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Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A096-278-321.
For Putu Indrawati, Petitioner: Ira J. Kurzban, Edward Fortunato Ramos, Kurzban Kurzban Weinger Tetzeli & Pratt, PA, Miami, FL; Philip Michael Zyne, Philip M. Zyne, PA, Heathrow, FL.
For U.S. Attorney General, Respondent: Sheri Robyn Glaser, Theo Nickerson, Krystal Samuels, Katherine Ann Smith, U.S. Department of Justice, Civil Division, Washington, DC; Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL; Thomas W. Hussey, Office of Immigration Litigation, Washington, DC; Marc Jeffrey Moore, ICE Field Office Director, Krome Spc, Miami, FL.
Before TJOFLAT, JULIE CARNES and GILMAN,[*] Circuit Judges.
TJOFLAT, Circuit Judge:
Putu Indrawati petitions for review of the Board of Immigration Appeals' (" BIA" ) order affirming the Immigration Judge's (" IJ" ) decision that she is barred from adjustment of status because she knowingly filed a frivolous asylum application. Indrawati raises three claims. First, she argues that the IJ denied her a sufficient opportunity to account for any discrepancies or implausible aspects of her claim, in contravention of In re Y-L-, 24 I. & N. Dec. 151 (2007). Second, she argues that the IJ's reliance upon three documents--a photocopy of a ten page addendum to her I-589 application for asylum, an Immigration and Naturalization Service (" INS" ) memorandum recounting an interview conducted with Indrawati's mother, and a memorandum detailing asylum fraud committed by the man who handled Indrawati's application--violated her right to due process. Third, she argues that the BIA's decision reflects a lack of reasoned consideration.
We conclude that we are without jurisdiction to consider Indrawati's arguments regarding the sufficiency of her opportunity to account for discrepancies and implausible aspects of her claim. We are also without jurisdiction to consider her due process argument concerning the INS memorandum. Moving to the merits, we find unavailing her remaining due process claims, along with her claim that the BIA's decision lacks reasoned consideration. Accordingly, we dismiss in part and deny in part her petition for review.
Putu Indrawati, an ethnically Chinese Christian, was born in Indonesia in 1974.
In 1998, she entered the United States legally as a tourist. Sometime thereafter, she enrolled in community college in Gainesville, Florida. Although she originally intended to return permanently to Indonesia upon graduation, her plans shifted following an incident in December 2000. At that time, Indrawati returned to Indonesia to attend her grandmother's funeral and to obtain an F-1 student visa so that she could continue studying in the United States. According to Indrawati, she went shopping with a friend in a Surabaya mall after acquiring her visa. As she entered the parking lot to leave, a group of Indonesian men assaulted her and her friend. The men shouted ethnic slurs at Indrawati, and one choked her. Indrawati screamed, and the men scattered. Although Indrawati did not alert the authorities, she immediately told her parents about the ordeal.
This incident, combined with encouragement from Herlina Suherman--a fellow ethnically-Chinese Christian student that Indrawati described as " pretty much the closest friend that I had in the U.S." --convinced Indrawati to apply for asylum. Suherman explained that her boss, Hans Gouw, could help Indrawati. Gouw was a purportedly upstanding member of the immigrant Chinese-Indonesian community. He led the Chinese Indonesian American Society and had helped Suherman acquire asylum. Suherman explained that Gouw could help Indrawati too--for a fee. Although she could read and write English and presumably could have completed the I-589 form personally, Indrawati--like so many others confronted by impenetrable government forms--relied on a third party's expertise. Suherman and Gouw were on the case.
According to Indrawati, her involvement in the application filing process was minimal. She signed a blank I-589 and truthfully answered biographical questions Suherman posed to her over the telephone. Indrawati also provided Suherman with her birth certificate, passport, and money to pay for Gouw's assistance. Suherman and Gouw would apparently use this information to file a true and correct asylum application; all Indrawati would have to do was attend an asylum interview. That Indrawati would not see her application prior to the interview evidently bothered her not.
On January 27, 2003, the INS received the application. The enclosed Form I-589 Application for Asylum and Withholding of Removal revealed that Indrawati sought asylum based upon her ethnicity and religion. The I-589 alleged that Indrawati had " long been subject to persecution" by Muslim-Indonesian extremists because she was a Chinese Christian. It also (falsely) stated that many of Indrawati's " Chinese and Christian friends have been persecuted, tortured and killed in the past few years, since 1998." The completed I-589 form did not mention the Surabaya assault that allegedly precipitated Indrawati's
pursuit of asylum. This was not a surprising omission given the form's instruction to " attach documents evidencing . . . the specific facts on which you are relying to support your [asylum] claim."
