Mondal vs. Gonzales, No. 05-9600 (10th Cir. 2006)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 4, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court M INATI M ONDAL; SH AM SUDDIN AHM AN; CEEH AM SHAM S; Petitioners, No. 05-9600 (No. A 97 936 974) (Petition for Review) v. ALBERTO R. GONZALES, Attorney General, Respondent. OR D ER AND JUDGM ENT * Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges. M embers of the M ondal family, citizens and nationals of Bangladesh, petition for review of a decision of the Board of Immigration Appeals (BIA or Board) denying their claims for asylum and for restriction on removal. W e have * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. jurisdiction to review the agency s decision under 8 U.S.C. § 1252(a)(1), and we deny the petition for review . I. Background M inati M ondal, the lead petitioner and mother of the family, is a lifelong Christian. The other petitioners are Dr. Shamsuddin A hman, M s. M ondal s M uslim husband, and Ceeham Shams, the couple s adult Christian daughter. The family s application for asylum, restriction on removal, and protection under the Convention Against Torture is premised on the lack of toleration in Bangladesh for the parents interfaith marriage. At the hearing before the Immigration Judge (IJ), the parties offered testimony from M s. M ondal and also expert testimony from John Adams, a retired university professor and current consultant on economics and salvation studies. M s. M ondal described religious clashes w hile living with her husband s family in Bangladesh. Her in-laws pressured her to follow the precepts of the Islamic faith, changed her name, teased her, pushed and hit her, pulled her hair, threatened her, refused to eat with her, and forced her to do all the chores. The worst incident of [her] life, occurred when she refused to fast on a day during the month of Ramadan, February 1994. Admin. R. at 210. Her brother-in-law pushed her against a wall and attempted to choke her. M s. M ondal and Dr. Ahman decided that the situation was intolerable and that she should leave Bangladesh. -2- M s. M ondal entered the United States in M ay 1994 and Dr. Ahman and M s. Shams followed in August 1995. M s. M ondal was approved for student status; her husband and daughter were classified as student-dependents. Both parents registered with educational institutions and began programs of instruction. As of M arch 1, 2003, however, they had stopped attending classes and the family s legal status lapsed. After discussing the situation with an attorney, M s. M ondal gathered documentation, and on September 12, 2003, attempted to file an application for asylum and restriction. In support of her application, M s. M ondal testified that if she returned to Bangladesh, her family problems would re-erupt, fundamentalists would attempt to kill her, and the government would not protect her. She also offered expert testimony from Dr. Adams, who has traveled to Bangladesh and also prepared talks and articles on the country. Dr. Adams testified that an interfaith couple in Bangladesh would be shunned by M uslim family members. If the couple moved to another part of Bangladesh, there would still be a very high risk that M s. M ondal, as the non-Islamic partner in an interfaith marriage, would be subject to intimidation, violence, rape, and possibly murder. Admin. R. at 139. At the close of testimony, the IJ reviewed the evidence and concluded that the asylum application was not timely filed. He noted that, when M s. M ondal s status lapsed in M arch 2003, she had been attending college and university classes in the United States for nine years. Under these circumstances, the IJ -3- found, she should have been able to file an asylum application w ithin a short period after falling out of status, and that the September 2003 asylum application was not filed within a reasonable time. Id. at 61. He also determined that there was no significant change in country conditions during the relevant period. Accordingly, the family members were statutorily ineligible for asylum. The IJ then determined that the record failed to show past persecution or a probability of future persecution. He therefore denied the family s applications for restriction on removal and protection under the Convention Against Torture, as being without any merit whatsoever. Id. at 64. On appeal, the BIA adopted and affirmed the IJ s denial of relief. In response to the family s argument that the transcript of the hearing was inadequate, the BIA acknowledged that the transcript of the hearing contain[ed] numerous Indiscernible entries, but concluded that it was sufficiently complete upon which to base a determination. Id. at 890. II. Discussion A. Timeliness of Asylum Application Petitioners seek review of the finding that M s. M ondal s application was untimely. Generally, an alien must file an asylum application within 1 year after the date of the alien s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The Attorney General, however, may accept an otherwise untimely application if the alien demonstrates either (1) the existence of changed circumstances which -4- materially affect [her] eligibility for asylum or (2) extraordinary circumstances relating to the delay in filing an application within the period specified. § 1158(a)(2)(D ). The term changed circumstances includes [c]hanges in conditions in the applicant s country of nationality. 