Narendra Kumar Rina Wati Sharma Kumar Shekhar Kaushik Kumar v. Alberto R. Gonzales, Attorney General

439 F.3d 520, 2006 U.S. App. LEXIS 3539, 2006 WL 335802

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 15, 2006
• Docket: 03-70200
• Status: Published

Opinions

SILVERMAN, Circuit Judge:

8 C.F.R. § 1003.1(e)(4)(ii) prescribes the exact language that the BIA must use when it issues a “streamlined affirmance”, i.e., affirms an immigration judge’s decision without opinion. In this case, the BIA employed the prescribed language but also added a footnote disavowing the IJ’s adverse credibility finding. We hold today that although the footnote violated the BIA’s regulations, its inclusion was nothing more than harmless surplusage and caused no prejudice. We therefore assume the Kumars are credible and review the IJ’s decision directly. Doing so, we hold that substantial evidence supports the IJ’s decision that the petitioners did not establish past persecution or a likelihood of future persecution.

FACTS AND PROCEEDINGS BELOW

Narendra Kumar is an ethnic Indian and a nátive and citizen of Fiji. His wife, Rina Kumar, and their son, Shekhar Ku-mar, are also natives and citizens of Fiji. On November 10, 1994, the Kumars entered the United States on visitor-for-pleasure visas that permitted them to stay in the United States until May 1995. The Kumars failed to leave the United States by the specified date. The INS issued a Notice to Appear charging the Kumars with removability pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act by reason of having overstayed their visas without authorization. At a hearing before an IJ, the Kumars admitted the factual allegations set forth in the Notice to Appear and conceded remov-ability. The Kumars elected to seek asylum and filed Mr. Kumar’s lead application; Rina and Shekhar Kumar’s claims are derivative of Mr. Kumar’s application.

The Kumars testified about three incidents in support of their claim for asylum.

(1) 1987 Incident at the Kumars’ Home

Mr. Kumar testified that he is an ethnic Indian who had been active in the fledgling Labor Party in Fiji around the time of a military coup to take over the government in 1987. Approximately two weeks following the coup, three soldiers in uniform came to the Kumars’ house purportedly looking for guns. During the incident, Mr. Kumar was punched in the stomach and around the face and verbally abused. He testified that he still has bruises from the incident. One of the soldiers grabbed and squeezed Mrs. Kumar. The soldier additionally made a loud comment in Fijian, which neither Mr. nor Mrs. Kumar understood, but which caused the other soldiers to laugh. After the soldiers left, the Ku-mars discovered that some of Mrs. Ku-mar’s jewelry was missing.

Mr. Kumar initially described this incident as occurring sometime between 10:00 a.m. and noon. When pressed during cross-examination, Mr. Kumar changed his testimony to be consistent with his asylum application — that the incident occurred in the evening. He explained that he was mistaken in his earlier testimony.

Mr. Kumar testified that the next day he filed a complaint with the police. As a result of reporting the incident, the police took Mr. Kumar into custody and locked him in a cell overnight. While in custody, a policeman verbally threatened Mr. Ku-mar and hit his head against the wall.

Shortly after this incident, Mr. Kumar moved to New Zealand where he remained for about two years. He obtained a work visa allowing him to work legally in New Zealand, and found employment at a warehouse. Mrs. Kumar and the children stayed behind in Fiji with Mrs. Kumar’s family. Mr. Kumar testified that he was concerned about his family’s safety, but felt they would be safe living with his in-laws. In 1989, Mr. Kumar voluntarily returned to Fiji because he felt that the situation had improved and he “was feeling lonely” in New Zealand. When he returned from New Zealand, he no longer had any involvement with the Labor Party.

(2) 1991 Incident at Mr. Kumar’s Temple

Mr. Kumar testified that he is Hindu. Sometime in 1991, two soldiers arrived at the temple where he was praying. They took him outside and told him that Hindus are not allowed to practice their religion in Fiji and that he should convert to Christianity or go back to India. The soldiers did not arrest or physically abuse Mr. Kumar. After this incident, Mr. Kumar stopped going to the temple.

