F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 20 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
HANG KANNHA YUK, SOK
SAMNANG NHIM, THY KORNG,
HORN YUK, and SINOUN KETH,
Petitioners,
v. No. 02-9546
JOHN ASHCROFT, United States
Attorney General,
Respondent.
AMERICAN IMMIGRATION LAW
FOUNDATION,
Amicus Curiae.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
(BIA Nos. A76-415-466, A76-415-467,
A76-415-468, A76-415-469, A76-415-470)
Jeff Joseph, Denver, Colorado, for Petitioners.
Cindy S. Ferrier, Trial Attorney (Linda S. Wendtland, Assistant Director, with her
on the brief), Office of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
Mary A. Kenney, Nadine K. Wettstein, and Beth Werlin filed an amicus curiae
brief for the American Immigration Law Foundation on behalf of Petitioners.
Before HENRY, HOLLOWAY, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge.
Petitioners, all members of the same extended family, are natives and
citizens of Cambodia. 1 Mr. Yuk is the lead petitioner, and the asylum
applications of the others rely on essentially the same facts as his. 2 They seek
review of an order of the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) decision denying their applications for asylum,
withholding of removal and withholding under the Convention Against Torture.
We affirm.
1
The petitioners are Mr. Horn Yuk, Ms. Sinoun Keth, Mr. Sok Samnang
Nhim, Ms. Thy Korng, and Ms. Hang Kannha Yuk. Mr. Yuk is married to Ms.
Keth. Ms. Korng and Ms. Yuk are Mr. Yuk’s adult daughters, and Mr. Nhim is
Ms. Korng’s husband. We will refer to them individually by name or collectively
as “petitioners,” as our discussion may require.
2
Petitioners state in their brief that Mr. Nhim and his wife, Ms. Korng, have
“applications both dependent on Mr. Yuk’s application but also claim independent
eligibility for asylum.” Petitioner’s Br. at 2 n.1. The government asserts that,
since petitioners filed only one petition for review from the BIA’s final orders in
their cases, Mr. Nhim and Ms. Korng may no longer seek review independent
from Mr. Yuk. Additionally, in proceedings before the IJ, the parties agreed that
Ms. Yuk’s application was dependent upon Mr. Yuk’s application, even though
she is an adult.
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BACKGROUND
Petitioners entered the United States between March and June 1997, each
with authorization to remain for six months. They initially came as tourists and to
visit relatives in the United States. They applied for asylum under the
Immigration and Nationality Act (“INA”) § 208, 8 U.S.C. § 1158, in March 1998.
While petitioners were residing in West Valley City, Utah, the Immigration and
Naturalization Service (“INS”) interviewed them regarding their asylum
applications, referred those applications to the Immigration Court, and placed
petitioners in removal proceedings by issuing them Notices to Appear before an IJ
in Salt Lake City. See 8 C.F.R. § 208.14(c). 3 Petitioners were charged with
being subject to removal, under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for
remaining in the United States beyond the date authorized without receiving
permission from the INS.
Before the IJ, petitioners admitted having remained in the United States
longer than permitted and conceded that they were subject to removal. They filed
addenda to their applications for asylum and also applied for withholding of
3
The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (“USCIS”) within
the newly formed Department of Homeland Security.
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removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and under the Convention
Against Torture. 4
After conducting a hearing, the IJ denied petitioners’ applications for
asylum because they could not show that they had suffered persecution in the
past, nor could they demonstrate a well-founded fear of persecution in the future.
Petitioners appealed the IJ’s decision to the BIA, which issued a summary
affirmance without an opinion, pursuant to the new streamlining regulations then
in effect. Petitioners seek review of that order.
Petitioners’ claims for asylum are based upon Mr. Yuk’s membership in
and activities relating to the political party of Prince Norodom Ranariddh, the
National United Front for an Independent, Neutral, Peaceful, and Cooperative
Cambodia (“FUNCINPEC”). Mr. Yuk became involved with the FUNCINPEC
Party in 1982, when it was in its infancy. It was originally formed to oppose the
Vietnamese-controlled government then in power. The FUNCINPEC Party
attempted to bring a democratic form of government to Cambodia, as well as
enable a return of the Cambodian monarchy.
4
The United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, was
implemented in the United States by the Foreign Affairs Reform and
Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (1998).
See 8 C.F.R. § 208.16(c)(2), .17. It permits withholding of removal for an alien
who establishes that “it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” Id. § 208.16(c)(2).
-4-
Mr. Yuk initially worked covertly in intelligence gathering on behalf of the
FUNCINPEC Party. He stated that in 1989 he assumed a supervisory role in
intelligence gathering, with a hundred people under him. After 1989, Mr. Yuk
was more open and public about his membership in and activities for
FUNCINPEC. In 1993, Cambodia had an election monitored by the United
Nations, in which the FUNCINPEC candidate, Prince Ranariddh, was elected
Prime Minister. Mr. Yuk publicly recruited members for FUNCINPEC prior to
the election. He related an incident in which a neighbor and government police
officer confronted him and told him that, had he known that Mr. Yuk was a
member of the FUNCINPEC party, he would have had him killed.
