Un v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 04-2067

LIN UN,

Petitioner,

v.

ALBERTO GONZÁLES, Attorney General,*

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Valentine A. Brown on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, and Mary Jane
Candaux, Senior Litigation Counsel, on brief for respondent.

July 21, 2005

*
Alberto Gonzáles was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the respondent.
See Fed. R. App. P. 43(c)(2).
 COFFIN, Senior Circuit Judge. Petitioner Lin Un,1 a Cambodian

citizen, seeks review of a final order of removal issued by the

Board of Immigration Appeals (BIA) summarily affirming a decision

of an Immigration Judge (IJ) denying four claims for relief. Two

of those claims are not before us: petitioner concedes that his

asylum request was untimely and he has not addressed in his brief

the IJ's denial of voluntary departure. Petitioner challenges

denial of his application for withholding of removal and also

protection under the Convention Against Torture (CAT).

We conclude that we lack appellate jurisdiction to address the

CAT issue because it was not raised in petitioner's Notice of

Appeal to the BIA. Our review of the full record persuades us,

however, that we must remand the case for further consideration of

the removal issue because the IJ failed to address whether

petitioner was subject to past persecution, which would have

entitled him to the regulatory presumption of a future threat to

his life or freedom. See 8 C.F.R § 1208.16(b)(1).

I. Factual Background

Petitioner entered the United States on a visitor's visa in

January 1997, leaving his wife and three children in Cambodia. He

overstayed his authorized time, and the Immigration and

1
Although the record identifies petitioner as "Lin" Un, the
correct spelling of his first name is "Len."

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Naturalization Service (INS) initiated the removal proceedings that

eventually resulted in the BIA order currently under review.2

Un's reason for leaving Cambodia arose out of his employment

as a Guard Shift Supervisor at the U.S. Embassy in Phnom Penh.

According to his employment contract, contained in the

administrative record, he was one of three shift supervisors of a

group of 350 security employees, with the responsibility of

safeguarding U.S. government property and personnel in the Embassy

compound and residential areas.

Petitioner told of two occasions when he was visited by men he

thought were from the Cambodian Ministry of the Interior. The

first visit occurred in August 1996. The men asked for secret

information about the Embassy, specifically, information about the

rooms in the building with bullet-proof walls and the number of new

staff coming to work there. He did not provide that information.

Subsequently, on December 16, 1996, he was visited by two men,

at least one of whom was in uniform, and he described the threat he

received as follows:

They told me that they will kill me with a gun, and they
asked me to think about that, to think, to think what
their request is and they don't ask for the, the answer
on that specific day at all. They asked me to think

2
On March 1, 2003, after the inception of this case but
before the BIA's order, the INS ceased to exist as an independent
agency. Many of its duties were transferred to U.S. Citizenship
and Immigration Services, a bureau of the newly created Department
of Homeland Security.

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 about it. And if I refused it, they said that I will be
killed.

Petitioner testified that he told the men that Embassy policy

barred him from revealing such information to an outsider. One of

the men then told him to "sleep with it" and he would "let you know

soon." Some time later, a friend of petitioner, whom he believed,

told him that he must go into hiding because they were "looking to

kill you."

Petitioner's wife, though at home on these occasions, was

excluded from the conversations to protect her from any reprisals.

Petitioner did not inform his superior in the Embassy about the

attempts to enlist him as a spy, thinking that rumors might surface

and someone in his family might be hurt. Nor did petitioner, in

applying for a visa, mention the incidents.

Petitioner produced a letter from his wife, dated September 4,

2000. She wrote that, even after almost four years since

petitioner left for the United States, "they" often come, yell at

her, and threaten her, causing her and her children to sleep at

friends' houses. She reported that four men armed with pistols had

come several days earlier and asked if her husband was at home or

"hiding at work, at the American Embassy," and then searched every

room in the house. She also wrote that the children did not attend

school regularly, since she and they were running away from home

frequently.

