Sok v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-2113

SOPHEAP SOK,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

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

Before

Torruella, Lynch, Circuit Judges,
and Tashima,* Senior Circuit Judge.

Joseph A. MacDonald, on brief for petitioner.
Joan H. Hogan, Attorney, U.S. Department of Justice, Civil
Division, Office of Immigration Litigation, Jeffrey S. Bucholtz,
Acting Assistant Attorney General, Civil Division, and Linda S.
Wendtland, Assistant Director, on brief for respondent.

May 22, 2008

*
Of the Ninth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Sopheap Sok overstayed her

visitor's visa to the United States. More than one year after

entry, she applied for asylum, withholding of removal, and relief

under the Convention Against Torture ("CAT"), alleging that she had

suffered persecution in her native Cambodia and feared future

persecution on account of her political beliefs. The immigration

judge ("IJ") dismissed her asylum claim as untimely, and denied the

withholding and CAT claims on the merits. The Board of Immigration

Appeals ("BIA") affirmed and ordered Sok removed. Sok now

petitions this court for review of the denial of her withholding

and CAT claims. We deny her petition with respect to the CAT

claim. However, because the BIA and IJ gave a legally insufficient

explanation of why Sok failed to prove that she suffered past

persecution in Cambodia, we grant the petition with respect to the

withholding claim, vacate the BIA's order of removal, and remand

the case for further proceedings.

I. Background

We summarize the evidence as Sok presented it to the IJ

in her hearing testimony and in the affidavit accompanying her

asylum application; we then consider the IJ's and BIA's findings in

relation to that evidence. Mihaylov v. Ashcroft, 379 F.3d 15, 18

(1st Cir. 2004); see also Mukamusoni v. Ashcroft, 390 F.3d 110,

121 (1st Cir. 2004) (information in asylum application affidavit

may be used to satisfy burden of proof in removal proceedings).

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 In 1995, Sok and her husband, Ratha Chhin, became members

of the Khmer National Party ("KNP"). The KNP, which later changed

its name to the Sam Rainsy Party ("SRP"), is a political rival to

the Cambodian People's Party ("CPP") headed by Hun Sen. From the

beginning of their affiliation with the KNP/SRP, Sok and Chhin

campaigned actively on behalf of the party. In January 1996, they

received a letter telling them they would have a "a big problem"

if they continued to support the KNP. In May 1996, graffiti was

painted on their house stating, "Your life as being a traitor will

not be easy if you help the Sam Rainsy against the CPP."

In early July 1997, Sok, Chhin, and their children fled

their home for a town on the Thai border a day before Hun Sen

attempted to take control of the government in a coup. The family

returned some five months later and found that their house had been

burglarized.

In May 1998, SRP leader Sam Rainsy appointed Chhin as

chief of the SRP electoral committee in the Phsar Depo quarter of

Phnom Penh. Two weeks later, a police lieutenant named Khy Kok

went to Sok's house and warned Chhin that he must stop supporting

the SRP, or he would kill or harm Chhin's family. Lieutenant Kok

also threatened Sok directly, telling her, "[I]f you do not listen

to me, I will destroy you."

In July 1998, Hun Sen and the CPP won the national

elections. The SRP and another opposition party claimed fraud. In

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September 1998, Chhin led some 300 people in a public rally to

protest the election results. They were met in a public square by

soldiers with fire trucks, who sprayed them with wastewater and

beat many of them, including Chhin. Sok witnessed the soldiers

beating her husband; his nose was bloody and he had been

handcuffed. When she attempted to help him, a soldier grabbed her

by the hair and pulled her back, and then began beating her on the

leg and shoulder until she fell unconscious. When she regained

consciousness, she found herself in jail and in pain from the blows

the soldiers had dealt her. During her detention, she was given a

cup of water and a handful of rice each day. Sok and Chhin were

released three days later thanks to the efforts of human rights

workers who intervened on their behalf. A private doctor treated

Sok and Chhin for their injuries. Sok testified that she did not

go to the hospital because she was afraid to go, as the public

doctor there was part of the CPP government.