(3) 1994 Car Collision

In August of 1994, Mr. Kumar was involved in a car collision. He testified that he was driving through an intersection with a four-way stop and an army truck failed to stop at the intersection and hit the back of his car. When he confronted the soldiers and told them that they could have killed him, one of the soldiers responded that Mr. Kumar’s life was not worth living in Fiji and that he should return to India. Then the soldier kicked Mr. Kumar and his car. Mr. Kumar testified that the soldiers intentionally ran into his car because he was a member of the Labor Party. On cross-examination, Mr. Kumar was asked how the soldiers would have known that he was the driver of the car that they hit. He responded that they could have recognized his car from the rallies he attended in 1987.

Mr. Kumar did not report the incident because an Indo-Fijian police officer advised him that it would only cause him more trouble. Following this incident, the Kumars decided to come to the United States to escape the harassment and to “make money” and have a “better life here.”

Mr. Kumar testified that he has three brothers and two sisters residing in Fiji. They are all Indo-Fijians. He stated that his brothers and sisters lease the land they live on from Fijian landowners and have been told that the leases will not be renewed. In addition, he testified that his elder brother was the victim of multiple burglaries. Mrs. Kumar testified that her parents and one brother live in the United States. One sister lives in Australia and one sister lives in Canada.

At the conclusion of the asylum hearing, the IJ rendered her decision. She found that Mr. Kumar was not credible because of numerous inconsistencies and contradictions between his written declaration and the oral testimony presented at the hearing. The IJ further ruled that even assuming Mr. Kumar were credible, he failed to submit sufficient evidence of past persecution or a well-founded fear of future persecution if he and his family returned to Fiji. Finally, the IJ found that Mr, Kumar failed to present any evidence that he is likely to be tortured if he returned to Fiji. The IJ granted the Kumars’ application for voluntary departure.

The Kumars appealed to the BIA, which issued the following decision:

The Board affirms, without opinion, the result of the decision below.tfn/i:i The decision below is, therefore, the final agency determination. See 8 C.F.R. § 3.1(e)(4).

[fn/1] The Board does not summarily affirm the Immigration Judge's adverse credibility determination. However, this does not affect our decision to affirm the Immigration Judge's ultimate decision denying relief.

The Kumars timely petition for review.

ANALYSIS

A. BIA’s Summary Affirmance

The Kumars challenge the BIA’s summary affirmance procedure as applied in this case. Specifically, they contend that the BIA violated its own regulations when it added a footnote carving the IJ’s credibility decision out of its review.

The BIA’s authority to affirm cases without opinion is codified at 8 C.F.R. § 1003.1(e)(4).¹ In particular, § 1003.1(e)(4)(ii) states:

If the Board member determines that the decision should be affirmed without opinion, the Board shall issue an order that reads as follows: “The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination.- See 8 CFR 1003.1(e)(4).” An order affirming without opinion, issued under authority .of this provision, shall not include further explanation or reasoning. Such an .order approves the result reached in the decision below; it does not necessarily imply approval of all of the reasoning, of that decision, but does signify the Board’s conclusion that any errors in the decision of the immigration judge or the Service were harmless or nonmaterial.

Here the BIA failed to strictly follow the procedure outlined above. The order recites the prescribed text set forth in § 1003.1(e)(4)(ii), but aiso includes a footnote disavowing the IJ’s adverse credibility finding. The inclusion of that footnote is contrary to the regulation.

The violation of an agency regulation does not necessarily render a deportation unlawful. See United States v. Calderon-Medina, 591 F.2d 529, 531-32 (9th Cir.1979). Rather, a petitioner must demonstrate that the violation prejudiced those interests protected by the regulation. Id. While we are dubious as to whether the particular regulation at issue creates any protectible right, we need not resolve that issue here. As conceded by the Kumars’ counsel at oral argument, the Kumars did not and cannot show that they were prejudiced by the footnote or that the violation of the regulation affected the outcome of the proceedings. See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir.1989).

At worst, the inclusion of the footnote was harmless surplusage. At best, the Kumars benefitted from the BIA’s error. We assume, as the IJ did in her alternative ruling, that the Kumars are credible. We conclude that the Kumars did not suffer prejudice as a result of the BIA’s failure to strictly adhere to its regulations.²

The Kumars’ remaining contentions regarding streamlining are foreclosed by our decision in Falcon Carriche v. Ashcroft, 360 F.3d 845, 848, 851 (9th Cir.2003), where we held that “streamlining does not violate an alien’s due process rights .... Nor is it a due process violation for the BIA to affirm the IJ’s decision without issuing an opinion.”

