United States Court of Appeals
For the First Circuit
No. 05-1668
ROS SOU AND CHANTHA SREY,
Petitioners,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya and Lipez, Circuit Judges,
and Saylor,* District Judge.
Thomas Stylianos, Jr., on brief for petitioners.
Michael J. Sullivan, United States Attorney (District of
Massachusetts) and Michael Sady, Assistant United States Attorney
(District of Massachusetts), on brief for respondent.
June 7, 2006
*
Of the District of Massachusetts, sitting by designation.
SAYLOR, District Judge. Petitioners Ros Sou and Chantha
Srey seek review of a final order of the Board of Immigration
Appeals affirming a denial of their application for asylum,
withholding of removal on the basis of political opinion and
membership in a particular social group, and withholding of removal
under the Convention Against Torture (“CAT”). Finding no error, we
affirm.
I. BACKGROUND1
Sou and Srey are citizens of Cambodia who presently
reside in Massachusetts. They were married in a Communist forced-
labor camp in 1978. After working in various capacities for a
number of years, they established and operated a drug store out of
their home in Phnom Penh. Srey was a trained pharmacist; Sou, who
described himself as “a businessman,” attended to sales and other
business aspects of the store.
A. Events of May and June 2002
Petitioners’ decision to leave Cambodia for the United
States arose from events occurring in May and June 2002. A
government worker named Ly came to Sou and Srey in early May and
warned them that Sou was believed (1) to be a member of Khmer Seri
1
Our review is of the Board’s decision, which assumed the
credibility of petitioners (notwithstanding the Immigration Judge’s
finding that petitioners’ story was not credible). The court also
assumes petitioners’ credibility and recites the facts as they were
represented in the petition and at the hearing. See Xu v.
Gonzales, 424 F.3d 45, 46 (1st Cir. 2005).
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or the Cambodian Freedom Fighters (“CFF”)2 and associated with a
man named Nou Uth Buntha; (2) to be a supporter of the Sam Rainsy
Party (“SRP”); and (3) to have been a soldier in the 1970s in the
army of the Lon Nol government and, as a result, to be “especially
dangerous.”3 Ly warned Sou that it would be safer if he went away
for a while. Although Ly’s statements made them fearful,
petitioners did not leave the country at that time. Instead, they
decided that Sou should go into hiding at his sister’s home about
50 kilometers away.
Srey testified that several days later uniformed police
arrived at her store in the afternoon and told her that they were
looking for her husband. In the presence of customers, they held
a gun to her chest and repeatedly demanded to know where he was.
She said that she did not know, and they left. About two or three
weeks later, after the “situation calm[ed] down,” she sent a
message to Sou telling him about the situation at home. After he
returned home, they decided to leave Cambodia.
They spent several weeks preparing to leave the country,
including obtaining a passport for Srey and visas from the U.S.
Embassy. They sold off the inventory of their pharmacy and, on
2
According to the petition, the CFF is also known as Khmer
Seri (variably spelled as “Serei,” “Srei,” and “Sari”).
3
Sou changed his name and birth date after the Khmer Rouge
came to power in 1975 to mask his identity and prior military
service.
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June 25, 2002, closed the store.4 They left Cambodia two days
later. A Cambodian government official stamped Sou’s passport with
an exit visa, dated June 27. When questioned as to how he obtained
the stamp, Sou explained that he gave his passport to someone else
to get it stamped for him. Neither Sou, Srey, nor the individual
who obtained the exit visa for Sou were questioned or detained.
They boarded their flight apparently without incident and the next
day, June 28, arrived in Los Angeles.
Petitioners did not bring their children, who were then
14, 15, and 16 years old, with them. The children were left in the
care of a relative in Phnom Penh. They receive letters from their
children, but do not speak with them on the phone.5
B. Evidence of Involvement with Organizations in Cambodia
The Board found, among other things, that petitioners had
no “political affiliations of their own.” Both Sou and Srey
testified that they were never members of any organization while
they were in Cambodia. However, there is evidence that they had at
least tangential association with three organizations.
4
Srey testified that she, not Sou, sold the inventory, and
that Sou remained in hiding even though he had returned home.
5
Both petitioners testified that their children wrote to them
that the police continue to look for Sou at his home. Srey
testified that her children have told her that “these things happen
every day.” The record does not contain copies of any letters from
their children.
