Ang v. Gonzales , 430 F.3d 50 ( 2005 )

United States Court of Appeals
For the First Circuit
No. 04-2605
TRY ANG AND SOKUNTHEA MEAN,
Petitioners,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya and Lynch, Circuit Judges,
and Smith,* District Judge.
Thomas Stylianos, Jr. on brief for petitioners.
Thomas P. Colantuono, United States Attorney, and Aixa
Maldonado-Quiñones, Assistant United States Attorney, on brief for
respondent.
December 1, 2005
*
Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. The petitioners, Try Ang and
Sokunthea Mean, are both Cambodian nationals. They seek judicial
review of a final order of the Board of Immigration Appeals (BIA)
denying their joint application for asylum, withholding of removal,
and relief under the United Nations Convention Against Torture
(CAT). Because Mean's application is derivative and its success is
dependent upon the success of Ang's application, see, e.g., Da
Silva v. Ashcroft, 394 F.3d 1, 4 n.4 (1st Cir. 2005), we analyze
the case as if Ang were the sole petitioner.
Ang assigns error in four respects: (i) failure to
consider his membership in a social group when determining his
refugee status; (ii) misinterpretation of testimony which, properly
construed, would tend to support his claims; (iii) failure to
recognize that country conditions had not changed so significantly
as to negate any founded fear of future persecution; and (iv)
failure to grant asylum for humanitarian reasons. Finding these
claims of error unpersuasive, we deny the petition.
The record reflects that Ang, armed with a tourist visa,
entered the United States on April 2, 2000. His wife, Mean, joined
him two months later (having entered the country illegally). On
November 6, they sought asylum.
The Immigration and Naturalization Service (INS) charged
the couple with remaining in the United States longer than
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permitted.1 See 8 U.S.C. § 1227(a)(1)(B). The INS scheduled a
hearing for October 20, 2002. The petitioners conceded
removability and cross-applied for asylum, withholding of removal,
relief under the CAT, and in the alternative, voluntary departure.
At an evidentiary hearing held on August 20, 2003, Ang
testified about his political activities and employment in Cambodia
and the circumstances that brought him and his wife to the United
States. Mean did not testify.
The story, insofar as it is relevant here, began in 1988,
when Ang fled to a Cambodian refugee camp in order to escape forced
conscription by the reigning government. The camp was located in
an area controlled by a minority political party, the National
United Front for a Neutral, Peaceful, Cooperative, and Independent
Cambodia (FUNCINPEC). Ang began working for this party as a
volunteer. He played an active role in the campaign leading up to
the 1993 national elections.2 The FUNCINPEC prevailed in the
elections and ascended to power.
1
The Homeland Security Act of 2002, Pub. L. No. 107-296, §
471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. §
291(a)), abolished the INS and transferred its duties to the
Department of Homeland Security. See Lattab v. Ashcroft, 384 F.3d
8, 13 n.2 (1st Cir. 2004). For simplicity's sake, we refer
throughout to the INS.
2
Ang claims to have received a death threat from a local
police officer due to his political activities, but he never
reported such a threat to the authorities. At any rate, an
isolated twelve-year-old threat, made under circumstances that no
longer obtain, would be immaterial.
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To earn a living, Ang secured employment at the United
States embassy. His job was to protect the Americans who worked
there. He steadily moved up the ranks and, by the time that the
FUNCINPEC came to power, he was in charge of sixty guards. A few
years later, he was promoted and given responsibility for
supervising 250 guards.
In 1997, a coup engineered by Hun Sen toppled the
FUNCINPEC government. Hun Sen's party, the Cambodian People's
Party (CPP), assumed control. Ang transported Americans to the
safety of the embassy during the insurrection. In his asylum
affidavit, he declared that he was not afraid of dying during this
period because Hun Sen's supporters "would not dare to harm those
who worked with the Americans."
General elections were held in 1998. John Keo, Ang's
boss at the embassy, asked him to report on any shootings,
kidnapings, or other acts of violence connected with the voting.
Ang says that he received a number of veiled threats during this
interlude (e.g., "[y]ou will see [what happens] when the U.S.
leaves Cambodia"; the United States "cannot protect you all the
time").
On March 8, 2000, Ang and other embassy staffers heard a
threat that came over their security radios. The unidentified
speaker stated: "I will kill John [Keo] and Try [Ang] before they
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take the airplane." Keo asked all guards on duty to write reports
about the incident. Ang completed his report nine days later.
Ang's departure followed on the heels of this incident.
Using a tourist visa issued a few days before the broadcasted
threat, Ang left Cambodia. On April 7 — five days after arriving
in the United States — he notified the embassy by facsimile
transmission of his resignation. He claims that police officers
visited his wife twice in the following two days and threatened to
kill her if she did not reveal his whereabouts. In roughly two
months time, Mean, using a bogus passport that she purchased for
$15,000, joined her husband.
