Putu Indrawati v. U.S. Attorney General
Opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 13-12071 ________________________
Agency No. A096-278-321
PUTU INDRAWATI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(March 2, 2015)
Before TJOFLAT, JULIE CARNES and GILMAN, ∗ Circuit Judges.
TJOFLAT, Circuit Judge:
∗ The Honorable Ronald Lee Gilman, United States Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation. Putu Indrawati petitions for review of the Board of Immigration Appeals’
(“BIA”) order affirming the Immigration Judge’s (“IJ”) decision that she is barred
from adjustment of status because she knowingly filed a frivolous asylum
application. 1 Indrawati raises three claims. First, she argues that the IJ denied her
a sufficient opportunity to account for any discrepancies or implausible aspects of
her claim, in contravention of In re Y-L-, 24 I. & N. Dec. 151 (2007). Second, she
argues that the IJ’s reliance upon three documents—a photocopy of a ten page
addendum to her I-589 application for asylum, an Immigration and Naturalization
Service (“INS”) memorandum recounting an interview conducted with Indrawati’s
mother, and a memorandum detailing asylum fraud committed by the man who
handled Indrawati’s application—violated her right to due process. Third, she
argues that the BIA’s decision reflects a lack of reasoned consideration.
1 An alien who knowingly makes a “frivolous” asylum application is permanently ineligible for all benefits under the Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1158(d)(6), except withholding of removal, 8 C.F.R. § 1208.20. An asylum application is frivolous “if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20.
Although the BIA has (correctly) noted that, in this context, “fraudulent” might be a more appropriate term than “frivolous,” In re Y-L-, 24 I. & N. Dec. 151, 155 n.1 (2007), important distinctions exist between these terms. An application is “fraudulent” if “[t]here is a showing of fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.” See 8 C.F.R. § 208.24(a)(1). Finding that an application is fraudulent is grounds only to revoke asylum; that finding does not necessarily bar the applicant from receipt of other relief under the INA. See id. A fraudulent application is also frivolous only if, after comporting with procedural steps outlined in In re Y-L-, the IJ makes a finding that the applicant submitted the application knowing that it contained a material falsehood.
In other words, all frivolous applications are fraudulent, but not all fraudulent applications are frivolous.
2 We conclude that we are without jurisdiction to consider Indrawati’s
arguments regarding the sufficiency of her opportunity to account for discrepancies
and implausible aspects of her claim. We are also without jurisdiction to consider
her due process argument concerning the INS memorandum. Moving to the
merits, we find unavailing her remaining due process claims, along with her claim
that the BIA’s decision lacks reasoned consideration. Accordingly, we dismiss in
part and deny in part her petition for review.
I.
A.
Putu Indrawati, an ethnically Chinese Christian, was born in Indonesia in
1974. In 1998, she entered the United States legally as a tourist. Sometime
thereafter, she enrolled in community college in Gainesville, Florida. Although
she originally intended to return permanently to Indonesia upon graduation, her
plans shifted following an incident in December 2000. At that time, Indrawati
returned to Indonesia to attend her grandmother’s funeral and to obtain an F-1
student visa so that she could continue studying in the United States. According to
Indrawati, she went shopping with a friend in a Surabaya 2 mall after acquiring her
visa. As she entered the parking lot to leave, a group of Indonesian men assaulted
2 Surabaya is the capital of Indonesia’s East Java province. It is the second-largest city in Indonesia.
3 her and her friend. The men shouted ethnic slurs at Indrawati, and one choked her.
Indrawati screamed, and the men scattered. 3 Although Indrawati did not alert the
authorities, she immediately told her parents about the ordeal.
This incident, combined with encouragement from Herlina Suherman—a
fellow ethnically Chinese Christian student 4 that Indrawati described as “pretty
much the closest friend that I had in the U.S.”—convinced Indrawati to apply for
asylum. Suherman explained that her boss, Hans Gouw, could help Indrawati.
Gouw was a purportedly upstanding member of the immigrant Chinese-Indonesian
community. He led the Chinese Indonesian American Society and had helped
Suherman acquire asylum. Suherman explained that Gouw could help Indrawati
too—for a fee. Although she could read and write English and presumably could
have completed the I-589 form personally, Indrawati—like so many others
confronted by impenetrable government forms—relied on a third party’s expertise.
Suherman and Gouw were on the case.
3 Indrawati adopted this version of the Surabaya assault before Asylum Officer Conwell, Immigration Judge Wilson, Immigration Judge Karden, the BIA, and this court. We assume, arguendo, the accuracy of her rendition of the facts. 4 Indrawati met Suherman in Gainesville. At that time, Suherman attended the University of Florida. She later moved to Michigan to work for Gouw. Her current whereabouts are unknown.
4 According to Indrawati, her involvement in the application filing process
was minimal. She signed a blank I-5895 and truthfully answered biographical
questions Suherman posed to her over the telephone. Indrawati also provided
Suherman with her birth certificate, passport, and money to pay for Gouw’s
assistance. Suherman and Gouw would apparently use this information to file a
true and correct asylum application; all Indrawati would have to do was attend an
asylum interview. That Indrawati would not see her application prior to the
interview evidently bothered her not.
On January 27, 2003, the INS received the application. The enclosed Form
I-589 Application for Asylum and Withholding of Removal revealed that Indrawati
sought asylum based upon her ethnicity and religion. The I-589 alleged that
Indrawati had “long been subject to persecution” by Muslim-Indonesian extremists
because she was a Chinese Christian. It also (falsely) stated that many of
Indrawati’s “Chinese and Christian friends have been persecuted, tortured and
killed in the past few years, since 1998.” The completed I-589 form did not
mention the Surabaya assault that allegedly precipitated Indrawati’s pursuit of
asylum. This was not a surprising omission given the form’s instruction to “attach
Free access — add to your briefcase to read the full text and ask questions with AI
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 13-12071 ________________________
Agency No. A096-278-321
PUTU INDRAWATI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(March 2, 2015)
Before TJOFLAT, JULIE CARNES and GILMAN, ∗ Circuit Judges.
TJOFLAT, Circuit Judge:
∗ The Honorable Ronald Lee Gilman, United States Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation. Putu Indrawati petitions for review of the Board of Immigration Appeals’
(“BIA”) order affirming the Immigration Judge’s (“IJ”) decision that she is barred
from adjustment of status because she knowingly filed a frivolous asylum
application. 1 Indrawati raises three claims. First, she argues that the IJ denied her
a sufficient opportunity to account for any discrepancies or implausible aspects of
her claim, in contravention of In re Y-L-, 24 I. & N. Dec. 151 (2007). Second, she
argues that the IJ’s reliance upon three documents—a photocopy of a ten page
addendum to her I-589 application for asylum, an Immigration and Naturalization
Service (“INS”) memorandum recounting an interview conducted with Indrawati’s
mother, and a memorandum detailing asylum fraud committed by the man who
handled Indrawati’s application—violated her right to due process. Third, she
argues that the BIA’s decision reflects a lack of reasoned consideration.
