United States Court of Appeals
For the First Circuit
No. 06-1266
SOTHY OUK,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Thomas Stylianos, Jr. on brief for Petitioner.
Margot L. Nadel, Attorney, Office of Immigration Litigation,
Peter D. Keisler, Assistant Attorney General, and Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, on brief for
Respondent.
September 29, 2006
LYNCH, Circuit Judge. Petitioner Sothy Ouk, a native and
citizen of Cambodia, appeals from a final order of removal of the
Board of Immigration Appeals (BIA), which denied her petition for
asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). An Immigration Judge (IJ) found that Ouk
had not previously been persecuted on the basis of a protected
ground, and that she had not met her burden of establishing a
well-founded fear of future persecution. He also found that she
had failed to establish that it was more likely than not that she
would be persecuted or tortured if she returned to Cambodia. In a
per curiam order, the BIA adopted and affirmed the IJ's ruling. We
affirm the BIA and deny the petition.
I.
On February 7, 2003, Ouk entered the United States as a
non-immigrant visitor. She was permitted to remain in the United
States until August 6, 2003. Ouk did not depart by that date, and
thereafter her presence was unauthorized. On February 6, 2004, Ouk
filed an application requesting political asylum and withholding of
removal based on her political opinion and membership in a
particular social group. She also requested protection under the
CAT. On September 20, 2004, Ouk was served with a Notice to Appear
in removal proceedings before an IJ. She conceded removability and
renewed her application for asylum, withholding of removal, and CAT
protection.
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At her removal hearing on November 19, 2004, Ouk
testified that she had suffered persecution in Cambodia on account
of her political opinion and membership in the Sam Rainsy party, an
opposition political party. Ouk testified that this persecution
had come at the hands of the Cambodian People's Party.1 In March
1997, Ouk and her husband attended a political protest. At that
protest, the police beat members of opposition parties and threw
hand grenades into the crowd. Ouk claimed that she was identified
as a member of the Sam Rainsy party by her neighbor, a police
officer who saw her at the demonstration. Ouk also testified that
she believed that her husband was killed in July 1997 because of
his opposition to the People's Party. Thereafter, Ouk "hid
[her]self around the city of Phnom Penh" because she feared that
the People's Party would try to kill her, too. Ouk stated that
between 1997 and 2003 she attempted several times to come to the
United States.
Ouk also testified that other members of her family had
suffered persecution because of their political affiliations. She
testified that her father, who had been a member of the National
United Front for a Neutral, Peaceful, Cooperative, and Independent
Cambodia (FUNCINPEC), another opposition political party, had been
arrested by the People's Party, presumably because of his political
1
The Cambodian People's Party is the currently governing
party in Cambodia and is headed by Prime Minister Hun Sen, a former
member of the Khmer Rouge.
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activities. He then escaped Cambodia and emigrated to the United
States, where he now lives as a legal permanent resident. In
addition, Ouk reported that her older brother was killed by the
Khmer Rouge, and she claimed that members of the People's Party had
attempted to kill her younger brothers and sisters. Five of her
siblings now live in the United States, while two of them still
live in Cambodia.
Ouk also offered documentary evidence, including two
expert reports diagnosing her with post-traumatic stress disorder
and attesting to the reasonableness of her fear of returning to
Cambodia.
In an oral decision, the IJ denied Ouk's application for
asylum, withholding of removal, and CAT protection, but granted her
the privilege of voluntary departure until January 18, 2005. In
his opinion, the IJ stated that although he found Ouk's oral
testimony generally to be credible, he was skeptical of her
statements that she had been in hiding for the six years preceding
her departure from Cambodia. The IJ also found that although Ouk's
husband had disappeared, her husband's political opinion could not
be imputed to her, and that Ouk "ha[d] experienced no difficulties
while she was in Cambodia." Rather, she had applied for and
received a passport in Cambodia, and had received an exit stamp
upon leaving. The IJ further emphasized that Ouk's brother and
sister, who also are members of the Sam Rainsy party, live safely
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in Cambodia, and that in the last election, the Sam Rainsy party
won twenty-four seats in the national assembly. Finally, he
referred to the Cambodian constitution's provision of the right to
change the government peacefully and to a State Department report
indicating that "citizens generally exercise this right in practice
through periodic elections on the basis of universal suffrage."
On February 1, 2006, the BIA adopted and affirmed the
IJ's ruling and extended the time within which Ouk could
voluntarily depart the United States until April 2, 2006. The BIA
specifically commented that "[o]ther than . . . minor bruises
suffered as a result of crowd movement at a demonstration, the
record [did] not indicate that [Ouk] was ever seriously harmed."
The BIA also noted that the reasonableness of Ouk's fear of future
persecution was undermined by her family's continued presence --
without incident -- in Cambodia.2
II.
