NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0185n.06
Filed: March 15, 2005
No. 03-3768
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HONG VAN DOAN, )
) ON APPEAL FROM THE
Petitioner, ) BOARD OF IMMIGRATION
) APPEALS
v. )
) OPINION
JOHN ASHCROFT, ATTORNEY GENERAL, )
)
Respondent. )
BEFORE: COLE, GILMAN, Circuit Judges; POLSTER, District Judge.*
R. GUY COLE, JR., Circuit Judge. This is an appeal from the Board of Immigration
Appeals’ (“BIA”) summary affirmance of the decision of an immigration judge, denying Petitioner
Doan’s claims for asylum and withholding of removal. Doan asserts that he will suffer persecution
if he returns to Vietnam because, as an attorney, he openly criticized the Vietnamese legal system,
and because he applied for asylum in the United States. For the reasons discussed below, we DENY
the petition for review.
I. BACKGROUND
Hong Van Doan left Vietnam on March 20, 2000 and came directly to the United States on
a nonimmigrant visa. A year later, he applied for asylum.
*
The Honorable Dan Aaron Polster, United States District Judge for the Northern District
of Ohio, sitting by designation.
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Doan v. Ashcroft
In Vietnam, Doan worked as an attorney in Ho Chi Minh City. Doan worked predominantly
on criminal cases. In January 1997, Doan represented a client named Pham Minh Thap, a director
of a private company who was accused of embezzlement in what Doan describes as a high-profile
case. Doan presented evidence of Thap’s innocence to the trier of fact, which was a five-member
panel consisting of two judges and three representatives of the “people’s committee of the
jurisdiction.” Thap was ultimately convicted and, according to Doan, given a death sentence. Doan
believed that the trial process was fundamentally unfair, because the court was controlled by the
Communist government. Doan contends that the government was complicit in the embezzlement
and that Thap was innocent.
Doan claims that about a week after the trial ended, he was interviewed by a legal newspaper
in Vietnam about his perception of the unfairness of the trial. Doan told the newspaper that certain
government officials were the actual guilty parties and that they caused his client to be wrongfully
convicted. Doan gave the newspaper the names of these officials. About ten days later, Doan claims
that the named government officials told him that they believed that his client was guilty, and in
Doan’s words, “pressured” him to stop accusing them. According to Doan, the officials said
something to the effect of “you people are the lawyers in a socialist country, you know what will
happen if you keep this up, if you keep what you’re doing up.” Doan testified later in the
immigration proceedings that in Vietnam, “lawyers are just there for appearance sake and have no
real power in front of the court . . . .”
Doan continued to practice law in Vietnam for three more years, without any interference
by the named government officials or any other representatives of the government, although he
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Doan v. Ashcroft
claims that the justice system remained flawed and that decisions by the courts often were reached
in advance of trial. In May of 1999, Doan came to the United States for approximately two months
and then returned to Vietnam.
In 2000, Doan made his second trip to the United States, at which point he applied for
asylum. Doan then sent a letter to a Vietnamese-language newspaper in Memphis, Tennessee, where
he lived, explaining the reasons for his emigration from Vietnam and seeking community support
for his request for asylum. The newspaper reported on Doan’s story, stating that “a high-ranking
official of the Vietnamese Communist law system” was seeking asylum. The newspaper did not
identify Doan by name.
In the proceedings before the immigration judge, Doan argued that the Vietnamese
government must have learned that he was applying for asylum through the newspaper article. Doan
claims that in response to learning that he was seeking asylum, the Vietnamese government
prohibited his wife, who still lives in Vietnam, from working as a teacher. As evidence, Doan
presented an email from his wife that states, “Because of your situation, the Board of education has
prohibited me from my teaching my students. Your office was announced will be closed. [sic]”
Based upon these facts, Doan argued before the immigration judge that he had suffered past
persecution and has a well-founded fear of future persecution in Vietnam based on his political view
that the justice system is corrupt, his conduct in speaking out against that system, and the fact that
he applied for asylum in the United States. Doan testified that he believed he would be imprisoned
if he returned to Vietnam.
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In addition to Doan’s testimony, the State Department’s 1997 Country Profile for Vietnam
was submitted. The report states that “[t]he authorities encourage those who either emigrated legally
or were granted permanent resettlement after illegal departure to return as visitors. Nevertheless,
police monitor returnees, especially those who are under suspicion as a result of their past actions
or past association.” Regarding persecution based on political opinion, the report states that “The
ability of Vietnamese citizens to express their political opinions, via the press . . . is seriously
constrained and in some cases nonexistent. . . . Pervasive Party guidance and national security
legislation are sufficiently broad that they ensure effective self-censorship in the domestic public
media.”
The State Department’s 2000 Country Report, also submitted, states that:
The Government continued to prohibit free speech that strayed outside narrow limits
to question the role of the party, criticize individual government leaders, promote
pluralism or multiparty democracy, or question the regime’s policies on sensitive
matters . . . . The few persons who dared to speak out on these matters in recent years
. . . were subjected to periodic questioning and close monitoring by security officials.