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First, Sou testified that he joined the army in 1971 to
fight against the Communists in support of the government then in
power, which was led by Lon Nol. His involvement in the army ended
when the Khmer Rouge seized power in 1975. He believes that those
who fought against the Communists are viewed by the current
government as opponents who are especially dangerous when they
engage in political activity. Sou stated in his application that
he fears arrest, disappearance, and death as a result of his former
military involvement.
Second, Sou testified that he was a close friend of a man
named Nou Uth Buntha, who the government would later charge and
convict as a “terrorist.” Sou met Buntha through a neighbor in
1996 and they became close friends. He and his wife regularly
socialized with him and, for some period of time, Buntha visited
their home once or twice a month. Their conversations sometimes
turned to politics, and Sou knew that Buntha was a member of a
political party that was, at least for some period of time, opposed
to the ruling party. Sou did not know, one way or the other,
whether Buntha was a member of the CFF.
In December 2000, Sou learned from a Cambodian newspaper
that Buntha had been arrested for being a part of an attempt by the
CFF to overthrow the government.6 He was convicted and apparently
6
Sou believes that the government also charged Buntha with
being a member of the CFF.
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sentenced to a prison term of 20 years.7 After learning of the
arrest, Sou became worried that he would be arrested, and destroyed
all pictures and letters in his possession that would link him to
Buntha. Sou testified that, as far as he knows, Buntha was never
released, was not given a fair trial, and probably was killed by
the government. Sou also testified that he has never been a member
of the CFF or participated in its activities. However, he
testified that he fears that the Cambodian government has imputed
or will impute the political beliefs of Buntha or the CFF to him
because of their friendship, and that the government will cause him
to be arrested, imprisoned without trial, or killed.
Third, Sou testified that, by 1998, he had become
interested in the SRP. He conceded that he was not a member of the
SRP and “was never active in [SRP] activities” while in Cambodia,
although he had donated “some money and medicine” to the party.
There is no evidence as to when he made this donation, or in what
amount. Sou became a member of the SRP sometime after he left
Cambodia.8 According to background information in the record,
7
Background information submitted by petitioners states that
the Cambodian government has outlawed the CFF as a terrorist
organization and has charged and convicted some of its members of
terrorism and other crimes. The information includes allegations
that some CFF supporters have been unfairly detained, charged, and
convicted. Respondent has not contested the accuracy of any of
this background information.
8
Sou had apparently become a member of the SRP by the time he
submitted his application for asylum. Sou submitted supplemental
evidence to the Board that post-dates the Immigration Judge’s
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there have been documented cases of government abuses directed
toward SRP activists and candidates, including harassment, threats
of death and of loss of citizenship documents, and the withholding
of routine services. Some SRP activists have been killed under
suspicious circumstances. Sou believes that SRP supporters are at
risk generally for arrest, detention, and death.
C. Prior Proceedings
The former Immigration and Naturalization Service brought
removal proceedings against petitioners and issued Notices to
Appear on February 27, 2003. Petitioners admitted the truth of the
factual allegations in the Notices, conceded removability, and
sought the opportunity to apply for political asylum, withholding
of removal, and withholding of removal pursuant to CAT. They
applied for such relief with Sou as the principal applicant and
Srey as his derivative beneficiary.
After a hearing, the Immigration Judge (“IJ”) concluded
that petitioners’ accounts lacked credibility and denied their
decision; this evidence includes, among other things, a picture of
him and his wife at an SRP rally in Lowell, Massachusetts, in
February 2005 and reports of government abuses directed toward
high-level SRP members. The Board treated the submission as a
motion to reopen. It held, however, that the evidence was
insufficient to meet the standard to reopen and apparently did not
give any further consideration to the supplemental evidence. See
8 C.F.R. § 1003.2(c). Petitioners do not appeal this denial, but
nevertheless make reference to various pieces of the supplemental
evidence in their brief. By law, this court may decide the
petition “only on the administrative record on which the order is
based.” 8 U.S.C. § 1252(b)(4)(A). For that reason, we will not
consider the supplemental evidence.
