Panjaitan v. Gonzales , 172 F. App'x 870 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 28, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
H EN RY ISK A K PA N JA ITA N ,
Petitioner, No. 05-9565
v. (No. A96-275-329)
ALBERTO GONZALES, Attorney (Petition for Review)
General of the United States,
Respondent.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Petitioner Henry Iskak Panjaitan challenges a June 30, 2005, decision of the
Board of Immigration Appeals (BIA). Our jurisdiction arises under section
242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), and w e
affirm.
M r. Panjaitan is a native of Indonesia who entered the United States with a
nonimmigrant visa and applied for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture (CAT). Following a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
hearing, the immigration judge (IJ) found that M r. Panjaitan had failed to file his
application for asylum within the required one-year period and that he had failed
to demonstrate either extraordinary circumstances or changed circumstances
justifying his failure to do so. Additionally, the IJ found that M r. Panjaitan was
not entitled to relief under the CAT or withholding of removal. M r. Panjaitan
then filed an appeal of the IJ’s determination with the BIA. M r. Panjaitan did not
argue on appeal that he was denied relief under the CAT or that he had been
wrongfully denied withholding of removal, but instead raised a single issue:
whether the transcript of the immigration hearing was so deficient that his due
process rights were violated. The BIA affirmed the IJ’s decision and found that
M r. Panjaitan failed to demonstrate that a more complete transcript would have
changed the IJ’s decision. M r. Panjaitan now argues that this Court should
reverse (1) the denial of his asylum application, (2) the denial of the protection of
CAT and denial of withholding of removal, and (3) the BIA’s holding that the
transcript of the immigration hearing was not so deficient that M r. Panjaitan’s due
process rights were violated. W e consider each issue in turn.
1. M r. Panjaitan’s Asylum Application
The Immigration and Nationality Act (INA) provides that “[n]o court shall
have jurisdiction to review any determination of the Attorney General” regarding
the timeliness of any asylum application. INA § 208(a)(3), 8 U .S.C. § 1158(a)(3).
As a result, this Court does not have jurisdiction to review an IJ’s rulings
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regarding failure to file an asylum application within the one-year time limit or
whether an applicant demonstrated extraordinary circumstances excusing that
failure. Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003).
Consequently, we do not have jurisdiction as to the denial of M r. Panjaitan’s
untimely asylum application.
2. Denial of Withholding of Removal and Protection of CAT
M r. Panjaitan mentioned the issues regarding withholding of removal and
relief under the CAT in the Notice of Appeal to the BIA, but did not actually brief
those issues before the BIA. Issues not raised before the BIA on appeal are
considered waived. Tulengkey v. Gonzalez, 425 F.3d 1277, 1279 n. 1 (10th Cir.
2005). This Court’s review does not extend to potential arguments not made
before the BIA . Id. Accordingly, M r. Panjaitan’s failure to raise these claims
before the BIA precludes our review of them now.
3. The Sufficiency of the Immigration Hearing Transcript
The sole claim properly brought before this Court for review is whether the
BIA correctly determined that no due process violation occurred regarding the
transcript or translation of the immigration hearing.
Due process requires that the respondent at a deportation hearing have “an
opportunity to be heard, to cross-examine witnesses against him, and to produce
evidence . . . and that the decision be supported by substantial evidence.”
Hadjimehdigholi v. INS, 49 F.3d 642, 649 (10th Cir. 1995) (internal quotation
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marks omitted). Implicit in this requirement is the expectation that proceedings
be accurately translated and transcribed, consistent with federal regulations
governing immigration proceedings. See 8 C.F.R. §§ 103.2(b)(3), 1240.5.
However, in order to a establish a violation of his due process rights based on a
mistranscription, a litigant must demonstrate “specific prejudice to his ability to
perfect an appeal.” Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st Cir. 2005)
(internal quotation marks omitted); see also Price v. Lake Sales Supply R.M ., Inc.,
510 F.2d 388, 392 (10th Cir. 1974) (affirming the trial court’s reliance on a
challenged duplicate of a document where “[t]he copy reveals sufficient
information to allow a ruling”). In other words, the transcription failure must
have materially affected the outcome. Kheireddine, 427 F.3d at 86. Remand is
appropriate when translation is “less than perfect” only if the applicant can also
demonstrate that he was unfairly prejudiced or prevented from presenting his case
due to that error. Hadjimehdigholi, 49 F.3d at 650.
M r. Panjaitan argues that a “more complete transcript would have changed
the outcome of the Immigration decision.” A ppellant’s Br. 11. He bases this
argument on the IJ’s finding that he and his w ife’s answ ers relating to their
experiences in Indonesia w ere “vague” and “difficult to understand.” A R 60. M r.
Panjaitan argues that with superior interpretation, their answers “could have been
understood by the Judge and not be [sic] regarded as ‘unresponsive.’”
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Appellant’s Br. 12. As to each of M r. Panjaitan’s claims, however, the alleged
deficiencies in the transcript could not have materially affected the outcome.
First, the transcript could not have affected the denial of the asylum
application because M r. Panjaitan’s failure to file the application in a timely
manner is undisputed. He makes no claim before this Court, and made no claim
before the BIA, that errors of transcription or translation prevented the district
court from considering some extraordinary or changed circumstances that excuse
his failure to file w ithin the one-year time limit.
Second, the transcript could not have affected the denial of withholding of
removal and denial of relief under the CAT because the IJ based those decisions
on his finding that M r. Panjaitan w as not credible. This Court treats the IJ’s
findings of fact as “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Here, the IJ
based his credibility determination on a significant discrepancy between M r.
Panjaitan’s initial written application for asylum and his testimony before the
immigration court. Both M r. Panjaitan and his wife testified about three prior
acts of violence perpetrated against their property by local M uslims: the burning
of their plantation, the ransacking of their home, and their narrow escape from an
angry mob on the highway. Yet on the written application form, when asked to
“explain in detail” any “harm or mistreatment or threats in the past by anyone,”
M r. Panjaitan discussed only verbal harassment:
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Every[ ]time we go [to] work, church and anywhere, local people always
put me down like “you are Christian people and go out of[] this country,
this is nation of M uslim[s].” And my wife. [She is part] Chinese and she
got r[idiculed] and put down by local people (M uslim). . . . [T]hey did it to
me and my family many time[s], every[ ]time we walk [ar]ound.
AR 476. Because of this apparent change of story, along with a general lack of
specificity and evasiveness, the IJ found M r. Panjaitan’s testimony not credible.
These “specific, cogent reasons” justify the IJ’s adverse credibility determination.
See Wiransane v. Ashcroft, 366 F.3d 889, 897 (10th Cir. 2004) (internal quotation
marks omitted).
Before the BIA, M r. Panjaitan pointed out that the transcript of the hearing,
which runs to 168 pages, contains some 75 indications that a portion of the
testimony by M r. Panjaitan or his wife w as “indiscernible.” AR 21. A close
review of the transcript, however, reveals no serious deficiency. Although it
appears that the transcriber had occasional difficulty understanding words or
phrases spoken by the translator, the substance of each answer given by M r.
Panjaitan and his wife is perfectly clear. M oreover, to the extent M r. Panjaitan
simply alleges that the transcript of his testimony was insufficient, he has failed
to show any prejudice. The IJ heard all of the testimony in person, and did not
need to rely on the subsequently prepared written record w hen assessing M r.
Panjaitan’s credibility. Accordingly, there was no defect in the transcript or
translation that affected the outcome of the proceedings before the IJ.
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The petition for review is DISM ISSED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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