Ouk argues in her petition for review that the IJ erred
in (1) failing to find that she had established a well-founded fear
of future persecution in Cambodia, (2) failing to recognize her
emotional harm in evaluating her asylum claim, and (3) failing to
2
The BIA did not consider evidence first submitted on
appeal. It found that Ouk had failed to explain why certain
evidence was not presented at her hearing before the IJ, and it
noted that the evidence that became available after her hearing
could not independently establish that Ouk had a well-founded fear
of persecution.
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consider her mental illness in ruling on her withholding of removal
claim. Ouk also argues that the time period within which she is
required to post her voluntary departure bond should be tolled from
the date that she filed a petition for review in this court.
When the BIA adopts the IJ's opinion and discusses some
of the bases for the IJ's decision, we have authority to review
both the IJ's and the BIA's opinions. Romilus v. Ashcroft, 385
F.3d 1, 5 (1st Cir. 2004) (citing Chen v. Ashcroft, 376 F.3d 215,
222 (3d Cir. 2004) (“[W]hen the BIA both adopts the findings of the
IJ and discusses some of the bases for the IJ's decision, we have
authority to review the decisions of both the IJ and the BIA.”)).
To be eligible for asylum, an alien must demonstrate that
she is a "refugee." 8 U.S.C. § 1158(b)(1)(A). To do so, the alien
must show that she reasonably fears persecution "on account of
race, religion, nationality, membership in a particular social
group, or political opinion." Id. § 1101(a)(42)(A); see also
Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004). The
alien bears the burden of proof for establishing her eligibility
for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). Whether or not an alien
has met her burden is a factual determination that we review under
the deferential substantial evidence standard. See Estrada-Canales
v. Gonzales, 437 F.3d 208, 215 (1st Cir. 2006). Thus, we will
uphold the agency's determination "unless any reasonable
adjudicator would be compelled to conclude to the contrary." 8
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U.S.C. § 1252(b)(4)(B); see also Rodriguez-Ramirez v. Ashcroft, 398
F.3d 120, 123 (1st Cir. 2005).
Here, substantial evidence supports the IJ's
determination that Ouk does not have a well-founded fear of
persecution in Cambodia. Apart from minor injuries from crowd
movement at the 1997 demonstration, Ouk was never physically harmed
in Cambodia because of her political affiliation. The IJ's
decision also is supported by Ouk's testimony that she emerged from
hiding on several occasions, including to apply for a passport and
visa to enter the United States. In 2000, she received a passport
from the Cambodian government, and in 2003, she received a visa to
come to the United States. She was not detained at the airport
upon her departure from Cambodia.
Moreover, according to the 2003 State Department Country
Report on Cambodia, the Sam Rainsy party holds approximately 20% of
the seats in the Cambodian national assembly, as does the FUNCINPEC
party. Two of Ouk's siblings -- both of whom also are members of
the Sam Rainsy party -- continue to live in Cambodia without
incident. See Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir.
1999) ("[T]he fact that close relatives continue to live peacefully
in the alien's homeland undercuts the alien's claim that
persecution awaits his return."); see also Sou v. Gonzales, 450
F.3d 1, 8 (1st Cir. 2006). Ouk's brother voluntarily returned to
Cambodia after visiting the United States. Ouk's son also lives in
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Cambodia and remains unharmed. Indeed, the 2003 Country Report
states that "[t]here were no reports of politically motivated
disappearances" and "no reports of political prisoners" during the
year.
The IJ did not inappropriately discount Ouk's emotional
harm. "[U]nder the right set of circumstances, a finding of past
persecution might rest on a showing of psychological harm."
Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). Here,
assuming Ouk suffers from post-traumatic stress disorder, the IJ
was warranted in finding that she had not shown that it was related
to any persecution directed at her, and therefore that she had not
established past persecution based on her political opinion. To
the extent that Ouk relies on her post-traumatic stress disorder as
evidence of her fear of future persecution, the IJ was warranted in
finding that she had failed to meet her burden, even taking her
fear as genuine. Genuine fear is not sufficient to establish
eligibility for asylum. For the reasons described above, we cannot
say that any reasonable adjudicator would be compelled to find that
Ouk has a well-founded fear of persecution in Cambodia.
As to Ouk's withholding of removal claim, this court
lacks jurisdiction to consider whether Ouk is more likely than not
to be persecuted based on her mental illness. Ouk failed to raise
-- in her written applications or oral testimony before the IJ, or
in her briefs to the BIA -- an argument that she would be
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persecuted because she suffers from post-traumatic stress disorder.
As a result, she has failed to exhaust her administrative remedies,
and we may not consider the argument. See id. We add that even if
Ouk's claim were properly before us, there is no evidence
whatsoever in the record that she "is more likely than not to face
persecution on account of . . . membership in a particular social
group." See Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir. 2004)
(emphasis omitted).
Finally, as to the grant of voluntary departure, the
government has not opposed Ouk's argument for tolling the period
during which she must post her departure bond. Accordingly, Ouk
has one business day from the issuance of this opinion to post her
$500 voluntary departure bond.
The petition for review is otherwise denied.
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