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application. The IJ focused on what he determined were a number of
implausibilities in their story and concluded that the Cambodian
government was not looking for Sou. In particular, he was
unconvinced that the government would begin looking for Sou
approximately a year and a half after Buntha’s arrest and some
months after his death. Further, Sou could have been found easily
in a number of ways: through surveillance of his home or business
(which was not closed until June 25); by checking with his
relatives at their homes; or by intercepting him when he and his
wife obtained their exit visas and attempted to leave the country.
The IJ found Srey’s testimony that she was questioned at gunpoint
unconvincing. He added that, “to the extent that [their account]
may be true . . . the Cambodian government has a legitimate concern
in questioning associates of known and convicted terrorists in
order to gather additional information.” Therefore, the IJ
concluded, petitioners failed to meet their burden to prove that
(a) they were unable or unwilling to return to their country
because of a well-founded fear of persecution on account of
membership in a particular social group or political opinion; or
(b) that it was more likely than not that they would be subject to
government-sanctioned torture if removed to Cambodia.9
9
Petitioners argue that the IJ’s adverse credibility
determination was arbitrary and capricious. However, the court’s
review is of the Board’s decision, which assumed that petitioners
were credible. Therefore, the court “cannot and need not review
the credibility determination of the IJ.” Xu, 424 F.3d at 48.
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Petitioners timely appealed this decision to the Board.
The Board “assum[ed] the credibility of [Sou and Srey’s]
testimony.” It then related Srey’s testimony that she “was
confronted by Cambodian police and asked about the location of her
husband,” and their belief that “they are under investigation due
to their affiliation with a friend who was arrested for terrorism.”
The Board found that they “have no political affiliations of their
own, they were allowed to leave Cambodia, and their children remain
in Cambodia at this time.” It then concluded by “agree[ing] with
the Immigration Judge that, under these circumstances, [they] have
failed to demonstrate a well-founded fear of returning to Cambodia
at this time,” and dismissed their appeal.10 Petitioners have
petitioned for review of the Board’s dismissal to this court,
arguing that they have proved their entitlement to asylum.11
10
The record does not contain petitioners’ appeal of the IJ’s
decision to the Board. It is therefore not clear whether they also
appealed the IJ’s determination that they were not entitled to
withholding of removal either on account of political opinion or
membership in a particular social group or under the CAT.
Petitioners have not argued to the court that the Board improperly
failed to consider these latter grounds for relief. See Xu, 424
F.3d at 48 (“Issues not raised before the Board may not be raised
for the first time upon judicial review of the Board’s decisions.”)
(quoting Ravindran v. Immigration and Naturalization Serv., 976
F.2d 754, 761 (1st Cir. 1992)). The court notes, in any event,
that the showing required to prove eligibility for withholding of
removal is higher than that for asylum. See, e.g., Silva v.
Ashcroft, 394 F.3d 1, 4 n.5 (1st Cir. 2005).
11
Although petitioners’ application included “membership in
a particular social group” as one of their claimed bases for
relief, there is no evidence that petitioners raised this issue
before the Board and they did not argue the point in their brief.
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II. DISCUSSION
A. Standard of Review
Where, as here, the Board does not summarily adopt the
IJ’s decision but instead makes an independent decision, the
Board’s decision is the final administrative order reviewed by the
court. See Xu, 424 F.3d at 48; Njenga v. Ashcroft, 386 F.3d 335,
338 (1st Cir. 2004).
Our review of the Board’s decision is quite limited. As
to the Board’s findings of fact, we shall deem them “conclusive
unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B); accord Olujoke v.
Gonzales, 411 F.3d 16, 21 (2005). The Board’s decision whether to
grant or deny asylum is “conclusive unless manifestly contrary to
the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D);
accord Huang v. Immigration and Naturalization Serv., 436 F.3d 89,
96 & n.9 (2d Cir. 2006); see Immigration and Naturalization Serv.
v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992) (quoting the
standard of review contained in former 8 U.S.C. § 1105a(a)(4)).12
Furthermore, the record contains few, if any, facts identifying the
social group of which they claim to be members and why they fear
persecution on that basis. Accordingly, the court will not
consider the claim in this proceeding. “Mere notation of the
applicable law, without any argumentation as to how it applies to
a petitioner’s case, does not raise the issue of its application”
on appeal. Xu, 424 F.3d at 49.
