Rotinsulu v. Mukasey

United States Court of Appeals
For the First Circuit
No. 07-1516
DENNY STENLY ROTINSULU,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Gelpi,** District Judge.
Wei Jia and Law Office of Wei Jia on brief for
petitioner.
Peter D. Keisler, Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Corey L. Farrell, Trial Attorney,
Office of Immigration Litigation, on brief for respondent.
February 8, 2008
*
Of the District of Puerto Rico, sitting by designation.
SELYA, Senior Circuit Judge. The petitioner, Denny
Stenly Rotinsulu, an Indonesian national, is an Adventist
Christian. He seeks judicial review of a decision of the Board of
Immigration Appeals (BIA) denying his requests for asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture (CAT). We deny the petition.
The background facts are not seriously disputed. The
petitioner is a native of Manado, a city in the Indonesian province
of North Sulawesi. He arrived lawfully in the United States as a
non-immigrant visitor on March 13, 1995, and was authorized to
remain until September 13, 1995. He overstayed.
Roughly eight years went by before federal authorities
commenced removal proceedings. See 8 U.S.C. § 1227(a)(1)(B). The
petitioner conceded removability and cross-applied for asylum,
withholding of removal, and protection under the CAT.
At a hearing before an immigration judge (IJ), the
petitioner testified that he feared persecution on account of his
religion should he be remitted to Indonesia. In support of this
claim, he recounted that he had dated a young Muslim woman from
1990 to 1992, but eventually declined her importunings that they
marry. The woman's family members reacted badly to this perceived
slight. Believing that the couple had engaged in extra-marital
relations, they became enraged by the petitioner's refusal to
plunge into matrimony and repeatedly threatened to kill him.
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Despite the fact that these death threats began in 1992,
the petitioner stayed put until sojourning to the United States in
1995. He at no point during that three-year interval sought either
the assistance or the protection of the police.
At the conclusion of the hearing, the IJ decided the case
ore tenus. The petitioner's testimony was unrebutted and the IJ
generally credited it. He nonetheless rejected all three of the
petitioner's claims for relief. In the IJ's view, asylum was time-
barred and no entitlement to either withholding of removal or
protection under the CAT had been proven.
The petitioner appealed to the BIA, which affirmed the
IJ's decision. This timely petition for judicial review followed.
Before us, the petitioner has abandoned his asylum claim.
That is a wise decision, as we lack jurisdiction to review the
BIA's determination in regard to the timeliness of a petition for
asylum. See 8 U.S.C. § 1158(a)(3); Lumanauw v. Mukasey, 510 F.3d
75, 76-77 (1st Cir. 2007); Pan v. Gonzales, 489 F.3d 80, 84 (1st
Cir. 2007).
The petitioner's brief similarly fails to spell out any
challenge to the BIA's disposition of his CAT claim. Accordingly,
we deem that claim — like his asylum claim — to be abandoned. See
Aguilar v. U.S. ICE, 510 F.3d 1, 13 n.3 (1st Cir. 2007); see also
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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This leaves only the claim for withholding of removal.
To gain perspective, we pause to delineate the nature of this
claim.
Under the Immigration and Nationality Act, an alien may
qualify for withholding of removal by showing a clear probability
that, upon repatriation, he will be persecuted on account of a
protected ground. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. §
1208.16(b); see also INS v. Stevic, 467 U.S. 407, 429-30 (1984).
An alien can make this showing by demonstrating that, more likely
than not, he will be persecuted if returned to his homeland. See,
e.g., Pan, 489 F.3d at 85-86. The regulations place the devoir of
persuasion squarely on the alien and direct an inquiring court to
evaluate whether the evidence proffered by the alien satisfies the
regulatory criteria. 8 C.F.R. § 1208.16(b).
If the alien cannot make a direct showing as to the
likelihood of future persecution, he nonetheless may qualify for
withholding of removal by making an indirect showing. This course
entails proving that he was the victim of past persecution on
account of a protected ground, thereby triggering a rebuttable
presumption that he harbors a well-founded fear of future
persecution. 8 C.F.R. § 1208.16(b)(1). Once triggered, that
presumption shifts the burden to the government to prove that the
alien can return safely to his native land. See Ang v. Gonzales,
430 F.3d 50, 55 (1st Cir. 2005).
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With this framework in place, we turn to the claim at
hand. Notably, the petitioner eschews any challenge to the merits
of the BIA's denial of withholding of removal. Rather, he alleges
that the BIA impermissibly engaged in de novo factfinding when it
affirmed the IJ's ruling. This challenge is legal in nature.
Consequently, our review is plenary, with deference to the BIA's
interpretation of the regulations under which it operates. See
Pan, 489 F.3d at 85.
An agency has an obligation to abide by its own
regulations. See Accardi v. Shaughnessy, 347 U.S. 260, 265-67
(1954). The failure to follow an applicable regulation may be a
sufficient ground for vacation of an agency's decision, resulting
in a remand. See Picca v. Mukasey, ___ F.3d ___, ___ (2d Cir.
2008) [2008 WL 80402, at *4]; Nelson v. INS, 232 F.3d 258, 262 (1st
Cir. 2000). The petitioner's argument hinges on these principles.
