United States Court of Appeals
For the First Circuit
No. 02-2401
SAVRY KEO,
Petitioner,
v.
JOHN D. ASHCROFT, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez and Howard, Circuit Judges.
Martin J. McNulty was on brief for petitioner.
Russell J. Verby, Attorney, Office of Immigration Litigation,
Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, and David V. Bernal, Assistant Director, were on brief
for respondent.
August 22, 2003
LYNCH, Circuit Judge. Petitioner Savry Keo seeks review
of the denial of his application for asylum and withholding of
deportation. Keo entered the United States on a visa in 1997 to
visit family. Several months later, Keo applied for asylum with
the Immigration and Naturalization Service (INS), claiming he
feared persecution in light of a violent coup d'état that had taken
place in his native Cambodia. After a hearing, an Immigration
Judge (IJ) denied Keo's petition. The Board of Immigration Appeals
(BIA) affirmed the IJ's decision without opinion, and this petition
followed. We affirm.
I.
On June 6, 1997, Keo entered Los Angeles, California, to
visit his mother and younger sister for a month and then return to
Cambodia. Only two days before his scheduled return flight, a
bloody coup erupted in Cambodia during which the Cambodian People's
Party (CPP) ousted from power the National United Front for a
Neutral, Peaceful, Cooperative, and Independent Cambodia
(FUNCINPEC). Keo declined to return to his home country, citing
various news reports of violence directed toward FUNCINPEC members.
Approximately two months after the outbreak of fighting, on
September 19, 1997, Keo submitted an application for asylum to the
INS.
Keo was given an assessment interview on February 25,
1999, after which the interviewing asylum officer recommended
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against granting Keo asylum. On March 2, 1999, the INS commenced
removal proceedings against Keo. Keo acknowledged that he was
removable from the United States and sought asylum as well as
withholding of removal. On March 15, 2000, a hearing was conducted
on these issues before an IJ.
In Keo's asylum application and testimony, he explained
that he had been employed as a police officer in Cambodia since
1980. Starting in 1993, when the United Nations sponsored
elections in Cambodia, Keo began to develop preliminary ties with
FUNCINPEC. He had previously been a member of the CPP because he
viewed such political membership as a prerequisite to government
employment. This suspicion was confirmed, according to Keo, when
he was suspended from his job for three months in 1993 due to his
contacts with the FUNCINPEC party. As Keo later acknowledged,
though, this suspension was at least partially attributable to his
failure to follow direct orders.
After returning to work from his suspension, Keo did not
reestablish his ties with the FUNCINPEC party until 1996. At that
time, he "secretly" joined FUNCINPEC through conversations with his
general supervisor in the police department, Mr. Hosak, who Keo
testified was a prominent member of the FUNCINPEC party. Shortly
thereafter, Hosak promoted Keo to the rank of Lieutenant Colonel,
which resulted in Keo's FUNCINPEC membership becoming widely
suspected among his co-workers.
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Keo testified that soon after learning of the CPP coup
while in America, his wife, who remained in Cambodia, informed him
that Hosak had been killed and that he too would be in danger if he
returned to Cambodia. These warnings were substantiated, according
to Keo, when a relative who had traveled from America to Cambodia
reported that Keo remained an active target of the CPP due to his
affiliations with FUNCINPEC, his status as a former CPP official,
and his relationship with Hosak. The relative also noted that
several weeks after the coup, CPP forces had entered and searched
Keo's home. Additionally, Keo presented to the IJ three letters
from people presently residing in Cambodia that indicated he would
face imminent danger should he return. In one letter, a colleague
of Keo's from the police force wrote that his fellow officers
believe him to be a "traitor that . . . ran away from [his]
responsibilities, country and nation." In another letter, written
in 1999, Keo's uncle warned that the CPP "army came to the village
. . . about 4-5 times looking for you" and "will always [be]
looking for you."
After considering Keo's testimony and asylum application
along with the asylum officer's assessment and a 1999 State
Department report on human rights practices in Cambodia, the IJ
found that Keo had "not established that if he were to return to
Cambodia . . . he would be persecuted or [that he] has a well-
founded fear of persecution." First, the IJ noted that while Keo
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might legitimately fear retaliation or prosecution for abandoning
his job as a police officer, such fears were not based on
politically motivated persecution. Second, the IJ was not
convinced that Keo's membership in FUNCINPEC was truly a matter of
public knowledge in Cambodia, pointing out that Keo had testified
that his membership was secret. Third, the IJ pointed out that
even assuming that "it was not a secret that [Keo] was a member of
the FUNCINPEC Party, that party presently is part of a coalition in
Cambodia . . . and members of that party are sharing power with the
CPP." The IJ denied Keo's requests for asylum and withholding of
removal and granted his request for voluntary departure.