Despite Prince Ranariddh’s victory in the election, Hun Sen, the former
Communist Prime Minister and leader of the Cambodian People’s Party (“CPP”),
threatened civil war if the Prince did not share control of the government with the
CPP. Prince Ranariddh was therefore forced to share control of the government
with Hun Sen and the CPP. Mr. Yuk testified before the IJ that the FUNCINPEC
Party was thwarted whenever it attempted to introduce legislation that its
members desired. During this time period Mr. Yuk became the director of the
National Police Academy. He avers that he was one of the leaders of
FUNCINPEC, in one of the highest positions, and that he reported directly to two
men who in turn reported directly to Prince Ranariddh.
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In the spring of 1997 Mr. Yuk and the other petitioners were permitted to
leave Cambodia for their trip to the United States. In July 1997, while petitioners
were still in the United States, Hun Sen staged a bloody coup, forcing Prince
Ranariddh and members of the FUNCINPEC Party to flee the country. There was
evidence that a number of FUNCINPEC officials were killed during the violent
coup, and that a number of other FUNCINPEC officials disappeared. Mr. Yuk
stated that he feared that he could not return to Cambodia following the coup
because he had been a high-ranking member of the FUNCINPEC Party, that his
immediate supervisor had fled Cambodia and that his “mentor” had been killed by
Hun Sen. In his addendum to his asylum application, Mr. Yuk stated:
I fear that I may be killed or jailed if I return to my country
because I am a colonel in the Cambodian National Police, in charge
of the National Police Training academy in the capitol city, Phnom
Penh, and a member and officer of the FUNCINPEC Party. Relatives
have written to me warning me not to come back.
Addendum at 1, Admin. R. at 351. Mr. Yuk also stated that his house and other
possessions were seized by the CPP. He testified that CPP members had told his
children who remained in Cambodia that if he returned to Cambodia, he would be
killed. The record includes two letters from relatives in Cambodia urging him to
remain in the United States because they feared for his safety if he returned.
He further asserted that his son, Hangseyha, had also been a member of
FUNCINPEC and was caught in 1985 delivering messages about the CPP’s efforts
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to learn about FUNCINPEC. Mr. Yuk stated that after this he did not see his son
for a year, at which time the Cambodian police told him that Hangseyha was in
jail, that he would die soon, and that Mr. Yuk and his family needed to see him
soon if they wished to see him before he died. Mr. Yuk alleged that when they
saw Hangseyha in jail, there was evidence that he had been tortured, and when he
died, the family was not allowed to have a ceremony for him because they were
told he had been a traitor. Mr. Yuk alleged that his son-in-law, Mr. Nhim, was
equally in danger because of his activities with and membership in the
FUNCINPEC Party.
Mr. Yuk provided documents showing his employment at the National
Police Academy and his membership in the FUNCINPEC party. He also provided
an affidavit from Thomas Filby Jurvic, a United States citizen who met the Yuk
family while he was working in Cambodia. Mr. Jurvic stated that he feared both
Mr. Yuk and Mr. Nhim would be in danger of being killed or imprisoned if they
returned to Cambodia because of their high rank in the Cambodian civil national
police force and their membership in and activities with the FUNCINPEC Party.
He noted “the conflict between the two parties, FUNCINPEC and Hun Sen’s
CPP” and further stated he had “heard reports or rumors of Hun Sen’s belligerent
attitude towards FUNCINPEC.” Jurvic Aff. at ¶ 12, Admin. R. at 376.
-7-
Mr. Nhim filed a separate asylum application, largely asserting the same
claims as Mr. Yuk, averring that he was a major in the National Police and an
active member in the FUNCINPEC party. He stated his belief that he would be
imprisoned or killed because of his activities with FUNCINPEC intelligence, the
National Police and his association with his father-in-law, Mr. Yuk. Mr. Nhim
also testified that his house and possessions had been seized following the July
1997 coup.
Ms. Hang Yuk, Mr. Yuk’s adult unmarried daughter, also filed a separate
asylum application, based upon the activities and affiliations of her father and
Mr. Nhim. As indicated, the applications of the remaining petitioners, Ms. Keth
and Ms. Korng, depend upon the facts and allegations of their husbands, Mr. Yuk
and Mr. Nhim.
On June 30, 1999, a merits hearing was held before the IJ. Mr. Yuk and
Mr. Nhim, represented by counsel, testified consistently with their asylum
applications. At the completion of the hearing, the IJ issued an oral decision
denying petitioners’ applications for asylum, for withholding of removal and for
protection under the Convention Against Torture. He concluded they had not
proven past persecution, and, to the extent they argued they became refugees by
virtue of the 1997 coup, he determined that conditions in Cambodia had changed
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so that petitioners did not have a well-founded fear of future persecution should
they return to Cambodia.
More specifically, the IJ concluded that Mr. Yuk was not a refugee when he
left Cambodia:
He was only coming to the United States as a visitor. He had a good
job when he left. He was the head of the National Police Academy
when he left. He had a good living. And the fact that he and his
family were allowed to come here to visit shows that he was well
regarded by the government.
