Filed: Jul. 14, 2008
Latest Update: Feb. 21, 2020
Summary: 2, During this discussion between the IJ and Malondas, counsel about her removability, the government asserted that, Malonda used her sisters passport in conjunction with her, application for asylum. See Wang v. Mukasey, 508 F.3d 80, 84 (1st Cir.persecution.undermining a future persecution claim).
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1799
DEBY LEDY MALONDA, ET AL.,
Petitioners,
v.
MICHAEL B. MUKASEY,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Tashima,** Senior Circuit Judge,
and Lipez, Circuit Judge.
Yan Wang, on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
U.S. Department of Justice, Terri J. Scadron, Assistant Director,
Office of Immigration Litigation, and Anthony W. Norwood, Senior
Litigation Counsel, on brief for respondent.
July 14, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for his predecessor, former
Attorney General Alberto R. Gonzales.
**
Of the Ninth Circuit, sitting by designation.
TASHIMA, Senior Circuit Judge. Deby Ledy Malonda, a.k.a.
Virginia Sandra Malonda, and her husband Erick Rawung, both natives
of Indonesia, petition for review of a decision by the Board of
Immigration Appeals (“BIA”) denying their applications for asylum,
withholding of removal, and protection under the Convention Against
Torture (“CAT”). Malonda1 contends that the BIA’s denial of her
claims was not supported by substantial evidence, and that the
Immigration Judge’s (“IJ”) finding of removability violated her
right to due process. We disagree, and deny the petition.
I. Background
Malonda first came to the United States in 1996. While
here, she met Rawung, who had entered the country separately on
October 4, 1995, and the two married in 1999. After last entering
the United States on July 4, 2001, Malonda filed an application for
asylum on May 20, 2002, on behalf of herself, as well as Rawung as
a derivative applicant.
Malonda identified herself as “Deby Ledy” on the
application form and reported her date of birth as April 14, 1965.
She claimed to have a valid visa at the time of her entry, also in
the name of Deby Ledy Malonda, and attached a copy of that visa,
which was valid from September 20, 2000, to September 19, 2005, to
her application. On the other hand, she signed the application
1
Because Rawung is a derivative applicant for asylum, we
will refer to both petitioners collectively as “Malonda.”
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“Virginia Malonda” and printed that name below her signature. In
Part C of the form, requesting “Information About Your Claim to
Asylum,” Malonda also identified herself as “Virginia.” Further,
Malonda appended to her application an Affidavit, dated April 28,
2002, which began, “My name is Virginia Malonda.” Several of the
other documents she attached to her application also identified her
as “Virginia,” including a United States visa issued on August 8,
1996, and expiring on November 8, 1996; a certificate of church
membership; her marriage certificate; her own birth and baptismal
certificates; and the birth certificates of her two American-born,
and two Indonesian-born, children. Malonda was interviewed by an
Asylum Officer on February 4, 2004, and approved of corrections
made to her application identifying her as “Virginia Sandra” and
reporting her date of birth as February 27, 1967. She also signed
her name as “Virginia Malonda” in the presence of the Asylum
Officer.
In her application for asylum, Malonda stated that she
did not feel safe in Indonesia due to her Christian faith. She
referred to one incident in particular, occurring on June 6, 2001,
where she was aroused from sleep by a person wearing “Jilbab the
Muslim robes that wanted to kill” her. He pointed a steel object,
like a screwdriver, at her, but she was not fearful. Instead, she
yelled, “Lord Jesus Help Me,” and received the strength to push him
away. She referred to attached news articles chronicling the
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persecution of Christians at the hands of Indonesian Muslims to
support her claim that Christians were being persecuted in
Indonesia. She also stated that the government was not willing to
protect Christians, leaving people like her to fend for themselves.
On February 12, 2004, Immigration and Customs Enforcement
(“ICE”) initiated removal proceedings against Malonda and Rawung by
filing Notices to Appear (“NTA”). Malonda’s NTA charged her with
removability based on entering the country without possessing a
valid visa. Rawung was charged with remaining in the country
beyond the expiration of his B-2 visa on April 3, 1996. Although
Rawung conceded the factual allegations in his NTA, Malonda denied
that she entered the United States without a valid visa.
In Malonda’s first appearance before the IJ on March 21,
2004, the IJ questioned Malonda’s counsel about Malonda’s denial of
the allegation that she did not possess a valid visa. When asked
about the denial, her attorney stated that he denied the allegation
because he was not sure whether it was true. He also stated that
he would concede removability if the government had proof of it and
denied that Malonda had asserted that she was legally present in
her application for asylum. When the IJ stated that he was “going
to find that [Malonda] is removable, because it says so right in
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her application for asylum[,]” Malonda’s attorney responded,
“That’s fine, Your Honor.”2
On November 14, 2005, the IJ conducted Malonda’s merits
hearing. When asked whether she had ever experienced any problems
in Indonesia due to her religion, Malonda testified about the
incident occurring early in the morning on June 6, 2001. This
time, in her direct testimony, she described having been abruptly
awakened when a man wearing nothing but a bandana around his head
sat on her. After pushing him off her, he started shouting or
chanting “Allah akbar,” a phrase “only a Muslim would say.” She
also testified that some people “tried to do evil things” to her
when she wore her “Cross necklace,” and that she was advised to
stop wearing it because people knew that Muslims were hunting for
Christians. On cross-examination, however, she testified that her
assailant was naked from the waist up, but was wearing pants, which
he unzipped during the course of the attack.