In January 2000, Sam Rainsy appointed Chhin to another

SRP post in Phnom Penh. A week after his appointment, two

unidentified men stopped Sok and Chhin on their motorcycle, pulled

Chhin off, and kicked and punched him. Sok received some scratches

when the motorcycle fell to the ground, and ran a short distance in

an attempt to find help. She heard the men tell Chhin that if he

did not stop supporting the SRP he would be dead. Sok stated that

this incident "terrified [her] to death."

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 In May 2000 three policemen, led by Lieutenant Kok, went

to Sok's house. When she answered the door, Kok put a gun to her

neck and ordered her and her children into the bedroom and made

them lie on the floor. While Kok stood watch at gunpoint, the

other two men ransacked the house. After thirty minutes, one of

the men said, "Let's go. I got it." The men took some documents,

jewelry, and $2,000 cash. Before leaving, Kok warned Sok: "Anyone

[who] acts against [the] CPP, his or her life will be in trouble."

Following this incident, Sok urged Chhin to stop campaigning for

the SRP; Chhin replied that he would continue to fight for

democracy as long as he was alive. He told her that if she was

afraid of dying, she could hide somewhere for her safety.

Prompted, according to Sok, by these repeated threats,

she departed for the United States in July 2000, leaving Chhin, her

two children, and sister behind. In November 2001, Sok's sister

called to inform her that Hun Sen's men had arrested Chhin, and

Chhin called some three weeks later to tell her he had been

imprisoned for nineteen days on suspicion of being connected to the

Cambodian Freedom Fighters. In February 2002, Sok's sister called

to inform her that Chhin had been shot dead, along with some twenty

others, and that their bodies were found under a bridge south of

Phnom Penh. Her sister told Sok that Chhin was murdered for

political reasons. Sok's two children have continued to live in

Cambodia under her sister's care and with the assistance of

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remittances sent from the United States by Sok, who is gainfully

employed; the children are today seventeen and eighteen years old.

Sok filed for asylum, withholding of removal, and CAT

protection on August 19, 2002. On May 22, 2006, the IJ issued an

oral decision denying Sok's application and ordering her removed.

He dismissed her asylum claim as untimely, and found that she had

not demonstrated the requisite risk of torture for CAT protection.

Moreover, while the IJ found Sok generally credible, he concluded

that her withholding claim also failed because the evidence

presented did not show past persecution. He gave the following

explanation:

The only time she was taken into custody was
when she intervened at a demonstration wherein
her husband was apparently being bullied and
beaten by the police. After that, she was
released.

The other events to which she testified had to
do with having received threats. Even in her
affidavit in support of late filing, [Sok]
says that she hoped to return at some point to
reunite with her husband and two children.
Apparently, the events which had occurred to
her were not sufficient to cause her to seek
political asylum in the United States.

On only one issue -- the murder of Sok's husband Chhin --

the IJ found Sok's testimony "unreliable and unconvincing" because

"this is the sort of evidence that is capable of being verified."

He elaborated:

Is there no death certificate even though the
body was cremated? Could twenty people have
been found murdered under a bridge or in a

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 pond and no police report was made? Is it
that twenty people were found murdered under a
bridge and there was no investigation?
Remember now that the police might have been
complicit in this, but still an investigation
would have to be conducted even if there was a
cover-up afterwards. . . . Is it there could
be no newspaper report of this incident?
Certainly, if twenty people are found murdered
under a bridge, there had to be some newspaper
report of this. . . . But this anecdotal
hearsay testimony without corroboration is
insufficient to prove the point.

The IJ then found that the evidence did not establish a likelihood

that Sok would be persecuted if returned to Cambodia. He took

account of a statement in the State Department's 2005 country

report that there were no reported political killings in Cambodia

in 2005; he also noted that Sok's children continue to live

unharmed in Cambodia. The IJ accordingly denied Sok's application

for withholding of removal.

