Ang v. Gonzales

United States Court of Appeals
For the First Circuit

No. 04-2605

TRY ANG AND SOKUNTHEA MEAN,

Petitioners,

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya and Lynch, Circuit Judges,

and Smith,* District Judge.

Thomas Stylianos, Jr. on brief for petitioners.
Thomas P. Colantuono, United States Attorney, and Aixa
Maldonado-Quiñones, Assistant United States Attorney, on brief for
respondent.

December 1, 2005

*
Of the District of Rhode Island, sitting by designation.
 SELYA, Circuit Judge. The petitioners, Try Ang and

Sokunthea Mean, are both Cambodian nationals. They seek judicial

review of a final order of the Board of Immigration Appeals (BIA)

denying their joint application for asylum, withholding of removal,

and relief under the United Nations Convention Against Torture

(CAT). Because Mean's application is derivative and its success is

dependent upon the success of Ang's application, see, e.g., Da

Silva v. Ashcroft, 394 F.3d 1, 4 n.4 (1st Cir. 2005), we analyze

the case as if Ang were the sole petitioner.

Ang assigns error in four respects: (i) failure to

consider his membership in a social group when determining his

refugee status; (ii) misinterpretation of testimony which, properly

construed, would tend to support his claims; (iii) failure to

recognize that country conditions had not changed so significantly

as to negate any founded fear of future persecution; and (iv)

failure to grant asylum for humanitarian reasons. Finding these

claims of error unpersuasive, we deny the petition.

The record reflects that Ang, armed with a tourist visa,

entered the United States on April 2, 2000. His wife, Mean, joined

him two months later (having entered the country illegally). On

November 6, they sought asylum.

The Immigration and Naturalization Service (INS) charged

the couple with remaining in the United States longer than

-2-
permitted.1 See 8 U.S.C. § 1227(a)(1)(B). The INS scheduled a

hearing for October 20, 2002. The petitioners conceded

removability and cross-applied for asylum, withholding of removal,

relief under the CAT, and in the alternative, voluntary departure.

At an evidentiary hearing held on August 20, 2003, Ang

testified about his political activities and employment in Cambodia

and the circumstances that brought him and his wife to the United

States. Mean did not testify.

The story, insofar as it is relevant here, began in 1988,

when Ang fled to a Cambodian refugee camp in order to escape forced

conscription by the reigning government. The camp was located in

an area controlled by a minority political party, the National

United Front for a Neutral, Peaceful, Cooperative, and Independent

Cambodia (FUNCINPEC). Ang began working for this party as a

volunteer. He played an active role in the campaign leading up to

the 1993 national elections.2 The FUNCINPEC prevailed in the

elections and ascended to power.

1
The Homeland Security Act of 2002, Pub. L. No. 107-296, §
471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. §
291(a)), abolished the INS and transferred its duties to the
Department of Homeland Security. See Lattab v. Ashcroft, 384 F.3d
8, 13 n.2 (1st Cir. 2004). For simplicity's sake, we refer
throughout to the INS.
2
Ang claims to have received a death threat from a local
police officer due to his political activities, but he never
reported such a threat to the authorities. At any rate, an
isolated twelve-year-old threat, made under circumstances that no
longer obtain, would be immaterial.

-3-
 To earn a living, Ang secured employment at the United

States embassy. His job was to protect the Americans who worked

there. He steadily moved up the ranks and, by the time that the

FUNCINPEC came to power, he was in charge of sixty guards. A few

years later, he was promoted and given responsibility for

supervising 250 guards.

In 1997, a coup engineered by Hun Sen toppled the

FUNCINPEC government. Hun Sen's party, the Cambodian People's

Party (CPP), assumed control. Ang transported Americans to the

safety of the embassy during the insurrection. In his asylum

affidavit, he declared that he was not afraid of dying during this

period because Hun Sen's supporters "would not dare to harm those

who worked with the Americans."

General elections were held in 1998. John Keo, Ang's

boss at the embassy, asked him to report on any shootings,

kidnapings, or other acts of violence connected with the voting.