Indeed, appended to the completed form was a ten-page statement (" Statement" ) that recounted two events supporting Indrawati's asylum claim. The first event was an embellished version of the Surabaya assault. Whereas the actual event involved only ethnic slurs and choking, the Statement recounted a sexual assault. According to the Statement, Indrawati's assailants stripped her and knocked her unconscious, resulting in her hospitalization. The Statement's second event was entirely fabricated. It detailed an attack on a Christian prayer meeting at Indrawati's home. Twenty Muslim men allegedly broke into Indrawati's house, beat her father and the pastor, and threatened the entire group with further reprisal should they continue to practice Christianity. In reality, Indrawati's parents were Buddhists and there was never any prayer meeting or attack at their home.
In response to her application, the INS scheduled an asylum interview with Indrawati. On March 20, 2003, Asylum Officer Miguel Rodez conducted the interview. Although Rodez unquestionably possessed the Statement, the parties dispute whether or not he relied upon or referenced its contents at the interview. Neither party, however, disputes that Rodez questioned Indrawati regarding her I-589, made corrections to that form (along with red checkmarks), and took three pages of handwritten notes.
In these notes, Rodez placed a checkmark indicating that Indrawati had not " received medical attention." This directly conflicted with the Statement's assertion that Indrawati was hospitalized following the Surabaya assault. His notes also stated that Indrawati's worst problem occurred in 2000 at a mall and that " 2 men tried to rape her." Rodez also wrote that Indrawati's " story conforms to I[-]589 statement[,] see attached."
A week later, Rodez wrote a report recommending a grant of asylum. By this point, Rodez's copy of the Statement was replete with red checkmarks like those on the I-589. His recommendation's reliance upon the indisputably fraudulent Statement was manifest. He referenced the two incidents detailed in the Statement and quoted dialogue contained therein verbatim. On the basis of his recommendation, the INS approved Indrawati's application for asylum.
Five years later, Indrawati received a Notice of Intent to Terminate Asylum Status featuring the proclamation that the United States Citizenship and Immigration Service (" USCIS" ) had " information from a reliable source indicating that you did not have any problems in Indonesia and that you fabricated your asylum claim." Unbeknownst to Indrawati, the evidence in question was a memorandum penned by the INS's Texas Service Center (" TSCM" ) detailing an Anchorage, Alaska interview with Indrawati's mother. Officials questioned her mother as she was en route to visit Indrawati. According to this memorandum--prepared months after the Anchorage interview--Indrawati's mother allegedly told immigration officials that she
knew of nothing that would have prompted her daughter to seek asylum. Furthermore, the mother stated that Indrawati applied for asylum on the advice of a classmate.
Though Indrawati said she was aware of no fraud in her application, if there was fraud, she had a guess as to its origin. Years earlier, Indrawati learned that Herlina Suherman, her closest friend, had run into legal troubles. Although Indrawati and Suherman " talk[ed] about pretty much anything and everything," Suherman had apparently kept secret her participation in an asylum fraud ring. In 2004, the Department of Justice announced an indictment charging Suherman with asylum fraud. That indictment also charged Hans Gouw--Suherman's boss and the man who all parties agree handled Indrawati's asylum application for a fee--with the same crime.
Indrawati also learned that, while Suherman remained a fugitive, Gouw had subsequently pleaded guilty to charges of conspiracy to commit immigration fraud, conspiracy to commit identification fraud, conspiracy to commit sex trafficking, and money laundering. It turned out that Gouw's Chinese Indonesian American Society was a profitable front for massive immigration fraud. Indrawati thus assumed that any problems with her asylum application were the result of meddling by Suherman and Gouw.
The USCIS's notice directed Indrawati to appear for an interview at the Miami Asylum Office on September 10, 2008, to determine whether her application was fraudulent. Asylum Officer Patricia Conwell conducted the interview. Indrawati explained that she applied for asylum on Suherman's advice and that her only tangible involvement in her I--589 application began and ended with her signature. Indrawati maintained that she had never seen the Statement and that Rodez never questioned her about anything besides the contents of the I-589 form.
Indrawati also explained that the Surabaya incident was the only physical attack she had ever suffered (though she did note that " [o]ther things happened like I had to pay triple for passport" because of her ethnicity). She also admitted that someone had given her " a brown paper envelope before the interview and told [her] to submit it to the officer." Regardless, she explained that she never investigated the envelope's contents. To conclude the interview, Indrawati's attorney told Officer Conwell that " [a]ny alleged fraud was not on applicant's part."
Conwell found that Indrawati had submitted a fraudulent asylum application. Furthermore, she found that the unembellished choking incident did not rise to the level of persecution necessary for asylum eligibility. See 8 U.S.C. § § 1101(a)(42)(A), 1158(b)(1)(A). The USCIS therefore terminated ...