United States Court of Appeals
For the First Circuit
No. 08-2119
ARNOLD SIHOMBING,
Petitioner,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin, and Dyk,*
Circuit Judges.
William A. Hahn and Hahn & Matkov, on brief for petitioner.
Terri J. Scadron, Assistant Director, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation, and Tony
West, Assistant Attorney General, Civil Division, on brief for
respondent.
September 22, 2009
*
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Petitioner Arnold Sihombing is
a citizen of Indonesia. He seeks judicial review of a final order
of the Board of Immigration Appeals ("BIA") upholding the denial of
his request for withholding of removal on the basis of political
asylum. After careful consideration, we affirm the BIA's decision.
I. Background
A. Factual Background
Petitioner Sihombing, who is thirty-four years old and
married, was born in Manado, Indonesia. He has been a member of
the Seventh Day Adventist Church since the age of seven.
The facts upon which his withholding claim rests are as
follows. In 1999, Sihombing began working for the Indonesian
Democratic Party (the "Democratic Party") while he was attending
the university in Manado and studying political science.
Eventually, Sihombing quit the university to work for the
Democratic Party. Sihombing recruited local support for the party,
which obtained the vice-presidency of Indonesia in the 2000
elections. Soon after the elections, in May 2000, Sihombing became
disenchanted with the party and drafted a petition advocating for
equal justice for the poor, the elimination of trade monopolies and
requesting that business permits be given more easily.
After submitting the petition to the House of
Representatives and the Vice-President of Indonesia, Sihombing was
accused of being a "Communist" by the leader of the Democratic
-2-
Party. Because being a Communist is prohibited in Indonesia,
Sihombing believes that after this incident, people "hated" him.
He retaliated by telling members of the Democratic Party that their
leaders used "the people's money" to support their wealthy
lifestyle.
After Sihombing spoke out against Democratic Party
leaders, individuals claiming to be members of the military or
police guards came to Sihombing's house looking for him. Sihombing
was not present at the time, but his parents were. Sihombing was
unable to provide an exact date of the visit. Nevertheless,
Sihombing alleges that the Democratic Party threatened to persecute
his family.
After learning of the visit from the guards, Sihombing
left Indonesia to go to Singapore and the Philippines and spent
approximately one week in each country. When he left Indonesia,
Sihombing left his wife and daughter in the same house the guards
had visited. Sihombing never applied for political asylum in
Singapore or the Philippines. He instead returned to Indonesia to
obtain a visa to enter the United States.
Sihombing entered the United States through New York on
March 10, 2001. As a non-immigrant visitor, he was authorized to
remain until September 9, 2001. Sihombing remained in the United
States past that date without authorization.
-3-
B. Procedural Background
In 2003, Sihombing came to the attention of the
Department of Homeland Security ("DHS") when he registered pursuant
to National Security Entry-Exit Registration System ("NSEERS")
requirements.1 On April 17, 2003, the DHS issued Sihombing a
Notice to Appear, charging that he had overstayed his non-immigrant
visa, and therefore was subject to removal pursuant to section
237(a)(1)(B) of the Immigration and Nationality Act ("INA").
8 U.S.C. § 1227(a)(1)(B).
On June 3, 2004, Sihombing was ordered removed in
absentia when he failed to appear for a scheduled hearing. The
following day, Sihombing filed a motion to reopen his case,
attributing his failure to appear to confusion about the date of
the hearing. The Immigration Judge ("IJ") granted Sihombing's
motion to reopen the case. On October 14, 2004, Sihombing filed a
Form I-589 application for political asylum. In the alternative,
he also requested withholding of removal and relief under the
Convention Against Torture ("CAT").
1
In 2002, the Attorney General instituted the NSEERS program,
which required nonimmigrant male aliens from certain countries to
appear for registration and fingerprinting, and to present
immigration-related documents. See Parvez v. Keisler, 506 F.3d 93,
94 n.1 (1st Cir. 2007) (describing NSEERS registration
requirements). Indonesia was added to the list of countries
subject to NSEERS registration in January 2003. See Registration
of Certain Nonimmigrant Aliens from Designated Countries, 68 Fed.
Reg. 2,363 (Jan. 16, 2003).
-4-
On November 1, 2006, Sihombing appeared before the IJ
with counsel for a hearing on the merits of his application.
During the hearing, Sihombing provided oral testimony regarding his
past experiences in Indonesia.
