Evelyne v. Gonzales

• Court: Court of Appeals for the First Circuit
• Decided: October 5, 2007
• Docket: 06-2314
• Status: Published

Opinion

Not For Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit No. 06-2314

FRIEDA EVELYNE,

Petitioner,

v.

PETER D. KEISLER,* ACTING ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge, Torruella, Circuit Judge, and Schwarzer,** Senior District Judge.

William A. Hahn and Hahn & Matkov, on brief for petitioner. Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Peter D. Keisler, Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, on brief for respondent.

October 5, 2007

* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Peter D. Keisler is substituted for former Attorney General Alberto R. Gonzáles as respondent. ** Of the Northern District of California, sitting by designation. Per Curiam. Frieda Evelyne applied for asylum,

withholding of removal, and relief under the federal regulations

implementing the Convention Against Torture ("CAT"). An

immigration judge ("IJ") denied all of Evelyne's claims and ordered

her removed. She appealed to the Board of Immigration Appeals

("BIA"), which affirmed. Evelyne now petitions for review of the

BIA's denial of her appeal. After careful consideration, we deny

the petition.

I. FACTUAL BACKGROUND

Evelyne, a Christian Protestant from Indonesia, entered

the United States on June 15, 2001 on a nonimmigrant visa and

remained past the authorized date. On November 2, 2001, she filed

an application to extend or change her nonimmigrant status, which

is apparently still pending. Subsequently, the Immigration and

Naturalization Service ("INS") commenced removal proceedings

against her. In response to the INS notice to appear, Evelyne

admitted that she had remained in the United States beyond the time

allowed by her visa in violation of 8 U.S.C. § 1227(a)(1)(B).

A.R. 654-55. She petitioned the IJ for asylum, withholding of

removal, and CAT relief.

A hearing was held before the IJ at which Evelyne

testified that she had suffered mistreatment in Indonesia on

account of her Christian faith. She described an incident in 1998

in which purported Muslim radicals had punched her in the chest.

-2- In 1999, Muslims from a nearby mosque threw rocks at her house and

told her that the Christian prayer services she was holding were

disturbing them in the mosque; this and a later similar incident

prompted her to discontinue such services. Evelyne also described

a 2001 incident in which her house was ransacked, items were

stolen, and anti-Christian graffiti was painted on the walls while

she was away. She testified that her children continued to live in

Indonesia after she came to the United States. At a certain point

in the hearing the IJ took over the questioning of Evelyne, and

much of her testimony was given in response to the IJ's questions.

The IJ found that the Government had satisfied its burden

of proving by clear and convincing evidence that Evelyne was

removable: she had conceded removability, and the mere fact that

her visa extension application was still pending did not amount to

an automatic extension. The IJ found further that Evelyne did not

qualify for asylum, withholding of removal, or CAT relief: while

she had been a victim of religious discrimination, she had not

shown that she had suffered past persecution, or that she had an

objectively reasonable basis for her fear of future persecution.

The BIA affirmed, and held additionally that the IJ had not

deprived Evelyne of a full and fair opportunity to present her case

by conducting much of the examination himself.

-3- Evelyne appeals the BIA's findings that she was

removable, that she was not eligible for asylum,1 and that the IJ

did not deprive her of a full and fair opportunity to present her

case. We address these items in turn.

II. DISCUSSION

A. Standard of Review

We normally review decisions of the BIA and not those of

immigration judges; however, where, as here, the BIA has adopted

and affirmed findings of the IJ, we also review the adopted portion

of the IJ's decision. Simo v. Gonzáles, 445 F.3d 7, 11 (1st Cir.

2006); Vásquez v. INS, 177 F.3d 62, 64 (1st Cir. 1999). We review

the BIA's legal conclusions de novo, with appropriate deference to

the agency's interpretation of the underlying statute in accordance

with administrative law principles. Molina De Massenet v.

Gonzáles, 485 F.3d 661, 663 (1st Cir. 2007). In asylum claims, the

Court reviews the factual findings of the BIA and the IJ under the

"substantial evidence" standard, reversing only if the evidence of

record would compel a reasonable factfinder to make a contrary

1 Evelyne asks us to review her asylum claim, but apparently does not contest the denial of her claims for withholding of removal and CAT relief. In any event, she clearly failed to raise these two claims in her brief before the BIA, and thereby waived her right to have this court consider them. Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004) ("[T]heories 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.").

-4- determination. Stroni v. Gonzáles, 454 F.3d 82, 87 (1st Cir.

2006).

B. Did the BIA Err in Finding Removability?

Evelyne argues that the BIA erred in holding that the

Government proved by clear and convincing evidence that she was

removable, as required by 8 U.S.C. § 1229a(c)(3)(A). We disagree.

Relying on Evelyne's admission to having entered the United States

on a nonimmigrant tourist visa and staying beyond the allowed date

of December 13, 2001, the BIA found that the Government had

discharged its burden of proving removability by clear and

convincing evidence. It further found that Evelyne failed to meet

her burden of producing evidence not known to the Government of her

authorization to remain. We see no error in this determination.

Once Evelyne admitted her removability, the IJ and the BIA were

free to conclude that the Government had established removability.

