Evelyne v. Gonzales ( 2007 )

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2314
FRIEDA EVELYNE,
Petitioner,
v.
PETER D. KEISLER,*
ACTING ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Schwarzer,** Senior District Judge.
William A. Hahn and Hahn & Matkov, on brief for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Terri J.
Scadron, Assistant Director, on brief for respondent.
October 5, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General
Alberto R. Gonzáles as respondent.
**
Of the Northern District of California, sitting by designation.
Per Curiam. Frieda Evelyne applied for asylum,
withholding of removal, and relief under the federal regulations
implementing the Convention Against Torture ("CAT"). An
immigration judge ("IJ") denied all of Evelyne's claims and ordered
her removed. She appealed to the Board of Immigration Appeals
("BIA"), which affirmed. Evelyne now petitions for review of the
BIA's denial of her appeal. After careful consideration, we deny
the petition.
I. FACTUAL BACKGROUND
Evelyne, a Christian Protestant from Indonesia, entered
the United States on June 15, 2001 on a nonimmigrant visa and
remained past the authorized date. On November 2, 2001, she filed
an application to extend or change her nonimmigrant status, which
is apparently still pending. Subsequently, the Immigration and
Naturalization Service ("INS") commenced removal proceedings
against her. In response to the INS notice to appear, Evelyne
admitted that she had remained in the United States beyond the time
allowed by her visa in violation of 8 U.S.C. § 1227(a)(1)(B).
A.R. 654-55. She petitioned the IJ for asylum, withholding of
removal, and CAT relief.
A hearing was held before the IJ at which Evelyne
testified that she had suffered mistreatment in Indonesia on
account of her Christian faith. She described an incident in 1998
in which purported Muslim radicals had punched her in the chest.
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In 1999, Muslims from a nearby mosque threw rocks at her house and
told her that the Christian prayer services she was holding were
disturbing them in the mosque; this and a later similar incident
prompted her to discontinue such services. Evelyne also described
a 2001 incident in which her house was ransacked, items were
stolen, and anti-Christian graffiti was painted on the walls while
she was away. She testified that her children continued to live in
Indonesia after she came to the United States. At a certain point
in the hearing the IJ took over the questioning of Evelyne, and
much of her testimony was given in response to the IJ's questions.
The IJ found that the Government had satisfied its burden
of proving by clear and convincing evidence that Evelyne was
removable: she had conceded removability, and the mere fact that
her visa extension application was still pending did not amount to
an automatic extension. The IJ found further that Evelyne did not
qualify for asylum, withholding of removal, or CAT relief: while
she had been a victim of religious discrimination, she had not
shown that she had suffered past persecution, or that she had an
objectively reasonable basis for her fear of future persecution.
The BIA affirmed, and held additionally that the IJ had not
deprived Evelyne of a full and fair opportunity to present her case
by conducting much of the examination himself.
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Evelyne appeals the BIA's findings that she was
removable, that she was not eligible for asylum,1 and that the IJ
did not deprive her of a full and fair opportunity to present her
case. We address these items in turn.
II. DISCUSSION
A. Standard of Review
We normally review decisions of the BIA and not those of
immigration judges; however, where, as here, the BIA has adopted
and affirmed findings of the IJ, we also review the adopted portion
of the IJ's decision. Simo v. Gonzáles, 445 F.3d 7, 11 (1st Cir.
2006); Vásquez v. INS, 177 F.3d 62, 64 (1st Cir. 1999). We review
the BIA's legal conclusions de novo, with appropriate deference to
the agency's interpretation of the underlying statute in accordance
with administrative law principles. Molina De Massenet v.
Gonzáles, 485 F.3d 661, 663 (1st Cir. 2007). In asylum claims, the
Court reviews the factual findings of the BIA and the IJ under the
"substantial evidence" standard, reversing only if the evidence of
record would compel a reasonable factfinder to make a contrary
1
Evelyne asks us to review her asylum claim, but apparently does
not contest the denial of her claims for withholding of removal and
CAT relief. In any event, she clearly failed to raise these two
claims in her brief before the BIA, and thereby waived her right to
have this court consider them. Makhoul v. Ashcroft, 387 F.3d 75, 80
(1st Cir. 2004) ("[T]heories not advanced before the BIA may not be
surfaced for the first time in a petition for judicial review of
the BIA's final order.").
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determination. Stroni v. Gonzáles, 454 F.3d 82, 87 (1st Cir.
2006).
B. Did the BIA Err in Finding Removability?
Evelyne argues that the BIA erred in holding that the
Government proved by clear and convincing evidence that she was
removable, as required by 8 U.S.C. § 1229a(c)(3)(A). We disagree.
Relying on Evelyne's admission to having entered the United States
on a nonimmigrant tourist visa and staying beyond the allowed date
of December 13, 2001, the BIA found that the Government had
discharged its burden of proving removability by clear and
convincing evidence. It further found that Evelyne failed to meet
her burden of producing evidence not known to the Government of her
authorization to remain. We see no error in this determination.
Once Evelyne admitted her removability, the IJ and the BIA were
free to conclude that the Government had established removability.