. . . Some persons who express dissident opinions on religious or political issues also
are not allowed to travel abroad.
This report also states that the judiciary is not independent and some citizens are denied fair trials.
In an oral decision, the immigration judge found Doan to be credible but then noted that the
government officials’ only meeting with Doan did not constitute past persecution. The judge also
found that Doan had not demonstrated a well-founded fear of future persecution, noting that after
Doan expressed his opinion that the justice system in Vietnam was corrupt, he continued to practice
law and live in Vietnam without incident. Furthermore, the judge observed that when Doan returned
to Vietnam after briefly visiting the United States in 1999, the security officials at the airport in Ho
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Doan v. Ashcroft
Chi Minh City who examined his passport did not give him any problems. Finally, the judge found
that Doan did not have a well-founded fear of persecution because he had applied for asylum in the
United States. The judge found that Doan had presented no evidence that the Vietnamese
government knew that he was seeking asylum, or that if the government did know, that it was likely
to persecute him on that basis. The judge also denied withholding of removal.
Doan appealed to the BIA, which summarily affirmed the immigration judge’s decision.
Doan, acting pro se, timely appealed to this Court. Accompanying his brief to this Court, Doan
submitted “new evidence” that was not considered by the immigration judge.
II. ANALYSIS
A. Standard of Review
Because the BIA summarily affirmed the decision below, we review the immigration judge’s
opinion as the final agency decision. Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003). The
immigration judge’s factual findings are “conclusive unless any reasonable adjudicator would be
compelled to conclude the contrary.” 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478,
484 (1992). Questions of law are, as usual, reviewed de novo. Csekiniek v. INS, 391 F.3d 819, 822
(6th Cir. 2005).
B. Doan’s New Evidence on Appeal
For the first time on appeal, Doan sets forth new evidence in support of his claim that he has
a well-founded fear of future persecution if he returns to Vietnam. Before considering the merits
of his claim, we must determine whether this evidence is properly before us.
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Doan offers this Court three items of “new” evidence: (1) a tape recording, which Doan
claims is a broadcast from a Vietnamese-language radio program from Washington, D.C., called
“Radio of Freedom Asian”; (2) a newspaper article briefly describing the case against Thap and
others; and (3) a letter from the Ho Chi Mihn Bar Association stating that Doan was in fact the
attorney appointed to defend Tong Minh Pham.1
The Government argues that we cannot consider this new evidence because it was not made
part of the administrative record before the immigration judge and the BIA. The Government is
correct. This Court cannot consider extra-record evidence. 8 U.S.C. 1252(b)(4)(A) (“the court of
appeals shall decide the petition only on the administrative record on which the order of removal is
based”); Bejjani v. INS, 271 F.3d 670, 676 (6th Cir. 2002) (“this Court is prohibited from
considering facts not in the administrative record”); Goonsuwan v. Ashcroft, 252 F.3d 383, 391 n.15
(5th Cir. 2001) (holding that the court’s review of the BIA’s decision is confined to those facts in
the administrative record before that agency).
The proper course of action for a petitioner who has new evidence regarding his asylum or
removal proceedings is to ask the BIA to reopen the proceedings. Goonsuwan, 252 F.3d at 391. Id.
Here, the administrative record reveals that Doan has petitioned the BIA to reopen the proceedings
and the BIA apparently has not yet rendered a decision. Therefore, until the BIA acts, we cannot
consider the tape recording, the newspaper article or the letter.
1
Doan’s client’s name has been cited as both “Tong Minh Pham” and “Pham Minh Thap”
in various documents, but it appears that these names both refer to one of the people that Doan
represented in the aforementioned embezzlement case.
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In any case, Doan’s new evidence is not particularly helpful to him because none of it is
relevant to any of the reasons cited by the immigration judge for denying asylum. The immigration
judge found Doan to be credible, but denied Doan’s petition on the ground that the isolated incident
of potential harassment by government officials did not constitute past persecution, and because
there was an absence of substantial evidence that Doan has a well-founded fear of future
persecution. Doan’s new evidence does not shed any light on these issues.
C. Doan’s Asylum Claim
As an initial matter, the Government argues that Doan has waived all arguments regarding
the correctness of the immigration judge’s decision to deny asylum and permit withholding of
removal because Doan does not articulate the reasons why the immigration judge’s decision is in
error. Doan submitted a three-page pro se brief which describes the new evidence that he wishes
this Court to review and upon which he seeks relief. Doan ends his brief by asking the Court to
reconsider his withholding of removal claim. Given that Doan is proceeding pro se, the
Government’s waiver argument is overly formalistic. See Boswell v. Mayer, 169 F.3d 384, 387 (6th
Cir. 1999) (“Pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and
filings.”) Because pro se filings should be construed liberally, and because Doan does seek review
of his asylum and withholding–of–removal claims, those claims are properly before us.