In an opinion issued on June 21, 2007, the IJ ruled that
Sihombing's application for asylum was pretermitted because his
application was filed more than four years after he entered the
United States and he did not qualify for the changed or
extraordinary circumstances exemptions to the filing deadline.2
The IJ also denied Sihombing's application for removal under the
CAT finding that Sihombing did not present any evidence suggesting
that he would more likely than not be subject to torture if he were
removed to Indonesia. Finally, the IJ also denied Sihombing's
application for withholding of removal. The IJ based her ruling on
Sihombing's lack of credibility and the implausibility of his
story; however, she also held that even if everything Sihombing
said was taken as true, his application would not have established
a sufficient likelihood of persecution to warrant relief. The IJ
granted Sihombing his application for voluntary departure up to and
including January 2, 2007, with an alternate Order of Removal to
Indonesia.
2
Sihombing's proffered reason for not applying for asylum within
one year of his entry of the United States was that he was hoping
that conditions would change in Indonesia. The asylum claim is not
before us.
-5-
Sihombing appealed his decision to the BIA. On July 31,
2008, the BIA affirmed the IJ's decision in its entirety,
dismissing the appeal. The BIA adopted the IJ's reasoning in its
opinion, agreeing with the IJ that Sihombing did not show changed
or extraordinary circumstances to justify his untimely filing for
asylum. See 8 U.S.C. § 1158(a)(2)(D). Sihombing timely filed the
instant petition for review before this Court.
II. Discussion
A. Standard of Review
Sihombing seeks review of his denial of withholding of
removal and additionally argues that the available record is
insufficient for review due to omissions, creating a due process
violation.3
"We review the BIA's findings of fact under the
deferential substantial evidence standard." Scatambuli v. Holder,
558 F.3d 53, 58 (1st Cir. 2009). "When the BIA adopts the IJ's
opinion and discusses some of the basis for the IJ's decision, we
have authority to review both the IJ's and the BIA's
[(collectively, "the Agency's")] opinions." Ouk v. Gonzáles, 464
F.3d 108, 110 (1st Cir. 2006). Under this deferential standard,
3
Sihombing failed to challenge the timeliness of his asylum
application or his application for CAT protection. Accordingly,
any arguments concerning the denial of those petitions are deemed
waived. See Toloza-Jiménez v. Gonzáles, 457 F.3d 155, 159 n.9 (1st
Cir. 2006) (issues not raised in a party's opening brief are deemed
waived); see also Oroh v. Holder, 561 F.3d 62, 64 n.1 (1st Cir.
2009).
-6-
the findings of the Agency should not be reversed unless the
evidence would compel a reasonable fact finder to make a contrary
determination. See Guzmán v. INS, 327 F.3d 11, 15 (1st Cir. 2003).
We review the Agency's legal interpretations de novo, but
nonetheless "give substantial deference to the [Agency]'s
interpretations of the underlying statutes and regulations
according to administrative law principles . . . ." Scatambuli,
327 F.3d at 58 (internal citations omitted).
B. Applicable Law
Withholding of removal is a form of protection which is
available to an immigrant who establishes a "clear probability"
that his life or freedom would be threatened in the country of
removal on account of "race, religion, nationality, membership in
a particular social group, or political opinion." See Oroh, 561
F.3d at 67 & n.5; see also 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R.
§ 1208.16(b). "Although the threshold of eligibility for
withholding of removal is similar to the threshold for asylum,
withholding requires a higher standard." Scatambuli, 327 F.3d at 58
(internal citations omitted). Specifically, withholding requires
an alien to demonstrate that he is more likely than not to be
persecuted on account of one of the specified grounds. See Pulisir
v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008); see also Nikijuluw
v. Gonzáles, 427 F.3d 115, 120 (1st Cir. 2005).
-7-
A withholding applicant who establishes past persecution
on account of a protected ground is entitled to a presumption that
"his life or freedom would be threatened in the future on the basis
of the original claim." 8 C.F.R. § 1208.16(b)(1)(i); see also
Pulisir, 524 F.3d at 308. "To qualify as persecution, a person's
experience must rise above unpleasantness, harassment, and even
basic suffering." Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.
2008) (quoting Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000)).
"[T]he discriminatory experiences must have reached a fairly high
threshold of seriousness" to form the basis of a past persecution
claim. Alibeaj v. Gonzáles, 469 F.3d 188, 191 (1st Cir. 2006).
Even if past persecution cannot be established, the
withholding applicant may nevertheless be entitled to relief by
proving that he more likely than not will face future persecution
on account of a protected ground. 8 C.F.R. § 1208.16(b)(2). This
fear must be "both genuine and nestled on a plausible factual
predicate." Orelien v. Gonzáles, 467 F.3d 67, 71 (1st Cir. 2006).
