Oroh v. Holder, No. 07-2606.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtHoward
Citation561 F.3d 62
PartiesFeki OROH, Petitioner, v. Eric H. HOLDER, Jr.<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
Docket NumberNo. 07-2606.
Decision Date27 March 2009
561 F.3d 62
Feki OROH, Petitioner,
v.
Eric H. HOLDER, Jr.* Attorney General, Respondent.
No. 07-2606.
United States Court of Appeals, First Circuit.
Submitted December 2, 2008.
Decided March 27, 2009.

[561 F.3d 64]

William A. Hahn and Hahn & Matkov for petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division, Cindy Ferrier, Senior Litigation Counsel and Michele Y.F. Sarko, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice for respondent.

Before BOUDIN, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.


Feki Oroh, an Indonesian national, entered the United States in September 1994, pursuant to a visa valid until March 1995. He remained in the United States beyond the expiration of his visa. In April 2003, the Department of Homeland Security ("DHS") issued Oroh a Notice to Appear. Oroh admitted his removability, and in March 2004 sought asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Following a hearing, an Immigration Judge ("IJ") denied Oroh's applications in September 2005. The Board of Immigration Appeals ("BIA" or "the Board") affirmed the IJ and dismissed the appeal. This timely petition followed.1 We deny the petition.2

I.

The substantive basis of Oroh's application is fear of religious persecution. Oroh is Christian, Indonesia's population and government is predominantly Muslim, and there has undeniably been violent sectarian conflict between the two groups. Before we address the question of whether this violence constitutes persecution such that Oroh is entitled to relief, we must resolve two procedural matters: 1)Oroh's claim that certain defects in the transcript of his hearing before the IJ violate BIA regulations, thus entitling him to remand; and 2)the government's two-pronged argument that the BIA correctly determined that Oroh's asylum application was untimely and that we lack jurisdiction to review that determination.

A. The transcript

Oroh first argues that he is entitled to relief because the 40-page transcript of his hearing before the IJ contains 137 uses

561 F.3d 65

of the term "indiscernible" in place of text. He bases this contention on 8 C.F.R. § 1003.1(e)(2), which provides that an alien is entitled to have an adequate record on which to base an appeal, and 8 C.F.R. § 1240.9, which provides that "hearings shall be recorded verbatim except for statements made off the record with the permission of the immigration judge." The BIA's failure to follow its own regulations, Oroh asserts, warrants reversal of the BIA and remand for a new hearing.

The BIA rejected Oroh's transcript-based claim because he failed to show that he was prejudiced. Specifically, the BIA found that Oroh failed to establish that any material testimony was not reflected in the transcript. And in reviewing the transcript, the Board was unable to identify any aspect of material testimony that had been omitted. On appeal, Oroh argues that no showing of prejudice is necessary because the regulatory violation alone is sufficient to trigger remand.

We are not strangers to the problem of incomplete transcripts in immigration cases. See, e.g., Kheireddine v. Gonzales, 427 F.3d 80, 82 (1st Cir.2005) ("[T]he problem of missing portions of transcripts is a recurring one"); Munoz-Monsalve v. Mukasey, 551 F.3d 1, 9 (1st Cir.2008) (missing transcript of calendar conference); Teng v. Mukasey, 516 F.3d 12, 17 (1st Cir.2008) (transcript contained a "modest number of `indiscernible' notations"). In addition, we understand that "[s]uch persistent problems put at risk the ability of the courts of appeals to provide meaningful and effective appellate review." Kheireddine, 427 F.3d at 85. Thus, we have held that "due process demands a `reasonably accurate, reasonably complete transcript,' or an adequate substitute, to allow for meaningful and adequate appellate review." Id. at 84 (quoting Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir.1993)).

At the same time, however, "a mere failure of transcription, by itself, does not rise to the level of a due process violation." Id. at 85. Instead, to succeed on a claim of inadequate transcription, Oroh must show "`specific prejudice to his ability to perfect an appeal' sufficient to rise to the level of a due process violation." Teng, 516 F.3d at 18 (quoting Kheireddine, 427 F.3d at 85). More specifically, he must "show at a bare minimum that the gaps relate to matters material to his case" and that they "materially affect his ability to obtain meaningful review." Munoz-Monsalve, 551 F.3d at 9. Finally, if the missing information "could reasonably be recreated by the complaining party, then its absence is not prejudicial." Id. (citing Kheireddine, 427 F.3d at 86).

