United States Court of Appeals
For the First Circuit
No. 10-1627
VANTHA PHENG,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Thomas Stylianos, Jr., on brief for petitioner.
Kristin A. Moresi, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil Division,
and Shelley R. Goad, Assistant Director, on brief for respondent.
May 12, 2011
LYNCH, Chief Judge. A Cambodian woman, Vantha Pheng,
petitions for review of the denial of her applications for asylum,
withholding of removal (WOR), and relief under the Convention
Against Torture (CAT). We will assume familiarity with the
standards for granting such relief from removal and with the
deferential substantial evidence standard of judicial review, under
which we will reverse the decision of the Board of Immigration
Appeals (BIA) only if "a 'reasonable adjudicator would be compelled
to conclude to the contrary.'" Castillo-Diaz v. Holder, 562 F.3d
23, 26 (1st Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We
review the decision of the BIA and "those portions of the
[Immigration Judge]'s opinion that the BIA has adopted." Romilus
v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
Pheng entered the United States on a six-month visitor
visa in December 2002, and in June 2004 was issued a Notice to
Appear for overstaying that visa. Before an Immigration Judge
(IJ), she conceded removability and pursued an application she had
filed in October 2003 for asylum, WOR, and CAT relief. Previously,
in 2000, Pheng had attempted to enter the United States using a
false photo-substituted passport and visa. She was interviewed at
the Newark airport, but she refused to reveal her true identity and
stated that she had no fear of returning to Cambodia. She was
removed subject to an order of expedited removal. Pheng failed to
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disclose this information on her 2003 asylum application and
initially lied about it at her asylum hearing.1
All told, the IJ conducted six hearings over nearly four
years, with Pheng testifying at three of the hearings. The IJ
found Pheng's testimony credible in part, but held that she had not
met her burden to show she had been or would be persecuted, and so
did not qualify for asylum or WOR. The IJ also found she had not
demonstrated eligibility for protection under the CAT. The IJ
detailed several reasons for the decision.
First, even accepting that certain misfortunes had
happened to Pheng and her husband between 1996 and 2000, a period
during which they campaigned and demonstrated in support of the
opposition Sam Rainsy party, none of these misfortunes rose to the
level of persecution.2 Second, Pheng, who had argued that her
1
On cross-examination at her asylum hearing, when
initially asked whether she had ever been to the United States
before she came in 2002, Pheng answered, "No, never." When
confronted with evidence of her earlier fraudulent attempt to
enter, Pheng eventually admitted this denial was a lie. She also
claimed that she had intended to apply for asylum in 2000 and had
been afraid to return to Cambodia, but had panicked when
interviewed. The Immigration Judge (IJ) found that the transcript
of that interview, far from revealing anything indicating panic on
Pheng's part, rather revealed that Pheng "was sticking to a
particular story and refused to budge from it."
2
Pheng testified that in 1996 and 1998, members of a rival
party came to their home and threatened them with harm; in 1997,
they fled to the Thai border for several months during a coup
d'état, returning to find their home and shop vandalized; in 1998,
police officers chased them, hit Pheng on the back, and struck
Pheng's husband and detained him overnight when the couple
participated in a demonstration protesting electoral fraud; in
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husband's killing in 2003, after she had fled Cambodia, buttressed
her own claim of persecution, had failed to provide any evidence
other than her own surmise that her husband's reported death was on
account of political opinion. Third, Pheng had not shown that her
remaining family in Cambodia, including her father, sister, and two
children (who remained with Pheng's father), had suffered any harm.
Fourth, despite repeated warnings that her credibility was at issue
and ample time during continuances to secure affidavits from family
members who were well-placed to corroborate her story, Pheng had
failed to produce any such corroborating evidence.3 There is ample
October 2000, they were prevented by police from handing out
provisions at a Buddhist temple; and in November 2000, a friend who
was also a member of the political opposition was killed, and
Pheng's husband, assuming that the killing was politically
motivated, fled the following day.
