Mewengkang v. Gonzales, 486 F.3d 737, 1st Cir. (2007)

486 F.
3d 737
Johnny Frits MEWENGKANG, Petitioner,

v.
Alberto R. GONZLES, Attorney General of the United
States, Respondent.
No. 06-1976.
United States Court of Appeals, First Circuit.

Submitted April 6, 2007.
Decided May 25, 2007.
Wei Jia, on brief for petitioner.

Sophia A. Kapsaskis, Special Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for respondent.
Before: TORRUELLA, Circuit Judge, TASHIMA,* Senior Circuit Judge,
and LIPEZ, Circuit Judge.
TORRUELLA, Circuit Judge.
In this petition for review, Johnny Frits Mewengkang contests the decision of
the Board of Immigration Appeals ("BIA") denying his request for withholding
of removal. After careful consideration, we deny the petition for review and
affirm the decision of the BIA.
I. Background
2
Mewengkang is an Indonesian national. He entered the United States on a

B1/B2 visa on June 24, 1996, but remained in the United States past the time
permitted by his visa. In May 2002, Mewengkang filed an application for
asylum. On March 11, 2003, Mewengkang was served with a Notice to Appear,
charging him with removability. Mewengkang conceded that he was
removable, but petitioned for withholding of removal on the ground that he
would be subject to persecution on account of his religion if he was returned to
Indonesia. Mewengkang presented his claim before an immigration judge
("IJ").
The gist of Mewengkang's claim is that he is a Christian, and that upon return
to Indonesia, he would be subject to persecution by members of the
predominant religion there, which is Islam. Mewengkang claims that his cousin
was killed because he had organized a Christian proselytizing trip to a majorityMuslim area. Furthermore, Mewengkang claims that his general contracting
business suffered because of his refusal to join a Muslim builders' union known
as the ISNI, and that he was violently harassed after he complained about its
interference in the contracting process.
The IJ rendered a decision on the day of the hearing, finding that Mewengkang
was not credible because (1) he initially listed one child on his asylum
application when in fact he had two; (2) there were discrepancies in
Mewengkang's account of the violent incident with the ISNI; (3) Mewengkang
testified that he had not applied for asylum until 2002 because he was
unfamiliar with the process despite familiarity with other immigration
procedures; and (4) there was a discrepancy in Mewengkang's testimony about
his employment in the United States. Furthermore, the IJ found that even if
Mewengkang's account of past persecution was credible, it was unlikely that he
would be persecuted if he returned to Indonesia, and that Mewengkang's real
motivation was economic gain.1
Mewengkang appealed to the BIA, which affirmed by per curiam order, stating
that the inconsistencies identified by the IJ provided a reasonable basis for
rejecting Mewengkang's testimony. The BIA order further held that
Mewengkang had not established a clear probability that he would be
persecuted upon his return to Indonesia. Therefore, the BIA ordered
Mewengkang removed, but granted him sixty days to depart voluntarily.
II. Discussion
A. Standard of Review
6
The attorney general may not remove an alien whose life or freedom would be
threatened on account of race, religion, nationality, membership in a particular
social group, or political opinion. 8 U.S.C. 1231(b)(3)(A). The alien bears the
burden of proving that it is more likely than not that he will be persecuted.
Sharari v. Gonzles, 407 F.3d 467, 474 (1st Cir.2005).
Where the BIA has adopted the IJ's credibility determination, as here, we
review the determination of the IJ. Chen v. Gonzles, 418 F.3d 110, 113-14
(1st Cir. 2005). The BIA has previously stated that an alien may be found
incredible based on discrepancies in testimony where "(1) the discrepancies and
omissions described by the Immigration Judge are actually present; (2) these
discrepancies and omissions provide specific and cogent reasons to conclude
that the respondent provided incredible testimony; and (3) the respondent has
not provided a convincing explanation for the discrepancies and omissions."
Matter of A-S-, 21 I. & N. Dec. 1106, 1109 (BIA 1998); see also Hoxha v.
Gonzles, 446 F.3d 210, 216-17 (1st Cir.2006) (applying test from Matter of AS-). However, "an adverse credibility determination cannot rest on trivia but
must be based on discrepancies that `involved the heart of the asylum claim.'"
Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.1999) (citation omitted).
8
We then review an IJ's overall findings of fact to see if they are supported by
"substantial evidence." Sharari, 407 F.3d at 473. "We afford de novo review to
the BIA's legal conclusions, but cede some deference to its interpretations of
the [Immigration and Nationality Act]." Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st
Cir.2005).
9B. Was the IJ's credibility determination supported by substantial evidence?