See 8 C.F.R. § 1240.10(c). Moreover, as the IJ correctly held, the

mere fact that Evelyne filed an application to extend her visa did

not have the effect of automatically extending it until it was

disposed of. See Samimi v. INS, 714 F.2d 992, 994 (9th Cir. 1983)

("[A]n immigrant is deportable as an overstay when his period of

admission expires unless he receives an extension." (emphasis

added) (original emphasis removed)); Matter of Teberen, 15 I. & N.

Dec. 689, 691 (BIA 1976). If the rule were otherwise, any alien

-5- could extend her stay for months or even years simply by filing an

extension application.

C. Did the BIA Err in Finding that Evelyne Was Ineligible for Asylum?

Evelyne also argues that the BIA incorrectly determined

that she had suffered mere discrimination -- and not persecution --

in Indonesia, that she did not have a well-founded fear of future

persecution, and that she was consequently ineligible for asylum.

As a prerequisite to asylum eligibility, "an alien bears the burden

of establishing that [she] is a refugee." Aguilar-Solís v. INS,

168 F.3d 565, 569 (1st Cir. 1999). A refugee is someone who is

unwilling or unable to return to her country of nationality because

she has been persecuted or has a well-founded fear of persecution

on the basis of one of the grounds in the Immigration and

Nationality Act; religion is one such ground. See 8 U.S.C.

§ 1101(a)(42)(A). To establish a well-founded fear of future

persecution, the applicant must demonstrate "both a genuine

subjective fear and an objectively reasonable fear of persecution

on a protected ground." Civil v. INS, 140 F.3d 52, 55 (1st Cir.

1988). However, if the applicant makes a satisfactory showing of

past persecution, "a rebuttable presumption arises that her fear of

future persecution is well founded." Nikijuluw v. Gonzáles, 427

F.3d 115, 120 (1st Cir. 2005).

There is no single definition of "persecution." As this

Court has stated: "We know . . . that persecution encompasses more

-6- than threats to life or freedom, . . . but less than mere

harassment or annoyance . . . . Between these broad margins,

courts have tended to consider the subject on an ad hoc basis."

Aguilar-Solís, 168 F.3d at 569-70 (citations omitted).

Furthermore, "an applicant qualifies for asylum only when he

suffers persecution that is the direct result of government action,

government-supported action, or government's unwillingness or

inability to control private conduct." Nikijuluw, 427 F.3d at 121.

We find nothing in the record that would compel us to

disagree with the BIA's determination that Evelyne did not suffer

past persecution, and that she lacks a well-founded fear of future

persecution. While Evelyne has been the target of some anti-

Christian acts -- most notably the ransacking and defacing of her

house2 -- none of these incidents is serious enough to "rise above

unpleasantness, harassment, . . . [or] basic suffering." Nelson v.

INS, 232 F.3d 258, 263 (1st Cir. 2000). Moreover, all of the

incidents in question appear to have been sporadic, see Palma-

Mazariegos v. Gonzáles, 428 F.3d 30, 37 (1st Cir. 2005)

(persecution requires more than sporadic abuse), and perpetrated by

private individuals, not persons acting on behalf or with the

support of the Indonesian government. Furthermore, although the

2 Contrary to Evelyne's assertion, the IJ did specifically take this incident into account in determining that Evelyne had not suffered past discrimination, although he did not discuss it in detail. I.J. Dec. at 4.

-7- Indonesian government's human rights record is admittedly far from

immaculate, the evidence of record is simply insufficient to compel

a finding that it is unwilling or unable to control violence

against the Christian minority. Finally, the fact that Evelyne's

children continue to reside in Indonesia cuts strongly against her

claim of a well-founded fear of future persecution. Cf.

Aguilar-Solís, 168 F.3d at 573 ("[T]he fact that close relatives

continue to live peacefully in the alien's homeland undercuts the

alien's claim that persecution awaits his return.").

D. Did the BIA Err in Finding That Evelyne Was Not Deprived of Due Process?

Lastly, Evelyne argues that the way in which the IJ

conducted her immigration hearing violated her right to "a

reasonable opportunity to present evidence [on her] own behalf."

Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988).3 From our review

of the record, it appears that the IJ took over the questioning of

Evelyne to clarify her meandering direct testimony. The BIA found

that, despite this conduct, Evelyne had been provided with a full

and fair opportunity to present her case. We agree. Although

aliens facing removal enjoy the right to a fair opportunity to be

heard, Ishak v. Gonzáles, 422 F.3d 22, 32 (1st Cir. 2005), the IJ

retains broad discretion over the conduct of immigration

proceedings, and may interrogate and cross-examine the alien and

3 We review de novo whether an IJ's conduct has violated due process. Aguilar-Solís, 168 F.3d at 568.

-8- any witnesses. See id. at 31; 8 U.S.C. § 1229a(b)(1). While the

IJ here evinced some impatience at the disjointed pace of Evelyne's

direct examination, he remained squarely within the bounds of

proper behavior in asking the questions he did. Cf. Ishak, 422

F.3d at 31; Aguilar-Solís, 168 F.3d at 568. It should also be

noted that he gave Evelyne's counsel the opportunity to raise

further issues before closing the hearing, and counsel availed

himself of this opportunity. As we have stated in the past, "[a]

judge who plays an active, but even-handed, role in keeping the

focus of the inquiry sharp is to be commended, not condemned." Id.

at 569.

III. CONCLUSION

The petition for review is denied.

-9-