12
The proper standard of review for asylum decisions has been
the subject of some confusion, based in no small part on an
apparent technical error in the Illegal Immigration Reform and
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B. Review of the Board’s Decision
To be eligible for asylum, an applicant bears the burden
of proving that he or she qualifies as a “refugee” under the
Immigration and Nationality Act (“INA”). 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1); 8 C.F.R. § 208.13. To so qualify, an
applicant must be “unable or unwilling to return to, and [be]
unable or unwilling to avail himself [] of the protection of [the
Immigrant Responsibility Act of 1996 (“IIRIRA”). Prior to the
adoption of IIRIRA, the standard of review was set forth in former
8 U.S.C. § 1105a(a)(4). See Elias-Zacarias, 502 U.S. at 481 & n.1
(“The BIA’s determination [of an alien’s eligibility] for asylum
must be upheld if ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole’”; to
reverse the Board’s determination, “we must find that the evidence
not only supports that conclusion, but compels it . . . .” )
(quoting statute; emphasis in original). In 1996, Congress added
8 U.S.C. § 1252(b)(4)(D) as part of IIRIRA. Pub. L. No. 104-208,
§ 306(a), 110 Stat. 3009-608 (1996). That section purports to
provide the standard of review as to “the Attorney General’s
discretionary judgment whether to grant relief under section
1158(a) of this title.” In fact, however, 8 U.S.C. § 1158(a) says
nothing about the Attorney General’s discretionary judgment to
grant asylum, but instead addresses an alien’s ability to apply for
asylum. Prior to the enactment of IIRIRA, section 1158(a) did
contain such a reference, but the subject matter of former section
1158(a) was split under IIRIRA into new sections, 1158(a) and
1158(b). Section 1158(b) now contains the relevant language
addressing the Attorney General’s “discretionary judgment.” We
agree with the Second Circuit that Congress intended that the
standard of review set forth in section 1252(b)(4)(D) apply to
review of determinations whether to grant asylum under section
1158(b). See Huang, 436 F.3d at 96 & 97 n.9.
Although the phraseology of § 1252(b)(4)(1) is somewhat
different than the standard of review noted in our recent cases
(many of which quote Elias Zacarias), the net result is the same;
a Board decision that is not based on substantial evidence in the
record is, a fortiori, manifestly contrary to law and an abuse of
discretion and, accordingly, will be set aside. See, e.g.,
Olujoke, 411 F.3d at 21; Khem v. Ashcroft, 342 F.3d 51, 53 (1st
Cir. 2003).
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country of his nationality or, if he has no nationality, the
country in which he last habitually resided] 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); accord 8 C.F.R. §
208.13(b). An applicant may meet this burden by proving that he
has suffered persecution in the past on one of the aforementioned
grounds (entitling him to a rebuttable presumption in his favor) or
by establishing his “well-founded fear of future persecution.”
Khem, 342 F.3d at 53. To establish a well-founded fear of future
persecution, the applicant must prove his fear both subjectively
and objectively. Id. “[T]he objective component requires showing
by ‘credible, direct and specific evidence’ that this fear is
reasonable.” El Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir.
2003) (quoting Velasquez v. Ashcroft, 316 F.3d 31, 35 (1st Cir.
2002)).
Petitioners’ appeal concerns only their claim of future
persecution on the basis of political opinion. Sou does not argue
that he suffered past persecution.
As noted, we assume petitioners to be credible. In our
review, we consider only the reasons stated by the Board for
denying relief and do not independently consider whether other
grounds would be supported by the record. El Moraghy, 331 F.3d at
203; Yatskin v. Immigration and Naturalization Serv., 255 F.3d 5,
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9 (1st Cir. 2001).13 The Board determined that petitioners had not
met their burden by proffering sufficient evidence in support of
their application for asylum. Although a fuller explanation by the
Board would certainly aid our review, it contained the minimally
required reasoning to support its decision in light of the strength
of petitioners’ evidence.