3
Eventually, in September 2008, without explanation for
the delay, and despite her earlier testimony that "in Cambodia you
don't have [a] birth certificate," Pheng produced some basic
documents: an extract of her husband's death certificate, extracts
of her children's birth certificates, and an extract of her
marriage certificate, all dated November 17, 2006. We point out
that while the BIA erred in saying that Pheng had produced no death
certificate for her husband, that error was immaterial to Pheng's
claims of persecution and harmless, as nothing in the extract of
the death certificate provided any information about the
circumstances of the man's death.
Notably absent from Pheng's documentation was any
statement from any family member corroborating her accounts. This
was particularly significant because, while testifying about a
series of rapes she endured in Cambodia, Pheng testified that
family members were present the last time the rapist appeared at
her door and that she told her father and her sister everything
about the rape. This is not an instance in which the trier of fact
would be compelled to conclude that corroborating evidence is
unavailable. 8 U.S.C. § 1252(b)(4).
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evidence in the record to support these four conclusions, and so we
turn to the central point of Pheng's claims.
Pheng's petition for review focuses mainly on the IJ's
finding that Pheng's testimony that she was raped by a Cambodian
policeman, while credible, did not satisfy Pheng's burden to prove
she had been persecuted on account of a protected ground. See
Anacassus v. Holder, 602 F.3d 14, 19 (1st Cir. 2010) (explaining
petitioner's burden of proof). We describe Pheng's testimony.
Pheng's husband left home in late November 2000 after a
friend who was also part of the political opposition was killed,
and Pheng had no contact with him or knowledge of his whereabouts
after he left. In April 2001, while Pheng's children were visiting
family for the Cambodian New Year holiday and Pheng was at home
alone, a policeman described in Pheng's written application as a
captain knocked on the door. When she asked the policeman who he
was looking for, he said he wanted to give Pheng information about
her husband. He then pointed his gun at her, pushed her into the
house, and raped her. In her asylum application, Pheng wrote that
afterward, the man promised to remove her name from a "blacklist."
The rapist did not say anything to suggest that he raped her
because of her or her husband's political activities.
Pheng said the same policeman raped her four more times
but she gave little description of the next three assaults, much
less of the reasons, explaining only that he came up with "some
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irrational reason to rape me," and that each time, like the first,
she was alone at home when the rapist appeared at her door and said
he had news about her husband.
She testified she was last raped in September 2002. This
time her family was at home with her when the rapist knocked at the
door, claiming to have information about Pheng's husband. At the
hearing Pheng testified that, at the man's request, she left her
home and went with him in his car on a journey of about forty-five
minutes. When she refused his sexual overtures in the car, he
threatened to kill her and her children if she did not have sex
with him. After he raped her, he drove her home. In Pheng's
written application, the description was different: Pheng said that
the man was furious her family was there, "pretended to arrest"
her, and forced her into the car before he drove her into the woods
and raped her. In her application, she also said she told her
father and sister everything about the rape, and they told her she
should leave Cambodia, which she did within three months of the
September 2002 rape, leaving her children to remain in Cambodia
with her father.
While accepting Pheng's testimony that she had been
raped, the IJ found that Pheng had not shown this was persecution.
The respondent has not proven to this Court's
satisfaction that . . . the rapes were politically
motivated. As horrendous as they may have been and the
Court believes that they occurred, the respondent has
not established that she sought safety elsewhere. . . .
She continued to live in Cambodia for another two months
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in the same location, continuing to run her
business . . . . Again, it does not appear to this
Court's satisfaction that the rapes were motivated by
anybody seeking to harm the respondent on account of her
political opinion or on account of her relationship to
her husband, but rather that the individual in question
appears to have identified her as vulnerable . . . .
Pheng appealed to the BIA, arguing that the IJ's findings
were clearly erroneous, an argument the BIA rejected. The BIA
agreed with the IJ that Pheng had not met her burden of showing
persecution, particularly her burden of showing that the rapes were
politically motivated or that the other harm she suffered rose to
the level of persecution. The BIA also pointed to Pheng's failure
to produce corroborative evidence. Further, the BIA found that
Pheng's disclaimer of any fear of returning to Cambodia during her
fraudulent 2000 attempt to enter the United States undermined her
claim that she feared future political persecution.