The BIA adopted and affirmed the IJ's decision in its

entirety. With respect to the withholding claim, the BIA added

only that "[t]he harm [Sok] reported to have suffered while in

Cambodia consisting of one arrest and several threats without more,

is not deemed to rise to the level of persecution." We consider

this to be a summary affirmance of the withholding ruling, and

accordingly review the IJ's decision as if it were the BIA's.

Molina de Massenet v. Gonzáles, 485 F.3d 661, 663 (1st Cir. 2007).

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 II. Discussion

A. Claim for CAT Relief

In her petition for judicial review of the BIA's

decision, Sok makes no argument with respect to the CAT claim

beyond an introductory assertion that "[t]he record establishes the

merits of [her] claims for withholding of removal, and protection

pursuant to the [CAT]." We accordingly deem this claim waived,

see United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), and

review only the claim for withholding of removal.1

B. Standard of Review and Law on Withholding of Removal

In evaluating the agency's denial of withholding of

removal, "our review is aimed at determining whether the decision

is supported by substantial evidence in the record." Halo v.

Gonzáles, 419 F.3d 15, 18 (1st Cir. 2005). Under this standard, we

will reverse only if the evidence in the record would compel a

reasonable factfinder to reach a conclusion contrary to that of the

agency. Hernández-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.

2004). On the other hand, "'we may not affirm the [agency]'s

decision when we cannot conscientiously find that the evidence

supporting that decision is substantial, when viewed in the light

that the record in its entirety furnishes, including the body of

evidence opposed to the [agency]'s view.'" Mukamusoni, 390 F.3d at

1
Sok makes no mention at all of her asylum claim, or of a due-
process claim she raised before the BIA, and as such we address
neither.

-8-
119 (quoting Gailius v. I.N.S., 147 F.3d 34, 44 (1st Cir. 1998))

(internal quotation marks omitted). As a consequence, we must

remand the case for further proceedings if the agency's decision

"fails to state 'with sufficient particularity and clarity the

reasons for denial of asylum' or otherwise to 'offer legally

sufficient reasons for [the] decision.'" Mihaylov, 379 F.3d at 21

(quoting Gailius, 147 F.3d at 46-47); accord Halo, 419 F.3d at 18-

19; Cordero-Trejo v. I.N.S., 40 F.3d 482, 487 (1st Cir. 1994)

("[D]eference is not due where findings and conclusions are based

on inferences or presumptions that are not reasonably grounded in

the record, viewed as a whole, or are merely personal views of the

immigration judge.") (citations omitted). Legal conclusions are

reviewed de novo, with appropriate deference to the agency's

interpretation of the governing statute in accordance with

administrative law principles. Lin v. Mukasey, 521 F.3d 22, 26

(1st Cir. 2008).

In order to qualify for withholding of removal, Sok must

show that, upon return to Cambodia, her life or freedom would be

threatened based on a ground enumerated in the relevant statute;

political opinion is one such ground. I.N.S. v. Aguirre-Aguirre,

526 U.S. 415, 419 (1999) (citing 8 U.S.C. § 1253(h)(1)). Sok can

make this showing by establishing that, if returned to Cambodia,

she will more likely than not be subjected to persecution because

of her political opinion. Mewengkang v. Gonzáles, 486 F.3d 737,

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741 (1st Cir. 2007). If Sok can demonstrate that she was

persecuted in Cambodia in the past, moreover, the applicable

regulation affords her a rebuttable presumption that she will

likely be persecuted if sent back. Rotinsulu v. Mukasey, 515 F.3d

68, 71-72 (1st Cir. 2008) (citing 8 C.F.R. § 1208.16(b)(1)). The

Government then bears the burden of rebutting the presumption

through proof of either a fundamental change in circumstances

eliminating the likelihood of persecution, or that Sok could avoid

persecution by moving elsewhere in Cambodia. 8 C.F.R.

§ 208.13(b)(1)(i)(A)-(B); accord Rotinsulu, 515 F.3d at 72.

