Kang en Lok v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0677n.06
Filed: September 8, 2006
No. 04-3396
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KANG EN LOK, )
) ON REVIEW FROM THE
Petitioner, ) BOARD OF IMMIGRATION
) APPEALS
v. )
)
ALBERTO GONZALES, Attorney General, )
)
Respondent. )
BEFORE: NORRIS, COLE, and COOK, Circuit Judges.
R. GUY COLE, JR., Circuit Judge. Petitioner Kang En Lok petitions this Court for review
of an order of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”)
denial of Lok’s application for asylum pursuant to Section 208 of the Immigration and Nationality
Act (“INA”), codified at 8 U.S.C. § 1158, his application for withholding of removal pursuant to
Section 241(b)(3) of the INA, codified at 8 U.S.C. § 1231(b)(3)(A), and his request for withholding
of removal pursuant to the United Nations Convention Against Torture (“CAT”), 8 C.F.R. § 208.16.
Lok argues that the BIA erred in holding that his application for asylum was untimely and in
adopting the IJ’s findings that he did not establish either past persecution or a well-founded fear of,
or probable, future persecution. For the following reasons, we AFFIRM the decision of the BIA and
DENY the petition for review.
No. 04-3396
Lok v. Gonzales
I. Background
Lok is a native and citizen of Malaysia. Lok entered the United States on September 11,
1998, on a non-immigrant tourist visa with authorization to remain in the United States until March
10, 1999. On June 20, 2002, Lok filed an application for asylum under § 208(c) of the INA,
withholding of removal under § 241(b)(3) of the INA, and for relief under the CAT. On October 23,
2002, the Immigration and Naturalization Service (“INS”) (now the United States Department of
Homeland Security), instituted removal proceedings against Lok and served him with a “Notice to
Appear” in the immigration court on October 22, 2002. Lok was charged as being removeable under
§ 237(a)(1)(B) of the INA for overstaying his visa.
On November 26, 2002, Lok appeared pro se in the immigration court, but indicated that he
was represented by counsel who was not present. Lok admitted the allegations set forth in the Notice
to Appear, and the court found Lok removable and designated Malaysia as the country of removal.
The immigration court set a hearing on Lok’s applications for asylum, withholding of removal, and
for relief under the CAT, for February 7, 2003.
At the hearing, and with counsel present, Lok testified that he is a Christian who was born
and raised in Malaysia, a predominantly Muslim country. He testified that on August 20, 1998, he
was arrested by the police for his participation in a rally for human rights — specifically, the rally
was in support of Malaysia’s vice prime minister and against its prime minister — and jailed for
three days. Lok claimed that, during his three-day incarceration, the police beat him and did not
allow him to sleep. He claims that after he signed a document indicating that he was opposed to the
government, he was allowed to leave with the warning that the police would “call [him] back.” Lok
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Lok v. Gonzales
testified that shortly after his release from incarceration, the police searched his house. Lok claims
that these events led him to obtain a non-immigrant tourist visa on August 28, 1998, and begin his
trip to the United States. Lok also testified that the church he attended in Malaysia was burned by
Muslims prior to his departure from Malaysia. He further testified that he learned from his parents,
after he left Malaysia, that the police were looking for him. However, in response to a question by
the IJ, Lok testified that nothing else, other than these three incidents — the incarceration, search of
his house, and church fire — occurred in Malaysia to cause him to seek asylum in the United States.
When asked the reasons for his delay of nearly four years in filing his application for asylum,
Lok testified that he waited to see if the conditions in Malaysia would improve, and whether the
prime minister, whom he opposed on human rights grounds, would resign. Lok admitted that he
frequently traveled in and out of Malaysia to visit Thailand prior to leaving Malaysia for the United
States, and that he did not seek asylum in Thailand. Lok admitted that he was never detained by the
Malaysian government and was freely allowed ingress and egress. He claims, however, that he had
to bribe a Malaysian official to allow him to leave for the United States.
After the hearing, the IJ denied Lok’s application for asylum, finding that the petition was
untimely because Lok failed to file his petition within the one-year time period from September 11,
1998, for filing. The IJ also found that Lok’s untimely filing was not excused by extraordinary
circumstances or changed country conditions. The IJ also found that Lok had failed to show that he
was eligible for withholding of removal under the INA and the CAT.