Oral Decision of the IJ at 4, Admin. R. at 94. The IJ then considered petitioners’
claim that they became refugees in the summer of 1997 when Hun Sen staged the
coup and some members of the FUNCINPEC Party were executed and others fled
the country.
Relying particularly upon the 1998 Country Report from the State
Department, the IJ noted that, since 1997, there had been another election in
Cambodia, in which the CPP won a plurality, not a majority, and resulting in a
new coalition government. Hun Sen was the Prime Minister at that time and
Prince Ranariddh of petitioners’ FUNCINPEC Party was the President of the
National Assembly. The State Department Report further showed that, while a
number of opposition leaders left the country after the recent election, most had
returned. It also showed there were no political prisoners in Cambodia and that
of the forty-nine killings reported in connection with the most recent election, few
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if any were of FUNCINPEC members because of that affiliation. The IJ also
indicated that the Report showed that “the government does not coerce or forbid
membership in political organizations systematically,” and “that the United
Nations still is supervising the elections and human rights in the country.” Id. at
7, Admin R. at 97. 5
The IJ summarized his findings as follows:
[M]y finding is that the respondent, the principal respondent has not
shown a well-founded fear of persecution in the future. He asserts
that he became a refugee due to changes in the country after he left
routinely. But changes occurred again, which I believe indicate that
he will not be persecuted if he returns. It is noted that his political
party shares power with the Communist Party and in fact, the two
highest ranking officials in the country now other than the king, are
the Prince, who represents respondent’s party and the official of the
Communist Party. They share that power. His party received 31% of
the vote at the last election. The record shows there are no political
prisoners in that country. There was election violence, but all of
those killings have been explained in the State Department Report
and very few of them involved attacks on FUNCINPEC members.
. . . [I]n 1998, just a few months ago, many party members
who are higher ranking than him, returned to country voluntarily to
assume their positions. And the leader of the party, in effect, the
Prince, returned. This indicates to me that it is safe to return and that
the government is honoring its commitment to have power sharing.
5
The IJ did acknowledge, however, that the Report indicated that “there
were credible reports that government officials used intimidation and threats to
force FUNCINPEC . . . members to sign oaths of loyalty to the CPP and vote for
the CPP in the July elections.” Admin. R. at 234.
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Id. at 8-9, Admin. R. at 98-99. The IJ accordingly denied petitioners’
applications for asylum and for withholding of removal and for relief under the
Convention Against Torture. The BIA summarily affirmed that decision, without
an opinion, pursuant to the new streamlining regulations permitting such summary
affirmances by a single member of the BIA.
Petitioners appeal, arguing (1) the BIA violated their due process rights and
principles of administrative law by issuing a decision without an opinion and
without articulating any reasons for upholding the IJ’s decision; 6 (2) the IJ and
the BIA erred in finding that petitioners had not suffered past persecution; and (3)
the IJ and BIA erred in finding that conditions in Cambodia had changed
sufficiently such that petitioners did not have a well-founded fear of persecution
upon their return to Cambodia.
DISCUSSION
I. Streamlining Regulations and Due Process
An INS (now USCIS) regulation permits a single member of the BIA to:
affirm the decision of the Service or the Immigration Judge, without
opinion, if the Board Member determines that the result reached in
the decision under review was correct; that any errors in the decision
under review were harmless or nonmaterial; and that
6
The American Immigration Law Foundation has filed an amicus brief on
this issue, in support of petitioners.
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(A) the issue on appeal is squarely controlled by existing Board or
federal court precedent and does not involve the application of
precedent to a novel fact situation; or
(B) the factual and legal questions raised on appeal are so
insubstantial that three-Member review is not warranted.
8 C.F.R. § 3.1(a)(7)(ii) (now codified at 8 C.F.R. § 1003.1(a)(7) (2003)). Once
the Board Member makes that determination, “the Board shall issue an order that
reads as follows: ‘The Board affirms, without opinion, the result of the decision
below. The decision below is, therefore, the final agency determination. See 8
CFR 3.1(a)(7).’” 8 C.F.R. § 3.1(a)(7)(iii). The regulation goes on to state:
An order affirming without opinion, issued under authority of this
provision, shall not include further explanation or reasoning. Such
an order approves the result reached in the decision below; it does
not necessarily imply approval of all of the reasoning of that
decision, but does signify the Board’s conclusion that any errors in
the decision of the Immigration Judge or the Service were harmless
or nonmaterial.
Id.
This provision, part of the “streamlining regulations” originally
promulgated in 1999, was initially used sparingly. Its use increased dramatically
since early in 2002, in an effort to reduce the backlog of cases pending before the
BIA. A single member of the BIA invoked this regulation to summarily affirm,
without opinion, the IJ’s denial of petitioners’ applications. Petitioners argue that
this summary affirmance procedure violates both administrative law and their due
process rights. We disagree.
