Phal v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-1223

MOM PHAL and SOEUN NOU,

Petitioners,

v.

MICHAEL B. MUKASEY,*
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

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

Before

Torruella, Circuit Judge,
John R. Gibson,** Senior Circuit Judge,
and Lipez, Circuit Judge.

Joseph A. MacDonald, on brief for petitioners.
Nairi M. Simonian, Trial Attorney, Office of Immigration
Litigation, Civil Division, Peter D. Keisler, Assistant Attorney
General, Civil Division, and Jeffrey J. Bernstein, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.

April 18, 2008

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael
B. Mukasey is substituted for former Attorney General Alberto R.
Gonzáles as respondent.
**
Of the Eighth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Mom Phal and her husband,

Soeun Nou, are citizens of Cambodia. The Board of Immigration

Appeals ("BIA") affirmed the decision of the Immigration Judge

("IJ") denying their applications for asylum, withholding of

removal, and relief under the Convention Against Torture ("CAT").

After careful consideration, we conclude that substantial evidence

supports the BIA's determination that Phal lacked credibility and

that she had failed to demonstrate a reasonable fear of future

persecution.1 We therefore deny the petition for review.

I. Background

On April 24, 2000, Phal entered the United States on a

nonimmigrant visa; Nou arrived several months later. Within a year

of Phal's entry, the couple filed an application for asylum and

withholding of removal and also sought protection under the CAT,

alleging persecution based on political opinion. On June 3, 2003,

the Immigration and Naturalization Service issued a Notice to

Appear, charging that Phal and Nou had remained in the United

States longer than permitted. They admitted to the allegations and

conceded removability. Phal and Nou, with counsel, appeared and

testified before the IJ on March 2, 2005, seeking relief for

1
Phal was the lead applicant for relief and the majority of the
IJ's decision is based on her testimony. Although both Phal and
Nou filed separate asylum applications, the contents of the
application were identical. Given that the majority of the IJ's
decision was based on Phal's testimony, we will treat the
collective claims by focusing on Phal. See Settenda v. Ashcroft,
377 F.3d 89, 92 n.2 (1st Cir. 2004).

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political persecution based on their activism as members of the Sam

Rainsy Party ("SRP").

On September 19, 2004, the IJ denied the petitioners'

applications for asylum. The IJ found that Phal was not credible,

citing to a number of discrepancies between her oral testimony and

written application, inconsistencies within her testimony, and

discrepancies regarding her documentary evidence. Given the lack

of credibility, the IJ concluded that Phal had not established

eligibility for asylum. The IJ also concluded that even if she had

testified credibly, she had failed to demonstrate a well-founded

fear of future persecution because she remained in Cambodia

campaigning for the SRP until April 2000, nearly two years after

her alleged arrest and detention in 1998, without any problems or

incidents. Moreover, the IJ noted that she was able to leave

Cambodia with her own passport in her own name and had no apparent

difficulties with the Cambodian authorities. The IJ also rejected

the petitioners' claims for withholding of removal and found them

ineligible for CAT protection because Phal failed to present

credible evidence that she was tortured in the past or would face

torture in the future if she were to return to Cambodia.

The petitioners appealed the IJ's decision. In a per

curiam order, the BIA adopted and affirmed the IJ's decision that

Phal had failed to present a credible claim of persecution. The

BIA found that the IJ's conclusions were not erroneous and that the

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various discrepancies and inconsistencies identified by the IJ were

central to their claims of persecution. The BIA was unpersuaded by

the contentions that the inconsistences were minor: "Many of the

inconsistencies cited by the Immigration Judge are significant and

. . . [the] documentation submitted to establish the respondents'

political activities does not accurately identify them." The BIA

also agreed with the IJ's determination that Phal had failed to

establish a well-founded fear of future persecution, given the

evidence that she had remained living in Cambodia without incident

for nearly two years after their alleged arrests. The BIA, thus,

dismissed the appeal.

II. Discussion

The petitioners make two claims in their petition for

review. First, they argue that the IJ erred in making her adverse

credibility finding. Second, they assert that relief should be

granted because the record demonstrates that Phal sustained past

persecution and that she has a well-founded fear of future

persecution. The BIA rejected both of these arguments; we agree.

A. Adverse Credibility

In its per curiam order, the BIA adopted and affirmed the

IJ's adverse credibility finding and took the opportunity to

discuss some of the grounds identified by the IJ. We review both

opinions. See Lin v. Gonzáles, 503 F.3d 4, 6-7 (1st Cir. 2007)

("Where, as here, 'the BIA adopted and affirmed the IJ's ruling,

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but also discussed some of the other bases for the IJ's opinion, we

review both the IJ's and the BIA's opinions.'" (quoting Zheng v.

