Witjaksono v. Holder, No. 08-9540.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtLucero
Citation573 F.3d 968
PartiesHumphrey Sarwono WITJAKSONO and Ligiowati Fnu, Petitioners, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> United States Attorney General, Respondent.
Decision Date17 July 2009
Docket NumberNo. 08-9540.
573 F.3d 968
Humphrey Sarwono WITJAKSONO and Ligiowati Fnu, Petitioners,
v.
Eric H. HOLDER, Jr.,* United States Attorney General, Respondent.
No. 08-9540.
United States Court of Appeals, Tenth Circuit.
July 17, 2009.
As Amended July 23, 2009, filed nunc pro tunc to July 17, 2009.

[573 F.3d 970]

Lisa Suzanne Anderson (Houman Varzandeh with her on the briefs), VHF Law Group, Los Angeles, CA, for Petitioners.

William C. Minick (Linda S. Wernery, Assistant Director, with him on the briefs), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

[573 F.3d 971]

Before LUCERO, BALDOCK, and McCONNELL, Circuit Judges.

ORDER

This matter is before the court on Respondent's Motion for Technical Correction of Decision. The motion is GRANTED. Footnote 2 on page 4 of the opinion is amended to read as follows:

Because Ligiowati does not advance an independent ground for withholding of removal, we do not consider her claim separately from Witjaksono's petition.

In addtion, the sentence appearing on page 9 of the opinion, reading "Nor is this circuit a stranger to the problem of DHS producing inadequate records," is amended to read as follows, "Nor is this circuit a stranger to the problem of inadequate records of immigration proceedings."

A copy of the amended opinion is attached, filed nunc pro tunc to July 17, 2009.

LUCERO, Circuit Judge.


Humphrey Sarwono Witjaksono and his wife, Ligiowati,1 seek review of the denial of their request for restriction on removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture ("CAT" or "the Convention"). Petitioners' application was denied by an Immigration Judge ("IJ"), and the Board of Immigration Appeals ("BIA" or the "Board") dismissed their appeal. They now petition this court for review of the BIA's order. We are also asked to review the BIA's denial of petitioners' motion to remand.

Witjaksono's primary argument is that he was denied due process because the transcript of his hearing before an IJ was defective. Due process entitles aliens to meaningful appellate review of their removal proceedings. To ensure such review, the government is charged with preparing a reasonably complete and accurate transcript of proceedings held before an IJ. The fifty-seven page transcript in this case is replete with nearly two hundred notations saying "indiscernible," and Witjaksono insists that this in and of itself constitutes a reversible due process violation.

In the context of an incomplete immigration transcript, whether there is a constitutional deprivation of due process centers on two inquiries: Does the alien possess a protected interest to which Fifth Amendment process is due and, if so, was the individual afforded the process that was due? It is well settled that an alien in an immigration proceeding is entitled to a reasonably complete and accurate record to facilitate appellate review; we do not consider that issue further. And we readily conclude that the transcript before us is not reasonably complete and accurate.

But failure by the government to provide a complete record of the proceedings below does not constitute a due process violation unless the petitioner can show prejudice. The missing portions of the transcript before us consist almost exclusively of Witjaksono's own testimony, but Witjaksono failed to attempt to fill in the gaps despite BIA procedures permitting him to do so. This failure proves fatal to his claim. Witjaksono could reasonably be expected to make some effort to recreate the missing portions and thus we cannot conclude that the government's dereliction was prejudicial to a degree rising to the level of a denial of due process. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1) and (b)(2), we deny the petition for review.

573 F.3d 972
I

Witjaksono and Ligiowati are natives and citizens of Indonesia. They are ethnically Chinese and practicing Catholics. Witjaksono entered the United States as a nonimmigrant tourist on April 16, 1999, and Ligiowati was similarly admitted on November 16, 2000. They have three children; the youngest was born in the United States and is a United States citizen.