1 An alien who knowingly makes a “frivolous” asylum application is permanently ineligible for all benefits under the Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1158(d)(6), except withholding of removal, 8 C.F.R. § 1208.20. An asylum application is frivolous “if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20.
Although the BIA has (correctly) noted that, in this context, “fraudulent” might be a more appropriate term than “frivolous,” In re Y-L-, 24 I. & N. Dec. 151, 155 n.1 (2007), important distinctions exist between these terms. An application is “fraudulent” if “[t]here is a showing of fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.” See 8 C.F.R. § 208.24(a)(1). Finding that an application is fraudulent is grounds only to revoke asylum; that finding does not necessarily bar the applicant from receipt of other relief under the INA. See id. A fraudulent application is also frivolous only if, after comporting with procedural steps outlined in In re Y-L-, the IJ makes a finding that the applicant submitted the application knowing that it contained a material falsehood.
In other words, all frivolous applications are fraudulent, but not all fraudulent applications are frivolous.
2 We conclude that we are without jurisdiction to consider Indrawati’s
arguments regarding the sufficiency of her opportunity to account for discrepancies
and implausible aspects of her claim. We are also without jurisdiction to consider
her due process argument concerning the INS memorandum. Moving to the
merits, we find unavailing her remaining due process claims, along with her claim
that the BIA’s decision lacks reasoned consideration. Accordingly, we dismiss in
part and deny in part her petition for review.
I.
A.
Putu Indrawati, an ethnically Chinese Christian, was born in Indonesia in
1974. In 1998, she entered the United States legally as a tourist. Sometime
thereafter, she enrolled in community college in Gainesville, Florida. Although
she originally intended to return permanently to Indonesia upon graduation, her
plans shifted following an incident in December 2000. At that time, Indrawati
returned to Indonesia to attend her grandmother’s funeral and to obtain an F-1
student visa so that she could continue studying in the United States. According to
Indrawati, she went shopping with a friend in a Surabaya 2 mall after acquiring her
visa. As she entered the parking lot to leave, a group of Indonesian men assaulted
2 Surabaya is the capital of Indonesia’s East Java province. It is the second-largest city in Indonesia.
3 her and her friend. The men shouted ethnic slurs at Indrawati, and one choked her.
Indrawati screamed, and the men scattered. 3 Although Indrawati did not alert the
authorities, she immediately told her parents about the ordeal.
This incident, combined with encouragement from Herlina Suherman—a
fellow ethnically Chinese Christian student 4 that Indrawati described as “pretty
much the closest friend that I had in the U.S.”—convinced Indrawati to apply for
asylum. Suherman explained that her boss, Hans Gouw, could help Indrawati.
Gouw was a purportedly upstanding member of the immigrant Chinese-Indonesian
community. He led the Chinese Indonesian American Society and had helped
Suherman acquire asylum. Suherman explained that Gouw could help Indrawati
too—for a fee. Although she could read and write English and presumably could
have completed the I-589 form personally, Indrawati—like so many others
confronted by impenetrable government forms—relied on a third party’s expertise.
Suherman and Gouw were on the case.
3 Indrawati adopted this version of the Surabaya assault before Asylum Officer Conwell, Immigration Judge Wilson, Immigration Judge Karden, the BIA, and this court. We assume, arguendo, the accuracy of her rendition of the facts. 4 Indrawati met Suherman in Gainesville. At that time, Suherman attended the University of Florida. She later moved to Michigan to work for Gouw. Her current whereabouts are unknown.
4 According to Indrawati, her involvement in the application filing process
was minimal. She signed a blank I-5895 and truthfully answered biographical
questions Suherman posed to her over the telephone. Indrawati also provided
Suherman with her birth certificate, passport, and money to pay for Gouw’s
assistance. Suherman and Gouw would apparently use this information to file a
true and correct asylum application; all Indrawati would have to do was attend an
asylum interview. That Indrawati would not see her application prior to the
interview evidently bothered her not.
On January 27, 2003, the INS received the application. The enclosed Form
I-589 Application for Asylum and Withholding of Removal revealed that Indrawati
sought asylum based upon her ethnicity and religion. The I-589 alleged that
Indrawati had “long been subject to persecution” by Muslim-Indonesian extremists
because she was a Chinese Christian. It also (falsely) stated that many of
Indrawati’s “Chinese and Christian friends have been persecuted, tortured and
killed in the past few years, since 1998.” The completed I-589 form did not
mention the Surabaya assault that allegedly precipitated Indrawati’s pursuit of
asylum. This was not a surprising omission given the form’s instruction to “attach
5 The form Indrawati signed contained warnings that the application was certified under penalty of perjury and that “[a]pplicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits” under the INA.
5 documents evidencing . . . the specific facts on which you are relying to support
your [asylum] claim.”
Indeed, appended to the completed form was a ten-page statement
(“Statement”) that recounted two events supporting Indrawati’s asylum claim. The
first event was an embellished version of the Surabaya assault. Whereas the actual
event involved only ethnic slurs and choking, the Statement recounted a sexual
assault. According to the Statement, Indrawati’s assailants stripped her and
knocked her unconscious, resulting in her hospitalization. The Statement’s second
event was entirely fabricated. It detailed an attack on a Christian prayer meeting at
Indrawati’s home. Twenty Muslim men allegedly broke into Indrawati’s house,
beat her father and the pastor, and threatened the entire group with further reprisal
should they continue to practice Christianity. In reality, Indrawati’s parents were
Buddhists and there was never any prayer meeting or attack at their home.
In response to her application, the INS scheduled an asylum interview with
Indrawati. On March 20, 2003, Asylum Officer Miguel Rodez conducted the
interview. Although Rodez unquestionably possessed the Statement, the parties
dispute whether or not he relied upon or referenced its contents at the interview. 6
Neither party, however, disputes that Rodez questioned Indrawati regarding her I- 6 This dispute is perhaps the heart of this case’s frivolousness determination. Because Rodez did not note that Indrawati’s testimony was inconsistent with her application (which includes the Statement), the inference is that, if Rodez did ask questions about the Statement, Indrawati testified consistently with the Statement’s contents, and thus testified falsely.
6 589, made corrections to that form (along with red checkmarks), and took three
pages of handwritten notes.
In these notes, Rodez placed a checkmark indicating that Indrawati had not
“received medical attention.” This directly conflicted with the Statement’s
assertion that Indrawati was hospitalized following the Surabaya assault. His notes
also stated that Indrawati’s worst problem occurred in 2000 at a mall and that “2
men tried to rape her.” Rodez also wrote that Indrawati’s “story conforms to I[-
]589 statement[,] see attached.”
A week later, Rodez wrote a report recommending a grant of asylum. By
this point, Rodez’s copy of the Statement was replete with red checkmarks like
those on the I-589. His recommendation’s reliance upon the indisputably
fraudulent Statement was manifest. He referenced the two incidents detailed in the
Statement and quoted dialogue contained therein verbatim. On the basis of his
recommendation, the INS approved Indrawati’s application for asylum.
B.