Ang testified that he fears he will be killed if he were
to return to Cambodia. This fear relates both to his political
activities and his past employment. The immigration judge (IJ)
disagreed, based partially on a finding that Ang had worked at the
American embassy, but that a significant credibility gap marred
most of the other aspects of his testimony.
Chronologically, the IJ found that the early threats of
which Ang complained, to the extent that they occurred at all, were
due to his FUNCINPEC membership. The IJ characterized these
threats as unsubstantiated allegations; he deemed them neither
convincing nor compelling, especially given Ang's boast that he was
not concerned about them.
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The IJ attributed the broadcasted death threat to a
disgruntled former security guard who had been dismissed from his
post. In this regard, the IJ cited Ang's own testimony as
demonstrating that he (Ang) did not take the threat seriously.
Moving to Ang's departure, the IJ spotted a flat
inconsistency in Ang's stated reason for leaving Cambodia. Ang
initially vouchsafed that he left to save his life; he later
claimed, however, that he had intended to return after a visit to
the United States, but that the subsequent threats reported by his
wife convinced him to change his mind. As to those threats, the IJ
found Ang's testimony unworthy of credence. In the IJ's view, it
was not plausible that Ang's absence would have been noticed so
quickly.
Finally, the IJ found that Ang had failed to provide
objective facts sufficient to establish a well-founded fear of
future persecution.
Based on these findings, the IJ denied the joint
application for asylum, withholding of removal, and relief under
the CAT, but granted a right of voluntary departure. The
petitioners appealed and, on November 2, 2004, the BIA summarily
affirmed. This timely petition for judicial review followed.
When the BIA summarily affirms an IJ's decision, the
focus, for purposes of judicial review, is on the IJ's decision.
We review that determination as if it were the BIA's. See Olujoke
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v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005). In that process, we
assay the IJ's findings of fact, including credibility
determinations, under a highly deferential "substantial evidence"
standard. See id. That standard demands that we uphold the IJ's
decision as long as it is "supported by reasonable, substantial,
and probative evidence on the record as a whole." INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). Absent a mistake of law, the
IJ's decision must stand unless a reasonable factfinder would be
compelled to reach a contrary conclusion. See 8 U.S.C. §
1252(b)(4)(B); see also Negeya v. Gonzales, 417 F.3d 78, 82 (1st
Cir. 2005).
Against this backdrop, we turn to Ang's asylum claim. To
qualify for asylum, an alien must demonstrate that he is a refugee
as defined by the Immigration and Nationality Act (the Act), 8
U.S.C. §§ 1101-1537. Id. § 1158(b)(1). According to the Act, a
refugee is a person who cannot or will not return to his country of
nationality or avail himself of that country's protections "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." Id. § 1101(a)(42)(A); see
Harutyunyan v. Gonzales, 421 F.3d 64, 67 (1st Cir. 2005); Aguilar-
Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999).
The alien may carry this burden by proving past
persecution based on one of the five enumerated grounds and, thus,
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animating a rebuttable presumption of future persecution. See
Harutyunyan, 421 F.3d at 67. If the alien succeeds in making this
showing, the burden shifts to the government to prove either "a
fundamental change in circumstances such that the [alien] no longer
has a well-founded fear of persecution in [his] country of
nationality" or that the alien "could avoid future persecution by
relocating to another part of [his] country of nationality." 8
C.F.R. § 208.13(b)(1)(i)(A)-(B).
There is another avenue to asylum. If an alien cannot
establish past persecution, he may prove a well-founded fear of
future persecution independent of any presumption. See Rodriguez-
Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005).
In the case at hand, Ang presents a hybrid claim of past
persecution. This claim implicates both his political opinion (his
support for the FUNCINPEC) and his membership in a putative social
group (Cambodian supporters of the United States). While it is
clear that past persecution based on the former ground would, if
proven, confer refugee status, see, e.g., Bocova v. Gonzales, 412
F.3d 257, 262-63 (1st Cir. 2005), determining whether Ang's
employment at the American embassy and his assistance to Americans
make him a member of a social group within the meaning of the Act
is less clear-cut.
Persecution on account of membership in a social group
turns on whether the claimed persecution is directed at a person
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because of that person's interactions with a band of individuals
who share a "common, immutable characteristic." Da Silva, 394 F.3d
at 5. Membership may stem from an innate characteristic or a
shared experience. Compare, e.g., Gebremichael v. INS, 10 F.3d 28,
36 (1st Cir. 1993) (concluding that family membership can
constitute membership in a social group), with, e.g., Mediouni v.
