United States Court of Appeals
For the First Circuit
No. 07-2606
FEKI OROH,
Petitioner,
v.
ERIC H. HOLDER,JR.* Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Lipez and Howard,
Circuit Judges.
William A. Hahn and Hahn & Matkov for petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Cindy Ferrier, Senior Litigation Counsel and Michele Y.F. Sarko,
Attorney, Office of Immigration Litigation, Civil Division, United
States Department of Justice for respondent.
March 27, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is
automatically substituted for former Attorney General Michael B.
Mukasey as the respondent herein.
HOWARD, Circuit Judge. Feki Oroh, an Indonesian
national, entered the United States in September 1994, pursuant to
a visa valid until March 1995. He remained in the United States
beyond the expiration of his visa. In April 2003, the Department
of Homeland Security ("DHS") issued Oroh a Notice to Appear. Oroh
admitted his removability, and in March 2004 sought asylum,
withholding of removal, and protection under the Convention Against
Torture ("CAT"). Following a hearing, an Immigration Judge ("IJ")
denied Oroh's applications in September 2005. The Board of
Immigration Appeals ("BIA" or "the Board") affirmed the IJ and
dismissed the appeal. This timely petition followed.1 We deny the
petition.2
I.
The substantive basis of Oroh's application is fear of
religious persecution. Oroh is Christian, Indonesia's population
and government is predominantly Muslim, and there has undeniably
been violent sectarian conflict between the two groups. Before we
address the question of whether this violence constitutes
1
Since Oroh did not raise his CAT claim in his brief, it is not
before us. See Ly v. Mukasey, 524 F.3d 126, 132 n.3 (1st Cir.
2008) ("On appeal, Ly did not pursue her claim of torture in
support of protection under the CAT, and therefore, that basis for
her application is deemed waived.").
2
Where, as here, the BIA both adopts the IJ's decision and adds
its own reasoning for upholding the IJ's decision, we review the
IJ's decision "as though it were the BIA's to the extent of the
adoption, and the BIA's decision as to the additional grounds."
Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st Cir. 2006).
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persecution such that Oroh is entitled to relief, we must resolve
two procedural matters: 1)Oroh's claim that certain defects in the
transcript of his hearing before the IJ violate BIA regulations,
thus entitling him to remand; and 2)the government's two-pronged
argument that the BIA correctly determined that Oroh's asylum
application was untimely and that we lack jurisdiction to review
that determination.
A. The transcript
Oroh first argues that he is entitled to relief because
the 40-page transcript of his hearing before the IJ contains 137
uses of the term "indiscernible" in place of text. He bases this
contention on 8 C.F.R. § 1003.1(e)(2), which provides that an alien
is entitled to have an adequate record on which to base an appeal,
and 8 C.F.R. § 1240.9, which provides that "hearings shall be
recorded verbatim except for statements made off the record with
the permission of the immigration judge." The BIA's failure to
follow its own regulations, Oroh asserts, warrants reversal of the
BIA and remand for a new hearing.
The BIA rejected Oroh's transcript-based claim because he
failed to show that he was prejudiced. Specifically, the BIA found
that Oroh failed to establish that any material testimony was not
reflected in the transcript. And in reviewing the transcript, the
Board was unable to identify any aspect of material testimony that
had been omitted. On appeal, Oroh argues that no showing of
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prejudice is necessary because the regulatory violation alone is
sufficient to trigger remand.
We are not strangers to the problem of incomplete
transcripts in immigration cases. See, e.g., Kheireddine v.
Gonzales, 427 F.3d 80, 82 (1st Cir. 2005) ("[T]he problem of
missing portions of transcripts is a recurring one"); Munoz-
Monsalve v. Mukasey, 551 F.3d 1, 9 (1st Cir. 2008) (missing
transcript of calendar conference); Teng v. Mukasey, 516 F.3d 12,
17 (1st Cir. 2008) (transcript contained a "modest number of
'indiscernible' notations). In addition, we understand that
"[s]uch persistent problems put at risk the ability of the courts
of appeals to provide meaningful and effective appellate review."
Kheireddine, 427 F.3d at 85. Thus, we have held that "due process
demands a 'reasonably accurate, reasonably complete transcript,' or
an adequate substitute, to allow for meaningful and adequate
appellate review." Id. at 84 (quoting Ortiz-Salas v. INS, 992 F.2d
105, 106 (7th Cir. 1993)).
At the same time, however, "a mere failure of
transcription, by itself, does not rise to the level of a due
process violation." Id. at 85. Instead, to succeed on a claim of
inadequate transcription, Oroh must show "'specific prejudice to
his ability to perfect an appeal' sufficient to rise to the level
of a due process violation." Teng, 516 F.3d at 18 (quoting
Kheireddine, 427 F.3d at 85). More specifically, he must "show at
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a bare minimum that the gaps relate to matters material to his
case" and that they "materially affect his ability to obtain
meaningful review." Munoz-Monsalve, 551 F.3d at 9. Finally, if
the missing information "could reasonably be recreated by the
complaining party, then its absence is not prejudicial." Id.