The IJ’s ruling centered on his determination that Lok was not credible. Specifically, the IJ
determined that changed country conditions do not exist to excuse Lok’s late filing of his asylum
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Lok v. Gonzales
petition because the conditions in Malaysia at the time of Lok’s departure were the same conditions
currently in the country. Further, Lok’s alleged experiences “would prima facie establish []
eligibility for asylum,” at the time he entered the United States, so Lok’s dilatory filing was not
excused. Stated otherwise, the IJ determined that if the conditions as Lok alleged them existed when
he departed Malaysia, those alone would suffice to support an application for asylum, thus, any delay
past the one-year filing requirement was inexcusable.
In determining that Lok was not credible, the IJ stated that Lok “was less than forthcoming
on cross-examination,” and found that neither Lok’s application nor evidence — beyond Lok’s
testimony — mentioned a fire at his church or the payment of a bribe to leave Malaysia. The IJ
further found that Lok, despite residing in the United States for nearly four years before filing his
application, did not come forward with any evidence of his church membership or corroboration,
such as a letter or affidavit from family or others in Malaysia, for his claim. Reviewing Lok’s CAT
claim, the IJ found that Lok could not corroborate that he was mistreated while incarcerated in
Malaysia, nor did he demonstrate that it was more likely than not that he would be tortured if he
returned to Malaysia. In short, the IJ determined that Lok came “forward with a claim that is utterly
uncorroborated. He submits a plethora of background material but presents no evidence beyond his
own general, meager, and unspecific testimony as to what happened to him in Malaysia.”
Lok filed a timely appeal to the BIA. The BIA affirmed the IJ’s adverse credibility finding
and his conclusion that Lok’s asylum application was untimely. Finally, the BIA determined that
Lok’s asserted belief that he would suffer future harm in Malaysia was speculative, and that his claim
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No. 04-3396
Lok v. Gonzales
was “not supported by credible testimony” and there were “apparent embellishments” in his
testimony, “unsupported by corroborative evidence.”
Lok filed a timely petition for review in this Court.
II. Application for Asylum: Timeliness and Jurisdiction
Section 208(a)(2) of the INA, 8 U.S.C. § 1158(a)(2)(B), requires that an alien seeking asylum
file his application within one year of entry into the United States. An untimely application may be
considered only if the applicant can demonstrate by clear and convincing evidence that there are
changed country circumstances materially affecting his eligibility for asylum or extraordinary
circumstances that justify his delay in filing. 8 U.S.C. § 1158(a)(2)(D).
The BIA adopted the finding of the IJ that Lok’s asylum application was untimely and that
he failed to demonstrate the required excuse for his late filing. As this Court has held previously,
we lack jurisdiction to review a decision by the BIA that an asylum application is untimely. See
Castellano-Chacon v. INS, 341 F.3d 533, 533 (6th Cir. 2003) (“[W]e are barred from reviewing the
BIA’s decision denying [Petitioner’s] application on the basis that it was untimely” because the INA
states that “‘[n]o court shall have jurisdiction to review any determination fo the Attorney General
under paragraph (2).’” (quoting 8 U.S.C. § 1158(a)(3)).). This jurisdictional bar includes any
determination regarding the applicability of exceptions to the one-year filing requirement. 8 U.S.C.
§ 1158. See also Almuhtaseb v. Gonzales, 453 F.3d 743, --- (6th Cir. 2006) (We “do not have
jurisdiction to review [Petitioner’s] appeal of the denial of asylum because her claim before the BIA
and this court is based on her assertion that the IJ incorrectly applied the ‘changed circumstances’
provision.” Further, “the existence of ‘changed circumstances’ that materially affect eligibility for
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asylum is a predominantly factual determination, which will invariably turn on the facts of a given
case,” and, therefore, we are without jurisdiction to review these findings. (Quotations omitted).).
Lok’s application for asylum was denied because he filed it after the one-year time allotment
for filing had elapsed, and because the BIA made the factual determination that his late filing should
not be excused. Therefore, we are without jurisdiction to review the denial of Lok’s asylum
application as untimely. Even if we had jurisdiction, we would find that the IJ and the BIA did not
err in their factual determinations for the reasons discussed below.
III. Withholding of Removal and CAT: Lok’s Credibility
In this case, the BIA adopted the IJ’s findings regarding Lok’s eligibility for withholding of
removal and CAT relief. Therefore, we review the IJ’s decision directly. Denko v. INS, 351 F.3d
717, 723 (6th Cir. 2003).