After petitioners overstayed their visas, the Department of Homeland Security ("DHS") issued Notices to Appear charging them as deportable under the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1227(a)(1)(B). Witjaksono filed an application for asylum, withholding of removal, and protection under the CAT, alleging ethnic and religious persecution. Ligiowati was a rider on Witjaksono's application.2

On October 12, 2006, a hearing was held to consider the merits of petitioners' requests. Witjaksono was the only witness to testify. He was subject to direct and cross-examination and answered questions from the IJ. Witjaksono testified that he and his family suffered violence and harassment because they are ethnically Chinese and Catholic and recounted five specific incidents.

First, Witjaksono described an encounter that occurred during his elementary schooling. On this occasion, Muslim students identified him as Chinese and taunted him. One student threw a rock that hit him on the head requiring stitches.

Second, Witjaksono testified about an attack on his vehicle. A group of five or six individuals approached the car he was driving while stopped at a traffic light. The group broke off both of the car's side mirrors.

Third, and perhaps most seriously, Witjaksono recalled a 1997 incident with an Indonesian soldier in which Witjaksono's car was allegedly blocked. Witjaksono honked his horn, the soldier exited the vehicle, knocked on Witjaksono's window, punched Witjaksono three times, and insulted him for being Chinese. Witjaksono did not require medical attention and did not report the incident to police as he believed the authorities would not take action because he is Chinese and Catholic.3

Fourth, Witjaksono testified that he was in Jakarta, Indonesia, during riots in 1998. He saw a building in his neighborhood burning and witnessed a group of individuals wearing traditional Muslim dress and carrying knives and sharpened sticks. Although he was not attacked, Witjaksono testified that he hid inside his house until the "situation had calmed down a bit." Because he feared for his safety, Witjaksono avoided public transportation and public gatherings.

Finally, Witjaksono recounted a 1999 incident that occurred after he had left Indonesia

573 F.3d 973

in which a Christian church was burned. Although it was in his neighborhood, he had not attended that particular church.

In an oral decision announced at the close of the hearing, the IJ denied all relief. Although the IJ did not make an explicit credibility determination, he assumed the truth of Witjaksono's testimony in concluding that petitioners were not entitled to relief. Witjaksono's application for asylum was denied as untimely and Witjaksono was ruled ineligible for withholding of removal because he had not shown that he suffered past persecution, that he would be individually targeted for persecution upon return, or that there was a pattern or practice of persecution against Catholic Indonesians or Indonesians of Chinese descent. Additionally, the IJ ruled that Witjaksono was not entitled to relief under the CAT because he did not show that it was more likely than not that he would be tortured. Witjaksono appealed to the BIA.

For appellate purposes, the government prepared a transcript of the proceedings before the IJ. In its final form, the transcript was fifty-seven pages long and contained approximately 189 notations of "(Indiscernible)." In his appeal to the BIA, Witjaksono argued that the transcript was inadequate, but he did not attempt to fill the void by tender of an affidavit, sworn declaration, or otherwise. He also contended that the IJ erred by declining to make an explicit credibility determination, by failing to adequately consider Witjaksono's request for protection under the CAT, and by concluding that Witjaksono was not entitled to withholding of removal.4 Witjaksono requested a remand to the IJ, claiming that he and his son would face persecution upon return to Indonesia because his son is a United States citizen.

In a written order issued by a single Board member, see 8 C.F.R. § 1003.1(e)(5), the BIA denied Witjaksono's motion for remand and dismissed his appeal. Because Witjaksono did not point to any material testimony omitted from the transcript, the BIA concluded that he had not demonstrated that the inadequate transcript adversely affected his application. The BIA also determined that Witjaksono failed to establish his claims of persecution.

II

A BIA order dismissing an appeal constitutes a final order of removal which we review pursuant to 8 U.S.C. § 1252(a)(1) and (b)(2). See Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir.2007). We may consult the oral decision of an IJ to the extent the BIA's order incorporates its reasoning. Id.

