United States Court of Appeals
For the First Circuit
No. 08-1899
SOKUN THY MAM; SOPHA HENG,
Petitioners,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.
Thomas Stylianos, Jr. on brief for petitioners.
Sunah Lee, Trial Attorney, Office of Immigration Litigation,
U.S. Department of Justice, Michael F. Hertz, Acting Assistant
Attorney General, Civil Division, and Michelle G. Latour, Assistant
Director, on brief for respondent.
May 22, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. Sokun Thy Mam and his wife Sopha
Heng, both natives and citizens of Cambodia, seek review of a final
order of the Board of Immigration Appeals ("BIA") denying their
application for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"). The BIA affirmed the
decision of the Immigration Judge ("IJ"), who denied Mam and Heng's
application on the basis of an adverse credibility finding. We
deny the petition.
I.
Mam and Heng entered the United States on August 20, 2001
and January 26, 2002, respectively. Both overstayed, without
authorization. A year after his arrival, and on the same day his
authorization expired, Mam filed an application for asylum,
withholding of removal, and protection under the CAT. The
application was returned to Mam because it was prepared on an
outdated form. Mam hired an attorney, and on October 7, 2003, he
filed a proper application, listing Heng as a beneficiary.
In an affidavit submitted with the application, Mam
claimed he and his wife were persecuted by followers of Hun Sen,
the head of the Cambodian government. The claims in the affidavit
are briefly summarized. In 1993, Mam was threatened by police and
forced to support the ruling party. In 1997, soldiers stole two
trucks and other materials from his home supply shop. In 1998, he
joined the opposition Sam Rainsy Party and received numerous death
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threats as a result. That same year, he was beaten while leading
a protest and was later arrested. In 2000, he was elected as a
board member to a party electoral committee charged with helping to
prepare for the 2002 election. Later that year, an unidentified
car drove up to him as he was leaving the party office and pushed
his motorcycle to the curb, causing Mam to break his right kneecap
and injure his elbows. In November 2000, Mam fled to the
countryside after learning that one of his friends had been
arrested. While he was in hiding, police came repeatedly to his
house to look for him. Not finding him, they threatened his wife.
In February 2001, a police captain raped Heng. After this, she
fled to the countryside to join Mam in hiding. Mam also claimed he
had been blacklisted after the police accused him of being involved
with the Cambodian Freedom Fighters, an anti-government group. His
affidavit did not specify when this event occurred.
Mam and Heng both testified before the IJ on October 5,
2006. In an oral decision issued that day, the IJ denied Mam and
Heng's application. The denial of asylum was based on an adverse
credibility finding. The IJ cited a series of inconsistencies in
the petitioners' testimony and affidavit. These included: (1) that
Mam and Heng could not agree on a date when the alleged rape of
Heng occurred; (2) that Mam and Heng gave different accounts of
when the motorcycle accident occurred and the duration of Mam's
hospitalization; (3) that Mam stated in his affidavit that the
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accident resulted in a broken kneecap but in his testimony, Mam did
not give the particular nature of his knee injury; (4) that Mam
alleged in his affidavit that he was blacklisted but then failed to
mention this on direct examination and had difficulty giving a date
for when this occurred when asked on cross-examination; (5) that
Mam failed to mention or describe in his testimony any of the death
threats discussed in his affidavit; (6) that Mam testified he did
not have any political problems before he joined the Sam Rainsy
Party in 1998 but then discussed several incidents that occurred
before this date; and (7) that Mam was unclear in his testimony as
to whether he actually won the board position in 2000. The IJ also
noted that Heng knew almost nothing about her husband's political
activities. The IJ concluded that these omissions and
discrepancies went to the heart of the petitioners' claim, under
then-existing standards, and, in the aggregate, made it impossible
for her to credit their testimony. The IJ also found that Mam and
Heng failed to meet their burden for withholding of removal and
that they presented no evidence to support a claim for protection
under the CAT.
