Rampengan v. Gonzales

206 F. App'x 248
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 17, 2006
Docket05-1764
StatusUnpublished

This text of 206 F. App'x 248 (Rampengan v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rampengan v. Gonzales, 206 F. App'x 248 (4th Cir. 2006).

Opinion

GREGORY, Circuit Judge:

Petitioner Jemmy Rampengan seeks review of the ruling of the Board of Immigration Appeals (BIA) denying him and his family withholding of removal. The BIA, without making its own factual findings, affirmed the decision of the immigration judge, who found Rampengan’s testimony incredible. Because the immigration judge did not provide specific and cogent reasons for discrediting Rampengan’s testimony, we grant the petition, vacate the BIA’s decision, and remand the case for further proceedings consistent with this opinion.

I.

According to the declaration he filed with his application for asylum, Rampengan, who is Christian, was born in Indonesia and lived there before arriving in the United States. In 1998, while visiting a business associate and prominent Christian leader named Herman Parimo, he was kidnapped by a group of Muslims, beaten, and held captive without food for twelve hours. His captors assailed him with questions about Parimo, called him a “bastard Christian,” and broke the middle finger of his right hand, which remains crippled.

In February of 1999, Rampengan received threatening phone calls at least once a week seeking information about Parimo. That July a stranger gave Rampengan’s daughter a note, warning: “watch out, your daughter would be gone.” In January 2000, Rampengan received at least one more threatening phone call demanding information about Parimo. One year later, Rampengan asserts, Muslims attacked him in his church and destroyed the edifice. The attackers separated the men from the women and hit Rampengan over the head with a club. Finally, in June 2001, Muslims allegedly stoned the house of Rampengan’s father-in-law, in which Rampengan and others were conducting a prayer meeting that included the singing of Christian songs. Rampengan applied for a visa to come to the United States, received it on July 25, 2001, and departed Indonesia with his family on August 25, 2001.

Rampengan and his family remained in the United States past the visas’ February 2002 expiration date and filed for asylum and withholding of removal early in 2003. In August of 2003, Rampengan appeared before an immigration judge who denied him and his family voluntary departure, asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Immigration Judge John M. Bryant denied them voluntary departure because Rampengan could not post the necessary bond and denied asylum because Rampengan applied too late. 1 In June *250 2005 the BIA affirmed the immigration judge’s decision. Rampengan timely filed a petition for review in this Court.

II.

Because the BIA’s opinion contains no analysis beyond that in the immigration judge’s decision and makes no additional findings of fact, we review the reasoning in the immigration judge’s decision. See Gandarillas-Zambrana v. Board of Immigration Appeals, 44 F.3d 1251, 1255 (4th Cir.1995). Judge Bryant ruled that Rampengan did not qualify for withholding of removal because he had not met his burden of proof: he failed to demonstrate that there was a clear probability he would be persecuted because of his religion if he returned to Indonesia. The judge found insufficient evidence of future persecution to warrant withholding of removal and waved off evidence of past persecution as incredible.

Rampengan contends that he demonstrated he was persecuted in Indonesia on account of his religion and that such persecution entitles him to a rebuttable presumption that withholding of removal is appropriate under 8 C.F.R. § 1208.16(b)(1)(i) (2006). His claims of past persecution are supported almost entirely by his own testimony, but that testimony, if credible, may suffice to meet his burden of proof. See 8 C.F.R. § 1208.16(b). Judge Bryant, however, found Rampengan’s testimony to be unreliable.

Although we afford substantial deference to the credibility determinations of immigration judges in asylum proceedings, we require that a judge who rejects a witness’s testimony as incredible provide a specific and cogent reason for her disbelief. See Figeroa v. I.N.S., 886 F.2d 76, 78 (4th Cir.1989). In the instant case, Judge Bryant found that Rampengan’s tardy petition for asylum undermined his entire testimony. According to the judge, “no reasonable person, if he or she had experienced the experiences which the respondent asserted were experienced by them [sic], would not, in the normal course and straightaway, make application for asylum.” (J.A. 35.) This reason, although specific, is not particularly cogent. Cf. Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.2006) (“Examples of specific and cogent reasons include inconsistent statements, contradictory evidence, and inherently improbable testimony____” (internal quotation marks omitted)). At no point in Rampengan’s testimony was he asked why he did not submit his application for asylum sooner, and Judge Bryant’s decision nowhere discusses the justification Rampengan offered in the application itself. 2 A person’s tardy filing of an application for asylum, without more, is simply an insufficiently impelling reason to conclude that the entirety of the person’s testimony is dubious. Cf. id. at 540 (rejecting an immigration judge’s adverse credibility determination that was based on the early filing of a witness’s application for asylum).

Judge Bryant also doubted Rampengan’s testimony because a letter from Rampengan’s Indonesian pastor failed to corroborate Rampengan’s account of his church’s destruction. The letter, which *251 states only that Rampengan and his family members are obedient Christians of good moral character, is dated July 20, 2001— five days before Rampengan received his visa to come to the United States, and more than a month before he left Indonesia. Even so, Rampengan maintained in his oral testimony that he requested the letter after his arrival in the United States.

Judge Bryant did not point to Rampengan’s performance on the witness stand as a reason to doubt his testimony, however. Instead, the judge’s distrust stemmed from Rampengan’s request for the pastor’s letter. Judge Bryant seemed to conclude that, to secure asylum, Rampengan requested a letter from his Indonesian pastor attesting only to his Christian faith. To the judge, this narrow request called into question Rampengan’s account of the church attack itself. 3 But Judge Bryant’s decision never explains how he arrived at such a confident conclusion regarding the request for the letter. The muddled testimony on the subject is not clear as to the nature of Rampengan’s request, or even as to its purpose. 4

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206 F. App'x 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rampengan-v-gonzales-ca4-2006.