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 II. The Agency's Decision

The IJ, who had patiently conducted several hearings in this

case, rendered an oral decision on March 19, 2003. She noted with

apparent skepticism the fact that petitioner's passport was issued

five days before he was threatened for the second time. Referring

to a letter submitted by his Embassy supervisor, the IJ rejected

the employer's conclusions concerning petitioner's motivation for

coming to the United States and observed that petitioner had not

mentioned any threats. Nonetheless, although she made no general

finding of credibility, the IJ gave petitioner the benefit of the

doubt and assumed that he had testified truthfully about the

threats. She concluded, however, that even if petitioner's

testimony were entirely true, "he has failed to establish

objectively that it is more likely than not he would be harmed at

this time if [he] returns to Cambodia." She reasoned that his

employment with the Embassy had ended in January 1997 and he had

not indicated that anyone would harm him at this time.

Without any additional findings, the IJ concluded that

petitioner had also "not established that the government would

detain him and subject him to torture." He was thus not eligible

for protection under the CAT and was subject to removal to

Cambodia. Finally, noting that petitioner had failed to tell his

attorney or the court of an earlier application for asylum, the IJ

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deemed petitioner to be a person unlikely to comply with any order

and therefore denied voluntary departure.

The BIA affirmed without opinion on July 7, 2004.

III. Discussion

Petitioner's key argument is that the IJ (and the BIA) failed

to address one of the two avenues open to an applicant for proving

entitlement to withholding of removal, i.e., whether he had

suffered past persecution on account of one of five proscribed

grounds (here, membership in a particular social group, U.S.

Embassy employees). Under 8 C.F.R § 1208.16(b)(1)(I), captioned

"Past threat to life or freedom," if such past persecution has been

determined, "it shall be presumed that the applicant's life or

freedom would be threatened in the future . . . ."

Once such a presumption is created, the task falls upon the

government to establish by a preponderance of the evidence that

fundamental changes have occurred that have removed any threat to

an applicant's life or freedom or that relocation to another part

of the proposed country of removal would be safer and reasonable.

See 8 C.F.R § 1208.16(b)(1)(ii). Instead, as we have noted, the IJ

imposed the burden on petitioner to demonstrate that he was more

likely than not to be harmed if returned to Cambodia.

The government responds to these challenges by saying, first,

that "the immigration judge's decision, when taken as a whole,

indicated that petitioner did not establish past persecution in

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order to effectuate the regulatory presumption of a future threat

to his life or freedom." This is followed by the statement that

"[s]ubstantial evidence supports that finding." This kind of

argumentation is misleading. There is no issue here regarding the

customary deference we owe to a finder of fact because there is no

finding. The IJ's decision permits no interpretation other than

that "past persecution" and its possible basis for a presumption

were simply not addressed.

As we have made clear, we expect an agency to make findings,

implicitly if not explicitly, on all grounds necessary for

decision. Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998).

Although we were dealing with a petitioner's request for asylum in

El Moraghy v. Ashcroft, 331 F.3d 195 (1st Cir. 2003), the

procedural issue was identical in that the IJ had not addressed

whether El Moraghy had suffered past persecution. We said:

The absence of reasoned discussion of past persecution
undercuts any meaningful review of the IJ's fear of
future prosecution finding, because we do not know
whether El Moraghy should have had the benefit of the
regulatory presumption of fear of persecution based on
prior events.

Id. at 204-05. Indeed, as we observed in Hernandez-Barrera v.

Ashcroft, 373 F.3d 9, 25 (1st Cir. 2004), the failure to address

past persecution in effect precludes "meaningful review" of both

petitioner's entitlement to a presumption of fear of future

persecution and the IJ's finding that petitioner had not

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established that it was more likely than not that he would be

harmed on return to Cambodia.

We could, of course, affirm if, even accepting petitioner's

testimony as true, we nonetheless were compelled to hold either

that the facts did not demonstrate past persecution or that

evidence of changed circumstances overcomes the presumption of

future persecution.

Unfortunately, however, as in El Moraghy, "[w]e cannot say the

evidence compels a conclusion either way," 331 F.3d at 205. First,

the evidence pointing to past persecution is that petitioner was

visited at his home by agents of the Ministry of the Interior, who

requested inside information about the Embassy. The 2001 State

Department Country Report on Human Rights Practices for Cambodia

reported that, while nominally the National Police of the Ministry

of the Interior are under civilian control, they and other security

forces "answer to persons within the CPP (Cambodian People's

Party)" and members of the security forces have committed numerous

human rights abuses. Allegations of politically motivated

killings had increased.