In an opinion issued July 15, 2008, the BIA affirmed on
the basis of the reasons stated in the IJ's opinion. It pointed in
particular to a handful of discrepancies that it found most
strongly supported the IJ's determination that petitioners were not
credible. These discrepancies were: (1) whether Mam had any
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political problems before 1998; (2) whether Mam was in fact elected
to a board member position in 2000; (3) the duration and date of
Mam's hospitalization; and (4) the date of the alleged rape.1
Mam and Heng timely filed a petition for review, which
challenges both the IJ's adverse credibility finding and the BIA's
affirmance of that finding.
II.
"Where, as here, 'the BIA adopted and affirmed the IJ's
ruling, but also discussed some of the bases for the IJ's opinion,
we review both the IJ's and the BIA's opinion.'" Cuko v. Mukasey,
522 F.3d 32, 37 (1st Cir. 2008) (quoting Lin v. Gonzales, 503 F.3d
4, 6-7 (1st Cir. 2007)) (internal quotation marks omitted). We
review the IJ's credibility determination under the deferential
substantial evidence standard. E.g., id.; Hoxha v. Gonzales, 446
F.3d 210, 216 (1st Cir. 2006). "Since the IJ has the best vantage
point from which to assess the witnesses' testimonies and
demeanors, we accord significant respect to these witness
credibility determinations." Cuko, 522 F.3d at 37. Accordingly,
we will not upset the agency's credibility determination unless
petitioners can show the record evidence, considered as a whole,
"would compel a reasonable factfinder to make a contrary
determination." Id. (emphasis in original) (quoting Stroni v.
1
The BIA also rejected as meritless a challenge to the
IJ's decision based on due process grounds. Petitioners have not
challenged this ruling in their petition for review.
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Gonzales, 454 F.3d 82, 87 (1st Cir. 2006)) (internal quotation mark
omitted); accord Lutaaya v. Mukasey, 535 F.3d 63, 70 (1st Cir.
2008); Segran v. Mukasey, 511 F.3d 1, 6 (1st Cir. 2007); see also
Hem v. Mukasey, 514 F.3d 67, 69 (1st Cir. 2008).
In reviewing an adverse credibility determination, we
look specifically to whether: (1) "the discrepancies articulated by
the IJ and/or the BIA are actually present in the administrative
record"; (2) "the discrepancies generate specific and cogent
reasons from which to infer that petitioner or his witness provided
non-creditworthy testimony"; and (3) "petitioner failed to provide
a persuasive explanation for these discrepancies." Cuko, 522 F.3d
at 37; accord Zeru v. Gonzales, 503 F.3d 59, 69-70 (1st Cir. 2007);
Hoxha, 446 F.3d at 216-17.
The IJ cited a number of discrepancies and omissions that
strongly support her finding that Mam and Heng were not credible.
First, the IJ stated that Mam and Heng were inconsistent in their
testimony about when the alleged rape had occurred. The BIA
opinion also highlighted this as a particularly critical
discrepancy. This discrepancy is clearly present in the record.
On direct examination, Heng testified that the rape occurred
"sometime in 2001." When asked to give a more specific date on
cross-examination, she responded, "sometime in either September or
October," and then immediately added, "November 23, 2001?" The
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government's lawyer then asked, "November 23, 2001 is when the
incident happened, ma'am?" She responded: "Maybe."
Heng's testimony is contradicted by Mam's statement in
his affidavit that the alleged rape occurred in February 2001. The
IJ's opinion mistakenly states that Heng gave the date as November
23, 2000, which is about two months off of the date given in Mam's
affidavit. The actual date given by Heng in her testimony,
November 23, 2001, is in fact further removed from the date given
by Mam. Thus, the actual discrepancy between Mam's and Heng's
accounts is even greater than that cited by the IJ. Moreover, it
is notable that the date Heng eventually, if tentatively, settled
on when pressed to give a specific date is similar to a date listed
on the affidavit for another event: November 23, 2000 is the date
listed in the affidavit for when Mam fled to the countryside alone.
