Chhay v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-2202

MALY CHHAY,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Boudin, Circuit Judge,
Selya, Circuit Judge,
and Dyk,* Circuit Judge.

Vanthan R. Un on brief for petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Greg D. Mack, Senior Litigation
Counsel, on brief for respondent.

August 15, 2008

*
Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. The petitioner, Maly Chhay, is a

Cambodian national who seeks judicial review of a final order of

removal entered by the Board of Immigration Appeals (BIA). She

challenges a ruling declaring her ineligible for asylum, the denial

of her cross-application for withholding of removal and protection

under the United Nations Convention Against Torture (CAT), and the

supposed trampling of her due process rights by an Immigration

Judge (IJ). We lack jurisdiction over the asylum claim and find

the remainder of her asseverational array unpersuasive. Hence, we

deny the petition for review.

The facts are unremarkable. The petitioner lawfully

entered the United States as a visitor on March 9, 2001 and married

a United States citizen some four months thereafter. Her new

husband filed an I-130 petition to her behoof along with an I-485

application for adjustment of her immigration status. These

filings came to naught, in part because there was an absence of

evidence that the parties intended to establish a life together.

The couple soon divorced and, inasmuch as the petitioner had been

denied an adjustment of status, the Department of Homeland Security

instituted removal proceedings against her. See 8 U.S.C. §

1227(a)(1)(B).

The petitioner appeared in the immigration court on April

18, 2005, and indicated an intention to apply for asylum,

withholding of removal, and protection under the CAT. The IJ ruled

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on timeliness grounds that she was ineligible to seek asylum. See

id. § 1158(a)(2)(B) (providing a window of one year from the date

of an alien's arrival in the United States within which to file for

asylum). Some seven weeks later, the petitioner cross-applied for

withholding of removal and protection under the CAT. She did not

actually apply for asylum.

The matter came on for hearing on January 6, 2006, albeit

before a different judge. The petitioner conceded removability but

claimed that she feared persecution in her homeland due to her

membership in the Sam Rainsy political party — a group that stood

in opposition to the party in power led by Prime Minister Hun Sen.

She testified that, prior to emigrating to the United States, she

worked as an accountant in Phnom Penh and simultaneously served the

Sam Rainsy party as an unpaid liaison to the Cambodian Center for

Human Rights (the Center). In that capacity, she attended

provincial seminars throughout Cambodia concerning human rights

(specifically, the abuse of women by government officials). She

claims to have worked closely with the Center's director, Kem

Sokha, and to have reported the information that she learned to

Sokha. He ostensibly used it to denounce the government.

According to the petitioner, she feared that the

government knew of her role as an informer. She noted that since

her arrival in the United States, Cambodian officials have arrested

Sokha and other persons associated with the Sam Rainsy party. She

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views these arrests as a harbinger of what is likely to happen to

her should she be repatriated.

To complement this testimony, the petitioner introduced

a substantial amount of background information relating to

conditions in her homeland. These exhibits included newspaper

articles describing the arrests of Sokha and a broadcaster, Mam

Sonando, in 2005.

Confronted with this and other evidence, the IJ focused

on the petitioner's account of her partisan political activity. He

stated that he was not persuaded by that aspect of the petitioner's

testimony, explaining that it was wholly uncorroborated and thus

inadequate to sustain her burden of proof. Relatedly, he found no

credible evidence that torture was a likely result of repatriation.

Consequently, he denied the petitioner's claims for relief and

ordered her removal.

The petitioner appealed. The BIA adopted and affirmed

the IJ's decision. In addition, it denied the petitioner's nascent

due process claim premised on the IJ's supposed failure to consider

relevant evidence. This timely petition for judicial review

followed. See 8 U.S.C. § 1252(b)(1)-(2).

In immigration matters, this court ordinarily reviews the

decision of the BIA. Stroni v. Gonzales, 454 F.3d 82, 86 (1st Cir.

2006). Here, however, the BIA summarily affirmed, adopting the

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IJ's decision. In that circumstance, we review the IJ's decision

directly. Id. at 86-87.

In the course of that review, we evaluate findings of

fact, including credibility determinations, under a substantial

evidence standard. Sok v. Mukasey, 526 F.3d 48, 52 (1st Cir.

2008). This standard is deferential; absent an error of law, we

will reverse only if the record is such as to compel a reasonable

factfinder to reach a contrary determination. Pan v. Gonzales, 489

F.3d 80, 85 (1st Cir. 2007). Phrased another way, we will accept

all findings of fact made by the IJ as long as those findings are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992). Abstract legal propositions are reviewed de novo,

but with some deference to the agency's reasonable interpretation

of statutes and regulations within its ken. See Pulisir v.

Mukasey, 524 F.3d 302, 307 (1st Cir. 2008); see also Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-

44 (1984).

We start with the claim for asylum. The petitioner

suggests before this court that she qualifies for an exception to

the timeliness rules governing asylum applications and is thus

eligible for asylum. This suggestion is meritless.

To qualify for asylum, an alien normally must show by

clear and convincing evidence that she filed for that anodyne

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within one year of her arrival in the United States. 8 U.S.C. §

1158(a)(2)(B); see Pan, 489 F.3d at 84 n.3. The petitioner did not

seek asylum within that period. There is, however, an exception:

an alien who files for asylum outside the one-year window may

qualify by showing either extraordinary circumstances or changed

country conditions. See 8 U.S.C. § 1158(a)(2)(D).

The petitioner's attempt to invoke this exception is late

in coming. She had the opportunity to assert that claim before the

second IJ but did not do so. By the same token, she made no claim

before the BIA that the delay in filing for asylum resulted from

either extraordinary circumstances or changed country conditions.

Indeed, she neglected to raise her asylum claim at all before that

body.

In this venue, the petitioner sings a new and different

tune. She proclaims that the wave of arrests in 2005 marked a

change in country conditions that justifies her untimely attempt to

seek asylum. That does not explain, however, why she failed to

raise the claim before the second IJ at the hearing held in January

of 2006. Even less does it explain why she neglected to assert it

in her subsequent filings with the BIA.

The law is clear that, given her failure to press the

point before the BIA, the petitioner has not exhausted her

administrative remedies. That, in turn, forecloses this court from

exercising jurisdiction over any aspect of her asylum claim. See

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Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir. 2007); Makhoul v.

Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004).

We turn next to the petitioner's claim for withholding of

removal. To be eligible for withholding of removal, "an applicant

has the burden of proving that, more likely than not, she would be

subject to persecution on account of a statutorily protected ground

should she be repatriated." Pulisir, 524 F.3d at 308; see 8 U.S.C.

§ 1231(b)(3)(B)(i) (listing the five protected grounds: race,

religion, nationality, membership in a particular social group, and

political opinion). The alien may carry this burden either by

demonstrating past persecution or by direct proof of a likelihood

of future persecution. Pulisir, 524 F.3d at 308.

The record does not contain even a hint of an intimation

that the petitioner experienced any persecution prior to her exodus

from Cambodia.1 Consequently, the petitioner must satisfy her

burden by proving a likelihood of future persecution. See, e.g.,

Melham v. Gonzales, 500 F.3d 78, 81 (1st Cir. 2007).

Under a statutory formulation in effect since 2005 (and

applicable here), an alien may satisfy the devoir of persuasion on

withholding of removal by her own testimony if that testimony is

specific and credible. See REAL ID Act of 2005, Pub. L. No. 109-

13, § 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. §

1
The record makes manifest that the petitioner's initial
reasons for traveling to the United States were economic in nature.

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1158(b)(1)(B)(ii)); see also Pan, 489 F.3d at 86. But the alien

has the burden of proof, and if her testimony is not itself

compelling the absence of easily obtainable corroborating

documentation can be the final straw. See Sela v. Mukasey, 520

F.3d 44, 46 (1st Cir. 2008); Eke v. Mukasey, 512 F.3d 372, 381 (7th

Cir. 2008); Pan, 489 F.3d at 83; Hayek v. Gonzales, 445 F.3d 501,

508 (1st Cir. 2006); see generally REAL ID Act § 101(a)(3). The

substantial evidence test applies in these purlieus, and a

reviewing court must accept the IJ's determinations with respect to

the persuasiveness vel non of the alien's testimony, the

availability of corroborating evidence, and the effect of non-

production unless the record compels a contrary conclusion. See

REAL ID Act § 101(e), 119 Stat. at 305 (codified at 8 U.S.C. §

1252(b)(4)); see also Eke, 512 F.3d at 381; Kho v. Keisler, 505

F.3d 50, 57 (1st Cir. 2007).

In the case at hand, the IJ found a need for something

more than the petitioner's self-serving testimony to prove her

claim of membership in the Sam Rainsy party. The petitioner failed

to furnish any corroborating evidence. She also failed to explain

why such evidence, which seemed readily available, was not

supplied. On that basis, the IJ determined that the petitioner had

failed to satisfy her burden of proof.

We think that these determinations are supported by

substantial evidence. The closest case in point is Sela. There,

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as here, the IJ found the petitioner generally credible but faulted

the petitioner for failing to provide corroboration. See Sela, 520

F.3d at 46-48. Resting largely on "the absence of presumably

attainable corroboration" and the absence of harm inflicted upon

the petitioner before he left his homeland, the IJ concluded that

he had not satisfied his burden of establishing that more likely

than not, he would be persecuted upon his removal. Id. at 46. We

upheld that determination based on the substantial evidence rule.

See id.