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Petitioners allege the summary affirmance violates principles of
administrative law because (1) it is only available if a case meets the regulatory
criteria, but, because the BIA member is prohibited from explaining his decision,
it is impossible to tell whether the member adhered to the regulation in deciding
to use the summary affirmance procedure; (2) it violates the principle that
litigants are entitled to an explanation of the reasons for a decision, discourages
thoughtful decisionmaking, prevents litigants from being assured of an
individualized review of their case based upon the evidence presented, prevents
effective appellate review of the ruling, and allows the final agency
decisionmaker, the BIA, to issue its final decision without explanation. They
argue it violates principles of due process because it deprives them of their due
process right to an individualized and meaningful review of their case.
A number of other circuit courts have recently addressed this argument.
All have upheld the summary affirmance regulations against challenges that they
violate principles of administrative law and/or due process. See Dia v. Ashcroft,
No. 02-2460, 2003 WL 22998113 (3rd Cir. Dec. 22, 2003) (en banc); Denko v.
INS, No. 02-3746, 2003 WL 22879815 (6th Cir. Dec. 8, 2003); Falcon Carriche v.
Ashcroft, 2003 WL 22770121 (9th Cir. Nov. 24, 2003); Georgis v. Ashcroft, 328
F.3d 962 (7th Cir. 2003); Mendoza v. U. S. Att’y Gen., 327 F.3d 1283 (11th Cir.
2003); Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003); Albathani v. INS, 318
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F.3d 365 (1st Cir. 2003). The Fourth Circuit has rejected due process challenges
to the summary affirmance procedure in a series of unpublished opinions. See,
e.g., Wibowo v. Ashcroft, 75 Fed. Appx. 161, 2003 WL 22119933 (4th Cir.
Sept.15, 2003); Zengui Goma v. Ashcroft, 71 Fed. Appx. 263, 2003 WL 21961985
(4th Cir. Aug. 19, 2003); cf. Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir.
2003) (citing Albathani in rejecting an argument that the BIA abused its
discretion in summarily affirming the IJ’s decision). We join those circuits and
uphold the validity of those regulations.
Albathani was the first decision to address this issue, and its analysis has
been widely followed. See, e.g., Falcon Carriche, 2003 WL 22770121, at *3
(holding that Albathani’s “careful reasoning is persuasive and, like the other
courts of appeal that followed, we embrace its rationale”); Mendoza, 327 F.3d at
1288 (agreeing with Albathani’s analysis); Soadjede, 324 F.3d at 832 (same). We
generally follow it as well.
The Albathani court began by noting that “[a]n alien has no constitutional
right to any administrative appeal at all.” 318 F.3d at 376 (citing Abney v. United
States, 431 U.S. 651, 656 (1977) (holding there is no constitutional right to appeal
in criminal cases)). Thus, “[s]uch administrative appeal rights as exist are created
by regulations promulgated by the Attorney General.” Id. at 376 (citing 8 C.F.R.
§ 3.1(b) (2002)). Accordingly, the INS had the power to promulgate the summary
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affirmance regulations and include therein the procedures it deemed appropriate.
See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S.
519, 543 (1978) (“[A]dministrative agencies should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable of permitting them to
discharge their multitudinous duties.”) (internal quotation marks omitted); Dia,
2003 WL 22998113 at *4 (noting that the Vermont Yankee’s “‘basic tenet of
administrative law’ has even more force in the immigration contest where our
deference is especially great.” (internal citation omitted).
Petitioner and amici argue, as they did in Albathani, that the BIA’s decision
is the final agency decision, that a summary affirmance without opinion by the
BIA does not provide a reasoned basis for review, and that the summary
affirmance without explanation prevents courts from determining whether the BIA
is following the regulation. We disagree.
First, the summary affirmance regulations specifically provide that the IJ’s
decision is the final agency action. The IJ’s decision contains a reasoned
explanation for the result reached. That is permissible. In support of their
argument that the BIA’s decision, not the IJ’s decision being reviewed, must
contain a reasoned explanation, petitioners and amici rely on the following
passage from SEC v. Chenery Corp., 332 U.S. 194 (1947):
If the administrative action is to be tested by the basis upon which it
purports to rest, that basis must be set forth with such clarity as to be
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understandable. It will not do for a court to be compelled to guess at
the theory underlying the agency’s action; nor can a court be
expected to chisel that which must be precise from what the agency
has left vague and indecisive.
Id. at 196-97. As the First Circuit observed, petitioners and amici
overlook the plain language of Chenery, which refers to agencies in
their entirety, not individual components of agencies. Here, the
relevant agency – the INS – has presented a statement of reasons for
its decision, albeit from the IJ rather than the BIA. Chenery does not
require that this statement come from the BIA rather than the IJ.
Albathani, 318 F.3d at 377; see also Dia, 2003 WL 22998113 at *7. Thus, there
is nothing improper under Chenery in making the IJ’s decision the final agency
decision.
Furthermore, as our circuit and many others have previously held, the BIA
may adopt an IJ’s opinion without further analysis. See Panrit v. INS, 19 F.3d
544, 546 (10th Cir. 1994) (“We . . . hold that where the Board explicitly recites
that it has reviewed the record and the immigration judge’s decision and that it is
content to rest its decision on the immigration judge’s reasoning, adoption of the
immigration judge’s decision does not present any difficulty in terms of the
sufficiency of the Board’s articulation of its reasoning.”); see also Chen v. INS,
87 F.3d 5, 8 (1st Cir. 1996) (“[W]e join eight of our sister circuits in ruling that
the Board need not write at length merely to repeat the IJ’s findings of fact and
his reasons for denying the requested relief, but, rather, having given
individualized consideration to a particular case, may simply state that it affirms
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the IJ’s decision for the reasons set forth in that decision.”) (listing cases). In
that situation, we effectively review the IJ’s decision, just as we do under the
streamlining summary affirmance regulations.