8 C.F.R. § 208.4(a)(4)(i)(A). The extraordinary circumstances exception applies to an asylum applicant who was in lawful status during the one-year period after arrival, then filed within a reasonable period following the lapse of status. 8 C.F.R. § 208.4(a)(5)(iv). A federal court lacks jurisdiction to review the denial of an asylum application for untimeliness if the petitioner challenges discretionary decisions or findings of fact, but it may resolve constitutional claims or matters of statutory construction. Ferry v. Gonzales, Nos. 03-9526, 04-9555, 05-1014, 2006 W L 2258805, at *9 (10th Cir. Aug. 8, 2006). However, this court will reject an attempt to shoehorn [a] claim into the question of law category that simply does not fit there. Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005). In recognition of this court s limited jurisdiction, the family members couch their issues as questions of law. They assert that the IJ committed legal error in failing to recognize a change in country conditions: the rise in fundamentalism in Bangladesh since the W orld Trade Center attacks on September 11, 2001, and the invasion of Iraq in M arch 2003 (which coincided with M s. M ondal s leaving her studies). -5- Analytically, the existence of changed circumstances that materially affect eligibility for asylum is a predominately factual determination, which will invariably turn on the facts of a given case. Ram adan v. Gonzales, 427 F.3d 1218, 1221-22 (9th Cir. 2005). Thus, this aspect of the family s petition for review is directed solely at the agency s discretionary and factual determinations and it remain[s] outside the scope of judicial review. Ferry, 2006 W L 2258805, at *9 (quotations omitted). Similarly, the family asserts that, as a matter of law, M s. M ondal s asylum application was timely because it was filed within a reasonable time after the lapse of her student status. W e conclude that the BIA and the IJ did not misinterpret the law. Indeed, M s. M ondal s application, filed over six months after her lapse of status, was treated in accordance with the agency s interpretation of its regulation, 8 C.F.R. § 208.4(a)(5)(iv). An asylum applicant is expected to file as soon as possible after termination of a lawful immigration status. Asylum Procedures, 65 Fed. Reg. 76121, 76123 (Dec. 6, 2000). A delay of six months or longer is usually not considered reasonable. Id. at 76124. This question also challenges a discretionary determination and is not reviewable. A final challenge to the timeliness determination arises from the condition of the hearing transcript. The family contends that the transcript is so replete with entries of indiscernible and no audible response that it amounts to a due process violation. The BIA s rejection of this argument is a legal determination, -6- which we review de novo. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). Due process requires that an alien at a removal hearing must have an opportunity to be heard, to cross-examine witnesses against him, and to produce evidence . . . and that the decision be supported by substantial evidence. Hadjimehdigholi v. INS, 49 F.3d 642, 649 (10th Cir. 1995) (internal quotation marks omitted). One of an applicant s rights in an immigration proceeding is that a complete record shall be kept of all testimony and evidence produced at the proceeding. 8 U.S.C. § 1229a(b)(4)(C). It is the government s duty to prepare a reasonably accurate, reasonably complete transcript. Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir. 1993). The absence of a reasonably complete transcript can hamper[] the ability of an alien to mount a challenge to the proceedings that were conducted before the IJ and foreclose effective administrative and judicial review. Kheireddine v. Gonzales 427 F.3d 80, 84 (1st Cir. 2005) (quotation omitted). To a establish a due process violation based on an inaccurate or incomplete transcription, however, an alien must show specific prejudice to his ability to perfect an appeal. Id. at 85 (quotation omitted). [P]rejudice to warrant a remand cannot be shown if the transcription failure does not make any difference to the outcome of the review. Id. at 86. In other words, prejudice -7- requires a showing that a complete and accurate transcript would have changed the outcome of the case. Ortiz-Salas, 992 F.2d at 106. Here, there is no question that the agency failed to fulfill its responsibility to prepare a reasonably complete transcript. The transcript contains numerous entries of no audible response or indiscernible, particularly during M s. M ondal s testimony. Indeed, there are 211 such entries in her testimony alone, rendering some dialogues incomprehensible. 1 W e do not condone the agency s careless preparation of the record: the poor quality of the transcript is disturbing. 2 Nevertheless, the transcript s shortcomings do not significantly affect the agency s decision to consider her asylum application untimely. The existing transcript provides M s. M ondal s account of her reasons for not filing earlier. According to her testimony, she used the time between M arch and September 2003 to talk to her attorney, gather documents from Bangladesh, and prepare the application. Admin. R. at 107-08. She does not assert that a complete transcript 1 Additionally, the transcript contains unjustifiable misspellings like Lybia for the country Libya, Admin. R. at 86-88, 93, 104; mosk for mosque, id. at 139; Docka for D haka, the capital of Bangladesh, id. at 136, and bazaar for the word bizarre, id. at 63. 