There is no single definition of "persecution." The term

"encompasses more than threats to life or freedom, but less than

mere harassment or annoyance. Between these broad margins, courts

have tended to consider the subject on an ad hoc basis."

Aguilar-Solís v. I.N.S., 168 F.3d 565, 570 (1st Cir. 1999)

(citations omitted). "[P]ersecution always implies some connection

to government action or inaction," Harutyunyan v. Gonzáles, 421

F.3d 64, 68 (1st Cir. 2005) (citation omitted), as when the harm

suffered "is the direct result of government action,

government-supported action, or government's unwillingness or

inability to control private conduct." Nikijuluw v. Gonzáles, 427

F.3d 115, 121 (1st Cir. 2005) (citation omitted).

With these principles in mind, we proceed to the merits

of Sok's claim.

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 C. Past Persecution

As noted, a showing of past persecution would entitle Sok

to a rebuttable presumption that she will likely face persecution

if sent back to Cambodia. Rotinsulu, 515 F.3d at 71-72. With the

exception of the evidence concerning Chhin's murder, the IJ found

Sok to be credible, and we see no reason to disagree. The IJ

found, however, that she had not made the requisite showing of past

persecution to trigger the presumption. In drawing this

conclusion, the IJ seems to have ignored certain pieces of critical

evidence.

We count six separate instances in which Sok was either

threatened with death or serious injury because of her KNP/SRP

activities, was beaten and detained, or was with her husband when

he was threatened or beaten: (1) the January 1996 letter; (2) the

May 1996 graffiti; (3) Lieutenant Kok's May 1998 death threat to

Sok and Chhin; (4) the September 1998 beating and detention of Sok

and Chhin; (5) the January 2000 beating of and death threat to

Chhin by two unidentified men; and (6) Kok's May 2000 death threat

to Sok. With the exception of the September 1998 beating and

detention, the IJ dismissed all these incidents summarily, deeming

them "threats."2 He erred in so doing.

2
Sok also testified that her home was burglarized when she and
her family fled to the Thai border for some months in 1997. The IJ
did not give individualized treatment to this incident either, but
the record supports the conclusion that it was not persecution.
Nothing in the record indicates that the burglary was motivated by

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 While the IJ need not address each and every piece of

evidence put forth by a petitioner, he must at least "make

findings, implicitly if not explicitly, on all grounds necessary

for decision." Un v. Gonzáles, 415 F.3d 205, 209 (1st Cir. 2005)

(citing Gailius, 147 F.3d at 44). This is especially true here:

these six events, considered together, suggest a pattern of abuse

directed at Sok beginning shortly after she became involved in the

KNP/SRP. While "mistreatment ordinarily must entail more than

sporadic abuse in order to constitute persecution," Bocova v.

Gonzáles, 412 F.3d 257, 263 (1st Cir. 2005) (citation omitted), the

mere fact that these events occurred over the course of four years

does not automatically doom Sok's claim.

The most serious incident was Sok's beating at the

September 1998 rally and subsequent three-day detention. Contrary

to the IJ's suggestion, it is not inconceivable that such an

episode might amount to persecution when considered together with

other instances of threats and ill-treatment. See, e.g., Beskovic

v. Gonzáles, 467 F.3d 223, 226 n.3 (2d Cir. 2006); Nakibuka v.

Gonzáles, 421 F.3d 473, 477 (7th Cir. 2005); Guo v. Ashcroft, 361

F.3d 1194, 1203 (9th Cir. 2004). Sok was beaten severely enough

animus toward Sok or Chhin based on their political views; instead,
it appears to have taken place during a time of general unrest, and
at least one business in the neighborhood was also looted. See
López de Hincapie v. Gonzáles, 494 F.3d 213, 219 (1st Cir. 2007)
(no persecution where motive behind attack just as likely to have
been pecuniary as based on a protected ground).

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that she lost consciousness and did not regain it until she had

already been taken from the square where the protest occurred and

placed in a jail cell, and she required medical treatment for her

injuries. Moreover, her assailants were soldiers -- by definition

state agents -- and the attack took place in the course of a

political rally protesting the government in power. These are all

critical factors in a persecution analysis to which the IJ should

have given discrete consideration.