Petitioners and amici respond that the summary affirmance without opinion
procedure creates a particular and unique problem because, unlike an affirmance
expressly adopting the IJ’s decision, as in Panrit and similar cases, the summary
affirmance permits an affirmance even if the BIA disagrees with the IJ’s
reasoning. This is possible because, as the regulation expressly states, the
summary affirmance is only of the “result” of the IJ’s decision, not necessarily its
reasoning. Thus, a reviewing court may not in fact know the basis for the BIA’s
decision affirming the IJ.
While noting the problem, the First Circuit stated that it does “not render
the scheme a violation of due process or render judicial review impossible”
because “courts will continue to have the IJ’s decision and the record upon which
it is based available for review.” Albathani, 318 F.3d at 377-78. Courts will
therefore still be able to “carry out an intelligent review.” Id. at 378; see also
Denko, 2003 WL 22879815, at *8 (“[Petitioner’s] argument that the summary
affirmance without opinion permitted by § 1003.1(a)(7) [formerly § 3.1(a)(7)]
violates the mandate that agencies must set forth reasons for their decisions also
fails because the IJ’s opinion becomes the reasoned explanation needed for
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review.”); Falcon Carriche, 2003 WL 22770121, at *4 (“[T]he streamlining
procedures do not compromise our ability to review the INS’s decision . . .
because we can review the IJ’s decision directly.”); Georgis, 328 F.3d at 967
(“Since we review directly the decision of the IJ when a case comes to us from
the BIA pursuant to § 1003.1(a)(7), our ability to conduct a full and fair appraisal
of the petitioner’s case is not compromised, and the petitioner’s due process
rights are not violated.”). As the Third Circuit recently stated en banc, “[a]ll that
is required for our meaningful review is that the agency—as represented by an
opinion of the BIA or IJ—put forth a sufficiently reasoned opinion.” Dia, 2003
WL 22998113 at *9.
Additionally, as a practical matter, “if the BIA does not independently state
a correct ground for affirmance in a case in which the reasoning proffered by the
IJ is faulty, the BIA risks reversal on appeal.” Albathani, 318 F. 3d at 378. Thus,
there would be little incentive for the BIA to summarily affirm without an opinion
the result of an IJ’s decision if it did not also agree with the IJ’s reasoning. See
Falcon Carriche, 2003 WL 22770121, at *4 (“Although the streamlining
procedures allow a board member to affirm the IJ’s decision based on different
reasons than those set forth by the IJ, the BIA is cognizant of this possibility and
knows the risk it takes in declining to articulate a different or alternate basis for
the decision.”). In sum, the IJ’s decision provides the reasoned explanation for
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the agency’s decision, its existence enables us to review the agency decision, and
the BIA knows that faulty or inadequate reasoning in the IJ’s decision will lead to
the reversal of a BIA summary affirmance of that decision.
Petitioners also make a variety of arguments to the effect that the lack of
explanation by the BIA member means that we cannot tell whether the member
properly followed the regulation in summarily affirming the IJ’s decision and we
cannot tell if the BIA member conducted the kind of careful review he or she
should. They argue that this problem is particularly acute because of statistics
suggesting that, in some instances, BIA members appear to spend as little as ten
to fifteen minutes per case. As the First Circuit acknowledged, this is a “serious
argument . . . that the very nature of the one-line summary affirmance may mean
that BIA members are not in fact engaged in the review required by regulation
and courts will not be able to tell.” Albathani, 318 F.3d at 378.
The First Circuit’s response to this argument was that there was no reason
in the case before it to suspect that the BIA member had not done his job
properly, as “[t]here was a basis for affirmance and for summary affirmance.” Id.
Moreover, there was no “evidence of systemic violation by the BIA of its
regulations.” Id. Given that lack of evidence, the court was unwilling “to infer
from these numbers alone that the required review is not taking place.” Id. at
379; see also Denko, 2003 WL 22879815, at *7 (“We will not assume such a
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complete break-down in the system in the absence of tangible evidence to support
such a conclusion.”); Mendoza, 327 F.3d at 1289 (“That a one-sentence order was
entered is no evidence that the BIA member did not review the facts of
Mendoza’s case.”). We agree with that analysis. In view of the presumption of
regularity attaching to administrative procedures, see Bar MK Ranches v. Yuetter,
994 F.2d 735, 740 (10th Cir. 1993), we will not assume, without any evidence,
that BIA members do not follow the regulations or do not perform their jobs
properly. Indeed, as the First Circuit noted, a BIA summary affirmance is not
unlike the summary affirmance or summary disposition procedures employed by
courts, which are “workload management devices that acknowledge the reality of
high caseloads. They do not, either alone or in combination with caseload
statistics, establish that the required review is not taking place.” Albathani, 318
F.3d at 378. In short, petitioners received a meaningful and thorough review of
their claims, and, in the IJ’s decision, they received a reasoned explanation for the
agency’s decision, which we can, in turn, review. Due process and principles of
administrative law require nothing more.
