Massie v. Gonzales ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2111
SANDRA F. MASSIE, ET AL.,
Petitioners,
v.
ALBERTO GONZALES,
ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Stafford,* Senior District Judge.
William A. Hahn and Hahn & Matkov on brief for petitioner.
August E. Flentje, Attorney, Appellate Staff, Civil Division,
Peter D. Keisler, Assistant Attorney General, and Leonard
Schaitman, Attorney, Appellate Staff, Civil Division, on brief for
respondent.
May 25, 2007
*
Of the Northern District of Florida, sitting by designation.
Per Curiam. Petitioners, Sandra F. Massie and her
husband, Franky Massie (collectively, "Petitioners"), seek review
of an order of the Board of Immigration Appeals ("BIA") affirming
the Immigration Judge's decision to deny Sandra Massie's
application for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"). Finding no merit to
Petitioners' arguments, we affirm the BIA's order and deny the
petition for review.
I.
Petitioners are natives and citizens of Indonesia—she of
the Ambonese ethnic group and he of Manadonese descent—who came to
the United States on tourist visas in December 2000. After the
couple failed to leave the United States as required, Mrs. Massie
filed an application for asylum, withholding of removal, and relief
under CAT with the Immigration and Naturalization Service ("INS").1
Mr. Massie was listed as a rider on Mrs. Massie's application.
In her asylum application, Mrs. Massie stated that she
did not want to return to Indonesia because she feared that she
would be persecuted based on her religion (Protestant) and her race
(Ambonese).2 She explained that Christianity was a minority
1
The functions of INS have since been transferred to the
Department of Homeland Security.
2
Mrs. Massey was born and raised in Jakarta, Indonesia,
although her family was originally from the Moluku islands in
eastern Indonesia, of which Ambon is a part.
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religion in Indonesia, that Muslim Jihadists had killed thousands
of Christians in 1998, that Christians continue to suffer because
of their minority status, that there is no safe place for
Christians to live in Indonesia, and that finding a job would be
difficult for her because of her religion and race.
After being placed in removal proceedings, Petitioners
testified before an Immigration Judge ("IJ") at an asylum hearing.
Neither indicated that she/he had ever been detained, arrested, or
physically harmed while living in Indonesia. Mrs. Massie described
some incidents of harassment and intimidation; Mr. Massie denied
having experienced any such incidents.
Mrs. Massie stated that, while driving in Jakarta
sometime in 1998, she had twice been accosted on a street by some
Muslim men who demanded money for "Jihad in Ambon." On the first
occasion, the Muslims broke her car window before she agreed to
give them money. On the second occasion, she gave them money
without further incident. Describing a riot that had occurred in
her neighborhood in 1998, Mrs. Massie said that she was trapped in
her house for a period of time but that nothing had happened to her
home, which she said was "pretty safe" because of its location.
Speaking of her parents, who—along with her sister and her in-
laws—continue to live in Indonesia,3 Mrs. Massie said that they had
3
Mrs. Massie's parents, in-laws, and sister are—like the
Massies—practicing Christians.
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to meet and pray in a movie theater because a group of Jihadists
had forced the closure of their church. Mrs. Massie did not
describe any other mistreatment suffered by her relatives in
Indonesia.
Mrs. Massie also testified that her brother had died
following a 1983 automobile accident. She speculated that her
brother—a Christian—died because he received untimely, substandard
care in a Muslim-dominated government hospital.
Petitioners both testified about Mr. Massie's serious
medical problems. Mrs. Massie said that, when they were living in
New Hampshire in 2002, her husband had undergone four operations on
his right lung. While admitting that he was not sure whether any
additional surgery would be needed, Mr. Massie said that his doctor
was then concerned about a spot on his left lung. Both Massies
said they doubted that the medical community in Indonesia could or
would provide the same level of care that Mr. Massie had received
in the United States.
When Mrs. Massie attempted to testify about conditions in
Ambon, Respondent's counsel objected, noting that Mrs. Massey had
no personal knowledge about conditions in Ambon because neither she
nor her husband had ever lived in Ambon. The IJ sustained the
objection, explaining that country reports would suffice to
describe current conditions in Ambon.
The IJ denied Petitioners' asylum claim, finding that
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Petitioners failed to establish either past persecution or a
reasonable basis for fear of future persecution. The IJ also
determined that, because they failed to satisfy the standard for
asylum eligibility, Petitioners necessarily failed to satisfy the
higher standards for withholding of removal and for relief under
CAT. The BIA affirmed the IJ's denial of all three claims, finding
that Petitioners failed to satisfy their burdens of proof with
regard to all of the relief sought.
On appeal to the BIA, Petitioners complained that a
portion of the testimony before the IJ—specifically, Mrs. Massie's
testimony concerning the death of her brother—was missing from the
appellate record. The BIA denied Petitioner's request for an order
directing a full transcription, explaining that Petitioners had
failed to allege that the missing testimony would "somehow turn the
case." Indeed, the BIA noted that, in denying Petitioners' claims,
the IJ had relied not on Mrs. Massie's testimony regarding her
brother's medical treatment but on the lack of corroboration.
II.
Our review, directed to the BIA's decision, is de novo on
questions of law but deferential as to factual findings.
Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004).
Asylum applicants bear the burden of proving that they
are unable or unwilling to return to their home country "because of
persecution or a well-founded fear of persecution on account of
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race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).
Applicants may meet this burden by (1) demonstrating a well-founded
fear of future persecution; (2) by establishing past persecution,
in which case a rebuttable presumption of a well-founded fear of
persecution arises; or (3) by demonstrating "compelling reasons for
being unwilling or unable to return to the country arising out of
the severity of the past persecution." Mukamusoni, 390 F.3d at
119; 8 C.F.R. § 208.13(b)(1)(ii) (1997).
