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
-2-
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
-3-
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
-4-
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
-5-
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.
-6-
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.
-7-
III.
For the foregoing reasons, we deny the petition for
review.
So ordered.
-8-