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We therefore agree with the analysis of Albathani and those other courts
and join them in holding that the summary affirmance procedures do not violate
principles of administrative law or due process. 7
II. Asylum
“A request for asylum involves a two-step process. First, the applicant has
the burden to prove his or her statutory eligibility for asylum by establishing that
he or she is a ‘refugee.’” Krastev v. INS, 292 F.3d 1268, 1270 (10th Cir. 2002)
(citing Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001)). By statute, a
“refugee” is any person who is outside the country of his or her nationality “who
7
The government also argues that we lack “jurisdiction” over the BIA’s
decision to apply 8 C.F.R. § 3.1(a)(7) to this particular case because that is a
decision committed to the complete discretion of the BIA and such discretionary
decisions are unreviewable.
We need not address this issue, because petitioners make no serious or
developed argument that the decision to streamline their case was wrong. See
Mendoza, 327 F.3d at 1288 n.7 (“We need not address the INS’s contention [that
we cannot review the discretionary decision whether to streamline a particular
case] . . . because [petitioner] does not challenge the INS’s decision to streamline
his appeal.”); cf. Denko, 2003 WL 22879815 at *10 (assuming, without deciding,
“that judicial review properly is employed to assess whether the BIA correctly
designated a case for summary affirmance”); Falcon Carriche, 2003 WL
22770121, at *6 (“[W]e do not embrace the government’s argument that the
streamlining decision is inherently discretionary.”); Georgis, 328 F.3d at 967
(noting that for many streamlined cases “it makes no practical difference whether
the BIA properly or improperly streamlined review of [a petitioner’s] case,”
because when “we review directly the decision of the IJ when a case comes to us
from the BIA pursuant to [§ 3.1(a)(7)], our ability to conduct a full and fair
appraisal of [his] case is not compromised”).
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is unable or unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that 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)(A).
An applicant for asylum can demonstrate refugee status in three ways.
“One way is by showing he or she has a ‘well-founded fear of [future]
persecution.’” Krastev, 292 F.3d at 1270 (quoting 8 C.F.R. § 208.13(b)(2)). A
second way to establish refugee status is to demonstrate “that he or she has
suffered past persecution, which gives rise to a presumption that he or she has a
well-founded fear of future persecution unless the INS rebuts the presumption by
a preponderance of the evidence.” Id. at 1270-71. The third way to establish
status as a refugee is to establish past persecution so severe that it demonstrates
“compelling reasons for being unwilling” to return.” 8 C.F.R. § 208.13(b)(1)(ii)
(2000);(current version at 8 C.F.R. § 208.13(b)(1)(iii)(A)). This is known as
“humanitarian” asylum. If an applicant establishes his or her refugee status and
consequent eligibility for asylum, “the Attorney General exercises discretionary
judgment in either granting or denying asylum.” Krastev, 292 F.3d at 1271; see
also Woldemeskel, 257 F.3d at 1189.
We have noted that persecution requires the “‘infliction of suffering or
harm upon those who differ (in race, religion, or political opinion) in a way
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regarded as offensive’ and requires ‘more than just restrictions or threats to life
and liberty.’” Woldemeskel, 257 F.3d at 1188 (quoting Baka v. INS, 963 F.2d
1376, 1379 (10th Cir. 1992)). A claim based upon a well-founded fear of future
persecution includes “both a subjective and an objective component.” Id. First,
the applicant must demonstrate an objective basis by “‘credible, direct, and
specific evidence in the record, of facts that would support a reasonable fear that
the petitioner faces persecution.’” Id. (quoting Kapcia v. INS, 944 F.2d 702, 706-
07 (10th Cir. 1991)) (further quotation omitted); see also 8 C.F.R.
§ 208.13(b)(2)(i)(B) (applicant must show a “reasonable possibility” of future
persecution). Once an objective basis is shown, the applicant must show that his
or her subjective fear is genuine. Woldemeskel, 257 F.3d at 1189.
We review the IJ’s resolution of the initial refugee status question under a
substantial evidence standard. “The BIA’s determination that [the applicant is]
not eligible for asylum must be upheld if ‘supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’ It can be reversed
only if the evidence presented by [the applicant] was such that a reasonable
factfinder would have to conclude that the requisite fear of persecution existed.”
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citation omitted) (quoting 8
U.S.C. § 1105a(a)(4)). We do not “‘weigh the evidence or . . . evaluate the
witnesses’ credibility.’” Woldemeskel, 257 F.3d at 1189 (quoting Kapcia, 944
-23-
F.2d at 707) (internal quotation marks omitted)). “The BIA’s findings of fact are
conclusive unless the record demonstrates that ‘“any reasonable adjudicator
would be compelled to conclude to the contrary.”’” Tsevegmid v. Ashcroft, 336
F.3d 1231, 1235 (10th Cir. 2003) (quoting Fahim v. U.S. Att’y Gen., 278 F.3d
1216, 1218 (11th Cir. 2002) (quoting 8 U.S.C. § 1252(b)(4)(A)-(B))).