INS, 314 F.3d 24, 28 (1st Cir. 2002) (concluding that past
employment as a police officer could satisfy the social group
membership requirement). Regardless of whether the shared
characteristic is genetic or experiential, it must be one that
individuals "either cannot change, or should not be required to
change because it is fundamental to their individual identities or
consciences." Da Silva, 394 F.3d at 5.
Ang asserts that he is a member of a social group that
shares the common characteristic of supporting the American
presence in Cambodia. Support for the Americans, his thesis runs,
is an identifiable characteristic that he should not be forced to
change due to the actions of individuals who are hostile to the
interests of the United States. We agree with Ang's premise that
his work at the embassy and his support for Americans potentially
could form the basis for a claim of membership in a social group.
See id. at 6 (explaining that "characteristics relating to current
or former employment status can . . . form the linchpin for
assembling a protected social group"). Accordingly, we turn to
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Ang's contention that the IJ erred by not factoring both political
opinion and social group membership into the past persecution
calculus.
We have examined the record with care and find Ang's
contention to be unfounded. Although the IJ focused primarily on
Ang's political opinion claim, he also took account of Ang's social
group membership claim. For example, the IJ noted, in his bench
decision, Ang's assertion that "threats were issued against him
because he was a security guard for the United States Embassy."
Indeed, Ang's pro-American stance and the possibility of
persecution arising therefrom comprise one of the few parts of
Ang's testimony that the IJ believed.
That the IJ's bench decision contained a heavier emphasis
on the political opinion claim than on the social group membership
claim is understandable. Both Ang's asylum application and his
trial testimony stressed the former claim. In these materials, Ang
made many more references to his participation in the FUNCINPEC and
to his fear that followers of Hun Sen might retaliate against him
than to the consequences of his work at the embassy. It would be
absurd to allow an asylum applicant to profit by emphasizing one
aspect of a hybrid claim and then complaining when the IJ devotes
most of his attention to that aspect. We will not condone that
sort of bait-and-switch tactic.
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To say more on this point would be supererogatory. On
this record, we conclude, without serious question, that the IJ
adequately considered both aspects of Ang's hybrid claim.
Consequently, we reject Ang's first assignment of error.
Ang next complains that the IJ "misinterpreted" the
evidence of past persecution. This complaint is utterly without
merit. Ang testified to a series of vaguely menacing statements
and the IJ rejected those statements as unsubstantiated and lacking
in probative value.
The baseline rule is that past persecution requires "more
than mere discomfiture, unpleasantness, harassment, or unfair
treatment." Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.
2005). Given that baseline, hollow threats, such as "[y]ou will
see [what happens] when the U.S. leaves Cambodia" or the United
States "cannot protect you all the time," without more, certainly
do not compel a finding of past persecution. There was no
misinterpretation here.
To be sure, the broadcasted threat that occurred on March
8, 2002 is cut from different cloth. A direct threat to an
individual's life can constitute past persecution. See Aguilar-
Solis, 168 F.3d at 569-70. Withal, an asylum applicant must
demonstrate a nexus between such a threat and one of the five
statutorily protected grounds. See 8 C.F.R. § 208.13(b)(1); see
also Rodriguez-Ramirez, 398 F.3d at 124. Here, the record supports
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the IJ's finding that no such connection was forged with respect to
the broadcasted death threat.
On this issue, the parties talk past each other. The
problem, as we see it, is that Ang misapprehends the IJ's
reasoning. In his bench decision, the IJ did not take the view
that the broadcasted threat never happened but, rather, attributed
the threat to a disgruntled former subordinate. Because the
genesis of this threat reasonably can be seen as something other
than the petitioner's political views or support of the United
States, there is no principled way we can set aside the IJ's
determination.
There is one last piece to the question of threat
evidence. Ang calumnizes the IJ's determination that the supposed
threats to Mean did not occur. Ang did not advance this claim
before the BIA, so we will not consider it. See, e.g., Makhoul v.
Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004) (explaining that
"theories not advanced before the BIA may not be surfaced for the
first time in a petition for judicial review of the BIA's final
order"). In all events, were this claim properly before us, we
would defer to the IJ's credibility finding. See, e.g., Olujoke,
411 F.3d at 21-22 (noting that an appellate court should treat an
IJ's adverse credibility determinations with "great respect").
Our rejection of these arguments makes manifest that Ang
has not demonstrated past persecution. Hence, he is not entitled
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to a rebuttable presumption that a well-founded fear of future
persecution exists. This brings us to Ang's third assignment of
error: the asseveration that the IJ incorrectly rejected his claim
that, unaided by any presumption, he had proved a well-founded fear
of future persecution.