Sela controls here. Nothing offered by the petitioner

compels us to conclude that, had she been politically involved, she

could not readily have obtained some corroborating evidence as to

her claimed party membership. For example, the petitioner

testified that her mother, who continues to reside in Cambodia, had

possession of the petitioner's party membership cards, yet the

petitioner gave the IJ no reason why her mother would be unable to

send any of the cards (or copies of them) to the petitioner.

Indeed, the petitioner's only comment as to why she had failed to

obtain the cards or an affidavit from some knowledgeable person

attesting to her party membership was that she had not thought that

she would need corroborating evidence.2

2
Even so, the petitioner neither asked for a continuance to
obtain the materials nor moved to reopen the record to supply
corroboration.

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 The petitioner's failure to prove her membership in the

Sam Rainsy party defeats her claim. Without such proof, she cannot

demonstrate that she would be subject to persecution on account of

her political opinion should she be repatriated. She is,

therefore, not entitled to set aside the IJ's refusal to withhold

removal. See Elias-Zacarias, 502 U.S. at 481; Hayek, 445 F.3d at

508-09.

This brings us to the petitioner's claim under Article

III of the CAT. To prevail on such a claim, she must prove that it

is more likely than not that she will be tortured if removed to her

homeland. Jiang v. Gonzales, 474 F.3d 25, 32 (1st Cir. 2007). For

this purpose, torture is defined as "any act by which severe pain

and suffering, whether physical or mental, is intentionally

inflicted on a person . . . when such pain or suffering is

inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity." 8 C.F.R. § 208.18(a)(1).

The IJ found that the petitioner had not carried her

burden of proof on the CAT claim. This position is entirely

supportable. To the extent that the petitioner's fear that the

Cambodian government will subject her to torture is based on her

membership in the Sam Rainsy party, she has been unable to

substantiate that membership. Beyond that, her fear of torture is

wholly speculative and her reasoning in support of it is amorphous:

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she has not advanced any developed argumentation that, apart from

her supposed party affiliation, would satisfy the criteria

necessary for a successful CAT claim. Thus, we deem any such line

of argument abandoned. See Pan, 489 F.3d at 87; Jiang, 474 F.3d at

32.

Before turning to the petitioner's due process challenge,

we add a coda. The elliptical phraseology employed by the IJ in

this case, in which he termed the petitioner's testimony generally

credible while making clear that he did not believe a specific

portion of it (i.e., her claim of party membership), is confusing.

Immigration judges would do well to take pains to use more

straightforward language. The clearer a judges findings, the

easier they are for the parties to assess and for a reviewing court

to evaluate.

We come now to the petitioner's final challenge. This

challenge has two parts, both of which relate to her charge that

the proceedings below offended due process.

The first branch of the petitioner's argument consists of

a claim that the IJ violated her due process rights by failing to

consider the extensive background documentation that she submitted

to provide support for her avowed fear of future persecution. We

review de novo a claim that the agency's conduct transgressed an

alien's due process rights. Pulisir, 524 F.3d at 311; Teng v.

Mukasey, 516 F.3d 12, 17 (1st Cir. 2008).

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 This argument need not detain us. A complaining party

must show prejudice in order to demonstrate a cognizable violation

of due process. Pulisir, 524 F.3d at 311. In this context,

prejudice equates with a showing that "an abridgement of due

process is likely to have affected the outcome of the proceedings."

Id.

Here, the record suggests that the IJ fully considered

the documentation proffered by the petitioner. For example, he

referred in his decision to a State Department country report as

well as to the background information regarding human rights

violations in Cambodia and an assortment of newspaper clippings.

In all events, further perscrutation of the background

information would not have made a dispositive difference. As said,

the IJ rested his decision on the paucity of proof anent the

petitioner's putative membership in the Sam Rainsy party. The

background evidence would not in any way shed light on this

individualized issue and, thus, any failure to consider it would

have been harmless.

The second branch of the petitioner's due process

challenge posits that the IJ accorded insufficient weight to

evidence of general conditions in Cambodia. This claim will not

wash: the mere fact that the IJ put weight on certain factors and

reached a conclusion contrary to the petitioner's interests does

not constitute a due process violation. See, e.g., id. at 309.

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"So long as the IJ has given reasoned consideration to the evidence

as a whole, made supportable findings, and adequately explained

[his] reasoning," no more is exigible.3 Pan, 489 F.3d at 87.

We need go no further. For the reasons elucidated above,

we deny the petition for review.

So Ordered.

3
The petitioner's reliance on Cordero-Trejo v. INS, 40 F.3d
482 (3d Cir. 1994), is mislaid. There, the IJ based his assessment
on unfounded assumptions, without any consideration of the
background evidence of country conditions. See id. at 490-91.
Here, in contrast, substantial evidence supports the IJ's
assessment of the petitioner's case, and his references to evidence
of country conditions indicate that he did take the background
evidence into consideration.

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