An applicant may obtain asylum under Section 208(a) of the Immigration and Nationality
Act if he shows that he is a “refugee,” meaning that he is unwilling or unable to return to his home
country because of “persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
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The applicant must establish that he has both a subjective and objective fear of persecution. Ivezaj
v. INS, 84 F.3d 215, 221 (6th Cir. 1996). The “well-founded fear of persecution” standard for
asylum requires “a showing by credible, direct, and specific evidence . . . of facts that would support
a reasonable fear that the petitioner faces persecution.” Klawitter v. INS, 970 F.2d 149, 153 (6th
Cir. 1992) (quoting Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988)).
Doan was represented by counsel before the immigration judge and the BIA. At the hearing
before the immigration judge, Doan claimed that he has a well-founded fear of being persecuted in
Vietnam because he expressed his political opinion that the legal system in Vietnam is corrupt and
because he applied for asylum in the United States. Doan alleged that he told the Vietnamese press
about how his client’s case was pre-determined and that certain government officials were using his
client as a scapegoat. The immigration judge credited Doan’s testimony on this point. Certain
Vietnamese government officials then, in the judge’s words, gave Doan a “talking-to” about what
he told the press. The judge found, however, that this incident neither amounted to persecution, nor
did it give credence to Doan’s fear of future persecution, particularly given that Doan continued to
live and practice law in Vietnam for three more years without any further confrontations by
government officials or any other related problems.
Moreover, the immigration judge correctly determined that the single visit by government
officials did not amount to persecution. See Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)
(finding that petitioner was harassed when the KGB questioned him several times and searched his
home, but that he was not persecuted). Furthermore, the visit from the government officials cannot
alone compel this Court to find that Doan has both a subjective and objective fear of persecution
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Doan v. Ashcroft
where Doan himself remained in Vietnam for several more years without any incident, and even
returned to Vietnam after his first trip to the United States. An isolated threat of this nature,
followed by a lengthy period of inaction, does not reasonably give rise to a well-founded fear of
future persecution. Cf. Pilicia v. Ashcroft, 388 F.3d 941, 954-55 (6th Cir. 2004) (finding that there
was no “reasonable probability” of future persecution of the petitioner based on the fact that the
petitioner had only “sparse” political involvement amounting to attending five political rallies, even
though petitioner had been detained twice following these rallies). The facts as asserted by Doan
do not create the sense of fear and urgency of subjective persecution, let alone objective persecution.
In the immigration proceedings, Doan argued that his petition for asylum is a factor
contributing to his fear of persecution. Even when the petitioner’s country would look unfavorably
upon one of its citizens requesting asylum, the petitioner must offer some evidence that the country
would persecute the petitioner upon his return as a result. Kozulin v. INS, 218 F.3d 1112, 1117-18
(9th Cir. 2000) (finding that Russian petitioner had not demonstrated a well-founded fear of
persecution by showing that Russian law described fleeing to the United States and applying for
asylum as treason, because petitioner offered no further evidence that modern Russia would enforce
this law against him and the recent Country Reports indicated that modern Russia was not punishing
similar petitioners).
Here, Doan argues that the Vietnamese government knows that he filed for asylum because
he reported it to a Vietnamese-language newspaper in Tennessee, although the paper did not disclose
his name. There is no evidence, however, that the Vietnamese government is aware that Doan
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applied for asylum. Doan’s name was not mentioned in the newspaper article, and there is no
evidence that the Vietnamese government was aware of this newspaper or its contents.
Even if the Vietnamese government became aware that Doan had applied for asylum, there
is no evidence that it would imprison him, as he asserts, or otherwise persecute him as a result.
While the Country Reports indicate that returning citizens may be viewed suspiciously, there is
simply no evidence that Vietnam persecutes its citizens because they applied for asylum in the
United States. Doan’s only proof is an email from his wife informing him that she could no longer
teach in Vietnam. Doan argued that his wife was prohibited from teaching because the government
did not want teachers spreading anti-Vietnam messages to their students. The immigration judge
found that this email did not provide any information that his wife was prohibited from teaching
because Doan applied for asylum.
A review of the email proves that the judge was correct. While the email may suggest that
the government has been watching Doan closely since he publicly commented about the
embezzlement trial and accused government officials of corruption, the email evidence alone is not
so persuasive that it would compel a reasonable factfinder to conclude that the Vietnamese
government was punishing Doan’s wife, or that it knew that Doan had applied for asylum.
Thus, assuming all of Doan’s factual allegations to be true, as it appears the immigration
judge did, a reasonable factfinder would not be compelled to find that Doan has a well-founded fear
of future persecution if he were to return to Vietnam. Accordingly, we affirm the immigration
judge’s conclusion that Doan has not shown a well-founded fear of future persecution.
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D. Doan’s Withholding-of-Removal Claim
A petitioner seeking withholding of removal must show that there is a clear probability that
he will be subject to persecution if he were to return to his home country. Koliada v. INS, 259 F.3d
482, 487 (6th Cir. 2001). Thus, an “application seeking withholding of deportation faces a more
stringent burden of proof than one for asylum.” Id. Because substantial evidence supports the
immigration judge’s finding that Doan does not have a well-founded fear of future persecution, he
therefore cannot satisfy the more exacting requirements for withholding of removal.
III. CONCLUSION
For the preceding reasons, we hereby DENY the petition for review.
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