(citing Kheireddine, 427 F.3d at 86).
Perhaps recognizing the weight of contrary authority,
Oroh argues that he need not show prejudice because he is not
claiming a due process violation. Oroh not only ignores the plain
language of Teng, which requires due process-level prejudice to
succeed on a claim of inadequate transcription, 516 F.3d at 18,
but he supplies no authority for his implicit proposition that the
alleged regulation violation alone -- absent prejudice -- entitles
him to relief.3
Despite his reliance on an inapposite legal theory, Oroh
brought to the BIA's attention several portions of the transcript
from which he claimed important substantive testimony was lacking.
Our review of the four referenced pages does not support Oroh's
contention. In each case, the gist of the missing words can be
inferred from their context. Most importantly, however, all of the
missing information came during testimony from Oroh himself, or
3
Oroh cites to Nelson v. INS, 232 F.3d 258 (1st Cir. 2000), but
that case -- in which the court ultimately found that no violation
had occurred -- noted only that the failure to follow a regulation
can lead to a reversal and remand, not that such a remedy is always
required. Id. at 262.
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were comments by his attorney, who continues to represent him on
appeal. As such, the "missing" information is readily available to
Oroh, yet was never provided -- by affidavit or otherwise -- to the
BIA or this court. "The law is pellucid that if a missing
transcript reasonably could be recreated by the complaining party,
its absence is not prejudicial." Munoz-Monsalve, 551 F.3d at 9
(citing Kheireddine, 427 F.3d at 86). In the absence of prejudice,
Oroh's transcript-based claim is rejected.
B. Timeliness of the asylum application
An asylum application must ordinarily be filed "within
one year after the date of the alien's arrival in the United
States," 8 U.S.C. § 1158(a)(2)(B), or by April 1, 1998, whichever
is later. 8 C.F.R. § 1208.4(a)(2)(ii). Late applications can be
considered, however, if an applicant demonstrates "changed
circumstances which materially affect the applicant's eligibility
for asylum or extraordinary circumstances relating to the delay in
filing," and if the applicant filed the application "within a
reasonable period" given those circumstances. 8 U.S.C. §
1158(a)(2)(D); 8 C.F.R. §§ 1208.4(a)(4), (5); Rashad v. Mukasey,
554 F.3d 1, 4 (1st Cir. 2009). It is the applicant's burden to
establish that the application is timely filed or that he qualifies
for an exception. 8 C.F.R. § 1208.4(a)(2)(i).
Here, Oroh does not dispute that his application -- filed
in March 2004 -- was untimely, given his entry into the United
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States in 1994. He instead seeks the protection of the "changed
circumstances" exception in 8 U.S.C. § 1158(a)(2)(D).4 The IJ
found that Oroh failed to prove that he filed in a timely fashion
after any change of conditions. In affirming the IJ, the BIA was
"unable to identify any material changes that occurred in Indonesia
within a reasonable period prior to the application."
Before we can reach the substance of Oroh's timeliness
argument, he must clear the formidable hurdle created by 8 U.S.C.
§ 1158(a)(3), which divests courts of jurisdiction to review
determinations of timeliness or the applicability of exceptions to
the one-year rule. See Hana v. Gonzales, 503 F.3d 39, 42 (1st Cir.
2007). The only exception to this bright-line rule is contained in
8 U.S.C. § 1252(a)(2)(D), which carves out an exception allowing
courts to review "constitutional claims or questions of law." Id.
Oroh does not assert a constitutional argument on appeal. He
claims, however, that the IJ and BIA made errors of law by not
defining "reasonable time period," and not identifying the changed
circumstances that implicitly occurred outside said period.
Given that Oroh bears the burden of proof on these
issues, 8 C.F.R. § 1208.4(a)(2)(i), his assignation of error is
unavailing. In essence, he is seeking to shift the burden to the
IJ and BIA to disprove facts which Oroh never proved in the first
4
Specifically, Oroh argues that changed circumstances in his
native Indonesia materially affect his eligibility for asylum. See
8 C.F.R. § 1208.4(a)(4)(i)(A).
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place, i.e., how any changed conditions in Indonesia affected his
ability to comply with the one-year deadline and the facts and
circumstances that made his delay until 2004 "reasonable." In our
view, he is saying nothing more than "'the agency got the facts
wrong,' which is simply a factual claim masquerading as a legal
challenge that certainly cannot defeat the jurisdiction-stripping
provision of'" 8 U.S.C. § 1158(a)(3). Rashad, 554 F.3d at 5
(citing Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir. 2007) ("To
trigger our jurisdiction, the putative constitutional or legal
challenge must be more than a disguised challenge to factual
findings.")). Both the IJ and the BIA concluded that no exceptions
applied to excuse Oroh's untimely asylum application. We are
without jurisdiction to review that conclusion.