Witjaksono brings four arguments on appeal to us: (1) the inadequate transcript deprived him of due process; (2) he is entitled to withholding of removal because he suffered past persecution and will likely suffer future persecution if forced to return to Indonesia; (3) he is eligible for protection under the CAT; and (4) the case must be remanded for consideration of his claim that he and his son will be targeted in Indonesia because his son is a United States citizen.

A

Witjaksono tells us that his hearing transcript is so deficient that it constitutes a denial of due process in that it precludes our review on appeal. This is a legal claim

573 F.3d 974

we consider de novo. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.2005); see Kheireddine v. Gonzales, 427 F.3d 80, 83-84 (1st Cir.2005).

1

An elementary component of due process is the right to meaningful appellate review. See Oroh v. Holder, 561 F.3d 62, 65 (1st Cir.2009); Garza-Moreno...

To continue reading

Request your trial
80 practice notes
  • Bhattarai v. Holder, No. 09-9541
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 1, 2011
    ...Substantial evidence in the record supports the BIA's findings and, thus, those findings are conclusive. See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009) (stating that under the substantial evidence standard of review, factual findings are conclusive unless a reasonable adjudica......
  • Ritonga v. Holder, No. 09–9539.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 28, 2011
    ...consider them collectively, because the cumulative effects of multiple incidents may constitute persecution. See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.2009) (considering incidents cumulatively); see also Fei Mei Cheng v. Att'y Gen. of the U.S., 623 F.3d 175, 192 (3d Cir.2010) (h......
  • Galeano-Romero v. Barr, No. 19-9585
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 4, 2020
    ...remand to the IJ for it to consider a CAT claim.10 We review the Board's decision "for an abuse of discretion." See Witjaksono v. Holder , 573 F.3d 968, 978–79 (10th Cir. 2009). The Board "abuses its discretion when its decision provides no rational explanation, inexplicably departs from es......
  • Aguilar v. Garland, 18-9570
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 29, 2022
    ...be compelled to" reach a contrary conclusion. Dallakoti v. Holder , 619 F.3d 1264, 1267 (10th Cir. 2010) (quoting Witjaksono v. Holder , 573 F.3d 968, 977 (10th Cir. 2009) ).III. The Board erred in deeming Kelly ineligible for asylum.To obtain eligibility for asylum, an applicant must estab......
  • Request a trial to view additional results
80 cases
  • Bhattarai v. Holder, No. 09-9541
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 1, 2011
    ...Substantial evidence in the record supports the BIA's findings and, thus, those findings are conclusive. See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009) (stating that under the substantial evidence standard of review, factual findings are conclusive unless a reasonable adjudica......
  • Ritonga v. Holder, No. 09–9539.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 28, 2011
    ...consider them collectively, because the cumulative effects of multiple incidents may constitute persecution. See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.2009) (considering incidents cumulatively); see also Fei Mei Cheng v. Att'y Gen. of the U.S., 623 F.3d 175, 192 (3d Cir.2010) (h......
  • Galeano-Romero v. Barr, No. 19-9585
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 4, 2020
    ...remand to the IJ for it to consider a CAT claim.10 We review the Board's decision "for an abuse of discretion." See Witjaksono v. Holder , 573 F.3d 968, 978–79 (10th Cir. 2009). The Board "abuses its discretion when its decision provides no rational explanation, inexplicably departs from es......
  • Aguilar v. Garland, 18-9570
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 29, 2022
    ...be compelled to" reach a contrary conclusion. Dallakoti v. Holder , 619 F.3d 1264, 1267 (10th Cir. 2010) (quoting Witjaksono v. Holder , 573 F.3d 968, 977 (10th Cir. 2009) ).III. The Board erred in deeming Kelly ineligible for asylum.To obtain eligibility for asylum, an applicant must estab......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT