Mondal v. Gonzales

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 4, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

M INATI M ONDAL; SH AM SUDDIN AHM AN; CEEH AM SHAM S;

Petitioners, No. 05-9600 v. (No. A 97 936 974) (Petition for Review) ALBERTO R. GONZALES, Attorney General,

Respondent.

OR D ER AND JUDGM ENT *

Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.

M embers of the M ondal family, citizens and nationals of Bangladesh,

petition for review of a decision of the Board of Immigration Appeals (BIA or

Board) denying their claims for asylum and for restriction on removal. W e have

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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. jurisdiction to review the agency’s decision under 8 U.S.C. § 1252(a)(1), and we

deny the petition for review .

I. Background

M inati M ondal, the lead petitioner and mother of the family, is a lifelong

Christian. The other petitioners are Dr. Shamsuddin A hman, M s. M ondal’s

M uslim husband, and Ceeham Shams, the couple’s adult Christian daughter. The

family’s application for asylum, restriction on removal, and protection under the

Convention Against Torture is premised on the lack of toleration in Bangladesh

for the parents’ interfaith marriage.

At the hearing before the Immigration Judge (IJ), the parties offered

testimony from M s. M ondal and also expert testimony from John Adams, a retired

university professor and current consultant on economics and salvation studies.

M s. M ondal described religious clashes w hile living with her husband’s family in

Bangladesh. Her in-laws pressured her to follow the precepts of the Islamic faith,

changed her name, teased her, pushed and hit her, pulled her hair, threatened her,

refused to eat with her, and forced her to do all the chores. “The worst incident

of [her] life,” occurred when she refused to fast on a day during the month of

Ramadan, February 1994. Admin. R. at 210. Her brother-in-law pushed her

against a wall and attempted to choke her. M s. M ondal and Dr. Ahman decided

that the situation was intolerable and that she should leave Bangladesh.

-2- M s. M ondal entered the United States in M ay 1994 and Dr. Ahman and

M s. Shams followed in August 1995. M s. M ondal was approved for student

status; her husband and daughter were classified as student-dependents. Both

parents registered with educational institutions and began programs of instruction.

As of M arch 1, 2003, however, they had stopped attending classes and the

family’s legal status lapsed. After discussing the situation with an attorney,

M s. M ondal gathered documentation, and on September 12, 2003, attempted to

file an application for asylum and restriction.

In support of her application, M s. M ondal testified that if she returned to

Bangladesh, her family problems would re-erupt, fundamentalists would attempt

to kill her, and the government would not protect her. She also offered expert

testimony from Dr. Adams, who has traveled to Bangladesh and also prepared

talks and articles on the country. Dr. Adams testified that an interfaith couple in

Bangladesh would be shunned by M uslim family members. If the couple moved

to another part of Bangladesh, there would still be “a very high risk” that

M s. M ondal, as the non-Islamic partner in an interfaith marriage, would be

subject to “intimidation, violence, rape, and possibly murder.” Admin. R. at 139.

At the close of testimony, the IJ reviewed the evidence and concluded that

the asylum application was not timely filed. He noted that, when M s. M ondal’s

status lapsed in M arch 2003, she had been attending college and university

classes in the United States for nine years. Under these circumstances, the IJ

-3- found, she should have been able to file an asylum application “w ithin a short

period after falling out of status,” and that the September 2003 asylum application

was not filed within a reasonable time. Id. at 61. He also determined that there

was no significant change in country conditions during the relevant period.

Accordingly, the family members were statutorily ineligible for asylum.

The IJ then determined that the record failed to show past persecution or a

probability of future persecution. He therefore denied the family’s applications

for restriction on removal and protection under the Convention Against Torture,

as being “without any merit whatsoever.” Id. at 64. On appeal, the BIA adopted

and affirmed the IJ’s denial of relief. In response to the family’s argument that

the transcript of the hearing was inadequate, the BIA acknowledged that the

transcript of the hearing “contain[ed] numerous ‘Indiscernible’ entries,” but

concluded that it was “sufficiently complete upon which to base a determination.”

Id. at 890.

II. Discussion

A. Timeliness of Asylum Application

Petitioners seek review of the finding that M s. M ondal’s application was

untimely. Generally, an alien must file an asylum application “within 1 year after

the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).

The Attorney General, however, may accept an otherwise untimely application if

the alien demonstrates either (1) “the existence of changed circumstances which

-4- materially affect [her] eligibility for asylum” or (2) “extraordinary circumstances

relating to the delay in filing an application within the period specified.”

§ 1158(a)(2)(D ). The term “changed circumstances” includes “[c]hanges in

conditions in the applicant’s country of nationality.” 8 C.F.R.