With respect to the other incidents -- which the IJ

dismissed as mere threats -- we have never suggested that threats

cannot constitute persecution. On the contrary, we have often

acknowledged that credible threats can, depending on the

circumstances, amount to persecution, especially when the assailant

threatens the petitioner with death, in person, and with a weapon.

See, e.g., López de Hincapie v. Gonzáles, 494 F.3d 213, 217 (1st

Cir. 2007); Some v. Gonzáles, 183 F. App'x 4, 7 (1st Cir. 2006);

Un, 415 F.3d at 210. Sok testified that Lieutenant Kok entered her

house on two separate occasions, pointed a gun directly at her, and

threatened to kill her if she did not stop supporting the SRP. Of

the various threats leveled at Sok from 1996 to 2000, the IJ should

at least have addressed these two. See Berhe v. Gonzáles, 464 F.3d

74, 87 (1st Cir. 2006) ("Although [the IJ] 'need not spell out

every last detail of [his] reasoning where the logical

underpinnings are clear from the record,' there is a heightened

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obligation 'to offer more explanation when the record suggests

strong arguments for the petitioner that the [IJ] has not

considered.'" (quoting Enwonwu v. Gonzáles, 438 F.3d 22, 35 (1st

Cir. 2006))). The IJ's silence on the matter is all the more

troubling because Lieutenant Kok was a state agent. These failures

alone warrant a remand. We note some additional concerns about the

IJ's treatment of the evidence of the death of Sok's husband Chhin.

Sok testified that Chhin was murdered in early 2002 along

with some twenty other persons, and that their bodies were left

under a bridge south of Phnom Penh; she learned of this news

through a telephone call from her sister. If believed, this

evidence could be a relevant factor in a properly performed

evaluation of Sok's allegations of past persecution. See In re H-,

Applicant, 21 I. & N. Dec. 337, 345 (BIA 1996); see also, e.g.,

Halo, 419 F.3d at 19 (noting that political assassination of

petitioner's uncle, to whom petitioner served as "right-hand man,"

might be a valid factor in determining whether petitioner was

persecuted). The IJ did not believe the evidence, however, deeming

it "anecdotal hearsay testimony without corroboration." He pointed

specifically to three factors. First, Sok did not produce a police

report on the massacre. The IJ expressed incredulity at the fact

that some twenty people could be found murdered but the police

launched no investigation and wrote up no report. Second, Sok did

not produce any newspaper reports on the massacre. To this, the IJ

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remarked, "[T]here had to be some newspaper report of this. If

indeed it were political, one would imagine that the members of the

opposition party would raise a ruckus about this and go to the

newspapers or file a complaint or something." Third, Sok did not

produce Chhin's death certificate. To this, the IJ stated, "Is

there no death certificate even though the body was cremated?"

The IJ was required to provide a "specific, cogent, and

supportable explanation" for his rejection of Sok's testimony as

incredible. Heng v. Gonzáles, 493 F.3d 46, 48 (1st Cir. 2007)

(citation omitted). He was not entitled to base this explanation

on "inferences or presumptions that are not reasonably grounded in

the record, viewed as a whole." Mukamusoni, 390 F.3d at 119; see

also Hor v. Gonzáles, 421 F.3d 497, 500 (7th Cir. 2005) (adverse

credibility finding cannot be based on conjecture about country

conditions). Viewed as a whole, the record provides some support

for Sok, and contains no evidence that the procedures the IJ

assumed to exist in Cambodia are commonplace. On the contrary, the

2005 State Department country report in the record details police

complicity in covering up extrajudicial killings of those

disfavored by the CPP government and the muzzling of the media by

the government. See U.S. Dep't of State, Country Reports on Human

Rights Practices 2005: Cambodia § 2(a), available at

http://www.state.gov/g/drl/rls/hrrpt/2005/61604.htm ("The media

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increasingly practiced self-censorship due to fear of government

reprisal.").

