                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2008

Malook v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2182




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                      _____________

                                       No. 07-2182
                                      _____________

                                    SAIFUL MALOOK,

                                                Petitioner

                                                 v.

                   ATTORNEY GENERAL OF THE UNITED STATES,

                                               Respondent
                                    _______________

            Petition for Review of an Order of the Board of Immigration Appeals
                                 Agency No. A79 734 354
                                       ___________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                     May 12, 2008
                                     ___________

           Before: McKee and Roth, Circuit Judges, and O’NEILL, District Judge *

                                (Filed: December 17, 2008)
                                        ___________

                                        OPINION
                                       ___________
McKee, Circuit Judge:



       *
        The Honorable Thomas N. O’Neill, Jr., Senior District Judge for the United
States District Court for the Eastern District of Pennsylvania, sitting by designation.
       Saiful Malook petitions for review of an Order of the Board of Immigration

Appeals dismissing his appeal from an Immigration Judge’s denial of his claim for

withholding of removal and relief under the Convention Against Torture. We have

jurisdiction pursuant to 8 U.S.C. § 1252. For the reasons that follow, we will deny the

petition.

                                             I.

       Inasmuch as we are writing primarily for the parties who are familiar with this

case, we need not set forth the factual or procedural history except insofar as may be

helpful to our brief discussion.

       Malook’s primary claim is that he was denied due process because the IJ and the

Board relied upon indecipherable testimony which Petitioner claims resulted from the

substandard Pushtu/English translation of the court-appointed interpreter. We lack

jurisdiction over this claim, however, because - as Malook concedes - he never raised it

before the BIA.

       Due process claims are generally not subject to the exhaustion requirement.

However, they must be exhausted if they raise procedural claims that the Board could

remedy. Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990) (noting that exhaustion

requirement applies where a “due process claim amounts to a procedural error

correctable through the administrative process”); see also Khan v. Attorney General, 448

F.3d 226, 236 (3d Cir. 2006) (holding that an alien’s claim that the IJ’s denial of a


                                            -2-
continuance violated his due process rights was a claim of procedural error and was thus

subject to the exhaustion requirement).

       Had Malook raised his claim of an incompetent translation before the Board, a

remand before a different translator may have been appropriate because “faulty or

unreliable translations can undermine the evidence on which an adverse credibility

finding is based” even where there is no due process violation. He v. Ashcroft, 328 F.3d

593, 598 (9th Cir. 2003) (citing Balasubramanrim v. INS, 143 F.3d 157, 162-64 (3d Cir.

1998). It is difficult to read the transcript of Malook’s hearing without having concerns

about the quality of the translation. Indeed, the transcript comes perilously close to being

nonsensical at times. However, since Malook did not raise this claim before the BIA, we

can not entertain it now.

                                            II.

       The BIA adopted and affirmed the IJ’s decision, but added some analysis and

discussion of its own. Accordingly, we review the decisions of both the BIA and the IJ.

Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). We uphold an adverse credibility

determination if it is supported by substantial evidence on the record. Balasubramanrim

v. INS, 143 F.3d 157, 161 (3d Cir. 2003) (citation omitted). We must sustain an adverse

credibility determination unless the evidence compels a conclusion to the contrary. He

Chun Chen, 376 F.3d 215, 222 (3d Cir. 2004).

       Neither the IJ, nor the BIA specifically ruled that Malook was not credible.


                                            -3-
Rather, both concluded that his credibility was “extremely weak and challenged.” They

both required corroboration. More specifically, the IJ was skeptical of Malook’s

explanation that he could not present evidence of his party membership because he

feared problems with the authorities in Pakistan if he was caught carrying such

identification. However, it does not strike us as the least bit suspicious that someone

fleeing a repressive regime would be afraid of carrying identification that would allow

someone to associate him with the opponents of that regime. Malook did submit

evidence of country conditions describing the Musharraf government’s arrest and

detention of PML-N supporters. We are at a loss to understand why the IJ would expect

Malook to carry documents that would identify him as a PML-N supporter.

       The IJ also found a “contradiction” because Malook did not explain how he was

able to leave the country without interference from the government. The IJ cited an Exit

Control List described in the 2003 State Department Report as evidence that Malook

would not have been able to leave if he really were wanted by the government.

However, the Report states only that that list was “used to prevent the departure of

wanted criminals and individuals under investigation for defaulting on loans, corruption

or other offenses” and that “400 PML leaders” were on the list. However, Malook never

claimed to be a PML “leader.” Rather, he was a village organizer. Given his testimony, it

is not the least bit suspicious that the list failed to include the name of someone, like

Malook, who was only a village organizer.


                                             -4-
       The IJ and the BIA also commented on the lack of supporting letters from

Petitioner’s family. However, standing alone, this omission is a scant justification for the

denial of an otherwise credible asylum claim. Common sense suggests that his family

members may not want to run the risk of sending him letters. Unlike conditions here,

those who live in countries controlled by repressive regimes may be well advised to not

trust the privacy of anything that they put into their country’s mails. That is too slender a

thread to support the skepticism of the IJ and BIA.

                                             III.

       While the skepticism of Malook’s credibility is somewhat strained, we will

nevertheless affirm based on the IJ’s alternate holding, as adopted by the BIA. The IJ

found that Petitioner’s claim of a clear probability of persecution was undermined by the

fact that “he spent [3-6] months in Karachi awaiting his ship during which period he

experienced no problems with the Police.” An applicant who can safely relocate within

his/her own country is not eligible for relief from removal. See 8 C.F.R. §

208.16(b)(1)(i)(B) (presumption of future persecution may be rebutted where “[t]he

applicant could avoid a future threat to his or her life or freedom by relocating to another

part of the proposed country of removal and, under all the circumstances, it would be

reasonable to expect the applicant to do so”).

                                             IV.

       For the foregoing reasons, the petition for review is denied.


                                             -5-