C. Withholding of removal
To qualify for withholding of removal, Oroh must show by
a clear probability that he will be persecuted in Indonesia because
of his "race, religion, nationality, membership in a particular
social group, or political opinion." Ly, 534 F.3d at 132. See 8
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b).5
Before entering the United States, Oroh lived with his
wife and two children in Manado, Indonesia, a town near the
5
Applicants can also prove past persecution, which gives rise to
a rebuttable presumption of future persecution. 8 C.F.R. §
1208.16(b)(1)(i). Oroh does not contest the findings below that he
suffered no past persecution.
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northern end of the island of Sulawesi. As of the September 2005
hearing, his wife and daughter were still living in Manado. They
visited Oroh in the United States in 1999, and returned to
Indonesia five months later upon the death of his wife's parents.
Oroh's son came to the United States in 2000 and sought asylum.
Oroh and his family are practicing Christians, a religion
to which approximately ten percent of Indonesians belong. The
nation is ninety percent Muslim. Oroh had intended to go back to
Indonesia, but following the overthrow of President Suharto in
1998, he became concerned about violence directed at Christians by
Muslims.
Oroh testified that his wife had told him of riots,
bombings and threats to churches that took place in 1998. However,
Oroh testified that such threats were not generally taking place in
his home area, but in a portion of Sulawesi that was a one-hour
plane trip or twelve to fifteen hour drive away. He also testified
that his wife had heard of threats in the area, that she was afraid
of her church getting bombed, and that their daughter left her
public school for a month out of fear after a bomb scare, although
she later returned, apparently without incident. He filed his
application because he fears religious reprisal if he is returned
to Indonesia.
Although Oroh was the only person to testify before the
IJ, the record contains various U.S. State Department Country
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Reports on human rights practices and religious freedoms. Taken
together, they paint a picture of a nation whose constitution
provides religious freedom, a drop in religion-based violence in
Sulawesi, and a general improvement in religious tolerance
nationwide. While tension between equal populations of Christians
and Muslims led to twenty-two deaths in 2002 and 2003 in central
Sulawesi, 2004 saw government-aided advances in defusing hostility
there. The reports also indicate that the government has made
progress in prosecuting those responsible for sectarian violence
and terrorist acts.
Moreover, the U.S. Department of State's 2004
International Religious Freedom Report notes that Muslims are a
distinct minority in several areas of Indonesia, including Oroh's
native North Sulawesi, which has seen considerably less violence
than other areas. And while one bombing did take place there, the
Prime Minister traced it to terrorists trying to prevent peaceful
coexistence, and not warring Muslim or Christian factions.
In denying Oroh's request for withholding or removal,
the IJ took into account Oroh's testimony and the various State
Department reports. While acknowledging that his native land was
more dangerous than the United States, the IJ concluded that Oroh's
area of residence presented relatively little danger. The IJ noted
that any recent terrorist attacks did not seem to be targeting
Christians, and most importantly, the fact that Oroh's wife,
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daughter and parents were able to live in Manado without religious
restriction weighed heavily against the application. Thus, the IJ
concluded that Oroh had failed to meet his burden of proving that
he would more likely than not face persecution upon his return.
The BIA agreed with the IJ, highlighting the fact that Oroh's
family still lived untroubled in Indonesia. See Khan, 549 F.3d at
577 (continued safety of applicant's family undercuts claim of
future persecution).
We uphold the decisions below if their factual bases are
"'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Sombah v. Mukasey, 529 F.3d
49, 51 (1st Cir. 2008) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)). Under this deferential "substantial evidence"
standard, "findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary." Id.
(citation and quotation marks omitted).6
Oroh argues that the IJ and BIA considered only "one side
of the story," ignoring the negative implications in the record
while focusing on the positive. We disagree. Both the IJ and the
BIA considered the totality of the conditions in Indonesia in
general, in Oroh's home area in particular, and, as required by
6
Oroh urges us to apply "heightened scrutiny" to his claim due to
Indonesian laws and policies regarding religion. We do not
consider this argument because Oroh did not present it to the BIA.
Sombah, 529 F.3d at 52.
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law, the nexus between any violence and Oroh's Christian faith.
"The mere fact that those decision makers weighed the constituent
parts differently and reached a conclusion not to the petitioner's
liking does not constitute a valid reason for overturning the
agency's judgment." Pulisir v. Mukasey, 524 F.3d 302, 309 (1st
Cir. 2008). While the country condition reports do suggest some
state-sponsored discrimination against Christians in parts of
Indonesia, such evidence does not suffice to meet Oroh's burden of
proving "that more likely than not, he would be subject to
persecution on account of" his religion. See Pulisir, 524 F.3d at
308-09. "To qualify as persecution, a person's experience must
rise above unpleasantness, harassment, and even basic suffering."
Nelson, 232 F.3d at 263. Here, given the relative stability of
Manado and North Sulawesi, and Oroh's family members' apparent
ability to live there and practice their religion, Oroh's claim
falls short.
The petition is denied.
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