10
The IJ based his adverse credibility determination on four discrepancies in

Mewengkang's testimony. First, Mewengkang stated on his asylum application
that he only had one child, but later testified that he had two. Mewengkang's
explanation for the discrepancy was that his immigration consultant, "Mr.
Poppy," told him that he did not have to list married children. Mewengkang
could not produce Mr. Poppy to testify. The IJ stated in his opinion that he did
not find this explanation convincing given the possibility of an alternative
explanation, namely, that the child not listed on the asylum application had
applied and been rejected for a visa to visit the United States, and that
Mewengkang thought that listing the child would hurt his chances to obtain
withholding of removal. Because Mewengkang provides no evidence that
would support his explanation for the discrepancy in testimony and because we
find the IJ's alternative explanation convincing, we do not disturb the IJ's
conclusion.
11
In addition, Mewengkang stated on his asylum application that he had not been
employed in the United States prior to 1997. However, Mewengkang testified
before the IJ that he had been employed in a retirement home in 1996.
Mewengkang provided no explanation for this discrepancy at the hearing, and
does not attempt to do so now. Accordingly, we do not disturb the IJ's
determination that Mewengkang had not been forthcoming on his asylum
application.
12
Although it is unclear whether these two discrepancies go to the heart of
Mewengkang's asylum claim, the IJ did not rely on them alone. The IJ
identified two other discrepancies, one that directly bears on the events giving
rise to Mewengkang's asylum claim, and one relating to Mewengkang's asylum
application. First, Mewengkang stated in his asylum application that when he
confronted the ISNI, "the outcome was worst. My complaint make the [ISNI]
group become violent. They attacked me and broke my right hand." However,
when testifying before the IJ, Mewengkang explained that in fact he had lost
his temper and began fighting with an ISNI member, and that his hand was
lacerated, not broken. Mewengkang explains this discrepancy by stating that his
immigration consultant's language skills were poor, and that the confusion
resulted from a mistranslation. Again, Mewengkang did not offer evidence that
his statements had been mistranslated. Furthermore, we agree with the IJ that
the fact that Mewengkang's asylum application made no mention of
Mewengkang's role in inciting the altercation with the ISNI seems calculated to
mislead rather than the product of an innocent mistranslation. Thus, we do not
disturb the IJ's finding that Mewengkang's explanation for the discrepancy was
not convincing. 2
13
In addition, Mewengkang testified that he did not apply for asylum immediately
upon his arrival to the United States because he was not aware that such a claim
could be made. Mewengkang testified that he first became aware that he could
make an asylum claim in 2000. However, although Mewengkang testified that
he was ignorant of the asylum procedures, he also testified that he was aware of
other and availed himself of other immigration procedures, such as the visa
lottery. Moreover, although Mewengkang claims to have learned about asylum
in 2000, he did not file his asylum application until two years later, in 2002.
Mewengkang explained that this delay was caused by his immigration
consultant, but offered no further details. We agree with the IJ that
Mewengkang's explanation for these discrepancies was unconvincing,
especially in light of his age and apparent sophistication. Mewengkang can
point to no evidence that would support his explanation for the discrepancy,
and as such, we do not disturb the IJ's conclusion.
14
These discrepancies in Mewengkang's testimony, including those regarding the

events giving rise to his claim for withholding and regarding his application for
asylum and withholding provide substantial evidence to support the IJ's
credibility determination. As such, we conclude that the IJ did not err in
determining that Mewengkang was not credible.
15 Did the IJ err in determining that Mewengkang was not entitled to withholding of
C.
removal?
16
Mewengkang is entitled to withholding of removal only if he can show that it is

more likely than not that he will be persecuted on account of race, religion,
nationality, membership in a particular social group, or political opinion.
Sharari, 407 F.3d at 474. The IJ determined that Mewengkang's testimony that
he would be persecuted was not credible, and that his desire to remain in the
United States was motivated by economic concerns. Mewengkang suggests that
even if the IJ determined that his allegations of past persecution were not
credible, he might still be entitled to withholding of removal if he can show a
likelihood of future persecution. See 8 C.F.R. 208.16(b)(2) ("An applicant who
has not suffered past persecution may demonstrate that his or her life or
freedom would be threatened in the future in a country if he or she can establish
that it is more likely than not that he or she would be persecuted on account of
race, religion, nationality, membership in a particular social group, or political
opinion upon removal to that country."). Although Mewengkang is correct in
this assertion, he ultimately fails to point to any evidence in the record that
suggests that he would be persecuted on account of his religion if he were
returned to Indonesia; an unsupported statement alone will not support
Mewengkang's burden in light of the IJ's adverse credibility finding. In the
absence of such evidence, we conclude that the IJ did not err in denying
Mewengkang's claim for withholding of removal.
III. Conclusion
17
For the reasons stated above, we deny the petition for review and affirm the
decision of the BIA.
18
Affirmed.
Notes:
*
Of the Ninth Circuit, sitting by designation
The IJ also noted that Mewengkang's asylum application was time-barred under
8 U.S.C. 1158(a)(2)(B), which provides that asylum applications must be
filed within one year of the alien's arrival in the United States
The IJ also noted that Mewengkang had stated in his asylum application that he
had made a complaint to the Indonesian government regarding discrimination,
but that this was misleading because it referred not to discrimination by the
ISNI, but to something having to do with an agricultural business he owned at
one point. Mewengkang explains that the statements were not inconsistent, and
that he made two separate complaints of discrimination. It is not clear whether

this confusion resulted from an effort by Mewengkang to mislead the IJ or from
the IJ's misunderstanding of Mewengkang's admittedly confusing allegations,
but in either case, it is clear that the IJ listed this discrepancy as only one
example of Mewengkang's lack of candor. Thus, this argument does not alter
our conclusion that the IJ's credibility determination was supported by
substantial evidence

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486 F.

Johnny Frits MEWENGKANG, Petitioner,

United States Court of Appeals, First Circuit.

Wei Jia, on brief for petitioner.

Mewengkang is an Indonesian national. He entered the United States on a

9B. Was the IJ's credibility determination supported by substantial evidence?

The IJ based his adverse credibility determination on four discrepancies in

Although it is unclear whether these two discrepancies go to the heart of

These discrepancies in Mewengkang's testimony, including those regarding the

Mewengkang is entitled to withholding of removal only if he can show that it is

Of the Ninth Circuit, sitting by designation

that he made two separate complaints of discrimination. It is not clear whether

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