This discrepancy goes to the heart of petitioners'
claim.2 The horrific assertion that Heng was raped by a police
officer as a result of her husband's political activity is
petitioners' strongest claim for asylum on the basis of
2
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231, "abolishes the 'heart of the claim' rule." Cuko, 522 F.3d at
38 n.2; accord Lutaaya, 535 F.3d at 70 n.8; see also Hoxha, 446
F.3d at 216 n.4 (stating that the Act "alters, among other things,
the standards governing credibility determinations and the need for
corroboration of testimony in asylum cases" (quoting Dhima v.
Gonzales, 416 F.3d 92, 95 n.3 (2005)) (internal quotation marks
omitted)). However, because petitioners' application pre-dates the
effective date of the Act, this change is inapplicable here. See
Cuko, 522 F.3d at 38 n.2; Lutaaya, 535 F.3d at 70 n.8.
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persecution. That Mam and Heng could not agree on a date, and
indeed gave a series of dates spread over a year for when this
alleged traumatic event occurred is a specific, cogent reason for
inferring a lack of credibility. See Hoxha, 446 F.3d at 217.
In attempting to explain the discrepancy, petitioners
argue that expecting that the two of them "would have had a calm
detailed discussion" about Heng's rape "make[s] no sense." Not
true. Before they testified, years later, they could be expected
to get their stories straight. Moreover, whether or not that
assertion is credited, the IJ's conclusion rested on no such
expectation. Nothing compels the conclusion they did not discuss
the alleged rape. Indeed, Heng and Mam had enough of a discussion
about the rape to allow Mam to describe it in some detail in his
affidavit. Moreover, Heng testified that she fled to the
countryside to join Mam after the rape occurred, so it is not
unreasonable to assume that she would have described to him the
circumstances surrounding her flight or that he would know when it
was that she joined him.3
3
The argument that Heng's confusion about the date may
have stemmed from the emotional strain that must be inherent in
attempting to recount the details behind her rape was raised by Mam
and Heng's counsel in their appeal before the BIA but was not
raised here. Even given this argument, a reasonable factfinder
would not be compelled to reach a conclusion contrary to the IJ's,
especially given that the IJ observed the demeanor of the witness
throughout. See Cuko, 522 F.3d at 38 n.3 ("Even equally competing
inferences do not allow us to unsettle the IJ's determination.").
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The second material discrepancy found by the IJ, and
highlighted by the BIA, concerns the date and length of Mam's
hospitalization after the incident with the motorcycle, which Mam
attributes to retaliation for his party membership. This
discrepancy is present in the record. In Mam's affidavit and
testimony, he stated that the incident in which an unidentified car
chased him and knocked him to the ground as he drove out from the
party office occurred in June 2000, and that he was hospitalized as
a result for two weeks. Heng, however, gave a different account.
On cross-examination, Heng stated and then reaffirmed that her
husband was hospitalized for only two days. She also could not
identify the year in which this incident occurred. When asked to
give a date, she responded: "1996, 1998. . . . 1996, 1993. Like
that. 1996, 1993. Something. I'm not quite sure." As the IJ
noted, there is a significant difference between a two-day
hospitalization and a two-week hospitalization, and the fact that
Mam and Heng gave different accounts as to what occurred and the
year in which this occurred goes to the heart of their claims.
Petitioners made no attempt to explain this discrepancy, either
before the agency or in their petition for review.
The IJ's conclusion is also supported by the fact that
Mam and Heng did not provide any corroborating evidence regarding
the accident, such as hospital reports, or any indication that they
attempted to procure such evidence. See Muñoz-Monsalve v. Mukasey,
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551 F.3d 1, 8 (1st Cir. 2008) ("[T]he IJ is warranted in weighing
in the balance the existence and availability of corroborating
evidence, and the effect of its non-production.").