Because the word "persecution" has not been defined by
statute, the Attorney General, acting through the BIA, has the
authority to give content to the word in the first instance.
Bocova v. Gonzales, 412 F.3d 257, 263 (1st. Cir. 2005). Although
the BIA has chosen to determine what constitutes persecution on a
case-by-case basis, it is clear that the term "requires that the
totality of a petitioner's experiences add up to more than mere
discomfiture, unpleasantness, harassment, or unfair treatment."
Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005); see also
Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005) (upholding
the BIA’s finding of no persecution where petitioner was arrested,
detained, and beaten on seven occasions); Bocova, 412 F.3d at
263-64 (upholding the BIA’s finding of no persecution where the
petitioner was twice arrested, beaten, and threatened with death,
with one of those beatings causing the petitioner to lose
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consciousness and to be taken to the hospital); Guzman v. INS, 327
F.3d 11, 15-16 (1st Cir. 2003) (affirming the BIA's determination
that a serious beating did not amount to persecution). The term,
moreover, "always implies some connection to government action or
inaction." Nikijuluw, 427 F.3d at 120-21 (quoting Harutyunyan v.
Gonzales, 421 F.3d 64, 68 (1st Cir. 2005)).
Here, the BIA found that Petitioners utterly failed to
establish either past persecution or a well-founded fear of future
persecution. Given the precedents and the evidence produced by
Petitioners, this court must accept the BIA's fact-based findings.
Clearly, the past incidents of discrimination described by
Petitioners—sporadic incidents involving no physical abuse—did not
"add up to more than mere discomfiture, unpleasantness, harassment,
or unfair treatment." Nikijuluw, 427 F.3d at 120. Just as
clearly, Petitioners offered nothing to establish a well-founded
fear of future persecution.
Petitioners complain that the BIA erred (1) by failing to
order the transcription of the missing portion of Mrs. Massie's
testimony regarding her brother's 1983 death; (2) by requiring
corroboration of Mrs. Massie's testimony regarding the cause of her
brother's death; and (3) by affirming the IJ's evidentiary ruling
prohibiting Mrs. Massie from testifying about conditions in Ambon,
where she never lived. According to Petitioners, "there would have
been a finding of past persecution" had the BIA not committed such
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errors. We disagree.
Where there is a failure of transcription, we have held
that a claimant "must show 'specific prejudice to his ability to
perfect an appeal' sufficient to rise to the level of a due process
violation." Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st Cir.
2005) (quoting United States v. Smith, 292 F.3d 90, 97 (1st Cir.
2002)). There can be no prejudice if the missing portion of the
transcript is not material to the issue on review, if the missing
material can be derived from other sources, or if the transcription
failure makes no difference to the outcome of the review. Id. at
85-86. Here, Petitioners make no effort to explain how the missing
testimony differed from other material in the record (i.e., Mrs.
Massie's affidavit describing the incident involving her brother).
They do not identify anything in the missing testimony that would
draw into question the IJ's conclusion that Mrs. Massie's
assertion—that her brother was denied timely, appropriate medical
treatment based on his race and religion—was speculative at best.
They altogether fail to demonstrate that the outcome of the case
would have been different had the BIA had the benefit of the
missing transcript. Quite simply, their claim of error in this
regard is meritless.
The IJ's evidentiary ruling refusing to allow Mrs. Massie
to testify about conditions in Ambon is reviewed for abuse of
discretion. Sharari v. Gonzales, 407 F.3d 467, 476 (1st Cir.
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2005). Because neither Mrs. Massie nor Mr. Massie ever lived in
Ambon, they had no first-hand knowledge about the conditions in
Ambon. The IJ did not abuse his discretion in refusing to admit
such testimony; and the BIA did not err in upholding the IJ's
ruling.
An IJ is not required to accept as true an asylum
applicant's speculation as to the cause of an event. Ziu v.
Gonzalez, 412 F.3d 202, 204 (1st Cir. 2005). Here, both the IJ and
the BIA were correct in concluding that Mrs. Massie's speculation
about the cause of her brother's death lacked "the requisite degree
of specificity to sustain the petitioner’s burden of proof" without
some sort of corroboration. Aguilar-Solis v. INS, 168 F.3d 565(1st Cir. 1999). Even if poor treatment were presumed based on
Mrs. Massie's lay testimony, Mrs. Massie could do no more than
surmise that her brother's allegedly poor treatment was the result
of his race and/or religion. Furthermore, it was apparent from Mr.
Massie's testimony that his concerns about medical treatment in
Indonesia were based not on any fear that he would obtain poor
medical treatment because of his ethnicity or religion but rather
on his perception that nobody in Indonesia could give him the
quality of care that he received in the United States. Under the
circumstances, it was not error to require corroboration.
III.
For the reasons stated above, we AFFIRM the BIA's order
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and DENY Petitioners' petition for review.4
4
Although it appears that Petitioners do not challenge the
BIA's decision upholding the IJ's denial of Petitioners'
withholding of removal and CAT claims, we note that our decision
regarding asylum dooms any such challenge. See Alvarez-Flores v.
INS, 909 F.2d 1, 4 (1st Cir. 1990) (explaining that "[s]ince the
standard for withholding deportation is more stringent, a
petitioner unable to satisfy the asylum standard fails, a fortiori,
to satisfy the former"); Orelien v. Gonzales, 467 F.3d 67, 73 (1st
Cir. 2006) (explaining that, "[i]n order to find sanctuary under
the CAT, . . . an alien must show that he will more likely than not
be tortured upon returning to his homeland," "torture" being
defined as "any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person").
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