Refined to bare essence, his argument is that the BIA
engaged in improper factfinding in contravention of one of its own
regulations, thus tainting its decision and necessitating a remand.
That regulation prohibits the BIA, with exceptions not applicable
here, from "engag[ing] in factfinding in the course of deciding
appeals." 8 C.F.R. § 1003.1(d)(3)(iv). The petitioner asseverates
that the BIA transgressed this prohibition when it concluded, in
its written decision, that the death threats described by the
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petitioner did not rise to the level of past persecution. This
position is without merit.
To begin, the petitioner's contention is based on the
premise that the BIA engaged in de novo factfinding because the IJ
had not decided the issue of past persecution. As we explain
below, that premise is faulty.
It is clear beyond hope of contradiction that the IJ
addressed the lack of any likelihood that the petitioner would face
persecution upon his return to Indonesia. He found unambiguously
that the petitioner "ha[d] not met his burden of proving that it is
more likely than not, or in other words, that there is a clear
probability that he will be subjected to persecution on account of
his religion or any of the [other] enumerated grounds if he were to
return to Indonesia." This finding seemingly subsumes the question
of past persecution. Implicit in it is a subsidiary finding that
the petitioner's evidence did not suffice to trigger a rebuttable
presumption. That is just another way of saying that there was no
cognizable showing of past persecution.
This conclusion is buttressed by the fact that the IJ at
one point commented specifically on the question of past
persecution. Referring to the petitioner's proffer, the IJ noted
that the petitioner, on cross-examination, had virtually conceded
that his girlfriend's relatives "essentially [were] upset because
he refused to marry [her] after he had engaged in sexual relations
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with her." Fairly read, this comment is tantamount to a finding
that the death threats were anchored in the petitioner's
philandering, not in his religion.
The petitioner argues that the IJ was obliged to make a
more explicit finding as to past persecution. This argument
elevates hope over reason. Although we expect an immigration judge
to make findings on all grounds that are necessary to support his
decision, those findings can be either explicit or implicit. See
Un v. Gonzales, 415 F.3d 205, 209 (1st Cir. 2005). The IJ's
express determination that the petitioner failed to carry his
burden of proof on the issue of future persecution, read in
conjunction with his depiction of the petitioner's past experiences
as no more than the aftermath of a soured romance, suffices to show
that the IJ, at least by implication, resolved the issue of past
persecution.1
There is a second reason why we deem the petitioner's
contention unconvincing: it misconstrues the regulation in
question, which was promulgated as part of an effort to restrict
the "introduction and consideration of new evidence in proceedings
before the [BIA]." BIA Procedural Reforms to Improve Case
1
Typically, we have found the absence of specific findings
problematic in cases in which such a void hampers our ability
meaningfully to review the issues raised on judicial review. See,
e.g., Hernández-Barrera v. Ashcroft, 373 F.3d 9, 25 (1st Cir.
2004). There is no such concern here; the IJ's decision, while
brief, provides an adequate roadmap for judicial review.
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Management, 67 Fed. Reg. 54,878, at 54,891 (Aug. 12, 2002). The
regulation was not intended to restrict the BIA's powers of review,
including its power to weigh and evaluate evidence introduced
before the IJ. See Belortaja v. Gonzales, 484 F.3d 619, 624-25 (2d
Cir. 2007). Here, the BIA did not supplement the record by
considering new evidence but, rather, merely analyzed the evidence
that had been presented in the immigration court.
The petitioner's reliance on cases such as Ramirez-Peyro
v. Gonzales, 477 F.3d 637 (8th Cir. 2007), and Chen v. Bureau of
Citiz. & Immig. Servs., 470 F.3d 509 (2d Cir. 2006), is mislaid.
Each of those courts was confronted with a situation in which the
BIA overturned an IJ's ruling after failing to cede proper
deference to the IJ's findings of fact. See Ramirez-Peyro, 477
F.3d at 641; Chen, 470 F.3d at 515. In contrast, the BIA in this
case did not in any way impeach, impugn, or denigrate the IJ's
factual findings; it simply explained, based upon its review of the
record, why it considered the IJ's decision to be supportable. We
cannot say that the BIA, in following that course, violated its own
regulations.
We add a coda. If there were any material deficiency in
the BIA's decision — and we discern none — that error would have
been harmless. The petitioner's evidence, taken in the light most
favorable to him, suggests no more than a private squabble between
him and the family of his quondam lover. Given the well-settled
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rule that withholding of removal cannot be premised on what is
essentially a personal dispute, Da Silva v. Ashcroft, 394 F.3d 1,
6 (1st Cir. 2005), no finding of past persecution could have been
made. See, e.g., Pieterson v. Ashcroft, 364 F.3d 38, 45 (1st Cir.
2004). And, finally, the record is barren of any evidence
sufficient to build a bridge between the threats complained of and
any government action or inaction. That gap in the record, in and
of itself, suffices to doom the petitioner's claim of past
persecution. See, e.g., Nikijuluw v. Gonzales, 427 F.3d 115, 120-
21 (1st Cir. 2005).
We need go no further. For the reasons elucidated above,
we conclude that the BIA's ukase must be upheld.
The petition for review is denied.
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