When an alien seeks withholding of removal, he must demonstrate “that there is a clear
probability that he will be subject to persecution if forced to return to the country of removal.” Singh
v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005) (quoting Pilicia v. Ashcroft, 388 F.3d 941, 951 (6th
Cir. 2004)). See also 8 U.S.C. § 1231(b)(3)(A) (requiring an alien to show that he would be subject
to persecution upon return to his country on account of his “race, religion, nationality, membership
in a particular social group, or political opinion”). To be eligible for CAT relief, an alien must show
that it is “more likely than not that he . . . would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 208.16(c)(2).
Lok’s applications for withholding of removal and CAT protection are based on his single
incarceration in Malaysia; the subsequent search of his house; the burning of a church; and his
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Lok v. Gonzales
contention that Christians, as a group, are subject to Malaysia’s Internal Security Act (“ISA”);1 and
Sharia.2 The IJ determined that Lok’s testimony regarding his fear of future persecution and the
likelihood that he would be tortured if he returned to Malaysia was not credible and that Lok’s claim
“simply fails of proof.” The IJ acknowledged that “[t]here is some evidence to suggest that the
security forces in Malaysia may violate the rights of prisoners in custody,” but determined that this
evidence was general and did not satisfy Lok’s burden of proof. W e r e v i e w a credi b i l i t y
determination by an IJ under the substantial evidence standard. Sylla v. INS, 388 F.3d 924, 925 (6th
Cir. 2004). A factual determination is “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B), accord Ali v. Reno, 237 F.3d
591, 596 (6th Cir. 2001). We are not to reverse the IJ or BIA merely because we would rule
differently. Klawitter v. INS, 970 F.2d 149, 151–52 (6th Cir. 1992). In order for us to reverse factual
determinations, we must find “that the evidence not only supports a contrary conclusion, but indeed
compels it.” Id. at 152 (citing INS v. Elias-Zacarias, 502 U.S. 478 (1992)). Finally, we must uphold
the IJ’s determination that CAT relief is unwarranted unless it is “manifestly contrary to the law.”
Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001).
The IJ found that Lok was not credible because of: 1) discrepancies between his applications
and testimony; 2) the fact that Lok freely traveled in and out of Malaysia during a time he claims to
have feared arrest by Malaysian authorities; and 3) the lack of corroboration of Lok’s treatment while
1
The ISA a law which allows government authorities to jail persons at any time and provides
for trial without representation.
2
Sharia is a code of strict Islamic laws.
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No. 04-3396
Lok v. Gonzales
incarcerated, his participation in a demonstration, his membership in a church, and an alleged arson
at that church. The IJ found — a finding that was supported by Lok’s own testimony — that
Christians as a group were not subject to the ISA. The IJ also found that Christians are not barred
from practicing their religion in Malaysia because the United States Department of State’s 2002
Religious Freedom Report on Malaysia shows that Sharia is not applied to Christians. Finally, the
IJ found that, contrary to Lok’s belief, Malaysia was “a friend” to the United States following the
attacks on September 11, 2001, and had cracked down on internal Islamic extremism.
In finding that Lok’s claim “fails of proof,” the IJ stated he was not presented with evidence
of what Lok’s:
activities in Malaysia [were] before he left; and the Court does not know if the
respondent was part of a political party that opposed [the government], or whether
he was a leader in a group that formed a demonstration, and whether he was active
as a political activist in Malaysia. Indeed, the Court does not even know where this
demonstration took place, how many other people were arrested with the respondent,
what happened to any of them, whether any of them had gone on trial, whether he
was singled out for some reason, whether there was a huge demonstration and he had
the bad luck not to escape, or any other facts relevant to the claim.
Finally, in determining that Lok was ineligible for CAT relief, the IJ determined that Lok had
not provided any evidence that it was more likely than not that he would be tortured upon return to
Malaysia for lack of credibility and failure of proof reasons.
Short of showing that the evidence compels a contrary result, Lok merely comes forward with
self-serving conclusory statements of disagreement with the IJ, and unsupported evidence about
conditions generally in Malaysia, rather than about any persecution that he would suffer upon his
return. While Lok takes issue with the IJ’s credibility and factual determinations, the evidence does
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not support a determination that any reasonable adjudicator would come to a contrary conclusion nor
that the IJ’s or BIA’s decisions denying relief under the CAT were manifestly contrary to the law.
IV. Conclusion
For the foregoing reasons, we AFFIRM the decision of the BIA and DENY Lok’s petition
for review.
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