The only finding of fact that petitioners challenge is
the Board’s finding that they had “no political affiliations of
their own.” However, nothing in the record compels a contrary
finding. Petitioners testified that they were not members of any
political organization.14 They were not political activists, and
their support for the SRP was relatively limited. Their social
relationship with Buntha related to the CFF in only the most
oblique sense. Finally, Sou’s service in the military ended
approximately 27 years before the events of 2002 leading to their
departure. Thus, while petitioners were not entirely apolitical,
13
The Board’s decision must be “sufficiently clear to support
our review.” Xu, 424 F.3d at 49. Although the decision here was
“brief and summary in tone,” it is clear enough to allow meaningful
review. See id. There is no “per se rule requiring an explicit
holding as to every factor that an [administrator] might find
relevant in making a determination. This is because, ‘[w]hen
considering whether the clarity of an administrative decision is
sufficient to support our review, . . . we are not . . . oblivious
of the record on which it is based.’” Sulaiman v. Gonzales, 429
F.3d 347, 350 (1st Cir. 2005) (quoting Xu, 424 F.3d at 49).
14
As noted, Sou apparently joined the SRP after he left
Cambodia.
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the record does not compel the conclusion that they had political
affiliations.15
Turning to the merits, we conclude that the Board’s
decision was not “manifestly contrary to law and an abuse of
discretion” for at least four reasons.
First, petitioners’ involvement in political
organizations was low-level to nonexistent (and in the case of the
military, decades-old); that is not sufficient, by itself, to
establish that the political beliefs of those organizations would
be imputed to them or that they would be targeted on the basis of
their tangential connections. See Khem, 342 F.3d at 54 (petitioner
was “low-level party member” who was a paid fundraiser for the
party, did not make public speeches, and never held party office;
substantial evidence supported IJ’s conclusion that she had not
demonstrated a well-founded fear of persecution). Nor does their
friendship with Buntha establish that his opinions or membership in
the CFF would be imputed to them. See id. at 53 (no evidence that
petitioner herself would be targeted because of her husband’s
political beliefs). While petitioners argue that the Board
15
Petitioners also argue that the Board’s finding that they
had no political affiliation was limited to a reading of the IJ’s
opinion and failed to take into account evidence that would support
a contrary conclusion. Petitioners claim that this is a “denial of
due process by the BIA.” However, the Board’s decision, though
brief, indicates that the review was limited to the record that was
developed before the IJ and includes some citations to that record.
The Board need not discuss each piece of evidence. See Khalil v.
Ashcroft, 337 F.3d 50, 56 (1st Cir. 2003).
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“ignored and failed to properly value” country condition reports
that detail government abuses directed toward SRP candidates,
activists, and high-level SRP lawmakers, there was no showing that
petitioners are situated similarly to those who suffered these
abuses. Accordingly, it was not error for the Board to conclude
that they had not demonstrated that their fear of suffering the
same abuse is well-founded. See id. at 54 (“[C]ountry conditions
reports do not document persecution of low-level party
members . . . .”).
Second, the Board noted that petitioners had left the
country freely. Indeed, their movements were largely unimpeded:
they sold the drug store inventory, obtained visas from the U.S.
embassy, obtained exit stamps in their passports from the Cambodian
government (although Sou’s was obtained by another person), and
were not questioned or detained as they boarded their flight.
Their conclusory testimony that Sou was in “hiding” and that they
feared for their safety does not meet their burden of proving that
their fear was objectively reasonable by “direct and specific
evidence.” See El Moraghy, 331 F.3d at 203 (internal quotation
marks removed).
Third, petitioners’ children remain in Cambodia. Nothing
in the record suggests that they, or any of the petitioners’ other
relatives, are being persecuted. “The fact that close relatives
continue to live peacefully in the [petitioners’] homeland
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undercuts the [petitioners’] claim that persecution awaits [their]
return.” Guzman v. INS, 327 F.3d 11, 16 (1st Cir. 2003) (quoting
Aguilar-Solis v. INS, 168 F.3d 565 (1st Cir. 1999)).
Finally, the length of time between the arrest of Buntha
(in December 2000) and the government’s attempt to question Sou (in
early May 2002) suggests that Sou was not considered a threat to
the government or even a particularly high priority for
questioning. Again, while not conclusive, that delay tends to
undercut the reasonableness of any fear of persecution.
III. CONCLUSION
In summary, the Board’s conclusion was not “manifestly
contrary to the law and an abuse of discretion” under 8 U.S.C. §
1252(b)(4)(D). We are sympathetic to petitioners’ past hardships
and concern for the future, and acutely aware of the tragic
experience of the Cambodian people over the past several decades.
Nonetheless, the Board’s decision is in accordance with the law and
will not be overturned.
The petition for review is denied.
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