§ 208.4(a)(4)(i)(A). The “extraordinary circumstances” exception applies to an

asylum applicant who was in lawful status during the one-year period after

arrival, then filed within a “reasonable period” following the lapse of status.

8 C.F.R. § 208.4(a)(5)(iv).

A federal court lacks jurisdiction to review the denial of an asylum

application for untimeliness if the petitioner challenges discretionary decisions or

findings of fact, but it may resolve constitutional claims or matters of statutory

construction. Ferry v. Gonzales, Nos. 03-9526, 04-9555, 05-1014, 2006 W L

2258805, at *9 (10th Cir. Aug. 8, 2006). However, this court will reject an

attempt “to shoehorn [a] claim into the ‘question of law ’ category” that “simply

does not fit there.” Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005).

In recognition of this court’s limited jurisdiction, the family members

couch their issues as questions of law. They assert that the IJ committed legal

error in failing to recognize a change in country conditions: the rise in

fundamentalism in Bangladesh since the W orld Trade Center attacks on

September 11, 2001, and the invasion of Iraq in M arch 2003 (which coincided

with M s. M ondal’s leaving her studies).

-5- Analytically, “the existence of ‘changed circumstances’ that materially

affect eligibility for asylum is a predominately factual determination, which will

invariably turn on the facts of a given case.” Ram adan v. Gonzales, 427 F.3d

1218, 1221-22 (9th Cir. 2005). Thus, this aspect of the family’s petition for

review is “directed solely at the agency’s discretionary and factual

determinations” and it “remain[s] outside the scope of judicial review.” Ferry,

2006 W L 2258805, at *9 (quotations omitted).

Similarly, the family asserts that, as a matter of law, M s. M ondal’s asylum

application was timely because it was filed within a reasonable time after the

lapse of her student status. W e conclude that the BIA and the IJ did not

misinterpret the law. Indeed, M s. M ondal’s application, filed over six months

after her lapse of status, was treated in accordance with the agency’s

interpretation of its regulation, 8 C.F.R. § 208.4(a)(5)(iv). An asylum applicant is

expected to file as soon as possible after termination of a lawful immigration

status. Asylum Procedures, 65 Fed. Reg. 76121, 76123 (Dec. 6, 2000). A delay

of six months or longer is usually not considered reasonable. Id. at 76124. This

question also challenges a discretionary determination and is not reviewable.

A final challenge to the timeliness determination arises from the condition

of the hearing transcript. The family contends that the transcript is so replete

with entries of “indiscernible” and “no audible response” that it amounts to a due

process violation. The BIA’s rejection of this argument is a legal determination,

-6- which we review de novo. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.

2005).

Due process requires that an alien at a removal hearing must 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

marks omitted). One of an applicant’s rights in an immigration proceeding is that

“a complete record shall be kept of all testimony and evidence produced at the

proceeding.” 8 U.S.C. § 1229a(b)(4)(C). It is the government’s “duty to prepare

a reasonably accurate, reasonably complete transcript.” Ortiz-Salas v. INS, 992

F.2d 105, 106 (7th Cir. 1993). The absence of a “reasonably complete transcript”

can “hamper[] the ability of an alien to mount a challenge to the proceedings that

were conducted before the IJ” and “foreclose effective administrative and judicial

review.” Kheireddine v. Gonzales 427 F.3d 80, 84 (1st Cir. 2005) (quotation

omitted).

To a establish a due process violation based on an “inaccurate or

incomplete transcription,” however, an alien must show “specific prejudice to his

ability to perfect an appeal.” Id. at 85 (quotation omitted). “[P]rejudice to

warrant a remand cannot be shown if the transcription failure does not make any

difference to the outcome of the review.” Id. at 86. In other words, prejudice

-7- requires a showing “that a complete and accurate transcript would have changed

the outcome of the case.” Ortiz-Salas, 992 F.2d at 106.

Here, there is no question that the agency failed to fulfill its responsibility

to prepare a reasonably complete transcript. The transcript contains numerous

entries of “no audible response” or “indiscernible,” particularly during

M s. M ondal’s testimony. Indeed, there are 211 such entries in her testimony

alone, rendering some dialogues incomprehensible. 1 W e do not condone the

agency’s careless preparation of the record: the poor quality of the transcript is

disturbing. 2

Nevertheless, the transcript’s shortcomings do not significantly affect the

agency’s decision to consider her asylum application untimely. The existing

transcript provides M s. M ondal’s account of her reasons for not filing earlier.