Five years later, Indrawati received a Notice of Intent to Terminate Asylum
Status featuring the proclamation that the United States Citizenship and
Immigration Service (“USCIS”) had “information from a reliable source indicating
that you did not have any problems in Indonesia and that you fabricated your
asylum claim.” Unbeknownst to Indrawati, the evidence in question was a
7 memorandum penned by the INS’s Texas Service Center (“TSCM”) detailing an
Anchorage, Alaska interview with Indrawati’s mother. Officials questioned her
mother as she was en route to visit Indrawati. According to this memorandum—
prepared months after the Anchorage interview—Indrawati’s mother allegedly told
immigration officials that she knew of nothing that would have prompted her
daughter to seek asylum. 7 Furthermore, the mother stated that Indrawati applied
for asylum on the advice of a classmate.
Though Indrawati said she was aware of no fraud in her application, if there
was fraud, she had a guess as to its origin. Years earlier, Indrawati learned that
Herlina Suherman, her closest friend, had run into legal troubles. Although
Indrawati and Suherman “talk[ed] about pretty much anything and everything,”
Suherman had apparently kept secret her participation in an asylum fraud ring. In
2004, the Department of Justice announced an indictment charging Suherman with
asylum fraud. That indictment also charged Hans Gouw—Suherman’s boss and
the man who all parties agree handled Indrawati’s asylum application for a fee—
with the same crime.
Indrawati also learned that, while Suherman remained a fugitive, Gouw had
subsequently pleaded guilty to charges of conspiracy to commit immigration fraud,
7 In her July 2009 testimony, Indrawati stated that she immediately told her parents about the (true rendition of the) Surabaya assault. She stated the same in her September 2011 testimony.
8 conspiracy to commit identification fraud, conspiracy to commit sex trafficking,
and money laundering. It turned out that Gouw’s Chinese Indonesian American
Society was a profitable front for massive immigration fraud. Indrawati thus
assumed that any problems with her asylum application were the result of
meddling by Suherman and Gouw.
The USCIS’s notice directed Indrawati to appear for an interview at the
Miami Asylum Office on September 10, 2008, to determine whether her
application was fraudulent. Asylum Officer Patricia Conwell conducted the
interview. Indrawati explained that she applied for asylum on Suherman’s advice
and that her only tangible involvement in her I–589 application began and ended
with her signature. Indrawati maintained that she had never seen the Statement
and that Rodez never questioned her about anything besides the contents of the I-
589 form.
Indrawati also explained that the Surabaya incident was the only physical
attack she had ever suffered (though she did note that “[o]ther things happened like
I had to pay triple for passport” because of her ethnicity). She also admitted that
someone had given her “a brown paper envelope before the interview and told
[her] to submit it to the officer.” Regardless, she explained that she never
investigated the envelope’s contents. To conclude the interview, Indrawati’s
9 attorney told Officer Conwell that “[a]ny alleged fraud was not on applicant’s
part.”
Conwell found that Indrawati had submitted a fraudulent asylum application.
Furthermore, she found that the unembellished choking incident did not rise to the
level of persecution necessary for asylum eligibility. See 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A). The USCIS therefore terminated Indrawati’s
asylum, pursuant to 8 C.F.R. § 208.24(a)(1), 8 on October 2, 2008.
C.
Four days later, the INS commenced removal proceedings against Indrawati,
alleging that she had “procured asylum in the United States by fraud or by willfully
misrepresenting a material fact” and charging her with violations of 8 U.S.C.
§§ 1227(a)(1)(A)–(B) and 1182(a)(6)(C)(i). Removal proceedings began on
December 10, 2008, before Immigration Judge Earle Wilson. Judge Wilson heard
evidence,9 sustained the charge of removability under 8 U.S.C. §§ 1227(a)(1)(A)–
(B), and found that Indrawati had filed a frivolous application. 10 This, however,
8 That regulation provides, in relevant part, that “an asylum officer may terminate a grant of asylum made under the jurisdiction of USCIS if, following an interview, the asylum officer determines that . . . there is a showing of fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.” 9 Judge Wilson heard in-person testimony from Indrawati and telephonic testimony from Officers Rodez and Conwell. 10 In his oral decision, Judge Wilson found that Indrawati testified falsely at her asylum interview and that her application was “frivolous in that [Indrawati] submitted the application knowing that it contained false and misleading information.”
10 did not end the case. Because Indrawati could still seek withholding of removal, 11
Judge Wilson adjourned the case to allow her the chance to file a second petition.
Indrawati did just that, filing a second application for asylum and
withholding of removal. She additionally filed a petition to adjust her status based
upon her recent marriage to a United States Citizen. Before any of these
applications were resolved, Immigration Judge Stuart Karden replaced Judge
Wilson. Judge Karden then exercised his authority to rehear the frivolousness
issue.
By the time Judge Karden was ready to rehear that issue, Indrawati had
withdrawn her second application for asylum and withholding of removal. This
left only her petition for adjustment of status. Because a frivolousness finding
would preclude adjustment of status, see 8 U.S.C. § 1158(d)(6), Judge Karden set
out to immediately make that determination. In deciding this issue, Judge Karden
heard testimony from three individuals and received documentary evidence. He
first heard from Officer Rodez. Although he could not recall the specifics of
Indrawati’s interview, Rodez testified as to his general practices in conducting
asylum interviews. Most importantly, he noted that he would generally place
11 A frivolousness finding does not preclude an alien from seeking withholding of removal. 8 C.F.R. § 1208.20.
11 checkmarks above specific facts in an application after having verified that
information with the applicant during the interview.
Officer Conwell testified next. Conwell confirmed that Indrawati admitted
that the Statement was fraudulent. Conwell also noted that it was unusual for an
asylee to admit to fraudulent components of an asylum application. Additionally,
Conwell testified that she believed Indrawati to be truthful at her termination
interview. What Conwell meant by this was (and is) ambiguous. 12 On the one
hand, Conwell may have meant that she believed Indrawati’s claim that Indrawati
had never seen the Statement and had answered all of Rodez’s questions truthfully.
12 The following exchange between Judge Karden and Officer Conwell highlights this ambiguity:
IJ: Now, as you know, obviously, a big part of this is who created the statement? Did she know about the statement, et cetera. When you said you felt she was truthful when you did the interview, now obviously you don’t know what she’s thinking but at least the way that you evaluated [Indrawati’s] testimony part of it was that she told you that she had never seen this statement before. At the time did you believe that?
CONWELL: I think more of my thoughts of her being truthful are that she said this didn’t happen, this didn’t happen and that didn’t happen. So I don’t know that I really examined that thought so carefully.
IJ: All right. So when you said there was—
CONWELL: But she seemed honest that day.
IJ: Okay.
CONWELL: I mean, it’s just, you know, you interview people and you say they are being honest or not and you know.
12 On the other hand, Conwell may have meant that she believed Indrawati’s
assertion that the events chronicled in the Statement never occurred.
Finally, Indrawati testified. She stated that she remembered the interview
and that Rodez never questioned her regarding information contained within the
Statement. She testified that she had answered all of Rodez’s questions truthfully
and that she first learned about the Statement and its falsehoods when confronted
by Conwell. She also reiterated that her only involvement in filing her application
began and ended with signing a blank I-589 and relating truthful information to
Suherman, whom she entrusted to accurately complete the form.