Ang says that he received a number of veiled threats during this

interlude (e.g., "[y]ou will see [what happens] when the U.S.

leaves Cambodia"; the United States "cannot protect you all the

time").

On March 8, 2000, Ang and other embassy staffers heard a

threat that came over their security radios. The unidentified

speaker stated: "I will kill John [Keo] and Try [Ang] before they

-4-
take the airplane." Keo asked all guards on duty to write reports

about the incident. Ang completed his report nine days later.

Ang's departure followed on the heels of this incident.

Using a tourist visa issued a few days before the broadcasted

threat, Ang left Cambodia. On April 7 — five days after arriving

in the United States — he notified the embassy by facsimile

transmission of his resignation. He claims that police officers

visited his wife twice in the following two days and threatened to

kill her if she did not reveal his whereabouts. In roughly two

months time, Mean, using a bogus passport that she purchased for

$15,000, joined her husband.

Ang testified that he fears he will be killed if he were

to return to Cambodia. This fear relates both to his political

activities and his past employment. The immigration judge (IJ)

disagreed, based partially on a finding that Ang had worked at the

American embassy, but that a significant credibility gap marred

most of the other aspects of his testimony.

Chronologically, the IJ found that the early threats of

which Ang complained, to the extent that they occurred at all, were

due to his FUNCINPEC membership. The IJ characterized these

threats as unsubstantiated allegations; he deemed them neither

convincing nor compelling, especially given Ang's boast that he was

not concerned about them.

-5-
 The IJ attributed the broadcasted death threat to a

disgruntled former security guard who had been dismissed from his

post. In this regard, the IJ cited Ang's own testimony as

demonstrating that he (Ang) did not take the threat seriously.

Moving to Ang's departure, the IJ spotted a flat

inconsistency in Ang's stated reason for leaving Cambodia. Ang

initially vouchsafed that he left to save his life; he later

claimed, however, that he had intended to return after a visit to

the United States, but that the subsequent threats reported by his

wife convinced him to change his mind. As to those threats, the IJ

found Ang's testimony unworthy of credence. In the IJ's view, it

was not plausible that Ang's absence would have been noticed so

quickly.

Finally, the IJ found that Ang had failed to provide

objective facts sufficient to establish a well-founded fear of

future persecution.

Based on these findings, the IJ denied the joint

application for asylum, withholding of removal, and relief under

the CAT, but granted a right of voluntary departure. The

petitioners appealed and, on November 2, 2004, the BIA summarily

affirmed. This timely petition for judicial review followed.

When the BIA summarily affirms an IJ's decision, the

focus, for purposes of judicial review, is on the IJ's decision.

We review that determination as if it were the BIA's. See Olujoke

-6-
v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005). In that process, we

assay the IJ's findings of fact, including credibility

determinations, under a highly deferential "substantial evidence"

standard. See id. That standard demands that we uphold the IJ's

decision as long as it is "supported by reasonable, substantial,

and probative evidence on the record as a whole." INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). Absent a mistake of law, the

IJ's decision must stand unless a reasonable factfinder would be

compelled to reach a contrary conclusion. See 8 U.S.C. §

1252(b)(4)(B); see also Negeya v. Gonzales, 417 F.3d 78, 82 (1st

Cir. 2005).

Against this backdrop, we turn to Ang's asylum claim. To

qualify for asylum, an alien must demonstrate that he is a refugee

as defined by the Immigration and Nationality Act (the Act), 8

U.S.C. §§ 1101-1537. Id. § 1158(b)(1). According to the Act, a

refugee is a person who cannot or will not return to his country of

nationality or avail himself of that country's protections "because

of persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion." Id. § 1101(a)(42)(A); see

Harutyunyan v. Gonzales, 421 F.3d 64, 67 (1st Cir. 2005); Aguilar-

Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999).