Petitioner's initial confrontation with the agents was

followed several months later by another visit and threat that

petitioner would be killed if he refused to cooperate. A credible

friend who worked in the Ministry confirmed that the agents were

planning to kill him. Even after petitioner left the country, the

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Ministry agents persisted in calling on his wife, and on at least

one occasion, they searched his home and interrogated his family at

gunpoint.

These facts present an explicit death threat with perhaps one

or more implicit ones. Making the same assumption of truthfulness

as the IJ for the purpose of this analysis, our question is whether

the asserted death threats could be sufficient to establish past

persecution.

It seems to us that credible verbal death threats may fall

within the meaning of "persecution." We have indicated that a

threat to life could amount to persecution. See Aguilar-Solis v.

INS, 168 F.3d 565, 570 (1st Cir. 1999) ("[P]ersecution encompasses

more than threats to life or freedom . . . ."). And at least one

circuit has specifically so pronounced. In Andriasian v. INS, 180

F.3d 1033, 1042 (9th Cir. 1999), the court stated: "[T]he warning

that the Andriasians would be killed if they did not leave

Azerbaijan immediately . . . would by itself be sufficient to

establish past persecution."3 See also Miljkovic v. Ashcroft, 376

F.3d 754, 756 (7th Cir. 2004)("When discrimination reaches the

level of physical violence or threats of violence, it becomes

persecution."). The government offers no case authority to the

3
The court in Andriasian noted that the warning "was made all
the more credible by the fact that the Azeri thugs who issued the
threat had just murdered Mr. Andriasian's neighbor in cold blood."
180 F.3d at 1042.

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contrary. We thus conclude that a finding that petitioner has

suffered no past persecution is not compelled by this record;

assessing the credibility and significance of the evidence in the

context of the entire record is a task for the IJ in the first

instance. Cf. Bocova v. Gonzáles, No. 04-2175, slip op. at 8 (1st

Cir. June 24, 2005) (noting that the BIA determines whether

persecution has occurred "on an ad hoc, case-by-case basis").

A conclusion of harmless error alternatively would be possible

if the record compelled a finding that any presumption of future

threats was rebutted by "a fundamental change in circumstances such

that [petitioner's] life or freedom would not be threatened." 8

C.F.R § 1208.16(b)(1)(A). The government has not made this

argument, addressing only the converse issue (which assumes that

petitioner bore the burden of proof) of whether there was

substantial evidence supporting the IJ's finding that petitioner

failed to establish the likelihood of harm if returned to Cambodia.

We therefore conclude that we must remand this matter for

consideration of the issue of past persecution.4

Petitioner's second claimed basis for relief is that the IJ

and BIA erred in finding him ineligible for relief under the

Convention Against Torture. But, as the government points out,

4
Should the IJ determine that threats rising to the level of
persecution were made, the question remains whether petitioner has
shown that the threats were made "on account of" one of the
protected grounds. See, e.g., Rodriguez-Ramirez v. Ashcroft, 398
F.3d 120, 124 (1st Cir. 2005); 8 C.F.R. § 1208.16(b)(1).

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this issue was not raised before the BIA. Although petitioner's

Notice of Appeal indicated that a brief would be filed with the

Board, none was forthcoming. And, though the Notice of Appeal

listed nine reasons or grounds, none mentioned the CAT. In

Athehortua-Vanegas v. INS, 876 F.2d 238, 240-41 (1st Cir. 1989), we

recognized the limits to our authority, saying, "[b]ecause

exhaustion is statutorily mandated, the requirement [of exhaustion

of administrative remedies] is jurisdictional." In that case as in

the one before us, there was no brief filed. In that case the

issue in the Notice of Appeal was phrased only in "gauzy

generality;" in this one, the CAT issue was not phrased in any

terms.

Although petitioner might argue that this was a simple

oversight and that the IJ had clearly dealt with the issue, we see

no way of assuming jurisdiction simply because it would appear that

the BIA could not have overlooked the missing issue. As we said in

Athehortua-Vanegas, "[a]t the very least, a grievant must tell the

Board what aspects of the IJ's decision he contends were wrong, and

why," id. at 241. We have consistently taken this position. See,

e.g., Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004);

Ravindran v. INS, 976 F.2d 754, 761 (1st Cir. 1992).

The petition for review is granted, the order of removal is

vacated, and the case is remanded to the BIA for further

proceedings consistent with this opinion.

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