According to her testimony, she used the time between M arch and September

2003 to talk to her attorney, gather documents from Bangladesh, and prepare the

application. Admin. R. at 107-08. She does not assert that a complete transcript

1 Additionally, the transcript contains unjustifiable misspellings like “Lybia” for the country Libya, Admin. R. at 86-88, 93, 104; “mosk” for mosque, id. at 139; “Docka” for D haka, the capital of Bangladesh, id. at 136, and “bazaar” for the word bizarre, id. at 63. 2 The Attorney General has apparently recognized that flaw ed transcripts may be a systemic problem. In a recent press release, he announced plans to improve “the Immigration Courts’ ability to record, transcribe, and interpret court proceedings.” Dep’t of Justice, Attorney General Alberto R. Gonzales Outlines Reform s for Im migration Courts and Board of Immigration Appeals (Aug. 9, 2006) (available at http://w ww.usdoj.gov/opa/pr/2006/A ugust/06_ag_520.html).

-8- would show other barriers to filing. W e reject the due process claim as it relates

to the timeliness of her application and therefore do not reach the family’s

contentions on their entitlement to asylum.

B. Restriction on Removal

In addition, the family seeks review of the IJ’s and BIA’s denial of their

requests for restriction on removal. This type of relief requires a showing that the

alien’s “life or freedom would be threatened in [the proposed country of removal]

because of [her] race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An alien’s life or

freedom is presumed to be threatened if she “is determined to have suffered past

persecution in the proposed country of removal.” 8 C.F.R. § 208.16(b)(1)(i).

Otherwise, the alien must show “it is more likely than not” that she would be

persecuted upon removal. Id. § 208.16(b)(1)(iii).

The family’s due process argument, asserted in the context of the asylum

timeliness determination, is also applicable to restriction on removal. The

question is w hether the flaw ed hearing transcript prejudiced the family’s ability to

appeal the denial of restriction on removal to the BIA or to seek review in this

court. This is a legal question which we subject to de novo review. See Niang,

422 F.3d at 1196.

Our review of the record for information germane to restriction on removal

reaffirms our conviction that the transcript is unsatisfactory. Nonetheless, a clear

-9- outline of M s. M ondal’s narrative emerges from a reading of her testimony.

M oreover, the family does not claim that her “indiscernible” statements could

have supplied outcome-changing facts. 3 W ithout a showing that transcription

errors prejudiced the family’s ability to present their argument, we must conclude

that the transcript’s deficiencies do not amount to a due process violation. See

Ortiz-Salas, 992 F.2d at 106-07 (holding that hearing transcript with 292

“inaudible” or “indiscernible” notations did not violate applicant's due process

rights because he could not demonstrate prejudice).

As to the factual determinations relevant to restriction on removal, this

court does not weigh the evidence or evaluate the credibility of witnesses. Yuk v.

Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004). “[F]indings of fact are

conclusive unless the record demonstrates that ‘any reasonable adjudicator w ould

3 In many instances, the substance of the obscured testimony is evident from its context. An example is the following colloquy on cross-examination:

Q. But you agreed to get married in a M uslim (indiscernible), correct? A. Yes. . . . Q. Did you change your name to a M uslim name? A. Yes (indiscernible). . Q Okay. So it looks like, to the in-laws, that you were becoming a M uslim, correct? A. Yes, (indiscernible). Q. But then when you didn’t that’s w hen the problem started, right? A. (indiscernible). Q. All right. . . .

R., at 114-15.

-10- be compelled to conclude to the contrary.’” Ferry, 2006 W L 2258805, at *10

(quoting 8 U.S.C. § 1252(b)(4)(B)). Because the BIA adopted and affirmed the

IJ’s decision in a brief opinion, we review the BIA’s opinion by “consulting the

IJ’s more complete explanation of those same grounds.” Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006).

The IJ based his denial of restriction on removal on specific findings. H e

found that the record did not show past persecution of M s. M ondal: she “resided

in her country for a good part of her adult life and her most serious problem w as

[the] bout with the brother-in-law.” Admin. R. at 64. Also, the IJ determined,

Dr. Adams’ testimony concerning the basis for M s. M ondal’s fear of future

persecution was unsupported. Indeed, the IJ found that Dr. Adams’ opinion was

“a bazaar [sic] statement for an academic person to make.” Id. at 63. In sum, the

IJ denied the requested relief because he determined that the case “falls

dramatically short of being anything that could properly be granted.” Id. at 64.

A careful review of the record reveals that substantial evidence supports the

IJ’s factual findings. In their brief, the family members essentially ask this court

to substitute their view of M s. M ondal’s testimony and the expert’s opinions for

that of the IJ and the BIA. Given the deferential standard of review applicable to

these proceedings, we cannot take this course.

-11- III. Conclusion

To the extent that the family challenges discretionary decisions or findings

of fact relating to untimeliness of M s. M ondal’s asylum application, we DISM ISS

the petition for review for lack of appellate jurisdiction. W e DENY the remainder

of the petition for review.

Entered for the Court

Robert H. Henry Circuit Judge

-12-