C. Withholding of Removal
The Agency, in rejecting Sihombing's application for
withholding of removal, found that Sihombing failed to establish
past persecution in Indonesia. On this point, the Agency found
that the most serious incident Sihombing addressed in his testimony
was a single non-violent visit to his home by guards purporting to
-8-
be from the Democratic Party. It thus held that Sihombing was
ineligible for withholding of removal.
Reviewing the record, we find that Sihombing's past
experience in Indonesia was far less severe than in prior cases
where this court rejected claims of past persecution and found the
Agency's decision to have been supported by substantial evidence.
See, e.g., Susanto v. Gonzáles, 439 F.3d 57, 59-60 (1st Cir. 2006)
(past persecution not shown where home of ethnic Chinese Indonesian
was vandalized and Muslims threw stones at petitioner and fellow
Christian worshipers); Nelson, 323 F.3d at 263-64 (affirming IJ
finding of no persecution even where petitioner placed in solitary
confinement and physically abused).
In the absence of past persecution, Sihombing could
nevertheless be entitled to withholding of removal if he can
establish a clear probability of future persecution. The Agency
held that Sihombing failed to establish such a clear probability.
The IJ found significant that when Sihombing fled
Indonesia, he left his wife and child behind. The IJ also found
relevant that in the six years Sihombing has been away, no one has
approached or harmed his family. See Guzmán v. INS, 327 F.3d 11,
16 (1st Cir. 2003) ("'The fact that close relatives continue to
live peacefully in the alien's homeland undercuts the alien's claim
that persecution awaits his return.'") (quoting Aguilar-Solís, 168
F.3d 565, 573 (1st Cir. 1999)). In addition, the IJ noted that
-9-
Sihombing voluntarily returned to Indonesia after stays in
Singapore and the Philippines to obtain a visa. An applicant's
voluntary return to his or her home country undercuts his claim
that it is more likely than not that he will be persecuted. See De
Santamaría v. U.S. Att'y Gen., 525 F.3d 999, 1011 (11th Cir. 2008)
(holding that an applicant's "voluntary return to his or her home
country is a relevant consideration in determining whether the
. . . applicant has a well-founded fear of future persecution); cf.
Toloza-Jiménez, 457 F.3d at 161 (holding that an alien's two
voluntary returns to her home country after being in the United
States "strongly indicat[ed] that she has no fear of persecution").
We thus find that the record would not compel a reasonable fact
finder to reach a contrary conclusion.4
D. Sufficiency of Record for Review
Finally, Sihombing argues that inadequate transcription
resulted in many "indiscernibles" in the transcript and that as a
result, there is not a sufficient record for review of the IJ's
decision by either the BIA or this Court. In support of this, he
cites a Federal Regulation requiring that the "hearing shall be
recorded verbatim except for statements made off the record with
4
In addition to denying Sihombing's petition for withholding of
removal based on his inability to prove past persecution or a clear
probability of future persecution, the IJ made an adverse
credibility determination. This determination was later affirmed
by the BIA. Because this credibility determination does not affect
our holding, we do not discuss it.
-10-
the permission of the immigration judge." 8 C.F.R. § 1240.9.
Because of this, Sihombing maintains that these "indiscernibles" in
the record constitute a due process violation.
Sihombing's due process argument is unavailing. "[A]
mere failure of transcription, by itself, does not rise to the
level of a due process violation." Oroh, 561 F.3d at 65 (quoting
Kheireddine v. Gonzáles, 427 F.3d 80, 85 (1st Cir. 2005)). To
succeed on a claim of inadequate transcription, Sihombing must show
"specific prejudice to his ability to perfect an appeal." Id. The
absence of information from the transcript is not prejudicial "if
the missing information could reasonably be recreated by the
complaining party." Id.
The record does contain multiple instances where
"indiscernible" is recorded in place of the text of what was said.
However, a review of the transcript shows that most of the missing
words can be inferred from their context. In addition, just like
in Oroh, the bulk of the "indiscernibles" in the transcript are
found during Sihombing's own testimony, or during comments by his
attorney, who continues to represent him on appeal. See id. at 66.
Further, Sihombing has failed to point out how the missing
information prejudiced him. Since most of the "indiscernible"
information was readily available to Sihombing, the missing
information in the transcript was not prejudicial. Id. Without
prejudice, Sihombing's transcript-based due process claim fails.
-11-
We find that the Agency's determination that Sihombing
has failed to establish past persecution or a clear probability of
future persecution is supported by substantial evidence in the
record. Sihombing's final argument based on a due process
violation resulting from insufficient transcription also fails
because he has not established that it created prejudice.
III. Conclusion
For the reasons stated above, we deny the petition for
review.
Denied.
-12-