Although we need not decide this question ourselves, it

may well be that Chhin and these twenty others were assassinated to

eliminate them as political opponents. If such were the case, it

is unsurprising that no death certificate was produced, no police

report was drawn up, and no newspaper articles were published on

the incident. Immigration judges must endeavor not to allow

preconceptions garnered from life in the United States to color

their evaluation of events that took place in foreign lands.3 It

is an unfortunate fact that, in many places in the world, the press

is not yet free, and police and coroners, for one reason or

another, do not always follow what we would regard as proper

procedures. See Hor, 421 F.3d at 500. In short, we have doubts

whether the IJ has provided a "specific, cogent, and supportable

explanation" for his rejection of Sok's testimony on Chhin's

murder. Heng, 493 F.3d at 48; see also Toloza-Jiménez v. Gonzáles,

3
The IJ seems also to have been overly dismissive of the
circumstances surrounding Chhin's nineteen-day detention a few
months before his murder. Sok testified that Chhin called her
after his release and said that the government had imprisoned him
on accusations of being a member of the Cambodian Freedom Fighters.
In response to this testimony, the IJ offered the following: "It
is unclear to me what kind of treatment [Sok]'s husband received
while he was in jail but the government of Cambodia certainly has
a right to take into custody those who are thought to have been
members of what is considered to be a terrorist organization." The
IJ apparently gave no thought to the possibility -- quite plausible
on these facts -- that Chhin's branding as a freedom fighter was a
pretext for removing a political adversary from the public sphere.

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457 F.3d 155, 159 (1st Cir. 2006) (adverse credibility finding

resting on analysis of testimony, not on demeanor, entitled to

"less than [the] usual deference").4 We find nothing else in the

record that would support an adverse credibility determination with

respect to this testimony.

In sum, we think these various problems cast serious

doubts on the IJ's finding that Sok failed to show past

persecution, and as such it is not supported by substantial

evidence in the record.

D. Future Persecution

This conclusion makes it difficult for us to engage in

meaningful review of the IJ's finding on future persecution. This

is so because "'we do not know whether [Sok] should have had the

benefit of the regulatory presumption . . . based on prior

events.'" Hernández-Barrera, 373 F.3d at 23 (quoting El Moraghy

v. Ashcroft, 331 F.3d 195, 204-05 (1st Cir. 2003)). If she did

benefit from the presumption, the IJ should have made specific

findings on whether the Government overcame the presumption in one

of the two ways specified in the regulation: that a fundamental

change in circumstances has removed the likelihood of future

persecution, or that Sok could avoid persecution by moving

4
Because Sok's application was filed before the REAL ID Act's
effective date of May 11, 2005, the codification in that Act of the
making and reviewing of credibility determinations, see 8 U.S.C.
§ 1158(b)(1)(B)(ii), does not apply to this case.

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elsewhere in Cambodia. 8 C.F.R. § 1208.16(b)(1)(i)(A)-(B); see

also Gailius, 147 F.3d at 44.

Despite this difficulty, we have acknowledged that there

are some cases in which the agency's failure to properly analyze

past persecution is harmless error because the record makes it

abundantly clear that the petitioner will not likely suffer future

persecution if sent back to her home country. In such a

circumstance, we may affirm the agency's decision despite its flaws

because the petitioner's claim is per se destined to fail, and to

remand for further proceedings would therefore be futile. See

Palma-Mazariegos v. Gonzáles, 428 F.3d 30, 35 (1st Cir. 2005)

(distinguishing between cases in which "the issue of future

persecution is [so] close [that] the allocation of burden of proof

matters," and cases where "the issue of future persecution is so

clear-cut that the allocation . . . does not matter," and holding

that in the latter genre the Court of Appeals may affirm the

agency's flawed decision despite the possible triggering of the

regulatory presumption); Yatskin v. I.N.S., 255 F.3d 5, 10 (1st

Cir. 2001) (similar). This, however, is not one of those cases.

