Fnu Mulyadi v. U.S. Attorney General , 506 F. App'x 935 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 11-14272; 12-11246
Non-Argument Calendar
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Agency No. A097-192-099
FNU MULYADI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 7, 2013)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
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In this consolidated appeal, FNU Mulyadi seeks review of the Board of
Immigration Appeals’ (BIA’s) final order of removal, which affirmed the
Immigration Judge’s (IJ’s) denial of Mulyadi’s application for withholding of
removal, and the BIA’s denial of his motion to reopen. After careful review, we
deny the petitions.
I.
Mulyadi, a native and citizen of Indonesia, was served with a Notice to
Appear in 2003 charging him with removability under 8 U.S.C. § 1227(a)(1)(B) for
remaining in the United States longer than permitted. Mulyadi conceded
removability but filed applications for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture, alleging that he was
persecuted due to his Christian beliefs and would be persecuted again if he
returned to Indonesia. 1 After a hearing in 2009, the IJ denied Mulyadi’s
applications for relief, and the BIA dismissed his appeal.
In his asylum application, Mulyadi claimed that he and his wife, Visca
Imelda, owned a grocery store in Indonesia that they were forced to sell at a
confiscatory price. He stated that he and his wife hosted weekly Christian church
gatherings at the store, which attracted anti-Christian harassment. After the
gatherings drew more followers, policemen told Mulyadi and his wife to stop the
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Mulyadi only appeals the BIA’s decision as it relates to withholding of removal.
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gatherings, threatened to revoke their business license if they refused, and
demanded protection money. Then, the store was broken into in August 1999, and
the police were informed but did not investigate. Shortly thereafter, Mulyadi
received a phone call from someone who claimed that he burglarized the store
because Mulyadi was hosting Christian gatherings. Mulyadi’s vendors later
stopped supplying the store, and he was forced to close it. A Haj, a Muslim leader,
offered to buy the shuttered store and threatened to burn it down if Mulyadi
refused to sell. Consequently, Mulyadi agreed to sell the store for 150 million
rupiah, well below its market value, but the Haj paid only 50 million.
At a hearing before the IJ, Mulyadi testified about the Christian gatherings,
the menacing phone call, and the sale of the store. But he did not mention the
policemen’s harassment and extortion. Imelda testified that the store was open
only for two to four months — contradicting Mulyadi’s testimony that church
gatherings were held in the store for eight months — and closed in either April or
June 1999, before the date Mulyadi claimed the store was burglarized. Mulyadi
provided no other evidence corroborating his story. The IJ denied Mulyadi’s
applications for relief, finding Mulyadi’s testimony incredible. Mulyadi appealed
the IJ’s decision, but the BIA dismissed the appeal in August 2011.
Mulyadi subsequently filed a motion to reopen his removal proceedings —
claiming that his counsel at the 2009 hearing and his counsel on appeal to the BIA
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were ineffective — which the BIA denied in February 2012. Mulyadi timely filed
petitions for review of both the BIA’s August 2011 and February 2012 orders.
This is his consolidated appeal.
II.
An alien is entitled to withholding of removal if he establishes that, if
returned to his country, his “life or freedom would be threatened . . . because of
[his] race, religion, nationality, membership in a particular social group, or political
opinion,” which may be demonstrated by proving past persecution based on one of
those grounds. 8 U.S.C. § 1231(b)(3)(A); Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003). An alien’s credible testimony alone may be sufficient
to establish eligibility for relief, and a denial of relief may be supported solely by
an adverse-credibility determination, especially if the alien fails to produce
corroborating evidence. Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304-05
(11th Cir. 2009). “Considering the totality of the circumstances . . . a trier of fact
may base a credibility determination on . . . the consistency between the
applicant’s or witness’s written and oral statements . . . [and] the consistency of
such statements with other evidence of record . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii).
We review factual findings, including credibility determinations, under the
substantial-evidence test. Dailide v. U.S. Att’y Gen., 387 F.3d 1335, 1341 (11th
Cir. 2004). Under this standard, we “must affirm the BIA’s decision if it is
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supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.
2001) (internal quotation marks omitted). To reverse a BIA factual finding, we
must find that “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.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc).
Substantial evidence supports the IJ’s and BIA’s conclusion that Mulyadi is
ineligible for withholding of removal on the basis of an adverse-credibility
determination. Mulyadi did not testify to the alleged police harassment and
extortion, one of the major forms of harassment he identified in his asylum
application. Mulyadi argues that, at the 2009 hearing, he was only asked to testify
about the worst incident of persecution he suffered, but the BIA correctly found
that Mulyadi had several opportunities to testify to other events. Further, Imelda
and Mulyadi’s testimony directly contradicted each other about important dates.
Contrary to Mulyadi’s arguments, Imelda’s testimony concerning the dates in
question was clear. Mulyadi also argues that it is unclear whether Imelda’s
testimony about the store closure referred to a temporary rather than a permanent
one, but he points to nothing in the record that suggests there was any such
temporary closure. Accordingly, the BIA did not err in affirming the IJ’s
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determination that Mulyadi had not shown past persecution and, as a result, that he
was not entitled to withholding of removal.
III.
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). We will only find an
abuse of discretion if the BIA’s decision was arbitrary or capricious. Id.“To establish the ineffective assistance of counsel in the context of a
deportation hearing, an alien must establish that his or her counsel’s performance
was deficient to the point that it impinged the fundamental fairness of the hearing.”
Ali v. U.S. Att’y Gen., 643 F.3d 1324, 1329 (11th Cir. 2011) (internal quotation
marks and alterations omitted). And the alien must establish prejudice, which
“exists when the performance of counsel is so inadequate that there is a reasonable
probability that but for the attorney’s error, the outcome of the proceedings would
have been different.” Id. (internal quotation marks omitted).
Mulyadi has failed to demonstrate that the BIA abused its discretion in
denying his motion to reopen. Mulyadi makes numerous allegations against his
two former attorneys, including: (1) counsel failed to offer corroborating evidence,
(2) counsel’s examination of Mulyadi and Imelda at the 2009 hearing was
deficient, (3) counsel failed to object to or correct the allegedly poor performance
of the court-provided interpreter, and (4) the appellate brief filed with the BIA was
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deficient. But he identified no evidence or testimony that was not presented at the
2009 hearing or on appeal, no error in the proceedings, and no deficiency in the
appellate brief that, had counsel performed differently, may have had a reasonable
probability of resulting in a different outcome. Consequently, the BIA concluded
that Mulyadi had not demonstrated prejudice as a result of his counsels’ allegedly
deficient performance. And Mulyadi has not shown that to be arbitrary or
capricious. Therefore, the BIA did not abuse its discretion in denying his motion
to reopen.
IV.
For the foregoing reasons, we deny both petitions for review.
PETITIONS DENIED.
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