On petition for judicial review, Pheng primarily argues
that the IJ was required to find that the rapes constituted
political persecution because they were committed by a government
officer and because that officer had said he had information about
Pheng's husband, who had been politically active and was missing
during the period when the rapes took place.4 There is no such
4
Pheng also argues for the first time in this court that
she has been persecuted on account of her membership in the social
group of "spouses of Opposition Party members who have fled or
otherwise gone missing." She failed to exhaust this claim before
the agency, and may not raise it for the first time in a petition
for review. 8 U.S.C. § 1252(d)(1); Silva v. Gonzales, 463 F.3d 68,
72 (1st Cir. 2006). The social group claim would in any event
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requirement. Rather, to carry her burden of proving eligibility
for asylum, Pheng was required to "provide sufficient evidence to
forge an actual connection between the harm and some statutorily
protected ground." Lopez de Hincapie v. Gonzales, 494 F.3d 213,
218 (1st Cir. 2007). The record in Pheng's case did not compel the
IJ and BIA to conclude that Pheng had established this "critical"
causal nexus. See Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.
2008) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)).
Rape, repugnant as it is, is committed for many reasons,
even when committed by government officials. There was no evidence
here that the rapes were committed for political reasons, or that
the government knew about or authorized the sexual assaults. See
Nikijuluw v. Gonzales, 427 F.3d 115, 120-21 (1st Cir. 2005).
Pheng's description of the rapes in her oral testimony and written
application was sparse, and she did not recount anything the rapist
said or did that would support an inference that he was motivated
by her or her husband's political activities. In fact, Pheng's
mention of the rapist's offer to shield and protect her by getting
her named removed from a "blacklist" suggested otherwise.
Nor did anything in the 2002 and 2007 Cambodia country
condition reports Pheng submitted substantiate her claim of
politically motivated rape. In fact, the reports both stated that
while Cambodian law prohibits rape, rape is common in Cambodia.
suffer from the same problem as her political opinion claim.
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No evidence compelled the IJ or BIA to conclude that the
rapes had a nexus to a statutorily protected ground as required to
show prosecution. See Socop v. Holder, Nos. 09-1477, 09-1478, 2011
WL 291094, at *1, *4 (1st Cir. Jan. 31, 2011) (unpublished)
(holding that petitioner had not shown her repeated rape was tied
to a protected ground). Rather, as the IJ concluded, the evidence
suggested that the rapist took personal advantage of information
that Pheng was vulnerable in her husband's absence. Pheng cannot
demonstrate past persecution.
In this court, Pheng has relied exclusively on the rapes
in 2001 and 2002 to establish that she fears future persecution of
the same type. Cf. Vilela v. Holder, 620 F.3d 25, 28 (1st Cir.
2010) (describing petitioner's sole reliance on showing past
persecution). However, because Pheng did not establish past
persecution, she is not entitled to the rebuttable presumption that
she would suffer future persecution. 8 C.F.R. § 1208.13(b)(1);
Butt v. Keisler, 506 F.3d 86, 91 (1st Cir. 2007). And she did not
meet her burden of showing any other basis for an objectively
reasonable fear of future persecution on a statutorily protected
ground. See Butt, 506 F.3d at 91; Nikijuluw, 427 F.3d at 122. The
asylum claim fails.
Pheng has not argued to this court that the BIA's and
IJ's decisions denying her WOR or protection under the CAT were
erroneous, and so she has waived both claims. Nikijuluw, 427 F.3d
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at 120 n.3. In any event, since the standard for withholding of
removal is higher than for asylum, Pheng necessarily failed to meet
that burden when she failed to meet her asylum burden. Villa-
Londono v. Holder, 600 F.3d 21, 24 n.1 (1st Cir. 2010). Nor were
the BIA and IJ compelled by the evidence to find that Pheng had
shown, as required for protection under the CAT, that it was more
likely than not that she would be subject to "severe pain and
suffering" at the hands 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); see also Chhay v. Mukasey, 540 F.3d 1, 7
(1st Cir. 2008).
The petition is denied.
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