The IJ concluded petitioners failed to show that they had been the victims
of past persecution, nor did they have a well-founded fear of future persecution.
A. Past persecution
Petitioners allege they have suffered past persecution in the form of the
detention, torture and death of Mr. Yuk’s son in 1985; threats made against
Mr. Yuk’s life; and the confiscation of his house and possessions, as well as Mr.
Nhim’s house and possessions, following their departure from Cambodia. In
finding that petitioners were not refugees at the time they left to visit the United
States in 1997, the IJ implicitly concluded they had failed to demonstrate past
persecution. This conclusion is supported by substantial evidence.
While the detention, torture and death of Mr. Yuk’s son in 1985 is
indisputably tragic, the fact remains that petitioners stayed in Cambodia for
twelve years after that, during which time Mr. Yuk’s activities on behalf of
FUNCINPEC became more visible and open. During this time, Mr. Yuk
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supported his family and provided a comfortable living, even a relatively high
standard of living by Cambodian standards. See Jurvic Aff. ¶ 8, Admin. R. at
374. 8 They present no evidence of other reprisals in connection with the death of
Mr. Yuk’s son. Other family members of the Yuks remain in Cambodia,
apparently without experiencing any persecution.
Mr. Yuk relayed an incident around the time of the 1993 election in which
he was threatened by a man who stated that had he known Mr. Yuk was a member
of FUNCINPEC, he would have had him killed. It is not clear whether that was a
contemporaneous threat, and, in any event, Mr. Yuk remained in Cambodia for
four more years after that without other specific threats to his life. 9 “Threats
8
Jurvic stated:
I am not completely familiar with the military and police
organization in Cambodia, but particularly, Horn Yuk appeared to
have a very high position. His home is very large and nice in
comparison to homes in Cambodia. It is a two story structure with
electricity and indoor running water. He also had a car, which is
quite unusual in Cambodia, and although I cannot recall the make or
model of his car, it was a nice late model car.
Jurvic Aff. ¶ 8, Admin. R. at 374.
9
Petitioners cite two letters, one from Mr. Yuk’s son and one from his
brother-in-law, both of whom still live in Cambodia, which they assert show that
an arrest warrant awaits Mr. Yuk should he return to Cambodia. One letter states
that “some troops from C.P.P. came by to your home; looking for you, to arrest
you, I think.” Admin. R. at 382 (emphasis added). The other expresses the
opinion that “[t]hey will arrest or kill you right a way!” Id. at 384. Neither letter
states that there is an arrest warrant for Mr. Yuk, let alone provides us with any
(continued...)
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alone generally do not constitute persecution; only rarely, when they are so
immediate and menacing as to cause significant suffering or harm in themselves,
do threats per se qualify as persecution.” Vatulev v. Ashcroft, No. 02-9573, 2003
WL 23098615, at *2 (10th Cir., Dec. 31, 2003).
Finally, Mr. Yuk and Mr. Nhim relate that their houses and possessions
were confiscated after they left Cambodia for the United States. Although Mr.
Yuk testified that CPP members currently reside in his house, it is not clear from
the record exactly why their houses were confiscated. It is not clear whether
Mr. Nhim owned his house, or whether it belonged to the FUNCINPEC Party. 10
Thus, it is unclear whether it was taken specifically from Mr. Nhim once he left
the country, or whether it was taken as part of FUNCINPEC’s properties.
9
(...continued)
actual evidence that Mr. Yuk is in fact at risk of arrest should he return to
Cambodia.
The following exchange occurred between petitioners’ counsel and Mr.
10
Nhim at the hearing before the IJ:
Q. You mentioned that your house was taken. Do you know who
took your house in Cambodia?
A. It’s included in the FUNCINPEC properties and the FUNCINPEC
organization.
Q. So does FUNCINPEC or does Hunsen’s people own the home?
A. Hunsen’s party who took it from me.
Admin. R. at 160-61.
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In short, substantial evidence supports the conclusion that petitioners had
not suffered past persecution.
B. Well-founded fear of future persecution
The IJ found that petitioners had not established a well-founded fear of
future persecution. While noting the events surrounding the 1997 coup, the IJ
determined that conditions had changed subsequent to that coup, including the
existence of a new coalition government with a FUNCINPEC presence following
elections in 1998. In so concluding, the IJ relied primarily on the 1997 and 1998
State Department Country Conditions Reports.
