Malook v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-17-2008
Malook v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2182
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-2182
_____________
SAIFUL MALOOK,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________
Petition for Review of an Order of the Board of Immigration Appeals
Agency No. A79 734 354
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 12, 2008
___________
Before: McKee and Roth, Circuit Judges, and O’NEILL, District Judge *
(Filed: December 17, 2008)
___________
OPINION
___________
McKee, Circuit Judge:
*
The Honorable Thomas N. O’Neill, Jr., Senior District Judge for the United
States District Court for the Eastern District of Pennsylvania, sitting by designation.
Saiful Malook petitions for review of an Order of the Board of Immigration
Appeals dismissing his appeal from an Immigration Judge’s denial of his claim for
withholding of removal and relief under the Convention Against Torture. We have
jurisdiction pursuant to 8 U.S.C. § 1252. For the reasons that follow, we will deny the
petition.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this
case, we need not set forth the factual or procedural history except insofar as may be
helpful to our brief discussion.
Malook’s primary claim is that he was denied due process because the IJ and the
Board relied upon indecipherable testimony which Petitioner claims resulted from the
substandard Pushtu/English translation of the court-appointed interpreter. We lack
jurisdiction over this claim, however, because - as Malook concedes - he never raised it
before the BIA.
Due process claims are generally not subject to the exhaustion requirement.
However, they must be exhausted if they raise procedural claims that the Board could
remedy. Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990) (noting that exhaustion
requirement applies where a “due process claim amounts to a procedural error
correctable through the administrative process”); see also Khan v. Attorney General, 448
F.3d 226, 236 (3d Cir. 2006) (holding that an alien’s claim that the IJ’s denial of a
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continuance violated his due process rights was a claim of procedural error and was thus
subject to the exhaustion requirement).
Had Malook raised his claim of an incompetent translation before the Board, a
remand before a different translator may have been appropriate because “faulty or
unreliable translations can undermine the evidence on which an adverse credibility
finding is based” even where there is no due process violation. He v. Ashcroft, 328 F.3d
593, 598 (9th Cir. 2003) (citing Balasubramanrim v. INS, 143 F.3d 157, 162-64 (3d Cir.
1998). It is difficult to read the transcript of Malook’s hearing without having concerns
about the quality of the translation. Indeed, the transcript comes perilously close to being
nonsensical at times. However, since Malook did not raise this claim before the BIA, we
can not entertain it now.
II.
The BIA adopted and affirmed the IJ’s decision, but added some analysis and
discussion of its own. Accordingly, we review the decisions of both the BIA and the IJ.
Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). We uphold an adverse credibility
determination if it is supported by substantial evidence on the record. Balasubramanrim
v. INS, 143 F.3d 157, 161 (3d Cir. 2003) (citation omitted). We must sustain an adverse
credibility determination unless the evidence compels a conclusion to the contrary. He
Chun Chen, 376 F.3d 215, 222 (3d Cir. 2004).
Neither the IJ, nor the BIA specifically ruled that Malook was not credible.
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Rather, both concluded that his credibility was “extremely weak and challenged.” They
both required corroboration. More specifically, the IJ was skeptical of Malook’s
explanation that he could not present evidence of his party membership because he
feared problems with the authorities in Pakistan if he was caught carrying such
identification. However, it does not strike us as the least bit suspicious that someone
fleeing a repressive regime would be afraid of carrying identification that would allow
someone to associate him with the opponents of that regime. Malook did submit
evidence of country conditions describing the Musharraf government’s arrest and
detention of PML-N supporters. We are at a loss to understand why the IJ would expect
Malook to carry documents that would identify him as a PML-N supporter.
The IJ also found a “contradiction” because Malook did not explain how he was
able to leave the country without interference from the government. The IJ cited an Exit
Control List described in the 2003 State Department Report as evidence that Malook
would not have been able to leave if he really were wanted by the government.
However, the Report states only that that list was “used to prevent the departure of
wanted criminals and individuals under investigation for defaulting on loans, corruption
or other offenses” and that “400 PML leaders” were on the list. However, Malook never
claimed to be a PML “leader.” Rather, he was a village organizer. Given his testimony, it
is not the least bit suspicious that the list failed to include the name of someone, like
Malook, who was only a village organizer.
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The IJ and the BIA also commented on the lack of supporting letters from
Petitioner’s family. However, standing alone, this omission is a scant justification for the
denial of an otherwise credible asylum claim. Common sense suggests that his family
members may not want to run the risk of sending him letters. Unlike conditions here,
those who live in countries controlled by repressive regimes may be well advised to not
trust the privacy of anything that they put into their country’s mails. That is too slender a
thread to support the skepticism of the IJ and BIA.
III.
While the skepticism of Malook’s credibility is somewhat strained, we will
nevertheless affirm based on the IJ’s alternate holding, as adopted by the BIA. The IJ
found that Petitioner’s claim of a clear probability of persecution was undermined by the
fact that “he spent [3-6] months in Karachi awaiting his ship during which period he
experienced no problems with the Police.” An applicant who can safely relocate within
his/her own country is not eligible for relief from removal. See 8 C.F.R. §
208.16(b)(1)(i)(B) (presumption of future persecution may be rebutted where “[t]he
applicant could avoid a future threat to his or her life or freedom by relocating to another
part of the proposed country of removal and, under all the circumstances, it would be
reasonable to expect the applicant to do so”).
IV.
For the foregoing reasons, the petition for review is denied.
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