B. Persecution in Fiji

To establish eligibility for asylum, an applicant must demonstrate that he is a “refugee,” i.e., an alien who is unable or unwilling to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also Melkonian v. Ashcroft, 320 F.3d 1061, 1064(9th Cir. 2003). To give rise to refugee status, the persecution must be “on account of’ one of the five statutorily-specified grounds. AlHarbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). The IJ found that Mr. Kumar’s experiences in Fiji did not rise to the level of persecution. We agree; substantial evidence supports the IJ’s conclusion that the Kumars failed to establish past persecution on account of any of the five statutorily-specified grounds. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

Following the incident at the Kumars’ home in 1987, Mr. Kumar left Fiji and lived in New Zealand for approximately two years. He then voluntarily returned to Fiji because he was lonely and depressed in New Zealand. The IJ stated that Mr. Kumar’s voluntary return to Fiji was indicative of Kumar’s own belief that it would be safe and appropriate for him to live in Fiji. In addition, following his return to Fiji in 1989, Mr. Kumar no longer had any association with the Labor Party. To the extent that the Fijian military targeted Mr. Kumar in 1987 because of his activities with the Labor Party, as Mr. Kumar testified, his two-year absence from the country and distance from the party upon his return weaken his claim of persecution.

The IJ found that the 1994 incident was a traffic accident and was not related to any of the five statutory grounds for asylum. Moreover, the IJ concluded that the accident was brief and did not result in any serious problems with the military. The Kumars presented no evidence to the contrary. Finally, the IJ noted that the Kumars both testified that practicing their religion at home is “comfortable, acceptable, and routine to them.” The single incident in 1991 at Mr. Kumar’s temple is not sufficient to establish that the Kumars suffered religious persecution in Fiji. Even considering the cumulative effect of the Kumars’ experiences, this case is not one in which the evidence presented compels a finding contrary to that of the IJ.³

Mr. Kumar’s testimony also fails to establish a well-founded fear of future persecution. See Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir.1998) (stating that to establish a well-founded fear of future persecution, the alien must demonstrate both an objectively reasonable and subjectively genuine fear of persecution).

Because the Kumars have not established eligibility for asylum, they have not met the higher burden of proving that they are entitled to withholding of removal. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc) (holding that an applicant who has not satisfied the lesser standard of proof required to establish eligibility for asylum necessarily fails to satisfy the more stringent standard required to establish eligibility for withholding of removal).

CONCLUSION

The Kumars’ petition for review is denied. The stay of removal pending review •will expire upon issuance of the mandate in this case. See Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir.2004).

PETITION DENIED.

1 . The regulations now at 8 C.F.R. Part 1003 (2003) formerly were at 8 C.F.R. Part 3 (2002).

2 . Furthermore, there is nothing to be gained by remanding the case to the BIA so that it can excise the footnote and send the case back to us without it.

3 . Compare with Prasad v. INS, 47 F.3d 336, 339-340 (9th Cir. 1995) (concluding that an attack committed by a group of ethnic Fijians and the military, detention by the police, physical abuse while in.police custody, and coercive questioning by the police regarding political affiliations were insufficient to establish past persecution); Singh v. INS, 134 F.3d 962, 968-69 (9th Cir.1998) (holding that an Indo-Fijian's claims of ethnic tension, including the stoning of her house by ethnic Fijians, burglary of her home and property, governmental outlawing of Hindu, and refusal of police assistance, did not compel a finding of persecution). We have defined persecution as "an extreme concept that does not include every sort of treatment our society regards as offensive.” Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (citation omitted) (internal quotation marks omitted). "Discrimination on the basis of race or religion, as morally repre-hensive as it may be, does not ordinarily amount to persecution within the meaning of the Act.” Id. To obtain reversal of an IJ’s decision, a petitioner must show that the evidence not only supports reversal, but compels it. Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. While the ethnic slurs and physical confrontations the Kumars endured are regrettable) the evidence presented here does not compel reversal.