2 The Attorney General has apparently recognized that flaw ed transcripts may be a systemic problem. In a recent press release, he announced plans to improve the Immigration Courts ability to record, transcribe, and interpret court proceedings. Dep t of Justice, Attorney General Alberto R. Gonzales Outlines Reform s for Im migration Courts and Board of Immigration Appeals (Aug. 9, 2006) (available at http://w ww.usdoj.gov/opa/pr/2006/A ugust/06_ag_520.html). -8- would show other barriers to filing. W e reject the due process claim as it relates to the timeliness of her application and therefore do not reach the family s contentions on their entitlement to asylum. B. Restriction on Removal In addition, the family seeks review of the IJ s and BIA s denial of their requests for restriction on removal. This type of relief requires a showing that the alien s life or freedom would be threatened in [the proposed country of removal] because of [her] race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). An alien s life or freedom is presumed to be threatened if she is determined to have suffered past persecution in the proposed country of removal. 8 C.F.R. § 208.16(b)(1)(i). Otherwise, the alien must show it is more likely than not that she would be persecuted upon removal. Id. § 208.16(b)(1)(iii). The family s due process argument, asserted in the context of the asylum timeliness determination, is also applicable to restriction on removal. The question is w hether the flaw ed hearing transcript prejudiced the family s ability to appeal the denial of restriction on removal to the BIA or to seek review in this court. This is a legal question which we subject to de novo review. See Niang, 422 F.3d at 1196. Our review of the record for information germane to restriction on removal reaffirms our conviction that the transcript is unsatisfactory. Nonetheless, a clear -9- outline of M s. M ondal s narrative emerges from a reading of her testimony. M oreover, the family does not claim that her indiscernible statements could have supplied outcome-changing facts. 3 W ithout a showing that transcription errors prejudiced the family s ability to present their argument, we must conclude that the transcript s deficiencies do not amount to a due process violation. See Ortiz-Salas, 992 F.2d at 106-07 (holding that hearing transcript with 292 inaudible or indiscernible notations did not violate applicant's due process rights because he could not demonstrate prejudice). As to the factual determinations relevant to restriction on removal, this court does not weigh the evidence or evaluate the credibility of witnesses. Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004). [F]indings of fact are conclusive unless the record demonstrates that any reasonable adjudicator w ould 3 In many instances, the substance of the obscured testimony is evident from its context. An example is the following colloquy on cross-examination: Q. A. Q. A. . Q A. Q. A. Q. But you agreed to get married in a M uslim (indiscernible), correct? Yes. . . . Did you change your name to a M uslim name? Yes (indiscernible). Okay. So it looks like, to the in-laws, that you were becoming a M uslim, correct? Yes, (indiscernible). But then when you didn t that s w hen the problem started, right? (indiscernible). All right. . . . R., at 114-15. -10- be compelled to conclude to the contrary. Ferry, 2006 W L 2258805, at *10 (quoting 8 U.S.C. § 1252(b)(4)(B)). Because the BIA adopted and affirmed the IJ s decision in a brief opinion, we review the BIA s opinion by consulting the IJ s more complete explanation of those same grounds. Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). The IJ based his denial of restriction on removal on specific findings. H e found that the record did not show past persecution of M s. M ondal: she resided in her country for a good part of her adult life and her most serious problem w as [the] bout with the brother-in-law. Admin. R. at 64. Also, the IJ determined, Dr. Adams testimony concerning the basis for M s. M ondal s fear of future persecution was unsupported. Indeed, the IJ found that Dr. Adams opinion was a bazaar [sic] statement for an academic person to make. Id. at 63. In sum, the IJ denied the requested relief because he determined that the case falls dramatically short of being anything that could properly be granted. Id. at 64. A careful review of the record reveals that substantial evidence supports the IJ s factual findings. In their brief, the family members essentially ask this court to substitute their view of M s. M ondal s testimony and the expert s opinions for that of the IJ and the BIA. Given the deferential standard of review applicable to these proceedings, we cannot take this course. -11- III. Conclusion To the extent that the family challenges discretionary decisions or findings of fact relating to untimeliness of M s. M ondal s asylum application, we DISM ISS the petition for review for lack of appellate jurisdiction. W e DENY the remainder of the petition for review. Entered for the Court Robert H. Henry Circuit Judge -12-

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