Maphilindo v. Holder, Jr. , 323 F. App'x 659 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
April 15, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
EDWARD PARSAORAN
MAPHILINDO,
Petitioner,
No. 08-9555
v. (Petition for Review)
ERIC H. HOLDER, JR., *
United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before LUCERO, PORFILIO, and ANDERSON, Circuit Judges.
Edward Parsaoran Maphilindo seeks review of a Board of Immigration
Appeals (“BIA”) decision affirming the denial of asylum, restriction on removal,
and protection under the Convention Against Torture (“CAT”) by an Immigration
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr., is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Judge (“IJ”). Maphilindo claims he was denied due process on several bases: (1)
the refusal of the IJ to grant a continuance to allow Maphilindo to obtain an
attorney, (2) non-disclosure by the government of public State Department reports
that were used against him, and (3) the refusal of the IJ to admit evidence he
proffered. Because he was afforded ample time to secure counsel, the State
Department reports were publicly available, and the evidence he wished to have
admitted would have proven only uncontroverted facts, Maphilindo’s due process
rights were not violated.
He further claims that the IJ improperly discredited his testimony. Yet, the
BIA assumed his testimony to be credible, so we need not consider the credibility
determination made by the IJ. Finally, he claims that he was entitled to asylum or
restriction on removal. We disagree. Exercising jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D), we deny the petition for review.
I
Maphilindo is a native and citizen of Indonesia and is a Christian member
of the ethnic Batak Tribe. His wife and daughter remain in Indonesia.
Maphilindo entered the United States on April 11, 2000, on a work visa
authorizing him to stay until September 13, 2002. See 8 U.S.C.
§ 1101(a)(15)(H)(i)(b). He overstayed his visa and was charged by the
Department of Homeland Security with remaining in the United States past the
authorized time period. See § 1227(a)(1)(B). Maphilindo conceded the charge,
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and, with the help of an attorney, applied for asylum, restriction on removal, and
CAT protection. At his removal hearing, Maphilindo appeared pro se and told the
IJ that he had been unable to obtain a new attorney since his attorney had
withdrawn from the case nearly a year earlier. Declining to grant a continuance,
the IJ cited the ample time following the withdrawal during which Maphilindo
could have retained a new lawyer. The IJ then proceeded with the hearing.
Maphilindo testified that he was persecuted in Indonesia on account of his
faith and ethnicity. He said that as a child he was hit and attacked by Muslim
children and that his father would always yell at him for fighting. Some children
told him that Bataks eat dogs, pork, and human flesh, and that “Christianity
couldn’t save.” Maphilindo also recalled that his dog was killed and that people
screamed and threw rocks at his house while he prayed. When the police were
contacted, they merely advised him to find another place to worship. Eventually,
as Maphilindo testified, he attended polytechnic school, majored in electrical
engineering, and received corporate sponsorship to work in the United States.
Following this testimony, the IJ denied all relief, and ordered Maphilindo
removed to Indonesia.
Maphilindo appealed to the BIA, alleging: (1) several due process
violations based on the IJ’s refusal to grant a continuance for Maphilindo to
obtain counsel and on other procedural matters; (2) that the IJ made an
unsupported adverse credibility finding; and (3) that the IJ wrongly denied his
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applications for asylum, restriction on removal, and CAT protection. The BIA
rejected these claims, concluding that Maphilindo had adequate time to seek a
new attorney but failed to do so, and that even crediting his testimony, he failed
to satisfy the standards justifying relief.
Maphilindo now petitions this court for review, raising the same three
claims, although he has abandoned his challenge to the denial of CAT protection,
one portion of his third claim.
II
At the outset, we must determine whether we have jurisdiction to consider
Maphilindo’s petition. Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1147 (10th
Cir. 2005) (“We must first address a threshold jurisdictional question before
turning to the merits.”); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94-95 (1998). According to the government, under Yerkovich v. Ashcroft,
381 F.3d 990, 995 (10th Cir. 2004) and 8 U.S.C. § 1252(a)(2)(B)(ii), a
discretionary denial of a continuance by an IJ is beyond the scope of judicial
review. But when such a denial gives rise to a colorable constitutional claim, as
in this case, we have jurisdiction. § 1252(a)(2)(D); Schroeck v. Gonzales, 429
F.3d 947, 951 (10th Cir. 2005).