The alien may carry this burden by proving past

persecution based on one of the five enumerated grounds and, thus,

-7-
animating a rebuttable presumption of future persecution. See

Harutyunyan, 421 F.3d at 67. If the alien succeeds in making this

showing, the burden shifts to the government to prove either "a

fundamental change in circumstances such that the [alien] no longer

has a well-founded fear of persecution in [his] country of

nationality" or that the alien "could avoid future persecution by

relocating to another part of [his] country of nationality." 8

C.F.R. § 208.13(b)(1)(i)(A)-(B).

There is another avenue to asylum. If an alien cannot

establish past persecution, he may prove a well-founded fear of

future persecution independent of any presumption. See Rodriguez-

Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005).

In the case at hand, Ang presents a hybrid claim of past

persecution. This claim implicates both his political opinion (his

support for the FUNCINPEC) and his membership in a putative social

group (Cambodian supporters of the United States). While it is

clear that past persecution based on the former ground would, if

proven, confer refugee status, see, e.g., Bocova v. Gonzales, 412

F.3d 257, 262-63 (1st Cir. 2005), determining whether Ang's

employment at the American embassy and his assistance to Americans

make him a member of a social group within the meaning of the Act

is less clear-cut.

Persecution on account of membership in a social group

turns on whether the claimed persecution is directed at a person

-8-
because of that person's interactions with a band of individuals

who share a "common, immutable characteristic." Da Silva, 394 F.3d

at 5. Membership may stem from an innate characteristic or a

shared experience. Compare, e.g., Gebremichael v. INS, 10 F.3d 28,

36 (1st Cir. 1993) (concluding that family membership can

constitute membership in a social group), with, e.g., Mediouni v.

INS, 314 F.3d 24, 28 (1st Cir. 2002) (concluding that past

employment as a police officer could satisfy the social group

membership requirement). Regardless of whether the shared

characteristic is genetic or experiential, it must be one that

individuals "either cannot change, or should not be required to

change because it is fundamental to their individual identities or

consciences." Da Silva, 394 F.3d at 5.

Ang asserts that he is a member of a social group that

shares the common characteristic of supporting the American

presence in Cambodia. Support for the Americans, his thesis runs,

is an identifiable characteristic that he should not be forced to

change due to the actions of individuals who are hostile to the

interests of the United States. We agree with Ang's premise that

his work at the embassy and his support for Americans potentially

could form the basis for a claim of membership in a social group.

See id. at 6 (explaining that "characteristics relating to current

or former employment status can . . . form the linchpin for

assembling a protected social group"). Accordingly, we turn to

-9-
Ang's contention that the IJ erred by not factoring both political

opinion and social group membership into the past persecution

calculus.

We have examined the record with care and find Ang's

contention to be unfounded. Although the IJ focused primarily on

Ang's political opinion claim, he also took account of Ang's social

group membership claim. For example, the IJ noted, in his bench

decision, Ang's assertion that "threats were issued against him

because he was a security guard for the United States Embassy."

Indeed, Ang's pro-American stance and the possibility of

persecution arising therefrom comprise one of the few parts of

Ang's testimony that the IJ believed.

That the IJ's bench decision contained a heavier emphasis

on the political opinion claim than on the social group membership

claim is understandable. Both Ang's asylum application and his

trial testimony stressed the former claim. In these materials, Ang

made many more references to his participation in the FUNCINPEC and

to his fear that followers of Hun Sen might retaliate against him

than to the consequences of his work at the embassy. It would be

absurd to allow an asylum applicant to profit by emphasizing one

aspect of a hybrid claim and then complaining when the IJ devotes

most of his attention to that aspect. We will not condone that

sort of bait-and-switch tactic.

-10-
 To say more on this point would be supererogatory. On

this record, we conclude, without serious question, that the IJ

adequately considered both aspects of Ang's hybrid claim.

Consequently, we reject Ang's first assignment of error.

Ang next complains that the IJ "misinterpreted" the

evidence of past persecution. This complaint is utterly without

merit. Ang testified to a series of vaguely menacing statements

and the IJ rejected those statements as unsubstantiated and lacking

in probative value.

The baseline rule is that past persecution requires "more

than mere discomfiture, unpleasantness, harassment, or unfair

treatment." Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.

