Meilina Krisnawati v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15798 ELEVENTH CIRCUIT
JUNE 1, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A098-858-821,
A098-858-822
MEILINA KRISNAWATI,
IRON SITUMORANG,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 1, 2009)
Before DUBINA, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Meilina Krisnawati and Iron Situmorang (collectively, “Petitioners”), both
natives and citizens of Indonesia, through counsel, seek review of the decision of
the Board of Immigration Appeals (“BIA”) affirming the order of the Immigration
Judge (“IJ”) denying their application for asylum and withholding of removal
under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3);
8 C.F.R. § 208.16(b).1
On appeal, the Petitioners argue that the IJ violated their due process rights
by admitting an Asylum Officer’s notes and Assessment to Refer into the record
without offering them an opportunity to object, and that the BIA erred in upholding
the violation. They note that the Executive Office for Immigration Review’s
Operating Policy and Procedures Memorandum (“OPPM”) specifically prohibits
the admission of documents containing an asylum officer’s credibility findings.
They further argue that they were not given a reasonable opportunity to review the
documents, confront and cross-examine the witnesses presented, or object to the
documents’ admission. The Petitioners assert that they cannot show how the
documents prejudiced them because the IJ failed to offer a “cogent or reasoned
analysis” for the denial of asylum relief but, nevertheless, the admission should be
considered presumptively prejudicial in light of the OPPM.
“We review constitutional challenges de novo.” Lonyem v. U.S. Att’y Gen.,
1
When the BIA issues a decision, we review only that decision, except to the extent that
the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). In this case, the BIA issued its own decision.
2
352 F.3d 1338, 1341 (11th Cir. 2003) (per curiam). The Fifth Amendment entitles
petitioners in removal proceedings to due process of the law. Frech v. U.S. Att’y
Gen., 491 F.3d 1277, 1281 (11th Cir. 2007). “To prevail on a procedural due
process challenge, the petitioner must show that he was substantially prejudiced by
the violation.” Id. An alien can demonstrate substantial prejudice by showing that,
absent the due process violation, “the outcome would have been different.”
Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987).
According to the OPPM, a document containing reference to an asylum
officer’s credibility findings should not be filed with the immigration court. See
OPPM 00-01, XII.C, 2000 WL 34444281 (Aug. 4, 2000) (“Under no
circumstances should any document containing reference to INS credibility
findings be filed with the Court.”). While we have not addressed the issue, the
Ninth Circuit has held that the such internal immigration operating instructions do
not have the force of law. Romeiro De Silva v. Smith, 773 F.2d 1021, 1024 (9th
Cir. 1985); see also Prokopenko v. Ashcroft, 372 F.3d 941, 944 (8th Cir. 2004)
(addressing OPPM 00-01 regarding credibility findings and finding that “[i]t is
doubtful that an internal agency memorandum of this sort could confer substantive
legal benefits upon aliens or bind the [INS]”).
Moreover, even assuming that the IJ violated the OPPM and erred in
admitting the Asylum Officer’s notes and Assessment to Refer, the Petitioners’ due
3
process rights were not violated by the admission because the documents did not
change the outcome of the case. The only credibility finding contained in the
documents was favorable to the Petitioners insofar as the IJ only cited them to find
that extraordinary circumstances excused the Petitioners’ untimely asylum
application. As such, the admission of the documents helped the Petitioners, not
prejudiced them.
The Petitioners next argue that they demonstrated a well-founded fear of
future persecution in Indonesia as Christians because the reports in the record
indicate that religious violence by Muslims against Christians is still prevalent in
Indonesia, and the Indonesian Government cannot or will not enforce the law.
They argue that they would more likely than not be persecuted in Indonesia in light
of the numerous articles discussing violent attacks and the fact that Christians are
easily identifiable because religion is labeled on state-issued identification cards.
They also contend that the BIA placed undue reliance on the fact that Krisnawati
voluntarily returned to Indonesia after studying in Australia for several years
because her return was brief and necessary. They further assert that they also met
the higher standard for withholding of removal because they would be easily
identified as Christians with western influence given their time in the United States
and the fact that their son is a United States citizen. Finally, they argue that the IJ
erred in determining that Krisnawati’s testimony was not credible because the IJ
4
did not support his credibility determination with specific reasons or substantial
evidence.
We review the BIA’s legal determinations de novo. Nreka v. U.S. Att’y
Gen., 408 F.3d 1361, 1368 (11th Cir. 2005). The BIA’s factual determinations are
reviewed under the substantial evidence test, and we will affirm the BIA’s decision
“if it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006
(11th Cir. 2008) (internal quotation marks and citation omitted). “We will not
reverse unless the record compels a contrary conclusion.” Id.An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). To be eligible for asylum, the applicant must
prove that he or she is a “refugee” within the meaning of the INA. 8 U.S.C. §
1158(b)(1)(A). To establish refugee status, the applicant must show, with specific
and credible evidence, either past persecution or a “well-founded fear” of future
persecution on account of, inter alia, religion. 8 U.S.C. § 1101(a)(42)(A); Sanchez
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007). Although the
INA does not define persecution for purposes of refugee status, we have noted that
“persecution is an extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation, and that mere harassment does not amount to
persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
5
(per curiam) (internal quotation marks and citation omitted).
Here, the Petitioners assert a fear of future persecution. With respect to a
well-founded fear of future persecution, “[t]he applicant may prove eligibility by
demonstrating (1) a subjectively genuine and objectively reasonable fear of
persecution that is (2) on account of a protected ground.” De Santamaria, 525
F.3d at 1007. “The subjective component is generally satisfied by the applicant’s
credible testimony that he or she genuinely fears persecution.” Id. (internal
quotation marks and citation omitted). “The objective prong can be fulfilled by
establishing that the applicant has a good reason to fear future persecution.” Id.(internal quotation marks and citation omitted). Finally, an applicant who fails to
establish eligibility for asylum on the merits “necessarily fails” to establish
eligibility for withholding of removal. Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1288 n.4 (11th Cir. 2005).
As an initial matter, we will not review the IJ’s adverse credibility finding
because the BIA not only declined to address it but assumed that Krisnawati
testified credibly. See Al Najjar, 257 F.3d at 1284.
We conclude that substantial evidence supports the BIA’s conclusion that
the Petitioners failed to establish eligibility for asylum because they did not
establish a well-founded fear of future persecution. The fact that Krisnawati
voluntarily returned to Indonesia for a month before traveling to the United States
6
and that her parents and siblings have remained in Indonesia without incident
supports our conclusion. See De Santamaria, 525 F.3d at 1011 (“An asylum
applicant’s voluntary return to his or her home country is a relevant consideration
in determining whether the asylum applicant has a well-founded fear of future
persecution.”); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (per
curiam) (discussing future persecution and noting that applicant’s family
“remained unharmed in the region of [the country] where [the applicant] allegedly
was threatened”). At best, the reports submitted by the Petitioners, some of which
recounted religious tension, violence, and church closings and others of which
noted a high degree of religious freedom and even a decrease in religious violence
since 2002, present a mixed picture in terms of the persecution of Christians in
Indonesia. Such evidence does not compel a conclusion that the Petitioners would
be persecuted if they returned to Indonesia. Lastly, because the Petitioners did not
establish eligibility for asylum, they also failed to establish eligibility for
withholding of removal. See Forgue, 401 F.3d at 1288 n.4 Accordingly, we deny
the petition.
PETITION DENIED.
7