Yerkovich, unlike this case, did not involve an alleged constitutional
violation stemming from the denial of a continuance. Rather, Yerkovich
presented a direct challenge to “the IJ’s denial of an indefinite continuance, which
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petitioner ha[d] at least implicitly conceded was a matter of discretion” without
raising a constitutional claim. Yerkovich, 381 F.3d at 993. By contrast,
Maphilindo claims that the denial of the continuance resulted in a fundamentally
unfair hearing and thus violated his Fifth Amendment right to Due Process
because he was forced to proceed without the assistance of an attorney. See Osei
v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002) (recognizing that aliens enjoy a
Fifth Amendment right to a fundamentally fair removal proceeding). Thus, we
are not asked to determine whether the IJ abused his discretion in denying the
continuance, as in Yerkovich, but rather to discern whether the denial of the
continuance violated Maphilindo’s due process rights. Because he presents a
colorable constitutional claim, we have jurisdiction to review that claim.
§ 1252(a)(2)(D); Schroeck, 429 F.3d at 951; see also Torres de la Cruz v. Maurer,
483 F.3d 1013, 1019 (10th Cir. 2007) (holding that we have jurisdiction to
consider constitutional and legal challenges to removal).
III
When, as in Maphilindo’s case, a single member of the BIA issues a final
removal order, see 8 C.F.R. § 1003.1(e)(5), “we will not affirm on grounds raised
in the IJ decision unless they are relied upon by the BIA in its affirmance,”
Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We review the
agency’s legal conclusions de novo and its factual findings for substantial
evidence. Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006). To establish
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a due process violation based on an alleged defect in a removal hearing, an alien
must show that the lack of representation caused prejudice that “implicates the
fundamental fairness of the proceeding.” Michelson v. INS, 897 F.2d 465, 468
(10th Cir. 1990); accord Schroeck, 429 F.3d at 952 (applying fundamental
fairness standard outside context of lack of counsel claim).
A
In considering the due process claim based on Maphilindo’s lack of
counsel, we begin with the proposition that a Sixth Amendment right to counsel
in removal proceedings does not exist. United States v. Rangel de Aguilar, 308
F.3d 1134, 1138 (10th Cir. 2002). Thus, Maphilindo cannot succeed on this claim
unless he meets the fundamental fairness test articulated above. Maphilindo had
almost a year in which to secure counsel; that he chose not to take advantage of
this opportunity does not call into question the fundamental fairness of his
proceeding. Thus, he cannot make out a due process claim based on the lack of
counsel. 1
Further, Maphilindo alleges a due process violation in that the State
Department country reports on Indonesia that were used against him in his
hearing were not disclosed to him prior to the hearing. There are several defects
1
Maphilindo also alleges error in the failure of the IJ to fully and fairly
develop the record. He does not explain in what respect the record should have
been better developed, seemingly treating this allegation as subsumed by his due
process allegation based on the lack of counsel. Thus, we do not separately
discuss whether the record was fully developed.
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in this argument. First, there is not a due process right to discovery outside the
criminal context. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Second,
these are public documents that were freely available to him well in advance of
his hearing. Under these circumstances, that the government did not disclose
these State Department reports prior to the hearing does not call into question the
fundamental fairness of his hearing and thus does not constitute a due process
violation.
Similarly, Maphilindo alleges that the exclusion of certain corroborating
evidence violated his due process rights by preventing him from presenting
evidence on his own behalf. But the evidence he sought to admit—untranslated
birth, marriage, and baptismal certificates—concerned matters that were never in
dispute. Neither the IJ nor the BIA questioned whether Maphilindo was actually
married, Christian, or Indonesian. Therefore, there cannot be any prejudice from
this exclusion, and Maphilindo’s due process rights were not violated.
B
Maphilindo claims the IJ improperly discredited his testimony. However,
the BIA expressly assumed his testimony was credible. Because we review the
BIA decision as the final order of removal, Uanreroro, 443 F.3d at 1204, and the
BIA credited his testimony, we need not evaluate the explanation of the IJ. 2
2
Our current posture is unlike that in the case cited by Maphilindo,
Sviridov v. Ashcroft, 358 F.3d 722 (10th Cir. 2004), because the BIA in that case
(continued...)
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IV
We turn then to Maphilindo’s claim that he satisfied the standards for
asylum and restriction on removal. Our review of these claims is highly
deferential. We can grant the petition for review challenging these factual
conclusions of the BIA only if the record demonstrates that “any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); accord Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir. 2007).