2005). Given that baseline, hollow threats, such as "[y]ou will

see [what happens] when the U.S. leaves Cambodia" or the United

States "cannot protect you all the time," without more, certainly

do not compel a finding of past persecution. There was no

misinterpretation here.

To be sure, the broadcasted threat that occurred on March

8, 2002 is cut from different cloth. A direct threat to an

individual's life can constitute past persecution. See Aguilar-

Solis, 168 F.3d at 569-70. Withal, an asylum applicant must

demonstrate a nexus between such a threat and one of the five

statutorily protected grounds. See 8 C.F.R. § 208.13(b)(1); see

also Rodriguez-Ramirez, 398 F.3d at 124. Here, the record supports

-11-
the IJ's finding that no such connection was forged with respect to

the broadcasted death threat.

On this issue, the parties talk past each other. The

problem, as we see it, is that Ang misapprehends the IJ's

reasoning. In his bench decision, the IJ did not take the view

that the broadcasted threat never happened but, rather, attributed

the threat to a disgruntled former subordinate. Because the

genesis of this threat reasonably can be seen as something other

than the petitioner's political views or support of the United

States, there is no principled way we can set aside the IJ's

determination.

There is one last piece to the question of threat

evidence. Ang calumnizes the IJ's determination that the supposed

threats to Mean did not occur. Ang did not advance this claim

before the BIA, so we will not consider it. See, e.g., Makhoul v.

Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004) (explaining that

"theories not advanced before the BIA may not be surfaced for the

first time in a petition for judicial review of the BIA's final

order"). In all events, were this claim properly before us, we

would defer to the IJ's credibility finding. See, e.g., Olujoke,

411 F.3d at 21-22 (noting that an appellate court should treat an

IJ's adverse credibility determinations with "great respect").

Our rejection of these arguments makes manifest that Ang

has not demonstrated past persecution. Hence, he is not entitled

-12-
to a rebuttable presumption that a well-founded fear of future

persecution exists. This brings us to Ang's third assignment of

error: the asseveration that the IJ incorrectly rejected his claim

that, unaided by any presumption, he had proved a well-founded fear

of future persecution.

To travel this avenue, Ang must show, by a preponderance

of the evidence, that he has a well-founded fear of future

persecution. See Laurent v. Ashcroft, 359 F.3d 59, 65 (1st Cir.

2004). This showing encompasses both subjective and objective

components. See Palma-Mazariegos v. Gonzales, ___ F.3d ___, ___

(1st Cir. 2005) [No. 05-1330, slip op. at 7]. We assume, for

argument's sake, that Ang has satisfied the subjective component,

that is that he genuinely fears persecution were he to return to

Cambodia. Even so, Ang still must satisfy the objective component

of the test. See Rodriguez-Ramirez, 398 F.3d at 125 (explaining

that "the alien must not only harbor a genuine fear of future

persecution, but also must establish an objectively reasonable

basis for that fear" (citation and internal quotation marks

omitted)). Ang cannot clear this hurdle.

Ang concedes that a regime change has occurred in

Cambodia. The FUNCINPEC and the CPP are both integral parts of the

coalition government that now rules Cambodia. This circumstance

effectively eliminates any argument that Ang would be persecuted in

Cambodia for his pro-FUNCINPEC political opinion. Moreover, he has

-13-
resigned from the embassy and is no longer a visible member of the

social group that he claimed might be the object of persecution.

To cinch matters, the record is devoid of any convincing evidence

of animus directed at pro-American citizens in Cambodia today.

Given this evidentiary mosaic, Ang is powerless to assail the IJ's

conclusion that no well-founded fear of future persecution exists.

Cf. Palma-Mazariegos, ___ F.3d at ___ [slip op. at 11] (finding

that the lack of reported violence directed toward a protected

group helps to refute a claimed fear of future persecution).

As a last-ditch effort, Ang points with legitimate pride

to a commendation that he received from the U.S. Ambassador to

Cambodia, Kenneth Quinn, and posits that he is entitled to asylum

for humanitarian reasons because of the support that he provided to

the Americans, especially during the 1997 coup. Ang has cited no

authority that suggests the Attorney General's decision to grant or

withhold humanitarian asylum is judicially reviewable, and there is

reason to believe that it is not. Cf. Heckler v. Chaney, 470 U.S.

