Sokha Leng v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
JAN 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOKHA SO LENG, No. 14-73477

Petitioner, Agency No. A027-304-898

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted December 5, 2017**
Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and PIERSOL,*** District
Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
Sokha Leng petitions for review of the Board of Immigration Appeals’

(“BIA”) decision finding that Leng is a Cambodian citizen by birth and denying his

application for relief under the Convention Against Torture (“CAT”). We have

jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant the petition for review

and remand to the BIA for further proceedings.

In immigration proceedings, “the content of foreign law is a question of

fact.” Matter of A-G-G-, 25 I. & N. Dec. 486, 505 n.19 (B.I.A. 2011). As such, it

must “be proven by the party seeking to rely on it.” Matter of Soleimani, 20 I. &

N. Dec. 99, 106 (B.I.A. 1989). Because the content of foreign law is a question of

fact, our review is for substantial evidence.

We hold that any reasonable adjudicator would have found the evidence

offered by the government insufficient to establish the content of Cambodian

citizenship law with respect to those—like Leng—born in 1981. See Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (setting out

substantial evidence standard). Of the two citizenship laws about which the

government submitted evidence, neither one clearly governs this category of

persons. As the Immigration Judge found, the 1996 law contains no indication of

retroactivity; it therefore does not self-evidently determine the citizenship of those

born before its enactment. As for the 1954 law, documents in the record indicate

2
that Cambodia experienced at least two complete regime changes in the years

between its enactment and Leng’s birth. In 1975, the communist Khmer Rouge,

led by Pol Pot, defeated the existing government in a violent civil war. Over the

next four years, the regime dismantled Cambodian society as it had existed

previously, killing approximately two million Cambodians in the process. And in

1979, Vietnam invaded Cambodia, defeated the Khmer Rouge, and controlled the

country until 1989.

Given this history as indicated in the administrative record, any reasonable

adjudicator would have found the 1954 statute—without further

explication1—insufficient to demonstrate the content of Cambodian citizenship law

with respect to those born in 1981, after the Khmer Rouge takeover and during the

period of Vietnamese rule. We therefore grant the petition for review and remand

to the BIA for further proceedings to determine Cambodian law and its application

to Leng.2 Because we remand on the citizenship issue, we express no opinion on

1
We note that in previous cases, the BIA has relied on expert opinions
prepared by the Library of Congress to prove the content of foreign law. See, e.g.,
Matter of Kodwo, 24 I. & N. Dec. 479, 482 (B.I.A. 2008).
2
The government asserts that the question of Leng’s citizenship is
essentially irrelevant, since by all accounts he is not a United States citizen. But
“[i]n reviewing the decision of the BIA, we consider only the grounds relied upon
by that agency”—here, that Cambodian law renders Leng a Cambodian citizen.
Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004).
3
the further merits of Leng’s claim for CAT relief; nor do we address whether Leng

may properly be removed to Thailand or the Philippines.

PETITION GRANTED; REMANDED.