Gonzáles, 475 F.3d 30, 33 (1st Cir. 2007))).

We review credibility determinations under the

substantial evidence standard; we overturn the agency's findings

only if "any reasonable adjudicator would be compelled to conclude

to the contrary." 8 U.S.C. § 1252(b)(4)(B); Stroni v. Gonzáles,

454 F.3d 82, 87 (1st Cir. 2006). We give "great deference to an

IJ's [credibility] determinations so long as the IJ provide[d]

specific reasons for those determinations." Dhima v. Gonzáles, 416

F.3d 92, 95 (1st Cir. 2005). Such deference is demanded where:

(1) the discrepancies and omissions described
by the IJ are actually present in the record;
(2) those discrepancies and omissions provide
specific and cogent reasons to conclude that
the petitioners provided incredible testimony
regarding facts central to the merits of the
asylum claim; and (3) petitioners do not
provide a convincing explanation for the
discrepancies and omissions.

Zeru v. Gonzáles, 503 F.3d 59, 69-70 (1st Cir. 2007).

The BIA and IJ identified several concerns regarding

Phal's testimony, namely: (1) inconsistencies regarding the attacks

against her in May 1993, July 1997, and April 1998; (2) a

discrepancy between her testimony and her written application

regarding the date on which she joined the SRP; and (3) questions

of authenticity surrounding certain letters from party leader Sam

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Rainsy.2 After reviewing those grounds, we conclude that the BIA's

affirmance is sustained under our deferential standard of review.

We briefly address the inconsistencies and discrepancies discussed

by the IJ and BIA.

The IJ discussed Phal's testimony regarding three

different alleged attacks against her as a result of her political

opinions, noting inconsistencies within her testimony. First, she

testified that three Hun Sen soldiers hit her in May 1993, but on

cross-examination stated that the attack involved only two

soldiers. Second, with respect to the July 1997 attack during the

post-election demonstration, she first denied being attacked, but

then said that Hun Sen soldiers had shot at the group, although not

at her directly. Third, regarding the April 1998 attack, Phal

testified that two men on a motorcycle fired bullets into her home

and yelled, "[T]his is a gift for your new year," but she had

attested in her affidavit that only one individual had fired at her

home.

Phal asserts that the IJ makes too much of minor

inconsistencies and urges us to treat them as honest mistakes. She

2
The IJ also makes much of the fact that Phal was unable to
identify the names of leaders within the Women's Movement in the
SRP. Phal argues that the IJ erred in considering her lack of
knowledge. The BIA did not rely on the fact that Phal did not know
those leaders because she did not testify that she was ever
involved in the Women's Movement. We agree and in reviewing this
petition, we do not consider it among the various inconsistencies
identified by the IJ.

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explains that the inconsistencies regarding the number of attackers

and whether she herself was attacked when soldiers fired into a

group of people are reasonable mistakes that the IJ should not have

weighed so heavily. While these inconsistencies are "perhaps minor

in isolation," when taken together with the other concerns

discussed by the IJ, they raise questions regarding Phal's claims

of political persecution and "add to a reasonable inference of lack

of candor." Lumaj v. Gonzáles, 446 F.3d 194, 199 (1st Cir. 2006).

Furthermore, there are other, more concerning

inconsistencies between Phal's testimony and her asylum

application. The IJ and the BIA both noted that in her written

application, she stated that she had begun working actively with

the SRP in December 1997 and suffered persecution by the Hun Sen as

a result of her activism. Specifically, Phal wrote that she had

received a threatening letter in March 1998 which told her to "stop

helping the Sam Rainsy or you will disappear." Yet, during her

removal hearing, she testified that she did not join the SRP until

March 1998 and made no mention of the threatening letter. The

discrepancy between the date on which she became active within the

SRP and when she allegedly received threats is central to her claim

of political persecution; Phal's vague response was not a

persuasive explanation for the inconsistency.3 We have

3
Phal testified that in March 1998 she changed political parties
from the FUNCIPEC Party to the SRP. Thus, her explanation that Sam
Rainsy was the head of the Khmer National Party in 1997 and the

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specifically noted that inconsistencies between statements in an

asylum application and testimony during the asylum proceedings

provide substantial evidence to support an adverse credibility

determination. See Melhem v. Gonzáles, 500 F.3d 78, 81 (1st Cir.

2007).