The IJ denied Malonda’s application for asylum and
withholding of removal. While noting that some confusion existed
2
During this discussion between the IJ and Malonda’s
counsel about her removability, the government asserted that
Malonda used her sister’s passport in conjunction with her
application for asylum. The IJ asked the government, “Wouldn’t
that be considered evidence that she is here illegally, or no?”
Before the government had the opportunity to answer the question,
the IJ proceeded with his questioning of Malonda’s counsel without
explicitly resolving the issue of whether Deby Ledy is Malonda’s
sister.
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as to Malonda’s charge of removability, the IJ determined that
Malonda, through counsel, conceded removability. Turning first to
evidence of past persecution, the IJ deemed not credible Malonda’s
testimony concerning the central event in her asylum application,
the attempted rape or assault on June 6, 2001. In particular, he
pointed to the discrepancy between Malonda’s statement in her
asylum application that the assailant wore a Muslim robe and her
testimony at the hearing that he was fully or partially naked. The
IJ reasoned that, as the only incident specifically referred to by
Malonda, her testimony on the subject should have been consistent
throughout. Even assuming the truth of Malonda’s account, the IJ
disbelieved that the attack was religiously motivated, because
Malonda was residing in her brother-in-law’s Muslim household at
the time, giving the assailant no reason to believe that she was a
Christian.
In finding that Malonda had failed to establish a well-
founded fear of future persecution, the IJ noted that the
Department of State country and religious freedom reports generally
reported an improvement in conditions in Indonesia. The IJ also
found it significant that Malonda’s two Indonesian children
continued to live in the country without experiencing harm; that
Malonda had traveled to Indonesia three times since entering the
United States, once with her six-year-old, American-born daughter;
and that several of Malonda’s siblings continued to live in
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Indonesia in relative safety. After denying Malonda’s application,
the IJ granted her voluntary departure.
The BIA upheld the IJ’s denial of relief on April 24,
2007, in a per curiam opinion. It found that the IJ’s adverse
credibility finding was supported by specific, cogent reasons, and
that the IJ provided a reasonable basis for rejecting Malonda’s
explanation of the discrepancies in her account. It also upheld
the IJ’s finding of removability based on his reading of Malonda’s
asylum application, as well as the concession made by her counsel.
Finally, the BIA affirmed the IJ’s ruling on Malonda’s CAT claim
because of her failure to raise the issue on appeal.
II. Discussion
Where, as is the case here, “the BIA adopts the IJ’s
opinion and discusses some of the bases for the IJ’s decision, we
have authority to review both the IJ’s and the BIA’s opinions.”
Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006). We review the
BIA’s decision under the deferential substantial evidence standard.
See
id. Under this standard, we will uphold factual determinations
“unless the record is such as to compel a reasonable factfinder to
reach a contrary determination.” Pulisir v. Mukasey,
524 F.3d 302,
307 (1st Cir. 2008). When reviewing an adverse credibility
determination under this standard, “we narrowly inquire whether:
(i) the discrepancies articulated by the IJ and/or the BIA are
actually present in the administrative record; (ii) the
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discrepancies generate specific and cogent reasons from which to
infer that petitioner . . . provided non-creditworthy testimony;
and (iii) petitioner failed to provide a persuasive explanation for
these discrepancies.” Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir.
2008).
A. Merits of the Claims
Malonda contends that the BIA’s adverse credibility
determination, as well as its determination that she failed to
establish her asylum, withholding of removal, and CAT claims, were
not supported by substantial evidence. We begin by considering
Malonda’s asylum claim, because “a failure to qualify for asylum
necessarily forecloses a petitioner’s ability to qualify for
withholding of removal or protection under CAT.” Santosa v.
Mukasey, No. 07-2016, 2008 WL 2358004, at *2 (1st Cir. June 11,
2008); see also Makhoul v. Ashcroft,
387 F.3d 75, 82 (1st Cir.
2004) (noting that a withholding claim “demands that the alien
carry a more stringent burden of proof than does an asylum claim”).
An applicant for asylum bears the burden of proving that
she is a refugee based upon either past persecution or a well-
founded fear of future persecution on the basis of one of five
statutory grounds. See Wang v. Mukasey, 508 F.3d 80, 84 (1st Cir.
2007) (citing 8 U.S.C. § 1158(b)(1)). “[P]ast persecution requires
that the totality of a petitioner’s experiences add up to more than
mere discomfiture, unpleasantness, harassment, or unfair
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treatment.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.