The 1997 Report documented the violence that occurred in connection with
the 1997 coup, including the killing of forty-one FUNCINPEC officials and up to
twenty-two FUNCINPEC soldiers. The Report also indicated, however, that
“[t]here was no evidence to indicate a systematic countrywide government
campaign to purge political or military officials.” Admin. R. at 171. The IJ then
considered the 1998 Report, which observed that the July 1998 elections, in which
93% of the eligible electorate voted, resulted in the CPP receiving 41.1% of the
vote, FUNCINPEC 31.7% of the vote and the Sam Rainsy Party 14.3%, and,
according to the Report, reflected the will of the electorate. The Report also
stated that “most international observer groups certified the election as
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acceptable.” 11 A new coalition government was formed, with Hun Sen as Prime
Minister and Prince Ranariddh as President of the National Assembly. The
Report further observed that while “[t]he Government does not coerce or forbid
membership in political organizations systematically . . . there were credible
reports that government officials used intimidation and threats to force
FUNCINPEC and Sam Rainsy Party members to sign oaths of loyalty to the CPP
and vote for the CPP in the July elections.” Admin. R. at 234. As the IJ noted,
Prince Ranariddh and other FUNCINPEC officials who had fled the country had
returned, with the Prince assuming a significant post in the coalition government.
Furthermore, there is no indication that petitioners would be at any heightened
risk compared to other FUNCINPEC members, or that they would be singled out
for persecution, should they return to Cambodia. While “unfulfilled threats
are . . . properly considered in determining whether a petitioner has a reasonable
fear of future persecution,” Vatulev, 2003 WL 23098615, at *2, the threat against
Mr. Yuk in 1993 is less persuasive because “the sheer length of time—nearly ten
years—that has passed since receipt of that threat diminishes its present
11
The page where this quotation appears in the 1998 Country Report is
missing from the administrative record. The Report is easily available, however,
on the State Department’s website. Although we review the record as it was
before the IJ, and this page was apparently missing from the record before the IJ,
this page does not undermine the IJ’s conclusions; rather, it supports them. In
any event, there is substantial other evidence in the record supporting the IJ’s
decision.
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significance.” Id. Other evidence of a danger to Mr. Yuk should he return to
Cambodia is somewhat vague and conclusory.
Petitioners argue that the IJ erred in placing such reliance on State
Department Reports, and that he ignored other evidence, in particular: (1) a
statement by Lorne Craner, President of the International Republican Institute
who stated that the 1998 Cambodian election was “among the worst we have
observed since 1993,” Admin. R. at 198; (2) the Senate Committee testimony of
Sichan Siv, to the effect that the coalition was a facade, id. at 215; and (3) a
House of Representatives Resolution in 1998 calling for “Hun Sen and his
henchmen to stand before an international tribunal to be held accountable for their
many atrocities.” Id. at 213.
First, there was nothing improper in the IJ’s reliance on the State
Department Reports. “[A] state department report on country conditions may be
probative in a well-founded fear case.” Krastev, 292 F.3d at 1276-77; see also
Lal v. INS, 255 F.3d 998, 1023 (9th Cir.) (“Our case law well establishes that the
country report from our Department of State is the most appropriate and perhaps
best resource, for determining country conditions.” (internal quotations omitted)),
amended by, 268 F.3d 1148 (9th Cir. 2001); Kayembe v. Ashcroft, 334 F.3d 231,
235 (3d Cir. 2003) (“[T]he Country Report potentially constitutes substantial
evidence to support the BIA’s finding.”); Koliada v INS, 259 F.3d 482, 487 (6th
-29-
Cir. 2001) (“Other circuits have held that State Department reports on other
countries are entitled to significant deference when assessing conditions there.”);
Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999) (“A State Department report
on country conditions is highly probative evidence in a well-founded fear
case.”). 12 Thus, a State Department Report can constitute substantial evidence
supporting the IJ’s decision.
Second, while there was other evidence, including the three items upon
which petitioners place particular reliance, contradicting some aspects of the State
Department Report, it is not our prerogative to reweigh the evidence, but only to
decide if substantial evidence supports the IJ’s decision. We only determine
whether a reasonable factfinder could find that petitioners do not have a well-
founded fear of persecution. Indeed, we only reverse that finding if “any
reasonable adjudicator would be compelled to conclude to the contrary.”
Tsevegmid, 336 F.3d at 1235 (internal quotation marks omitted). Moreover, we
have no reason to believe that these pieces of evidence are more accurate than the
State Department Report. We hold that the IJ’s decision is supported by
substantial evidence in the record.
We noted in Krastev, however, that the use of a State Department Report
12
“does not substitute for an analysis of the facts of each applicant’s individual
circumstances.” Krastev, 292 F.3d at 1277 (internal quotation marks omitted).
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III. Withholding of Removal and Convention Against Torture
An applicant is entitled to withholding of removal if he or she can show a
“clear probability of persecution” which courts have acknowledged is a higher
standard than that for asylum. See Krastev, 292 F.3d at 1271. Because
petitioners failed to meet the lower standard of showing entitlement to asylum,
the IJ correctly denied their application for withholding of removal. Petitioners
also failed to establish the requisite likelihood of being tortured so as to entitle
them to relief under the Convention Against Torture.
CONCLUSION
For the foregoing reasons, we AFFIRM the BIA and IJ’s decision denying
petitioners applications for asylum, withholding of removal and for relief under
the Convention Against Torture.
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Hang Kannha Yuk v. Ashcroft
Court: Court of Appeals for the Tenth Circuit
Date filed: 2004-01-20
Citations: 355 F.3d 1222
Copy CitationsCombined Opinion