A third material inconsistency found by the IJ related to
Mam's purportedly being blacklisted in Cambodia as a result of his
political activities. In his affidavit, Mam claimed he was
blacklisted because the police accused him of "being involved in
the Cambodian Freedom Fighters"; the affidavit does not provide a
date for when this occurred. In his affidavit, Mam also claimed
that being blacklisted was one of the things that caused him to
"[feel] like [he] could no longer live in Cambodia." In his direct
testimony, however, Mam never mentioned being blacklisted, and when
asked about it on cross-examination, he provided no further details
and said he could not remember in what year this occurred -- only
that it "maybe" happened around the time of the elections in 1998.
Additionally, Mam said nothing about the Cambodian Freedom Fighters
accusation that he claimed caused him to be blacklisted; instead,
he said only that "when I stood up and opposed their party, they
listed me on the blacklist." Since Mam stated in his affidavit
that being blacklisted was one of the things that forced him to
leave Cambodia, this discrepancy is central to his claim. Again,
petitioners made no effort to provide an alternative explanation.
A fourth material inconsistency discussed by the IJ is
that, in his affidavit, Mam claimed that as a result of joining the
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Sam Rainsy Party, he "received many death threats [on] several
occasions," but that Mam omitted any mention of these death threats
from his direct testimony. When asked about this omission on
cross-examination, he said only that he "continuously receive[d]
death threat[s]" and did not attempt to provide any further
elaboration or explanation. Mam's failure to recount in his
testimony every detail listed in his affidavit, of course, would
not be fatal to his claim in and of itself. See Heng v. Gonzales,
493 F.3d 46, 49 (1st Cir. 2007). But if Mam was actually receiving
death threats "continuously," as he claimed, this is hardly a minor
detail, and, taken together with the other discrepancies and
omissions in the record, the omission supports the IJ's adverse
credibility determination. See id.; Pan v. Gonzales, 489 F.3d 80,
86 (1st Cir. 2007) ("Some of these inconsistencies, in isolation,
may seem like small potatoes. What counts, however, is that their
cumulative effect is great.").
Some of the other inconsistencies found by the IJ are not
as strongly supported in the record. However, this is not
sufficient to unsettle the agency's determination. Even if we were
to discount entirely the IJ's findings as to any inconsistencies
regarding Mam's involvement with the election committee, his
description of his problems before 1998, and the nature of his knee
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injury,4 the other, significant discrepancies discussed by the IJ
and the BIA are more than sufficient to support the adverse
credibility finding. Reviewing the record as a whole, we cannot
conclude that the IJ was compelled to find petitioners credible.
See Segran, 511 F.3d at 6; see also Hoxha v. Mukasey, 256 F. App'x
368, 372-73 (1st Cir. 2007); Jiang v. Gonzáles, 156 F. App'x 336,
340-41 (1st Cir. 2005).
Because Mam and Heng failed to provide credible
testimony, they could not meet the burden of proof required to
establish their asylum claims. See Hem, 514 F.3d at 73; Melhem v.
Gonzales, 500 F.3d 78, 81 (1st Cir. 2007); Dine v. Gonzales, 464
F.3d 89, 93 (1st Cir. 2006). This also means petitioners
necessarily could not meet the more stringent burden required for
withholding of removal. Sok v. Mukasey, 541 F.3d 43, 47 (1st Cir.
2008); Dine, 464 F.3d at 93. Petitioners made no arguments
challenging the agency's denial of their claims under the CAT,
either before the BIA or in their petition for review.
The petition for review is denied.
4
Petitioners devote much of their brief to arguing that
the IJ claimed Mam "never mention[ed]" his injured knee when in
fact he did so a number of times during his testimony, and that
this demonstrated that the IJ had "a prejudicial faulty memory."
This is incorrect. The IJ never asserted that Mam failed to
mention his injured knee; rather, she acknowledged that Mam said he
had an injured knee but emphasized that he had failed to specify
the type of injury this was.
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