2005). Moreover, the claimed persecution must be “the direct
result of government action, government-supported action, or
government’s unwillingness or inability to control private
conduct.”
Id. at 121. Finally, testimony deemed incredible by the
IJ may be disregarded or discounted. See Pan v. Gonzales,
489 F.3d
80, 86 (1st Cir. 2007).
Here, the evidence supports the IJ’s determination that
Malonda did not testify credibly concerning the attack on June 6,
2001. The record indicates that she told three versions of the
same story: in one, her assailant wore a Muslim robe; in the
second, he was naked; and in the third, he wore pants. Other
details differ as well: in her asylum application, Malonda
described being approached by a man wielding a screwdriver, but at
her hearing, she claimed that she was roused from sleep when he sat
on her. The IJ concluded that, as the single event supporting her
claim of religious persecution, it “should have been the focus of
her testimony and should have . . . been consistent throughout.”
Malonda did not indicate any reason preventing her from correcting
the discrepancy. Therefore, we uphold the adverse credibility
determination.
An adverse credibility determination can be fatal if an
applicant cannot meet her burden of proof without the incredible
testimony. See Melhem v. Gonzales, 500 F.3d 78, 81 (1st Cir. 2007)
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(citing Pan, 489 F.3d at 86). That is the case here. Without
Malonda’s testimony, which was the sole evidence of past
persecution, the evidence amply supports the BIA’s finding that
Malonda lacked an objectively reasonable fear of future
persecution. Malonda “had to provide ‘credible, direct, and
specific evidence’ that would support a reasonable fear of
individualized persecution.” Santosa,
2008 WL 2358004, at *4
(quoting Guzman v. INS,
327 F.3d 11, 16 (1st Cir. 2003)). The BIA
found that the documentary evidence provided by Malonda did not
satisfy this requirement and, to the contrary, Malonda’s family who
remained in Indonesia lived in relative safety. See, e.g., Sela v.
Mukasey,
520 F.3d 44, 47 (1st Cir. 2008) (treating evidence of
family safety in the petitioner’s country of origin as evidence
undermining a future persecution claim). Thus, the evidence does
not compel reversal of the BIA’s determination.
Having failed to establish her eligibility for asylum,
Malonda’s application for withholding of removal necessarily fails
as well. See Makhoul, 387 F.3d at 82. Because Malonda “makes no
argument with respect to the CAT claim beyond the introductory
assertion that the record establishes the merits of her claim[] for
. . . protection pursuant to the CAT[,]” we deem her CAT claim
waived. Sok v. Mukasey,
526 F.3d 48, 52 (1st Cir. 2008) (internal
quotation marks, alterations, and citation omitted).
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B. Due Process
Although Malonda’s brief advances theories that her
hearing before the IJ violated her due process rights and
effectively compelled her to be a witness against herself, her
principal argument is that the government’s failure to amend her
NTA to allege the correct ground of removability prejudiced her in
some way. That is, in any event, the only claim of error she
preserved below; consequently, it is the only one we have
jurisdiction to review. See Makhoul, 387 F.3d at 80 (relying on 8
U.S.C. § 1252(d)(1)’s exhaustion requirement to hold that “theories
not advanced before the BIA may not be surfaced for the first time
in a petition for judicial review of the BIA’s final order”).
The BIA rejected Malonda’s due process claim for three
reasons. First, it found that rather than contesting the IJ’s
finding of removability, Malonda’s counsel conceded it. Second,
the BIA found that Malonda failed to assert or demonstrate that she
was prejudiced by the alleged error. Third, relying on Matter of
Salazar, 17 I. & N. Dec. 167 (BIA 1979), it held that an IJ may
properly rule on a ground of removability that is first revealed at
a hearing, as long as the petitioner has the opportunity to meet
it. We review due process claims de novo. See Pulisir, 524 F.3d
at 311.
We have previously recognized that aliens subject to
removal proceedings are entitled to due process, including “the
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right to notice of the nature of the charges and a meaningful
opportunity to be heard.” Kaweesa v. Gonzales, 450 F.3d 62, 69
(1st Cir. 2006) (citing Choeum v. INS,
129 F.3d 29, 38 (1st Cir.
1997)) (internal quotation marks omitted). In order to advance a
due process claim, however, a petitioner “must allege some
cognizable prejudice fairly attributable to the challenged
process.” Lattab v. Ashcroft,
384 F.3d 8, 20 (1st Cir. 2004); see
also Grigous v. Gonzales,
460 F.3d 156, 163 (1st Cir. 2006)
(applying the prejudice requirement to a claimed violation of a due
process right to adequate notice).
We need not decide whether, and under what circumstances,
the government’s failure to amend a NTA might violate a
petitioner’s right to adequate notice of the charge of
removability, because Malonda has made no showing that she was
prejudiced by any failure to amend the NTA. Accordingly, we must
affirm the BIA’s decision and deny the petition.
The petition for review is DENIED.
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