FILED
NOT FOR PUBLICATION
JAN 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOKHA SO LENG, No. 14-73477
Petitioner, Agency No. A027-304-898
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2017**
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and PIERSOL,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
Sokha Leng petitions for review of the Board of Immigration Appeals’
(“BIA”) decision finding that Leng is a Cambodian citizen by birth and denying his
application for relief under the Convention Against Torture (“CAT”). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant the petition for review
and remand to the BIA for further proceedings.
In immigration proceedings, “the content of foreign law is a question of
fact.” Matter of A-G-G-, 25 I. & N. Dec. 486, 505 n.19 (B.I.A. 2011). As such, it
must “be proven by the party seeking to rely on it.” Matter of Soleimani, 20 I. &
N. Dec. 99, 106 (B.I.A. 1989). Because the content of foreign law is a question of
fact, our review is for substantial evidence.
We hold that any reasonable adjudicator would have found the evidence
offered by the government insufficient to establish the content of Cambodian
citizenship law with respect to those—like Leng—born in 1981. See Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (setting out
substantial evidence standard). Of the two citizenship laws about which the
government submitted evidence, neither one clearly governs this category of
persons. As the Immigration Judge found, the 1996 law contains no indication of
retroactivity; it therefore does not self-evidently determine the citizenship of those
born before its enactment. As for the 1954 law, documents in the record indicate
2
that Cambodia experienced at least two complete regime changes in the years
between its enactment and Leng’s birth. In 1975, the communist Khmer Rouge,
led by Pol Pot, defeated the existing government in a violent civil war. Over the
next four years, the regime dismantled Cambodian society as it had existed
previously, killing approximately two million Cambodians in the process. And in
1979, Vietnam invaded Cambodia, defeated the Khmer Rouge, and controlled the
country until 1989.
Given this history as indicated in the administrative record, any reasonable
adjudicator would have found the 1954 statute—without further
explication1—insufficient to demonstrate the content of Cambodian citizenship law
with respect to those born in 1981, after the Khmer Rouge takeover and during the
period of Vietnamese rule. We therefore grant the petition for review and remand
to the BIA for further proceedings to determine Cambodian law and its application
to Leng.2 Because we remand on the citizenship issue, we express no opinion on
1
We note that in previous cases, the BIA has relied on expert opinions
prepared by the Library of Congress to prove the content of foreign law. See, e.g.,
Matter of Kodwo, 24 I. & N. Dec. 479, 482 (B.I.A. 2008).
2
The government asserts that the question of Leng’s citizenship is
essentially irrelevant, since by all accounts he is not a United States citizen. But
“[i]n reviewing the decision of the BIA, we consider only the grounds relied upon
by that agency”—here, that Cambodian law renders Leng a Cambodian citizen.
Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004).
3
the further merits of Leng’s claim for CAT relief; nor do we address whether Leng
may properly be removed to Thailand or the Philippines.
PETITION GRANTED; REMANDED.
4