Judge Karden also considered documentary evidence, 13 beginning with a
color photocopy of the Statement. This copy showed the checkmarks that Rodez
allegedly placed as he interviewed Indrawati. During the hearing, Indrawati
requested access to the original Statement, claiming that she could use it to
demonstrate that the checkmarks were made after the interview. If proven, this
would have eliminated perhaps the strongest evidence for finding fraud. Indrawati,
however, did not explain how she would (or could) use the original Statement to
date Rodez’s checkmarks. After authenticating the document with Rodez, the IJ
13 There were additional exhibits beyond those covered here. We discuss only those documents that figure prominently in this appeal.
13 admitted the photocopy of the Statement without requiring the government to
produce the original.
Judge Karden also considered the TSCM, the document that precipitated the
revocation of Indrawati’s asylum. The TSCM recounted that Indrawati’s mother
stated that she did not know why her daughter would claim asylum. He also
considered an affidavit by Indrawati’s mother disputing the TSCM’s accuracy.
Indrawati’s mother stated that she had been mistranslated and that Indrawati had
encountered serious difficulty in Indonesia on account of her race and religion.
Finally, Judge Karden considered the Fraud Verification Memo (“FVM”).
As mentioned earlier, Hans Gouw completed and filed Indrawati’s application.
Pursuant to his guilty plea to asylum fraud (among other things), Gouw
participated in a three-day interview in 2006 in which he outlined to federal agents
the procedures he used to procure asylum for his customers. The FVM
memorialized the findings of that interview. The government introduced the FVM
ostensibly to impeach Indrawati after she testified that she had never spoken with
Gouw, attended practice sessions for her asylum interview, or consented to fraud.
Some of the FVM’s details contradicted Indrawati’s narrative. For example,
Gouw claimed that he (or his associates) coached individual applicants so that they
could testify credibly and consistently with their fraudulent asylum applications.
14 He also stated that his organization obtained the applicant’s consent before
submitting a fraudulent application.
Other details irrelevant to impeachment conformed to Indrawati’s narrative,
thus bolstering the FVM’s reliability. Gouw stated that applicants who had paid “a
sufficient amount of their outstanding fee” were provided with a copy of all
documents submitted on their behalf. Indrawati had earlier testified that she paid
Gouw a fee and that she had received a brown envelope (perhaps containing her
application) prior to her interview. Gouw also stated that, where an applicant
indicated an actual account of discrimination or harm, he would embellish that
event to “dramatize” what had happened. The Statement indisputably contained a
dramatized version of the Surabaya assault.
Still other details, however, appeared to weaken the Government’s case. For
example, although Gouw named many of the asylum applicants he helped, he did
not mention Indrawati. Finally, some details were irrelevant or of little probative
value. For example, the FVM recounted that Gouw listed false addresses for
asylum applicants to ensure that asylum interviews occurred during circuit rides. 14
14 Many asylum interviews occur at the asylum officer’s office. In such circumstances, the officer will generally conduct one to two interviews per day. However, asylum officers will also travel to conduct interviews. For example, although Officer Rodez was stationed at the Miami Asylum Office, he also conducted interviews in Jacksonville, Puerto Rico, and St. Thomas. These on-location interviews are called “circuit rides.” While on a circuit ride, asylum officers generally conduct five to six interviews per day. Because an officer must conduct many more interviews than usual while on a circuit ride, there is the possibility that circuit-ride interviews will be less thorough than interviews conducted at his office.
15 Although Indrawati’s interview took place on a circuit ride, no one contended that
she used a fraudulent address. Gouw also stated that he sometimes created false
identification documents for his applicants. No one, however, ever alleged that
any of Indrawati’s documentation was fraudulent.
Ultimately, Judge Karden credited Rodez’s testimony as to the method that
Rodez used when conducting asylum interviews. Rejecting Indrawati’s argument
that Rodez must have checkmarked the Statement following their interview, Judge
Karden, like Judge Wilson before him, found that Rodez checkmarked an
application only during the asylum interview—and in response to the asylee’s
answers. Because the Statement had checkmarks, he concluded that Rodez must
have questioned Indrawati concerning the material therein and received answers
conforming to the Statement. Accordingly, Judge Karden found that Indrawati
knowingly testified falsely to material facts at her asylum interview; that is, she
knowingly filed a frivolous application for asylum. 15
Judge Karden bolstered this conclusion by referencing Conwell’s finding
that Indrawati’s application was fraudulent, along with the FVM’s assertion that
Gouw would coach his applicants so that they could testify convincingly at their
asylum hearings. He noted that Gouw had a strong interest in prepping his
15 Although the Government did not rely upon this provision, we note that an applicant’s “signature [on an asylum application] establishes a presumption that the applicant is aware of the contents of the application.” 8 C.F.R. § 1208.3(c)(2).
16 customers to ensure they had smooth asylum interviews. His fraudulent asylum
enterprise would collapse—and therefore expose him to criminal prosecution—if
applicants testified inconsistently with their applications. Having found that the
Government met its burden of proof by a preponderance of the evidence that
Indrawati had knowingly submitted a frivolous asylum application, Judge Karden
ordered her removed and found her ineligible for either adjustment of status or
voluntary removal.
D.
In her appeal to the BIA, Indrawati challenged Judge Karden’s frivolousness
finding on two grounds.16 First, she contended that the Government had not
proven by a preponderance of the evidence that Indrawati had knowingly filed a
frivolous asylum application. Indrawati’s attorney stated that “[t]he only evidence
in the entire record to show that Mrs. Indrawati was asked the questions on the ten 16 In her notice of appeal from the IJ’s decision, Indrawati presented her arguments as follows:
The decision of the Immigration Judge was contrary to the law, the facts, and the evidence.
The government failed to meet its burden of showing by a preponderance of the evidence that the respondent had knowingly and deliberately filed a frivolous asylum application.
The immigration judge committed serious errors of law in the admission of documentation that was highly prejudicial to the respondent and was not provided to respondent as required by the local rules. Furthermore, the judge would not permit respondent or her attorney to examine the original I-589 application and Supplement, which was necessary to ascertain the authenticity of the markings made by the asylum officer at the time of respondent’s asylum interview.
17 page attachment are yellow highlights, red lines, and red checkmarks made by
Officer Rodez.” As she had below, she claimed that the red checkmarks were
made a week after the interview, and that, if proven, this “would have established
that Mrs. Indrawati was truthful when she stated that Mr. Rodez never asked her
the questions on the attachment to the asylum application during her interview.”