The IJ and the BIA also determined that the documentary

evidence produced by Phal raised questions about her candor and

credibility. One letter, purporting to be from Sam Rainsy and sent

from Lowell, Massachusetts, was submitted as evidence that Phal and

her husband were members of the SRP. The letter, however, had the

incorrect date of birth for both Phal and her husband and

incorrectly identified Phal as a male. The letter is the only

evidence provided to corroborate the testimony that Phal was a

member of the SRP in Cambodia during the time period at issue.

Furthermore, the letter is one of two letters purportedly signed by

Sam Rainsy on the same day despite the fact that they originated

from two vastly different locations: Lowell, Massachusetts and

Phnom Phen, Cambodia.

Upon questioning by the IJ about these letters, Phal

provided confusing and inconsistent answers which the IJ deemed

suspicious given that the hearing was less than three weeks after

the issuance of the letters. The IJ also expressed concern

name switched to the SRP in 1998 is insufficient to explain this
inconsistency within Phal's testimony. At no time did she testify
that she had been involved with the Khmer National Party.

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regarding the authenticity of one of the letters because Phal's

name was written in a different style and color than the other

names on the list.4 Additionally, the donor letter also mentioned

the name of a woman (Meas Ponnary) who allegedly collected the

donations and sent them to the SRP. At the hearing, Phal testified

that she did not recognize the woman's name. She then identified

(incorrectly) the woman as the president of the SRP in Lowell,

Massachusetts, but then later testified that the president of the

SRP in Lowell was a man whose name she could not recall.

The IJ and the BIA concluded that these inconsistencies

were central to Phal's asylum claim which is predicated on her

involvement and membership in the SRP. Upon review, we conclude

that those inconsistencies are clearly present in the record, lack

persuasive explanation, and support the IJ's adverse credibility

determination. While the evidence of inconsistency is not

tremendous, we conclude that the IJ's identified grounds for

disbelieving Phal's testimony are supported by substantial evidence

and the record does not compel a contrary finding. Stroni, 454

F.3d at 87.

B. Persecution

An asylum applicant bears the burden of establishing that

she suffered past persecution or has a well-founded fear of future

persecution on account of race, religion, nationality, membership

4
The letter listed several names as donors to the SRP.

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in a particular social group, or political opinion. 8 U.S.C.

§ 1101(a)(42)(A); Journal v. Keisler, 507 F.3d 9, 12 (1st Cir.

2007). In this case, the petitioners allege persecution on account

of political opinion. To constitute past persecution, the conduct

must extend beyond "unpleasantness, harassment, and even basic

suffering." Topalli v. Gonzáles, 417 F.3d 128, 133 (1st Cir. 2005)

(quoting Nelson v. I.N.S., 232 F.3d 258, 263 (1st Cir. 2000))

(internal quotation marks omitted). A sufficient showing of past

persecution entitles an applicant to a rebuttable presumption of a

well-founded fear of future persecution. 8 C.F.R. § 208.13(b).

Absent that presumption, a petitioner must demonstrate that her

fear is both genuine and reasonably objective. Toloza-Jiménez v.

Gonzáles, 457 F.3d 155, 161 (1st Cir. 2006).

The BIA agreed with the IJ's conclusion that regardless

of whether Phal had testified credibly, she failed to establish a

well-founded fear of future persecution. We agree. Both the BIA

and the IJ noted that Phal remained living in Cambodia without

incident for two years after their alleged arrests and attacks in

1998. Phal testified that during that two-year time span, she

continued to work on behalf of the SRP without incident. The

ability to live and remain politically active in the country for

two years without incident weakens her alleged fear of future

persecution. See Ravindran v. I.N.S., 976 F.2d 754, 760 (1st Cir.

1992) (finding evidence that petitioner remained in the country for

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a year following alleged persecution undercut claim of future

persecution); see also López v. Gonzáles, 192 Fed. Appx. 19, 22

(1st Cir. 2006). Furthermore, Phal and her husband were able to

leave the country in 2000 with government-issued passports, which

is another fact weighing against the reasonableness of her fear.

See Kheireddine v. Gonzáles, 427 F.3d 80, 87 (1st Cir. 2005)

(petitioners' ability to obtain passports in their own names

"undercuts their claim of persecution"). Thus, we conclude that

substantial evidence supports the BIA's conclusion that Phal

failed to demonstrate a reasonable fear of future persecution.

Unable to satisfy the burden of proof for asylum, Phal

necessarily fails to demonstrate eligibility for withholding of

removal because "such a grant requires a stronger showing than the

showing requisite to a grant of asylum." Simo v. Gonzáles, 445

F.3d 7, 12 (1st Cir. 2006).5

III. Conclusion

For the foregoing reasons, the petition for review is

denied.

Denied.

5
Phal does not meaningfully address her CAT claim in her brief
and, therefore, we consider the issue to be waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived").

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