Perhaps recognizing the weight of contrary authority, Oroh argues that he need not show prejudice because he is not claiming a due process violation. Oroh not only ignores the plain language of Teng, which requires due process-level prejudice to succeed on a claim of inadequate transcription, 516 F.3d at 18, but he supplies no authority for his implicit proposition that the alleged regulation violation alone—absent prejudice—entitles him to relief.3

Despite his reliance on an inapposite legal theory, Oroh brought to the BIA's attention several portions of the transcript from which he claimed important substantive testimony was lacking. Our review of the four referenced pages

561 F.3d 66

does not support Oroh's contention. In each case, the gist of the missing words can be inferred from their context. Most importantly, however, all of the missing information came during testimony from Oroh himself, or were comments by his attorney, who continues to represent him on appeal. As such, the "missing" information is readily available to Oroh, yet was never provided—by affidavit or otherwise—to the BIA or this court. "The law is pellucid that if a missing transcript reasonably could be recreated by the complaining party, its absence is not prejudicial." Munoz-Monsalve, 551 F.3d at 9 (citing Kheireddine, 427 F.3d at 86). In the absence of prejudice, Oroh's transcript-based claim is rejected.

B. Timeliness of the asylum application

An asylum application must ordinarily be filed "within one year after the date of the alien's arrival in the United States," 8 U.S.C. § 1158(a)(2)(B), or by April 1, 1998, whichever is later. 8 C.F.R. § 1208.4(a)(2)(ii). Late applications can be considered, however, if an applicant demonstrates "changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing," and if the applicant filed the application "within a reasonable period" given those circumstances. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. §§ 1208.4(a)(4), (5); Rashad v. Mukasey, 554 F.3d 1, 4 (1st Cir.2009). It is the applicant's burden to establish that the application is timely filed or that he qualifies for an exception. 8 C.F.R. § 1208.4(a)(2)(i).

Here, Oroh does not dispute that his...

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17 practice notes
  • Lumataw v. Holder, No. 08-1757.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 9, 2009
    ...1. Since Lumataw did not raise his CAT claim in his appellate brief, that basis for his application is deemed waived. Oroh v. Holder, 561 F.3d 62, 64 n. 1 (1st 2. Lumataw had requested that the IJ consolidate his separate asylum application with his wife's application, but the request was d......
  • Makieh v. Holder, No. 08-2213.
    • United States
    • U.S. Court of Appeals — First Circuit
    • July 14, 2009
    ...must also demonstrate that he "filed the application `within a reasonable period' given those circumstances." Oroh v. Holder, 561 F.3d 62, 66 (1st Cir.2009) (quoting 8 C.F.R. § 1208.4(a)(4), 2. Makieh's petition for review Before the IJ and BIA, Makieh argued both changed and extr......
  • In re Appeal of Rye Sch. Dist., No. 2019-0397
    • United States
    • New Hampshire Supreme Court
    • December 2, 2020
    ...must show specific prejudice to his appeal resulting from the incompleteness of the record" (quotation omitted)); Oroh v. Holder, 561 F.3d 62, 65 (1st Cir. 2009) (noting, in immigration context, that "to succeed on a claim of inadequate transcription, [the petitioner] must show sp......
  • Lopez-Perez v. Garland, 21-1057
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 22, 2022
    ...and if the non-citizen "file[s] the application 'within a reasonable period' given those circumstances." Oroh v. Holder, 561 F.3d 62, 66 (1st Cir. 2009) (first quoting 8 U.S.C. § 1158(a)(2)(D); then quoting 8 C.F.R. §§ 1208.4(a)(4), (5)). A noncitizen can establish a changed circu......
  • Request a trial to view additional results
17 cases
  • Lumataw v. Holder, No. 08-1757.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 9, 2009
    ...1. Since Lumataw did not raise his CAT claim in his appellate brief, that basis for his application is deemed waived. Oroh v. Holder, 561 F.3d 62, 64 n. 1 (1st 2. Lumataw had requested that the IJ consolidate his separate asylum application with his wife's application, but the request was d......
  • Makieh v. Holder, No. 08-2213.
    • United States
    • U.S. Court of Appeals — First Circuit
    • July 14, 2009
    ...must also demonstrate that he "filed the application `within a reasonable period' given those circumstances." Oroh v. Holder, 561 F.3d 62, 66 (1st Cir.2009) (quoting 8 C.F.R. § 1208.4(a)(4), 2. Makieh's petition for review Before the IJ and BIA, Makieh argued both changed and extr......
  • In re Appeal of Rye Sch. Dist., No. 2019-0397
    • United States
    • New Hampshire Supreme Court
    • December 2, 2020
    ...must show specific prejudice to his appeal resulting from the incompleteness of the record" (quotation omitted)); Oroh v. Holder, 561 F.3d 62, 65 (1st Cir. 2009) (noting, in immigration context, that "to succeed on a claim of inadequate transcription, [the petitioner] must show sp......
  • Lopez-Perez v. Garland, 21-1057
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 22, 2022
    ...and if the non-citizen "file[s] the application 'within a reasonable period' given those circumstances." Oroh v. Holder, 561 F.3d 62, 66 (1st Cir. 2009) (first quoting 8 U.S.C. § 1158(a)(2)(D); then quoting 8 C.F.R. §§ 1208.4(a)(4), (5)). A noncitizen can establish a changed circu......
  • Request a trial to view additional results

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