioner's
failure to report these important events earlier indicated recent
fabrication. See Segran, 511 F.3d at 7. Finally, the IJ pointed
to the petitioner's prior statement that he came to the United
States seeking work. That was flatly inconsistent with his later
claim that he was fleeing persecution.
In sum, we find no reason to disturb the IJ's adverse
credibility determination.7 The record, fairly read, does not
compel a finding that the petitioner testified truthfully. It
6
For example, the petitioner could have produced the letters
allegedly received by his family, the records of medical treatment
incident to the supposed 2001 shooting, his party membership card,
or the like. He offered none of these documents. His failure
either to do so or to explain their absence speaks volumes about
the truthfulness of his testimony.
7
The petitioner's reliance on the country reports to support
reversal is misplaced. The inquiry here is not about the IJ's
appreciation of the ELN's role generally but, rather, about whether
the petitioner himself was persecuted on the basis of his political
opinion. In the particular circumstances of this case, the country
reports do not shed any light on that question.
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follows inexorably that the adverse credibility determination is
bulwarked by substantial evidence. See Aguilar-Solis, 168 F.3d at
571.
C. The Missing Transcript.
The petitioner's last claim of error relates to the
missing transcript of the master calendar conference. This claim
is jejune.
To comply with the demands of due process, hearing
transcripts need only be reasonably complete and accurate. See
Kheireddine v. Gonzales, 427 F.3d 80, 84-85 (1st Cir. 2005). To
make out a due process violation based on gaps in the record, then,
a petitioner must show at a bare minimum that the gaps relate to
matters material to his case and that the absence of missing
transcripts is prejudicial. See id. Simply showing an
imperfection in the record is not enough; the complaining party
must show specific prejudice materially affecting his ability to
obtain meaningful review. Teng, 516 F.3d at 17.
Here, the record of the immigration proceeding is
substantially complete. Indeed, the record of the hearing itself
is complete in every particular. The petitioner's remonstrance
relates only to the missing transcript of a brief calendar
conference, at which no evidence was taken.
The petitioner has provided a barebones outline of this
objection: his counsel makes a conclusory statement that the
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emergency room notes would have had a bearing on the issue of
competence. But he fails plausibly to explain how or why that is
so.
In any event, the law is pellucid that if a missing
transcript reasonably could be recreated by the complaining party,
its absence is not prejudicial. See Kheireddine, 427 F.3d at 86.
This is such a case. The original emergency room record presumably
still exists, yet the petitioner made no effort before the BIA (or
before us, for that matter) either to produce that record or to
explain why it is not available. Because it would have been
child's play simply to resubmit these notes, this claim of error
founders.
IV. CONCLUSION
We need go no further. For the reasons elucidated above,
we uphold the BIA's decision.
The petition for review is denied.
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