Although couched in language concerning burdens of proof, most of Indrawati’s
arguments quibbled with the weight given to and conclusions drawn from various
pieces of evidence.17
Second, she contended that the Government’s refusal to allow her to view
the original check-marked Statement, along with Judge Karden’s reliance upon that
document and the FVM, denied her due process. According to Indrawati, “[a]
review of the original [I-589 and Statement] would have shown that the red
checkmarks made by the asylum officer were not made at the asylum interview,”
and that her inability to review that document rendered the hearing fundamentally
unfair. To contest the FVM’s admission, she cited to cases holding that reliance
upon documents containing multiple levels of hearsay—and the FVM surely did
contain double hearsay—violates due process. Indrawati also contested the FVM’s
17 For example, Indrawati argued that “[t]he only indicia of knowingly fabricating evidence is a document (not prepared by Mrs. Indrawati, not submitted by her, and not signed by her) containing markings by an asylum examiner which, based on the totality of the evidence, indicates that it was prepared one week after the date of the interview.” Indrawati went on to explain that, “[i]f all the facts in the case are evaluated fairly,” the Government would not have met its burden.
18 reliability by noting discrepancies between how her application was filed and
Gouw’s filing modus operandi. Overall, Indrawati contended that, had neither the
check-marked Statement nor the FVM been considered, “there would have been a
different outcome because the government would not have been able to prove their
case by a preponderance of the evidence.”
E.
The BIA dismissed her appeal. It disagreed that the Government failed to
meet its burden of proving by a preponderance of the evidence that Indrawati
knowingly submitted a frivolous asylum application. It stated that the IJ’s decision
to credit Rodez’s testimony (and discredit Indrawati’s testimony) was not clearly
erroneous, and that Rodez’s testimony demonstrated that Indrawati “testified to
[Rodez] consistently with [the Statement’s] contents.” The BIA also noted that
Conwell’s termination interview with Indrawati “confirmed that nothing in Officer
Rodez’s notations from the asylum interview was true except for a choking
incident.” The BIA further stated that the FVM, which reflected that Gouw did not
file fraudulent applications without first obtaining the applicant’s consent,
supported the IJ’s finding that Indrawati had knowingly filed the fraudulent
application.
The BIA also dismissed Indrawati’s due process arguments. It noted that
Indrawati failed to object properly to the Statement’s admission and deemed
19 speculative her arguments that she could prove that Rodez did not make the
checkmarks during the asylum interview. Finally, it noted that the admission of
the FVM did not violate due process because she could not show prejudice. The
BIA explained that “there already existed independent evidence, based on the
admittedly false statements both in the body of the Form I-589 and in the 10-page
attached statement, that the application contained material falsehoods.” The BIA
also stated that the FVM was admitted to impeach Indrawati’s assertion that she
had no knowledge of the Statement prior to—and had not prepared for—her
asylum interview.
II.
Indrawati raises three arguments in her petition for review of the BIA’s
decision. First, she claims that the IJ’s frivolousness finding was improper because
she was denied a sufficient opportunity to account for the alleged discrepancies
raised by the color photocopy of the Statement, the TSCM, and the FVM. Second,
she claims that Judge Karden’s and the BIA’s reliance upon these documents
violated her right to due process. Finally, she argues that the BIA’s decision must
be set aside because it does not reflect reasoned consideration of the law and facts.
“When, as here, the BIA issues its own opinion, we review only the decision
of the BIA, except to the extent the BIA expressly adopts the IJ’s decision.”
Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007). We
20 review legal determinations de novo. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948
(11th Cir. 2010). We review administrative fact findings under the highly
deferential substantial-evidence test. Id. Under this test, we will affirm the BIA’s
decision “if it is supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374
(11th Cir. 2006) (quotation marks omitted). We will reverse findings of fact “only
when the record compels a reversal; the mere fact that the record may support a
contrary conclusion is not enough to justify a reversal of the administrative
findings.” Id. (quotation marks omitted).
III.
Before addressing Indrawati’s arguments on the merits, we assess our
jurisdiction (or lack thereof). We review our subject matter jurisdiction de novo.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per
curiam). We lack jurisdiction to review final orders in immigration cases unless
“the alien has exhausted all administrative remedies available to the alien as of
right.” 8 U.S.C. § 1252(d)(1). A petitioner fails to exhaust her administrative
remedies with respect to a particular claim when she does not raise that claim
before the BIA. Amaya-Artunduaga, 463 F.3d at 1250.
This is not a stringent requirement. Simply put, petitioners must have
previously argued the “core issue now on appeal” before the BIA. Montano
21 Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008). Unadorned,
conclusory statements do not satisfy this requirement. Though exhaustion does not
require a petitioner to “use precise legal terminology” or provide “a well[-
]developed argument to support [her] claim,” it does require that she provide
information sufficient to enable the BIA to review and correct any errors below.
Arsdi v. Holder, 659 F.3d 925, 929 (9th Cir. 2011). Unless a petitioner raises a
purely legal question, the BIA cannot review and correct errors without the
petitioner first providing her argument’s relevant factual underpinnings. What
little we do require furthers two core purposes of the exhaustion requirement:
avoiding premature interference with the administrative process and ensuring that
the agency “has had a full opportunity to consider a petitioner’s claims.” Amaya-
Artunduaga, 463 F.3d at 1250 (quoting Theodoropoulos v. INS, 358 F.3d 162, 171
(2d Cir. 2004)) (quotation marks omitted).
The Government argues that Indrawati failed to exhaust her administrative
remedies with regard to whether she had a sufficient opportunity to account for the
discrepancies on which the frivolousness finding was based, whether the admission
of the TCSM violated her right to due process, and whether the BIA’s decision
reflects reasoned consideration. Although we agree with the Government’s first
two arguments, we cannot agree with the third.
22 A.
Nowhere did Indrawati’s appeal to the BIA mention a lack of “sufficient
opportunity” to account for discrepancies and implausible aspects of her claim for
asylum. This, however, does not end our inquiry; administrative exhaustion
requires no specific incantation. Rather, we must look to the substance of the
appeal for facts and allegations that make manifest the petitioner’s attempt to raise
this claim before the BIA.
The BIA first elucidated the procedural requirements for making a
frivolousness finding in In re Y-L-, 24 I. & N. Dec. 151 (2007). There, the BIA
stated that a frivolousness finding is valid only if there is “an indication that the
alien has been afforded sufficient opportunity to account for any discrepancies or
implausible aspects of [her asylum] claim.” Id. at 155. The BIA noted that, to
fulfill this requirement, “it would be a good practice” for an IJ to “bring
[frivolousness] concern[s] to the attention of the applicant prior to the conclusion
of proceedings.” Id. at 159–60. Explicit warnings, however, are unnecessary if the
deliberate fabrication “is so clear on the record that a formal request for an
explanation would be a needless exercise.” Id. at 160 n.3. That being said, if the
IJ does warn the applicant at the start of a merits hearing that he is contemplating
making a frivolousness finding, the IJ “is not required to afford additional
warnings or seek further explanation in regard to inconsistencies that have become
23 obvious to the respondent during the course of the hearing.” In re B-Y-, 25 I. & N.
Dec. 236, 242 (2010).
Indrawati’s brief to the BIA contained nothing resembling a claim that the IJ
blindsided her with the frivolousness finding, thus depriving her of a sufficient
opportunity to account for discrepancies in her application. 18 Accordingly, we are
without jurisdiction to consider Indrawati’s claims on this issue.