“To qualify for asylum, an alien must show that he has suffered past
persecution or has a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.” Sarr, 474 F.3d at 788 (quotation and alteration omitted). An alien can
qualify for restriction on removal if he demonstrates that his “life or freedom
would be threatened in the proposed country of removal because of his race,
religion, nationality, membership in a particular social group, or political
opinion.” Id. (quotation and alteration omitted).
Considering the testimony Maphilindo presented before the IJ, we do not
discern sufficient evidence to overcome our deferential standard of review. That
is, we cannot say that any reasonable adjudicator would have been compelled to
conclude that Maphilindo was entitled to either asylum or restriction on removal.
2
(...continued)
affirmed the IJ decision without opinion. Id. at 727.
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[A] finding of persecution requires the infliction of suffering or harm
upon those who differ (in race, religion, or political opinion) in a
way regarded as offensive and must entail more than just restrictions
or threats to life and liberty. Such persecution may be inflicted by
the government itself, or by a non-governmental group that the
government is unwilling or unable to control.
Hayrapetyan v. Mukasey, 534 F.3d 1330, 1337 (10th Cir. 2008) (quotation
omitted).
Neither the altercations Maphilindo experienced as a child, nor the
disruptions he experienced while he prayed, were severe enough to constitute past
persecution under our deferential standard of review. Cf. Kapcia v. INS, 944 F.2d
702, 704-05, 707-08 (10th Cir. 1991) (holding that there was substantial evidence
to support a finding of no persecution when an alien was detained, beaten, and
interrogated, his parents’ home was searched, and he was mistreated at work prior
to being conscripted into the military and harassed). Further, Maphilindo’s
testimony that he did not know why his dog was killed provided no support for
his claim of racial or religious animus. Moreover, the taunts concerning his faith
and ethnicity, while deeply insulting, are better characterized as harassment or
discrimination than persecution. See Vatulev v. Ashcroft, 354 F.3d 1207, 1210
(10th Cir. 2003). Maphilindo suggests that the cumulative effect of these
experiences might satisfy the asylum standard for past persecution. We disagree.
We also conclude that Maphilindo has not shown a well-founded fear of
either individual persecution or persecution based on his “membership in a group
subject to a pattern or practice of persecution,” Woldemeskel v. INS, 257 F.3d
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1185, 1190 (10th Cir. 2001) (quotation omitted), sufficient to survive our
standard of review. Maphilindo claims he will be personally targeted due to his
immutable characteristics as an ethnic Batak, but this argument was not presented
to the BIA and we therefore decline to consider it. See Sidabutar v. Gonzales,
503 F.3d 1116, 1118 (10th Cir. 2007) (“[W]e generally assert jurisdiction only
over those arguments that a petitioner properly presents to the BIA.”). Although
he points to his family as proof that Christians in Indonesia are persecuted as a
whole, it seems that his wife and daughter have safely practiced their faith in that
country since his departure, and there lacks an indication that they have faced
appreciable danger. Likewise, his four siblings continue to live in Indonesia
without any particular threat of harm, and they too are Christians.
Nonetheless, Maphilindo insists that the situation in Indonesia has
deteriorated. To substantiate his claim, he refers us to a letter from his uncle
describing an attack on a church. He also asserts that there is a general
atmosphere of violence towards Christians in Indonesia. But this evidence does
not establish a pattern or practice of persecution against Christians. A pattern or
practice of persecution entails “something on the order of organized or systematic
or pervasive persecution.” Woldemeskel, 257 F.3d at 1191 (quotation omitted).
The isolated incident described in the letter does not, standing alone, support a
finding of systematic or pervasive persecution. Nor is “generalized lawlessness
and violence between diverse populations” generally sufficient to satisfy the
standard. Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998). Admittedly, the
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record reflects a history of strife between Christians and Muslims in Indonesia,
but it also indicates that relations between the two groups have improved in recent
years. Accordingly, Maphilindo fails to show that any reasonable adjudicator
would be compelled to conclude that he suffered either past persecution or a well-
founded fear of future persecution. 3
Maphilindo’s inability to satisfy the asylum standard demonstrates that he
necessarily fails to satisfy the more onerous standard for restriction on removal.
Solomon v. Gonzales, 454 F.3d 1160, 1164 (10th Cir. 2006).
V
For the foregoing reasons, the petition for review is DENIED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
3
Because Maphilindo has not shown sufficient evidence of persecution, we
need not consider the government’s role. See Batalova v. Ashcroft, 355 F.3d
1246, 1253 (10th Cir. 2004).
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