See 8 C.F.R. § 1240.10(c). Moreover, as the IJ correctly held, the
mere fact that Evelyne filed an application to extend her visa did
not have the effect of automatically extending it until it was
disposed of. See Samimi v. INS, 714 F.2d 992, 994 (9th Cir. 1983)
("[A]n immigrant is deportable as an overstay when his period of
admission expires unless he receives an extension." (emphasis
added) (original emphasis removed)); Matter of Teberen, 15 I. & N.
Dec. 689, 691 (BIA 1976). If the rule were otherwise, any alien
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could extend her stay for months or even years simply by filing an
extension application.
C. Did the BIA Err in Finding that Evelyne Was
Ineligible for Asylum?
Evelyne also argues that the BIA incorrectly determined
that she had suffered mere discrimination -- and not persecution --
in Indonesia, that she did not have a well-founded fear of future
persecution, and that she was consequently ineligible for asylum.
As a prerequisite to asylum eligibility, "an alien bears the burden
of establishing that [she] is a refugee." Aguilar-Solís v. INS,
168 F.3d 565, 569 (1st Cir. 1999). A refugee is someone who is
unwilling or unable to return to her country of nationality because
she has been persecuted or has a well-founded fear of persecution
on the basis of one of the grounds in the Immigration and
Nationality Act; religion is one such ground. See 8 U.S.C.
§ 1101(a)(42)(A). To establish a well-founded fear of future
persecution, the applicant must demonstrate "both a genuine
subjective fear and an objectively reasonable fear of persecution
on a protected ground." Civil v. INS, 140 F.3d 52, 55 (1st Cir.
1988). However, if the applicant makes a satisfactory showing of
past persecution, "a rebuttable presumption arises that her fear of
future persecution is well founded." Nikijuluw v. Gonzáles, 427
F.3d 115, 120 (1st Cir. 2005).
There is no single definition of "persecution." As this
Court has stated: "We know . . . that persecution encompasses more
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than threats to life or freedom, . . . but less than mere
harassment or annoyance . . . . Between these broad margins,
courts have tended to consider the subject on an ad hoc basis."
Aguilar-Solís, 168 F.3d at 569-70 (citations omitted).
Furthermore, "an applicant qualifies for asylum only when he
suffers persecution that is the direct result of government action,
government-supported action, or government's unwillingness or
inability to control private conduct." Nikijuluw, 427 F.3d at 121.
We find nothing in the record that would compel us to
disagree with the BIA's determination that Evelyne did not suffer
past persecution, and that she lacks a well-founded fear of future
persecution. While Evelyne has been the target of some anti-
Christian acts -- most notably the ransacking and defacing of her
house2 -- none of these incidents is serious enough to "rise above
unpleasantness, harassment, . . . [or] basic suffering." Nelson v.
INS, 232 F.3d 258, 263 (1st Cir. 2000). Moreover, all of the
incidents in question appear to have been sporadic, see Palma-
Mazariegos v. Gonzáles, 428 F.3d 30, 37 (1st Cir. 2005)
(persecution requires more than sporadic abuse), and perpetrated by
private individuals, not persons acting on behalf or with the
support of the Indonesian government. Furthermore, although the
2
Contrary to Evelyne's assertion, the IJ did specifically take
this incident into account in determining that Evelyne had not
suffered past discrimination, although he did not discuss it in
detail. I.J. Dec. at 4.
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Indonesian government's human rights record is admittedly far from
immaculate, the evidence of record is simply insufficient to compel
a finding that it is unwilling or unable to control violence
against the Christian minority. Finally, the fact that Evelyne's
children continue to reside in Indonesia cuts strongly against her
claim of a well-founded fear of future persecution. Cf.
Aguilar-Solís, 168 F.3d at 573 ("[T]he fact that close relatives
continue to live peacefully in the alien's homeland undercuts the
alien's claim that persecution awaits his return.").
D. Did the BIA Err in Finding That Evelyne Was Not
Deprived of Due Process?
Lastly, Evelyne argues that the way in which the IJ
conducted her immigration hearing violated her right to "a
reasonable opportunity to present evidence [on her] own behalf."
Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988).3 From our review
of the record, it appears that the IJ took over the questioning of
Evelyne to clarify her meandering direct testimony. The BIA found
that, despite this conduct, Evelyne had been provided with a full
and fair opportunity to present her case. We agree. Although
aliens facing removal enjoy the right to a fair opportunity to be
heard, Ishak v. Gonzáles, 422 F.3d 22, 32 (1st Cir. 2005), the IJ
retains broad discretion over the conduct of immigration
proceedings, and may interrogate and cross-examine the alien and
3
We review de novo whether an IJ's conduct has violated due
process. Aguilar-Solís, 168 F.3d at 568.
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any witnesses. See id. at 31; 8 U.S.C. § 1229a(b)(1). While the
IJ here evinced some impatience at the disjointed pace of Evelyne's
direct examination, he remained squarely within the bounds of
proper behavior in asking the questions he did. Cf. Ishak, 422
F.3d at 31; Aguilar-Solís, 168 F.3d at 568. It should also be
noted that he gave Evelyne's counsel the opportunity to raise
further issues before closing the hearing, and counsel availed
himself of this opportunity. As we have stated in the past, "[a]
judge who plays an active, but even-handed, role in keeping the
focus of the inquiry sharp is to be commended, not condemned." Id.
at 569.
III. CONCLUSION
The petition for review is denied.
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