Indrawati also argues that the admission and consideration of the TSCM
violated her right to due process. Although her appeal to the BIA did argue that
Judge Karden’s admission of and reliance upon the photocopied Statement and the
FVM violated her right to due process, the same cannot be said of the TSCM. Her
appeal did not mention the TSCM anywhere, and the BIA noted as much. 19 By
failing to make any arguments relating to the TSCM, we can say with certainty that
Indrawati failed to provide the BIA with an opportunity to correct any alleged
errors. Indrawati accordingly failed to exhaust her administrative remedies with
18 From the start of the hearings under Judge Stuart Karden, it was manifest that the court was considering a frivolousness finding. Indeed, that was the only issue that Judge Karden considered. 19 The BIA arguably was on notice that some of Indrawati’s claims with respect to the Statement and FVM might be equally applicable to the TSCM. However, this court has stated that the BIA’s sua sponte consideration of a claim does not result in exhaustion. Amaya- Artunduaga, 463 F.3d at 1250–51. If the BIA’s unprompted grappling with an issue is not enough to exhaust an administrative remedy, surely the result is identical when the BIA mentions an issue only in passing.
24 respect to all claims concerning the TSCM. See Amaya-Artunduaga, 463 F.3d at
1251 (noting that due process claims require exhaustion).
The Government additionally argues that Indrawati failed to exhaust her
claim that the BIA’s decision reflects a lack of reasoned consideration. In a
reasoned-consideration inquiry, we look to see whether the BIA “consider[ed] the
issues raised and announce[d] [its] decision in terms sufficient to enable a
reviewing court to perceive that [it has] heard and thought and not merely reacted.”
Cole v. U.S. Att’y Gen., 712 F.3d 517, 534 (11th Cir. 2013) (quoting Carrizo v.
U.S. Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011)) (quotation marks omitted).
The Government’s jurisdiction argument faults Indrawati for not raising an
argument about the lack of reasoned consideration displayed by a decision not yet
in existence. This is facially nonsensical. We reject the Government’s argument,
and conclude that we possess jurisdiction to consider Indrawati’s argument on this
IV.
Indrawati argues that the BIA’s reliance on the Statement and FVM violated
her right to due process.20 Although the Federal Rules of Evidence do not apply in
20 The Fifth Amendment entitles petitioners in removal proceedings to due process of law. See Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009).
25 immigration proceedings, Gares v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir.
2010), due process considerations limit the evidence that may be considered. See,
e.g., Banat v. Holder, 557 F.3d 886, 891 (8th Cir. 2009). To establish a due
process violation, petitioners must demonstrate “that they were deprived of liberty
without due process of law, and that the asserted errors caused them substantial
prejudice.” Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341–42 (11th Cir. 2003)
(per curiam). The BIA deprives a petitioner of liberty without due process of law
when it considers evidence that is not probative and whose admission is not
fundamentally fair. Tashnizi v. INS, 585 F.2d 781, 782-83 (5th Cir. 1978).21 When
considering the fairness of admitting hearsay, we look to the challenged evidence’s
reliability and trustworthiness. See, e.g., Anim v. Mukasey, 535 F.3d 243, 256 (4th
Cir. 2008). To establish substantial prejudice, petitioners “must demonstrate that,
in the absence of the alleged violations, the outcome of the proceeding would have
been different.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010)
(per curiam).
Indrawati contests Judge Karden’s admission of and reliance upon a
photocopy of the check-marked Statement without first permitting her to examine
21 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
26 the original. Indrawati does not dispute the photocopy’s accuracy. Rather, she
maintains that, if she had been given access to the original document, she could
have established that Rodez annotated the Statement after his interview with
Indrawati. Her claim necessarily assumes that there is a material difference
between the photocopy and original; if there were not, the photocopy would be
sufficient. The BIA dismissed this due process argument as “speculative,” stating
that “there is no plausible contention that the authenticated photocopy differed
from the original.”
We agree with the BIA that Indrawati’s argument is speculative. At no point
has Indrawati advanced any explanation as to what she might actually do with the
original Statement that would reveal when Rodez placed the checkmarks. For
example, if there is a test one can perform on ink to determine when a particular
mark was inscribed on paper—a test that obviously could only be performed on the
original—Indrawati did not bring that test to the attention of the BIA (or this
court). We are left to ponder what, if any, differences might exist between the
photocopy and the original (and how one would detect such differences) that could
establish when Rodez made the checkmarks. Furthermore, Indrawati cites no
authority requiring the government to produce original documents during removal
proceedings.
27 It is indisputable that the check-marked Statement, when evaluated in
combination with Rodez’s testimony as to his practices as an asylum officer, is
probative as to what questions he asked Indrawati. Because Indrawati offers no
explanation as to how the original statement differs materially from the photocopy,
we cannot say that reliance upon the photocopy without providing Indrawati an
opportunity to examine the original was fundamentally unfair. 22 Accordingly, we
decline to grant her petition on this basis.
Indrawati also argues that admission of the FVM was fundamentally unfair
both because the document contained multiple levels of hearsay and because she
had no opportunity to cross-examine its author. However, even if we were to
assume that the admission of the FVM was a due process violation, 23 Indrawati
22 Indeed, it is likely that the photocopy would be admissible even if the Federal Rules of Evidence controlled. Although “[a]n original writing, recording, or photograph is required in order to prove its content,” Fed. R. Evid. 1002, “a duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate,” Fed. R. Evid. 1003. Indrawati has not raised a genuine issue regarding the original’s authenticity, and, as noted, the circumstances are such that it was fair to admit the photocopy. 23 We pause to note that—within the immigration context—this circuit has not yet recognized anything resembling a right to confrontation rooted in the Due Process Clause. Other circuits, however, have recognized such a right. For example, in Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009), the Government first disclosed the existence of adverse documentary evidence during Cinapian’s immigration hearing—as opposed to disclosing the existence of that evidence beforehand—and made no effort to make the document’s author available for cross- examination. 567 F.3d at 1071–72. The Ninth Circuit held that “the combination of the government’s failure to disclose the DHS forensic reports in advance of the hearing or to make the reports’ author available for cross-examination and the IJ’s subsequent consideration of the 28 cannot demonstrate the requisite substantial prejudice. See Lapaix, 605 F.3d at
1143. The IJ credited Rodez’s testimony that he would not have placed
checkmarks on the document unless he asked questions pertaining to the check-
marked material. He simultaneously found Indrawati’s testimony to the contrary
incredible. It necessarily flows from this finding that Indrawati, at the very least,
gave false answers at her asylum interview consistent with the information that
formed the basis for Rodez’s recommendation to grant Indrawati asylum. 24 This
reports under these circumstances” denied the petitioner a fair hearing, resulting in a violation of due process. Id. at 1075.
Explicitly referencing “the right to confront evidence and cross-examine witnesses in immigration cases,” the Ninth Circuit then held that the government “may not use an affidavit from an absent witness unless [it] first establishes, that, despite reasonable efforts, it was unable to secure the presence of the witness at the hearing.” Id. at 1074 (quotation marks omitted). The Ninth Circuit is not alone in crafting such a rule. See, e.g., Ocasio v. Ashcroft, 375 F.3d 105, 107 (1st Cir. 2004); Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992); see also Dallo v. INS, 765 F.2d 581, 586 (6th Cir. 1985) (distinguishing a case that did apply this rule without commenting upon the rule’s vitality in the Sixth Circuit).