Pursuant to 8 C.F.R. § 1003.1 (a)(7) (2003) (formerly 8
C.F.R. § 3.1(e)(4)), the BIA affirmed the IJ's decision without
opinion.
II.
When faced with a substantial evidence challenge, this
court reviews BIA decisions to determine whether they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (internal quotation marks omitted); Albathani
v. INS, 318 F.3d 365, 372 (1st Cir. 2003). Where, as here, the BIA
has summarily affirmed without opinion under 8 C.F.R. §
1003.1(a)(7), we treat the findings and conclusions of the IJ as
those of the Board. Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir.
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2003). As such, the IJ's determination must stand unless we "find
that the evidence not only supports [petitioner's] conclusion, but
compels it." Elias-Zacarias, 502 U.S. at 481 n. 1; Albathani, 318
F.3d at 371.
Only applicants who qualify as a "refugee" within the
meaning of 8 U.S.C. § 1101(a)(42) are entitled to asylum. See id.
§ 1158(b)(1); 8 C.F.R. § 208.13(a) (2000). Two routes are
available to meet this standard. First, an applicant can qualify
as a refugee if he or she carries the burden of demonstrating a
well-founded fear of future persecution on the basis of one of five
statutory factors: race, religion, nationality, membership in a
particular social group, or political opinion. Id. § 208.13(b)(1);
El Moraghy v. Ashcroft, 331 F.3d 195, 202-03 (1st Cir. 2003). To
do so, an applicant must demonstrate that his or her fear is both
genuine and objectively reasonable. See Aguilar-Solis v. INS, 168
F.3d 565, 572 (1st Cir. 1999). Alternatively, an applicant has a
presumption of a well-founded fear of future persecution if he or
she carries the burden of showing past persecution on the basis of
one of the statutory factors. El Moraghy, 331 F.3d at 202-03;
Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001).
Although Keo claimed in his asylum application that he
was subject to past persecution from 1975 until 1979 at the hands
of the Khmer Rouge, his appeal rests primarily on the claim that he
has a well-founded fear of future persecution. Keo argues that the
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IJ's conclusion to the contrary was not based on substantial
evidence and that the IJ improperly relied on adverse credibility
determinations that were the result of difficulties in translating
Keo's testimony from Khmer to English. After a careful review of
the record, we find that the evidence does not compel a conclusion
contrary to that reached by the IJ, and thus we affirm.
Even if Keo has a genuine fear of returning to his native
Cambodia, the record does not compel the conclusion that this fear
derives from the threat of persecution on the basis of Keo's
political beliefs. As the IJ noted in his decision, and as Keo
admitted in his testimony, the FUNCINPEC party now retains some
authority in a new coalition government that formed in Cambodia in
November 1998. Keo's status as a member of FUNCINPEC does not
compel the conclusion that he would be in danger should he return
to Cambodia. Moreover, the IJ had sufficient evidence to find that
Keo's ties to FUNCINPEC are not a matter of public knowledge in
Cambodia. Accepting that some of Keo's testimony was ambiguous due
to translation difficulties, Keo was ultimately quite clear that he
did not officially join FUNCINPEC until 1996, and, even then, did
so secretly. And while Keo also testified that this secret was
discovered when Hosak promoted him, the IJ had sufficient evidence
to find that Keo had not met his burden of establishing that his
FUNCINPEC membership was a matter of public knowledge. Finally,
much of the evidence that Keo presented -- in particular the three
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letters warning him of danger should he return to Cambodia --
suggested that any danger Keo might face in Cambodia would stem
from his co-workers' perception that he "abandoned" his country by
not returning to his official duties after the coup. As both the
IJ and the interviewing asylum officer noted, any such reaction is
not based on Keo's race, religion, nationality, membership in a
particular social group, or political opinion.
For the same reasons, we decline to upset the IJ's
refusal to grant withholding of removal. See Mediouni v. INS, 314
F.3d 24, 27 (1st Cir. 2002) ("Because the standard for withholding
deportation is more stringent than that for asylum, a petitioner
unable to satisfy the asylum standard fails, a fortiori, to satisfy
the former." (internal quotations omitted)).
III.
We affirm the decision of the BIA denying the application
for asylum and withholding of removal; the order permitting
voluntary departure stands.
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