821, 830 (1985) (explaining that judicial review of an agency's

decision would be precluded when "a court [has] no meaningful

standard against which to judge the agency's exercise of

discretion"). Assuming, for argument's sake, that the decision is

judicially reviewable, Ang's importuning for humanitarian asylum

here asks us to do too much with too little.

-14-
 While the Attorney General has discretion to grant asylum

for humanitarian reasons, see 8 U.S.C. § 1182(d)(5)(A),

establishing a judge-made rule that requires the use of this power

to grant asylum to aliens who provide aid and succor to the

American government anywhere in the world would rip a mammoth hole

in the fabric of the immigration laws. That would usurp Congress's

province, and we decline to take so audacious a step.

We add, moreover, that Ang's reliance on the Attorney

General's opinion in In re Bassel Marshi, No. A26-980-386 (Op.

Att'y Gen. Feb. 13, 2004), is misplaced for another reason as well.

There, a Lebanese national was offered asylum because he had

provided heroic support to injured marines after the 1983 bombing

of a military barracks in Beirut. See id. at 10-11. As an

unpublished opinion, Bassel Marshi has no precedential force. See

Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993) ("We will

not bind the BIA with a single non-precedential, unpublished

decision any more than we ourselves are bound by our own

unpublished orders."); see also 1st Cir. R. 32.3(a)(2).3

At this point, we have considered and rejected each of

Ang's four remonstrances with respect to his asylum claim. We

proceed, therefore to address his withholding of removal claim. We

can dispose of that claim with relative ease.

3
We also point out that the Attorney General issued the Bassel
Marshi opinion several months after the IJ's decision (though
before the BIA's). That fact reinforces our conclusions here.

-15-
 A claim for withholding of removal imposes "a more

stringent burden of proof on an alien than does a counterpart claim

for asylum." Rodriguez-Ramirez, 398 F.3d at 123. Withholding of

removal requires that an alien establish a clear probability of

persecution, rather than merely a well-founded fear of persecution.

See Palma-Mazariegos, ___ F.3d at ___ [slip op. at 13]. Hence, the

fact that Ang's claim for asylum falls short necessarily dooms his

counterpart claim for withholding of removal.

In a similar vein, we need not tarry over Ang's CAT

claim. Under the CAT, the United States is prohibited from

returning an alien to a country if "there are substantial grounds

for believing the [alien] would be in danger of being subjected to

torture." Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822

(1998). To trigger this protection, an alien must show that it is

more likely than not that he will be tortured upon returning to his

homeland. See Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.

2004). "Torture is defined as any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted

on a person . . . when such pain or suffering is inflicted by or at

the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity." 8 C.F.R.

§ 208.18(a)(1). Torture does not include "lesser forms of cruel,

inhumane or degrading treatment or punishment." Id. §

208.18(a)(2).

-16-
 Ang has provided no evidence that he has ever been

physically harmed by political adversaries. The vague threats by

Hun Sen's supporters clearly do not rise to the level of torture.

See, e.g., Ambartsoumian v. Ashcroft, 388 F.3d 85, 94 (3d Cir.

2004) (concluding that "sporadic veiled threats" did not establish

a founded fear of prospective torture). The broadcasted death

threat does not satisfy the definition of torture because the IJ

supportably attributed that threat to a disgruntled ex-employee and

not to a public official. See 8 C.F.R. § 208.18(a)(1); see also

Kasneci v. Gonzales, 415 F.3d 202, 205 (1st Cir. 2005).

Consequently, we hold that the IJ appropriately refused to grant

relief under the CAT.4

We need go no further. For the reasons elucidated above,

we uphold the BIA's final order.

The petition for judicial review is denied.

4
We do not consider whether the alleged threats to Mean
constitute the basis for a claim of torture because the IJ
supportably found Ang's testimony about those threats to be
implausible.

-17-