Tum v. Gonzales

United States Court of Appeals
For the First Circuit

No. 06-1387

SAMATH PHEAK TUM,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Paul C. Agu on brief for petitioner.
Peter Keisler, Assistant Attorney General, Civil Division,
Greg D. Mack, Senior Litigation Counsel, and Robbin K. Blaya,
Office of Immigration Litigation, U.S. Department of Justice, on
brief for respondent.

October 1, 2007
 LIPEZ, Circuit Judge. In this petition for review,

Samath Pheak Tum contests the Board of Immigration Appeals' ("BIA")

denials of her requests for asylum, withholding of removal, and

protection under the Convention Against Torture ("CAT"). We lack

jurisdiction to review the finding that her asylum application was

untimely and, on her remaining claims, we deny the petition.

I.

We provide here an overview of the relevant background

information, elaborating as necessary in our analysis of the

claims. Tum was born on September 19, 1960 in Cambodia. She is

married, but her husband is missing, and her six children all

reside in Cambodia.

While in Cambodia, Tum was politically active on behalf

of the Sam Rangsi Party. In March 1998, while she was advocating

for her party at a market, she testified that soldiers pointed a

gun at her and ordered her to cease her activities or she would be

killed. In September 1998, while she was participating in a

demonstration demanding a recount of the ballots from a recent

national election, the police hit her in the back with an electric

baton. Later that night, several police officers forced their way

into her house, took her to the police station, pushed and

interrogated her, and held her overnight.

Tum entered the United States on or about July 26, 2000,

as a nonimmigrant with authorization to remain in the United States

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until January 25, 2001. She stayed beyond that date without

authorization from the Immigration and Naturalization Service. As

a result, she was charged under 8 U.S.C. § 1227(a)(1)(B) and found

removable as charged. She filed an application for asylum,

withholding of removal, and protection under the CAT, claiming that

she had a well-founded fear of persecution on the basis of her

political opinion.

After a hearing on March 24, 2004, an immigration judge

(“IJ”) denied Tum's claims. He held that she was not eligible for

asylum because her application was not filed within a year of her

entry into the United States and no extraordinary circumstances

warranted extending the deadline. With respect to her other

claims, the IJ found that Tum was not credible based on

inconsistencies between her application and her testimony, and

furthermore found that she had failed to show that it was more

likely than not that she would be subject to persecution or torture

if she returned to Cambodia. Subsequently, the BIA adopted and

affirmed the IJ's decision.

II.

A. Application for Asylum

The BIA denied Tum's application for asylum because it

was untimely and there was no reason to excuse her from complying

with the one-year filing deadline. Although Tum claims that her

application for asylum was improperly denied, her brief does not

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directly address the holding that she failed to meet the required

deadline.

It is well established that issues "adverted to on appeal

in a perfunctory manner, unaccompanied by some developed

argumentation, are deemed to have been abandoned." Ryan v. Royal

Ins. Co. of Am., 916 F.2d 731, 734 (1st Cir. 1990). However, even

if Tum had developed arguments to support her claim that her

application was improperly denied, we lack jurisdiction to consider

her claim. An applicant for asylum must "demonstrate[] by clear

and convincing evidence that the application has been filed within

1 year after the date of the [individual's] arrival in the United

States." 8 U.S.C. § 1158(a)(2)(B). An exception to the one-year

filing deadline arises if the applicant "demonstrates to the

satisfaction of the Attorney General either the existence of

changed circumstances which materially affect the applicant's

eligibility for asylum or extraordinary circumstances relating to

the delay in filing an application." Id. § 1158(a)(2)(D).

Finally, "[n]o court shall have jurisdiction to review any

determination of the Attorney General" regarding whether an

applicant for asylum has filed an untimely application or qualifies

for an exception to the filing requirement. Id. § 1158(a)(3).

Here, the IJ and the Board both determined that Tum's

asylum application was not timely filed and that she did not

qualify for an exception to the filing deadline. Thus, we lack

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jurisdiction to review these determinations. See, e.g., Njenga v.

Ashcroft, 386 F.3d 335, 338-39 (1st Cir. 2004).

B. Other Claims

On review of a denial of a claim for withholding of

removal or protection under the CAT, we will uphold the BIA's

decision if it was "'supported by reasonable, substantial, and

probative evidence on the record considered as a whole.'" INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)(quoting 8 U.S.C. §

1105a(a)(4)). Where, as here, the BIA has adopted the IJ's

credibility determinations, we are bound by those determinations

unless "a finding that the alien is credible is compelled." Chen

v. Gonzales, 418 F.3d 110, 113-14 (1st Cir. 2005).

1. Withholding of Removal

To be eligible for withholding of removal, an applicant

must demonstrate that, "upon deportation, [she] is more likely than

not to face persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion."

Sharari v. Gonzales, 407 F.3d 467, 474 (1st Cir. 2005); see also 8

U.S.C. § 1231(b)(3)(A). After a hearing, the IJ found that Tum was

not credible and enumerated several specific inconsistencies to

support this finding. First, Tum offered different accounts of the

political demonstration in her asylum application and her

testimony. In the application, she claimed that she had joined the

protesters on September 9, 1998, and was beaten and arrested at her

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home that day. In her testimony, however, she indicated that she

participated in the demonstration for eighteen days and was beaten

and arrested at the end of that period. A similar inconsistency

arose in her description of the military officers who threatened

her at gunpoint. In her application, Tum stated that she was

threatened while leading a group of five campaign workers who were

handing out "photos and flyers" in her neighborhood; at the

hearing, however, she testified that it happened while she was

campaigning for her party by talking to people and distributing

party membership cards at a market. These inconsistencies are not

inconsequential as they "involve matters important to petitioner's

claims for relief," Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir.

2007), and they provide a reasonable basis for the IJ's credibility

determinations; we certainly are not compelled to find otherwise.

The IJ also found, and the BIA affirmed, that Tum was

unlikely to face persecution if she returned to Cambodia. In

particular, Tum remained in Cambodia for two years following the

events she described without suffering further harm. Moreover, her

six children currently reside in Cambodia and also have not

suffered harm. In light of these findings and the IJ's credibility

determination, we conclude that the BIA's determination that Tum

was not eligible for withholding of removal was supported by

substantial evidence.

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 2. Convention Against Torture

Under the CAT, an applicant must establish "'that it is

more likely than not that [she] . . . would be tortured if

removed'" to the country in question. Sharari, 407 F.3d at 475

(quoting 8 C.F.R. § 208.16(c)(2)). Torture is defined as the

intentional infliction of severe pain or suffering for such

purposes as forcing a confession or intimidating someone; the pain

or suffering must be inflicted by the government, or with its

acquiescence. Id. (citing 8 C.F.R. § 208.18(a)(1)).

As the discussion of the claim for withholding of removal

demonstrates, Tum has not met her burden of establishing that it is

more likely than not that she will be tortured by the government of

Cambodia or its agent if she returns. Moreover, the current

government of Cambodia consists of a coalition that includes Tum's

party, which further diminishes the likelihood that she will be

tortured upon her return. We conclude that the BIA's decision

denying relief to Tum on the basis of the CAT was also supported by

substantial evidence.*

*
We wish to note that we are troubled by the deficiencies in
the brief submitted on behalf of petitioner. The argument portion
of the brief comprised less than four pages. There were no
citations to the record. Succeeding with a petition for review in
immigration cases is sufficiently challenging without the
additional burden of poor legal representation. Counsel should not
undertake representation in the future without a thoughtful and
thorough effort to present petitioner's claims for relief.

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 III.

For the foregoing reasons, we deny the petition for

review.

So ordered.

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