United States Court of Appeals
For the First Circuit
No. 07-1413
KANNKOSAL OUK, ET AL.,
Petitioners,
v.
PETER D. KEISLER,*
ACTING ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Oberdorfer,** Senior District Judge.
Thomas Stylianos, Jr., Ilana Etkin Greenstein, Harvey Kaplan,
Maureen O'Sullivan, Jeremiah Friedman, and Kaplan, O'Sullivan &
Friedman, LLP, on brief for petitioner.
Robbin K. Blaya, Attorney, Office of Immigration Litigation,
Peter Keisler, Acting Attorney General, and Anthony W. Norwood,
Senior Litigation Counsel, on brief for respondent.
October 29, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General
Alberto R. Gonzáles as respondent.
**
Of the District of Columbia, sitting by designation.
STAHL, Senior Circuit Judge. The Board of Immigration
Appeals (BIA) affirmed an Immigration Judge's (IJ's) denial of
Kannkosal Ouk's claims for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Ouk,1 a
native and citizen of Cambodia, now petitions this court for review
of the BIA's denial of his asylum claim.2 Because a reasonable
fact-finder would not be compelled to conclude that Ouk has met his
burden of proof to establish eligibility for asylum, we deny Ouk's
petition for review. However, we also note several deficiencies in
the IJ's formulation of his credibility findings.
I.
The IJ found Ouk credible. Therefore, we relate the
facts of the case as he testified to them.
Before leaving Cambodia in May 2003, Kannkosal Ouk was
employed as a pharmacist by the Cambodian Ministry of Health, in
the capital city of Phnom Penh. Ouk was also an active member of
the Sam Rainsy Party, a leading opposition party in Cambodia. He
testified that his duties as a party member included speaking with
co-workers and others about the party, and recruiting them for
membership. He testified that this involvement led to two
1
Ouk's wife, Phallikasreymoon Hun, and his son, Kosalvisal
Ouk, both natives and citizens of Cambodia, are derivative
applicants for asylum, based on Kannkosal Ouk's application.
2
Ouk does not seek review of the BIA's denial of withholding
of removal or protection under the CAT.
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instances of persecution against him, which occurred in the lead-up
to the 2003 Cambodian general elections.
First, in January 2003, as Ouk left work, he was met by
two men on a motorcycle, wearing civilian clothing; Ouk testified
that the men had threatening demeanors and that one of them
appeared to have a gun at his waist, under his shirt. The men
followed Ouk closely as he drove home on his motorcycle, and
eventually the men motioned for Ouk to follow them. The men led
Ouk to a secluded area near a temple and, upon arriving, told Ouk
that if he did not stop supporting the Sam Rainsy Party, "he
[would] have a problem."
The second incident occurred about one month later, in
February 2003. Again, Ouk was riding his motorcycle in the evening
when two men, also on a motorcycle, ordered him to follow them to
the Olympic Stadium. In a secluded area near the stadium, the two
men confronted Ouk, pushed his motorcycle to the ground, pointed
their guns at Ouk, and asked him why he continued his involvement
with the Sam Rainsy Party when he had already been warned to cease
his activity. The men pushed Ouk to the ground, and began beating
and kicking him. They hit him on the nose with a gun, and he lost
consciousness. He woke up about an hour later and, realizing his
motorcycle no longer worked, walked home, pushing the motorcycle
with him. He did not seek medical care for his injuries.
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Ouk testified that he "strongly believe[d]" that the men
who attacked him on both occasions were members of the secret
police of the ruling Cambodian People's Party. However, he did not
explain the reasons for this belief or offer any corroborating
evidence.
Alarmed by the attack, Ouk, his wife, and young son fled
to a nearby village. Ouk did not return to his job after the
attack. The family sought tourist visas from the United States and
entered with inspection at Los Angeles, CA, on May 23, 2003, three
months after the second incident. Ouk filed for asylum within the
one-year time limit.
The Immigration Judge denied Ouk's asylum application and
his other attendant claims, finding that Ouk did not show that the
attacks against him were "[g]overnmentally orchestrated or
condoned, rather than just isolated incidents of violence
perpetrated by thugs who were in disagreement with the respondent's
political philosophy." The BIA affirmed the IJ's denial in a brief
decision, on the grounds that the harm Ouk suffered did not amount
to past persecution, and that his claim of future persecution was
undermined by the lack of an objective basis for his belief that
his assailants were from the government's secret police. The BIA
also refused Ouk's request to consider evidence regarding Cambodian
gun control policy, because he failed to submit the evidence to the
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IJ.3 Ouk now seeks review of the BIA's decision denying his asylum
claim.
II.
We review the BIA's denial of asylum for substantial
evidence, and accept the BIA's findings of fact if they are
supported by "'reasonable, substantial, and probative evidence on
the record considered as a whole.'" Njenga v. Ashcroft, 386 F.3d
335, 338 (1st Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)). We will reverse the decision below only if "any
reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C. § 1252(b)(4)(B). Where, as here, "the BIA's
decision adopts portions of the IJ's opinion," this court will
review "those portions of the IJ's opinion that the BIA has
adopted." Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
The petitioner carries the burden of proof to establish
his eligibility for asylum. Bocova v. Gonzales, 412 F.3d 257, 262
(1st Cir. 2005). He can meet this burden by proving past
persecution, which gives rise to an inference of future
persecution, or by establishing a well-founded fear of persecution
on account of his race, religion, nationality, membership in a
3
Ouk, in his reply brief, seeks review of the BIA's refusal to
consider this new evidence. Because he did not raise the issue in
his opening brief, however, it is deemed waived. See United States
v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) ("[I]ssues raised for the
first time in an appellant's reply brief are generally deemed
waived."). We also deem the other issues raised by Ouk in his
reply brief to be waived, for the same reason.