Additionally, the Seventh Circuit has hinted that it might accept a version of this rule sans the “reasonable efforts” exception. Pouhova v. Holder, 726 F.3d 1007, 1015 (7th Cir. 2013). In that case, the government asked the Seventh Circuit to hold that unreliable hearsay statements may be admitted so long as the government “has made reasonable but unsuccessful efforts to locate the witness.” Id. The court, however, rejected this invitation. It noted that it need not resolve the issue either way because “the government failed to make such reasonable efforts.” Id. Finally, it added that “[w]e do not see why making an unsuccessful effort to locate a witness renders the unreliable hearsay evidence any more reliable or its use any fairer than without such effort.” Id.
We need not ponder the sagacity of taking this approach because Indrawati cannot establish the requisite substantial prejudice. 24 The IJ noted this in his oral decision, stating:
[T]he Court finds that [Rodez’s] testimony as to making the checkmarks during the interview with his notes is credible and believable. Therefore, the Court finds 29 evidence alone could have satisfied the Government’s burden to prove by a
preponderance of the evidence that Indrawati submitted a frivolous asylum
application. The BIA held that the IJ’s decision to credit Rodez’s testimony (and
discredit Indrawati’s testimony) was not clearly erroneous. Even if we believed
that the IJ and the BIA were incorrect, we cannot say that the “record compels a
reversal.” Tan, 446 F.3d at 1374 (quotation marks omitted). Accordingly, even if
reliance upon the FVM violated Indrawati’s right to due process, Indrawati cannot
demonstrate substantial prejudice given the finding that Rodez was credible and
that he made the checkmarks during the interview.
Indeed, the cases Indrawati cites for support serve only to highlight her
claim’s deficiencies. In one line of cases, the hearsay whose admission violated
due process constituted the only evidence supporting removal. See Hassan v.
Holder, 604 F.3d 915, 927 (6th Cir. 2010); Alexandrov v. Gonzalez, 442 F.3d 395,
407 (6th Cir. 2006). In another line of cases, the hearsay, though not the only
evidence supporting removal, was dispositive. See Banat, 557 F.3d at 893 (finding
that these specific items were asked and that [Indrawati] gave fabricated answers . . . .
The BIA alluded to the same:
[T]he [IJ] credited the testimony of Asylum Officer Rodez that he interviewed the respondent based on this statement, and placed checkmarks on the document to verify that she testified consistently with its contents.
(citations omitted).
30 that the IJ’s credibility determination relied primarily upon a letter containing
multiple levels of hearsay); Anim, 535 F.3d at 258 (finding a due process violation
where the IJ’s determination that the petitioner submitted fraudulent documents
could be sustained only after relying on a letter comprised of multiple levels of
hearsay); Ezeagwuna v. Ashcroft, 325 F.3d 396, 408 (3d Cir. 2003) (finding a due
process violation where the BIA based its credibility finding “almost entirely
upon” a document containing multiple levels of hearsay). In these cases,
substantial prejudice was manifest. Indrawati’s case is clearly distinguishable.
Accordingly, we conclude that Indrawati’s due process claim relating to the FVM
does not justify granting her petition. See Cole v. Att’y Gen., 712 F.3d 517, 535
(11th Cir. 2013).
V.
Indrawati’s diverse arguments clothed in “reasoned consideration” garb fare
no better than her arguments based on due process. Occasionally, this court has
granted petitions for review, vacated agency decisions, and remanded for further
proceedings when the agency’s decision was so lacking in reasoned consideration
and explanation that meaningful review was impossible. See, e.g., Mezvrishvili v.
U.S. Att’y Gen., 467 F.3d 1292, 1297 (11th Cir. 2006) (per curiam). When
assessing whether a decision displays reasoned consideration, we look only to
ensure that the IJ and the BIA considered the issues raised and announced their
31 decisions in terms sufficient to enable review. Cole v. U.S. Att’y Gen., 712 F.3d
517, 534 (11th Cir. 2013).
Although it is true that the IJ and the BIA must consider all the evidence
submitted, “it is well established that the IJ and the BIA need not address
specifically each claim the petitioner made or each piece of evidence the petitioner
presented.” Id. (quotation marks omitted). Accordingly, a decision that omits the
discussion of certain pieces of evidence can nonetheless display reasoned
consideration. Furthermore, our reasoned-consideration examination “does not
amount to a review for whether sufficient evidence supports the decision of the
[BIA].” Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir. 2013).
That is to say, when we remand for lack of reasoned consideration, it is not
because we have reviewed the BIA’s decision and disagreed with its legal
conclusions and factual findings. See Mezvrishvili, 467 F.3d at 1297. Rather, we
have determined that, given the facts and claims in the specific case before the IJ
and the BIA, the agency decision is so fundamentally incomplete that a review of
legal and factual determinations would be quixotic. See id. Our inquiry concerns
process, not substance; we look to see that the agency “heard and thought and not
merely reacted.” Cole, 712 F.3d at 534 (quotation marks omitted).
For example, in Tan v. United States Attorney General, 446 F.3d 1369 (11th
Cir. 2006), Liana Tan, a native of Indonesia and an ethnically Chinese Christian,
32 applied for withholding of removal based in part upon a well-founded fear of
future persecution predicated upon her race. 446 F.3d at 1370–71. The IJ rejected
her application, and the BIA affirmed that decision without opinion. Id. at 1373.
Tan had supported her claim with Country Reports and newspaper articles attesting
to widespread violence against Chinese people and Christians. Id. at 1375. Her
application for withholding of removal also noted that her family’s business had
recently been looted and damaged during a riot. Id. at 1376. Nonetheless, the IJ
failed to mention the reports and articles when cataloguing the evidence in Tan’s
case and also misstated the facts, declaring that Tan’s family continued to live in
Indonesia without problems. Id. at 1375–76. The IJ supported his decision to
reject her application for withholding of removal based upon a well-founded fear
of future persecution because “a great deal of [Indonesia’s Christian population of
20 million] are ethnic Chinese,” and that “[t]herefore, based on the evidence that I
have, I don’t believe she would be singled out simply because she is Christian and
of ethnic Chinese origin.” Id. at 1373.
We held that this constituted a lack of reasoned consideration. However, we
did not do so simply because the IJ failed to discuss all of the evidence. See id. at
1375. Rather, we held that the IJ’s decision was defective because his statements
were so patently unsupported (and contradicted) by the record, that “they
undermine[d] the conclusion that [he] considered all the evidence.” Id. at 1376.
33 Tan had raised evidence supporting her claim for withholding of removal, and the
IJ’s decision gave us the impression not that he considered and assigned little
weight to her evidence, but rather that the evidence did not enter his calculus
whatsoever. Reading the application left us with the firm conviction that the IJ had
“merely reacted” to Tan’s application. See Cole, 712 F.3d at 534. Having
abdicated his role as principled arbiter, the IJ’s “decision” was nothing of the sort,
rendering nonsensical any attempt to seriously review its legal and factual
determinations.