The IJ based his finding that Sok had not shown likely

future persecution on two factors. First, he observed that Sok's

children have continued to live unharmed in Cambodia since she

departed for the United States in 2000. We have often stated that

a petitioner may have a weaker claim to future persecution when

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family members continue to reside in the home country without

incident. See, e.g., Boukhtouchen v. Gonzáles, 498 F.3d 78, 81 n.3

(1st Cir. 2007); Aguilar-Solís, 168 F.3d at 573. However, the fact

that family members continue to reside unharmed in the home country

may carry little evidentiary weight if they do not share the trait

that made the petitioner a target of persecution. See Juan Li v.

Gonzáles, 235 F. App'x 832, 834 (2d Cir. 2007) (citing Poradisova

v. Gonzáles, 420 F.3d 70, 80 (2d Cir. 2005)); Kumar v. Gonzáles,

444 F.3d 1043, 1055 (9th Cir. 2006); Toure v. Att'y Gen. of U.S.,

443 F.3d 310, 319 (3d Cir. 2006); Yang v. Gonzáles, 427 F.3d 1117,

1122 (8th Cir. 2005); Pena-Torres v. Gonzáles, 128 F. App'x 628,

632 (9th Cir. 2005). It is therefore difficult to conclude that

Sok will not suffer future persecution from the mere fact that her

teenage children living with other persons in Cambodia were

unharmed, where they have no history of political involvement. The

IJ should have acknowledged and addressed this possibility.

Second, the IJ cited a sentence in the State Department

country report that, in 2005 "[u]nlike in 2004, there were no

reported political killings" in Cambodia. U.S. Dep't of State,

supra, Introduction. Recourse to the country report in evaluating

future persecution was appropriate, see Gao v. Gonzáles, 467 F.3d

33, 37 (1st Cir. 2006), but the IJ erred in not adequately

accounting for other portions of the report giving a less

optimistic appraisal, such as the following:

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 Nevertheless, the government's human rights
record worsened, as the country's fragile
democracy suffered several setbacks,
particularly in the areas of political
participation and freedom of speech. The
government undertook actions that served to
neutralize its critics through a limited
number of arrests of journalists, leaders of
civil society, human rights activists, and
members of the political opposition.

U.S. Dep't of State, supra, Introduction. Moreover, while there

were no reported political killings in 2005, the Department

describes an atmosphere of extrajudicial killings and arbitrary

detentions of perceived dissidents. It also relates that "[t]here

were five killings of Sam Rainsy Party (SRP) activists during the

year, but none were proven to be politically motivated." Id.

§ 1(a) (emphasis added).

As with past persecution, we do not decide today whether

these and the other relevant facts in the record establish a

likelihood that Sok will be persecuted if returned to Cambodia.

Instead, we need merely determine whether the record makes it "so

clear-cut" that she will not likely suffer persecution "that the

allocation of the burden of proof does not matter." Palma-

Mazariegos, 428 F.3d at 35. In light of what we have said above,

the record in its current state makes it far from clear that Sok

will likely be spared persecution.

III. Conclusion

We conclude that the IJ's decision is not supported by

substantial evidence in the record. At the same time, the record

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does not compel us inexorably to the opposite conclusion -- that

is, that Sok has definitively established withholding eligibility.

Thus, because "[w]e cannot say the evidence compels a conclusion

either way," El Moraghy, 331 F.3d at 205, we must remand to the

agency to make a well-reasoned and well-explained determination of

Sok's eligibility; this task may well require the presentation of

additional evidence and further arguments by the parties. See Iao

v. Gonzáles, 400 F.3d 530, 533 (7th Cir. 2005) (while entitlement

to asylum "is a decision for the immigration authorities to make,"

a petitioner "is entitled to a rational analysis of the evidence by

them"); accord Gailius, 147 F.3d at 47.

For these reasons, Sok's petition for review of her CAT

claim is denied, but her petition for review of her withholding

claim is granted, and the case is remanded for further proceedings

consistent with this opinion. The BIA's order of removal is

vacated.

It is so ordered.

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