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particular social group, or political opinion. Id. "To qualify as
persecution, a person's experience must rise above unpleasantness,
harassment, and even basic suffering." Nelson v. I.N.S., 232 F.3d
258, 263 (1st Cir. 2000) (citations omitted).
Thus, our review of the decision below regarding whether
Ouk suffered past persecution or has a well-founded fear of future
persecution is highly circumscribed. We can only reverse if the
evidence compels the opposite conclusion. In this case, because
Ouk recounted only one instance of physical abuse, for which he did
not seek medical treatment, a conclusion of past persecution is not
compelled. See, e.g., Bocova, 412 F.3d at 263 (evidence that
petitioner was beaten twice by state police was insufficient to
compel the conclusion that petitioner suffered past persecution).
Similarly, because Ouk presented only his own conclusory opinion to
support his belief that the men who attacked him were government
agents, the record does not compel us to conclude that he has a
well-founded fear of future persecution.4 See Harutyunyan v.
4
This is not to say that an asylum applicant's testimony
alone, recounting his belief that government agents attacked him,
if found credible, would be an insufficient basis for a grant of
asylum in the first instance, assuming the other requirements for
asylum were met. See 8 U.S.C. § 1158(b)(1)(B)(ii) ("The testimony
of the applicant may be sufficient to sustain the applicant's
burden without corroboration, but only if the applicant satisfies
the trier of fact that the applicant's testimony is credible, is
persuasive, and refers to specific facts sufficient to demonstrate
that the applicant is a refugee."). In contrast, given our limited
standard of review on appeal, neither the reports by human rights
organizations of the Cambodian government's inaction with respect
to politically motivated violence nor Ouk's slim evidence of
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Gonzales, 421 F.3d 64, 68 (1st Cir. 2005) ("[P]ersecution always
implies some connection to government action or inaction.").
Though we deny Ouk's petition for review of his asylum
claim, we also note significant short-comings in the Immigration
Judge's opinion with regard to his credibility findings.5 These
deficiencies, however, do not impact our decision to deny Ouk's
petition for review because, given that the IJ ultimately found Ouk
to be credible, we have based our denial on the facts as presented
by Ouk.
The IJ stated several times in his oral decision that he
found Ouk to be credible, yet he simultaneously questioned the
"plausibility" of various events recounted by Ouk. At one point in
the decision, the IJ stated:
While I do find that there are aspects of the
respondent's testimony which I find curious
and troubling, to which I will address myself
shortly, I have no basis upon which to find
the respondent other then [sic] credible.
After questioning why Ouk did not receive medical care after the
attack on him, the IJ stated:
government-led persecution compels the reversal of the denial of
his asylum claim as to future persecution.
5
Ouk characterizes these deficiencies as both an infirmity in
the IJ's credibility finding and as a due process violation.
Because he does not offer any legal basis for maintaining that the
deficiencies constitute a due process violation, that claim is
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.").
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Once again, I want to be clear that I have no
basis for evaluating this testimony and
concluding the respondent to be non-credible.
Rather, in my evaluation I don't really
believe it to be plausible nor is it
convincing.
By making these statements, the IJ provided a muddled analysis of
Ouk's credibility. The plausibility of a respondent's story is a
factor that impacts the IJ's overall credibility finding. See 8
U.S.C. § 1158(b)(1)(B)(iii) (a credibility determination may be
based on a variety of factors, including "the inherent plausibility
of the applicant's or witness's account"). Therefore, it is
contradictory to maintain, as the IJ did here, that, as to one
individual testimonial element, a respondent's testimony is both
credible and not plausible.
We also point out a second, similar malady in the IJ's
decision. The IJ stated that, while it was "possible" that
petitioner spoke with co-workers and others about the Sam Rainsy
Party and attempted to recruit them, it was "simply not convincing
that the respondent would take such a chance with co-workers who
could expose him to superiors and cause the loss of his employment
or some other impediment to the advancement of his career." It is
ambiguous whether the IJ was making a finding specific to the
particulars of Ouk; if so, his findings would have had more
strength if he had explained why, in this particular case, it is
unconvincing that Ouk himself would take such a risk. In failing
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to articulate the particularized basis for his finding, the IJ's
conclusion could be read as making a broad generalization that no
one, including Ouk, would risk his employment in order to advocate
for a political viewpoint or party. Such a statement is, on its
face, simply incorrect. Indeed, at the heart of many successful
asylum claims is a person who takes extraordinary risks in order to
advance a political or social cause to which he is deeply
committed. An IJ is free to find an asylum applicant's testimony
not credible because he does not believe the applicant would take
the risks he alleges to have taken, but "the IJ must, if he or she
chooses to reject [petitioner's] testimony as lacking credibility,
offer a specific, cogent reason for [the IJ's] disbelief." Gailius
v. I.N.S., 147 F.3d 34, 47 (1st Cir. 1998) (citation and internal
quotation marks omitted). The IJ here did not do so.
III.
For the foregoing reasons, we deny Ouk's petition for
review.
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