Indrawati’s various arguments do not undermine our conclusion that the
BIA’s decision reflects reasoned consideration. To begin, Indrawati’s arguments
concerning discrepancies in Officer Rodez’s statement, equivocation in his
testimony, and the quality of his note-taking are misguided. Indrawati argues that
the IJ and the BIA failed to consider that Rodez’s notes indicate that Indrawati
never sought medical attention, despite the fact that the Statement clearly recounts
that she was hospitalized following the Surabaya assault. However, Indrawati
never elicited these inconsistencies during the hearing with the IJ and did not bring
them to the BIA’s attention. We have said that the BIA need consider only the
issues raised. Cole, 712 F.3d at 534. Because Indrawati raises this issue for the
first time in her petition to this court, the IJ and the BIA had no reason to consider
34 that argument. Their failure to divine and discuss any possible arguments
Indrawati might make at a future point does not reflect a lack of reasoned
consideration. The same is true of her argument that reliance upon notes that
purportedly do not meet BIA requirements reflects a lack of reasoned
consideration. Because Indrawati never made these arguments before the BIA, it is
reasonable that the BIA explicitly considered neither.
Indrawati also quarrels with the BIA’s use of Officer Conwell’s testimony to
support its decision. Indrawati argues that Conwell’s testimony actually bolsters
her innocence. The theory goes that, because Conwell stated that she thought
Indrawati was honest during her termination interview, and because Indrawati told
Conwell that Indrawati had never seen her own application and answered all of
Rodez’s statements truthfully, Conwell must have believed Indrawati’s account of
the interview. According to Indrawati, if Conwell believed Indrawati’s narrative, it
is more likely that Indrawati testified truthfully to Rodez; Indrawati is therefore
innocent. That the BIA did not reach this conclusion—indeed, that it reached the
opposite conclusion—should convince us that the BIA’s decision reflects a lack of
reasoned consideration.
We disagree. True, the BIA did not discuss Conwell’s belief that Indrawati
was truthful. However, we think this omission proper given that Conwell’s
35 perceptions are irrelevant to the frivolousness determination. At its core, that
determination hinges upon whether Rodez asked Indrawati about the Statement
during her asylum interview. Conwell’s opinion as to Indrawati’s veracity tells us
nothing about the asylum interview. It shows only that, without regard to whether
what she was saying was true, Indrawati was a persuasive interviewee.25 If
anything, the BIA’s omission here was merciful. Conwell’s opinion supports the
Government’s theory that Indrawati was capable of testifying falsely without
detection.
Furthermore, Conwell’s testimony was not so critical to this case that the
BIA’s failure to wrestle with its implications undermines our confidence that the
BIA performed its duty and rendered a reasoned decision. Conwell’s testimony
demonstrated only that Indrawati had previously admitted that her application was
fraudulent. The evidence merely corroborated an undisputed fact. If an agency
need not discuss every piece of evidence to immunize its decision from a
reasonable-consideration inquiry, surely its failure to exhaustively discuss evidence
of little probative value does not merit remand.
25 Another theory for considering Conwell’s opinion would be that it was reputation evidence of Indrawati’s character for truthfulness. However, Conwell’s solitary interaction with Indrawati was woefully inadequate as a foundation for such testimony. Cf. Fed. R. Evid. 602. Furthermore, it patently was not reputation evidence, but instead referred to a specific interaction.
36 C.
Indrawati also argues that the BIA’s decision reflected a lack of reasoned
consideration because the BIA improperly speculated that Rodez “would only rely
on material he covered with an asylum applicant during an interview in drafting his
assessment whether to grant asylum.” Indrawati considers this speculation because
Rodez’s report refers to Indrawati’s hospitalization. Although the check-marked
Statement refers to Indrawati’s hospitalization, Rodez’s handwritten notes reflect
that Indrawati was not hospitalized. Neither party disputes that Rodez took these
handwritten notes during the interview. Because those notes reflect that Indrawati
was not hospitalized, the theory apparently goes, it necessarily means that
Indrawati never testified to the contrary. And if the report states that Indrawati was
hospitalized, it must mean that Rodez relied upon material not covered during the
interview: the Statement.
Central to this chain of reasoning is an assumption that Rodez did not
annotate the Statement with checkmarks during the interview. Of course, the IJ
made a finding of fact to the contrary, and the BIA found no error in that finding.
Indrawati’s argument that the BIA’s decision reflects a lack of reasoned
consideration because the decision includes speculation is simply incoherent unless
we are to first reverse the IJ’s factual findings.
37 Perhaps this is why Indrawati supports her “reasoned consideration”
argument with citations to two cases where we reversed findings of fact
unsupported by substantial evidence. See Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d
486, 494 (11th Cir. 2013); Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1278 (11th Cir.
2009). To reiterate, we review administrative findings of fact under the
substantial-evidence test, and will reverse such findings “only when the record
compels a reversal; the mere fact that the record may support a contrary conclusion
is not enough to justify a reversal of the administrative findings.” See Seck v. U.S.
Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011) (quotation marks omitted). In
both Xiu Ying Wu and Tang, the IJ made an adverse credibility determination based
upon speculation, rather than evidence. Xiu Ying Wu, 712 F.3d at 494 (noting that
“[n]either the BIA nor the IJ cited to any record evidence to support their
conclusion that Wu’s story was implausible”); Tang, 578 F.3d at 1278 (noting that
the IJ “based his adverse credibility determination on his personal perceptions
about the reasonableness of Tang’s mother’s actions,” and that no evidence
supported his determination).
Cases discussing our review of administrative findings of fact under the
substantial-evidence test are inapplicable to the question of whether the BIA’s
decision exhibits reasoned consideration. To the extent that her reasoned
consideration argument actually is a challenge to administrative fact-finding, we
38 agree with the BIA that the IJ did not err when deciding to credit Rodez’s
testimony. Although Rodez’s contradictory notes may raise an eyebrow, when
viewed in combination with all the other evidence, this inconsistency does not
compel us to reverse the factual findings. Accordingly, we decline to grant
Indrawati’s petition based upon this argument.
Finally, Indrawati argues that the BIA’s “reliance on documentary evidence
lacking basic indicia of reliability reflects a lack of reasoned consideration.”
Indrawati cites no cases to support this legal theory. Moreover, this conclusory
argument is simply a repackaged version of her argument that reliance upon these
documents violated her right to due process. As we noted above, admission and
reliance upon these documents was proper (or uncontested, in the case of the
TSCM). Reliance upon properly admitted evidence is precisely what we would
hope the BIA does when rendering decisions. Indeed, it is when the BIA
disregards properly admitted evidence that its decisions reflect a lack of reasoned
consideration. See Tan, 446 F.3d at 1375–76. Accordingly, we find this argument
meritless.
VI.
For the foregoing reasons, we DISMISS in part and DENY in part
Indrawati’s petition for review.
39 DISMISSED, in part; DENIED, in part.
Putu Indrawati v. U.S. Attorney General (Putu Indrawati v. U.S. Attorney General) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.