To travel this avenue, Ang must show, by a preponderance
of the evidence, that he has a well-founded fear of future
persecution. See Laurent v. Ashcroft, 359 F.3d 59, 65 (1st Cir.
2004). This showing encompasses both subjective and objective
components. See Palma-Mazariegos v. Gonzales, ___ F.3d ___, ___
(1st Cir. 2005) [No. 05-1330, slip op. at 7]. We assume, for
argument's sake, that Ang has satisfied the subjective component,
that is that he genuinely fears persecution were he to return to
Cambodia. Even so, Ang still must satisfy the objective component
of the test. See Rodriguez-Ramirez, 398 F.3d at 125 (explaining
that "the alien must not only harbor a genuine fear of future
persecution, but also must establish an objectively reasonable
basis for that fear" (citation and internal quotation marks
omitted)). Ang cannot clear this hurdle.
Ang concedes that a regime change has occurred in
Cambodia. The FUNCINPEC and the CPP are both integral parts of the
coalition government that now rules Cambodia. This circumstance
effectively eliminates any argument that Ang would be persecuted in
Cambodia for his pro-FUNCINPEC political opinion. Moreover, he has
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resigned from the embassy and is no longer a visible member of the
social group that he claimed might be the object of persecution.
To cinch matters, the record is devoid of any convincing evidence
of animus directed at pro-American citizens in Cambodia today.
Given this evidentiary mosaic, Ang is powerless to assail the IJ's
conclusion that no well-founded fear of future persecution exists.
Cf. Palma-Mazariegos, ___ F.3d at ___ [slip op. at 11] (finding
that the lack of reported violence directed toward a protected
group helps to refute a claimed fear of future persecution).
As a last-ditch effort, Ang points with legitimate pride
to a commendation that he received from the U.S. Ambassador to
Cambodia, Kenneth Quinn, and posits that he is entitled to asylum
for humanitarian reasons because of the support that he provided to
the Americans, especially during the 1997 coup. Ang has cited no
authority that suggests the Attorney General's decision to grant or
withhold humanitarian asylum is judicially reviewable, and there is
reason to believe that it is not. Cf. Heckler v. Chaney, 470 U.S.
821, 830 (1985) (explaining that judicial review of an agency's
decision would be precluded when "a court [has] no meaningful
standard against which to judge the agency's exercise of
discretion"). Assuming, for argument's sake, that the decision is
judicially reviewable, Ang's importuning for humanitarian asylum
here asks us to do too much with too little.
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While the Attorney General has discretion to grant asylum
for humanitarian reasons, see 8 U.S.C. § 1182(d)(5)(A),
establishing a judge-made rule that requires the use of this power
to grant asylum to aliens who provide aid and succor to the
American government anywhere in the world would rip a mammoth hole
in the fabric of the immigration laws. That would usurp Congress's
province, and we decline to take so audacious a step.
We add, moreover, that Ang's reliance on the Attorney
General's opinion in In re Bassel Marshi, No. A26-980-386 (Op.
Att'y Gen. Feb. 13, 2004), is misplaced for another reason as well.
There, a Lebanese national was offered asylum because he had
provided heroic support to injured marines after the 1983 bombing
of a military barracks in Beirut. See id. at 10-11. As an
unpublished opinion, Bassel Marshi has no precedential force. See
Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993) ("We will
not bind the BIA with a single non-precedential, unpublished
decision any more than we ourselves are bound by our own
unpublished orders."); see also 1st Cir. R. 32.3(a)(2).3
At this point, we have considered and rejected each of
Ang's four remonstrances with respect to his asylum claim. We
proceed, therefore to address his withholding of removal claim. We
can dispose of that claim with relative ease.
3
We also point out that the Attorney General issued the Bassel
Marshi opinion several months after the IJ's decision (though
before the BIA's). That fact reinforces our conclusions here.
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A claim for withholding of removal imposes "a more
stringent burden of proof on an alien than does a counterpart claim
for asylum." Rodriguez-Ramirez, 398 F.3d at 123. Withholding of
removal requires that an alien establish a clear probability of
persecution, rather than merely a well-founded fear of persecution.
See Palma-Mazariegos, ___ F.3d at ___ [slip op. at 13]. Hence, the
fact that Ang's claim for asylum falls short necessarily dooms his
counterpart claim for withholding of removal.
In a similar vein, we need not tarry over Ang's CAT
claim. Under the CAT, the United States is prohibited from
returning an alien to a country if "there are substantial grounds
for believing the [alien] would be in danger of being subjected to
torture." Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822
(1998). To trigger this protection, an alien must show that it is
more likely than not that he will be tortured upon returning to his
homeland. See Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.
2004). "Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted
on a person . . . when such pain or suffering is inflicted by or at
the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity." 8 C.F.R.
§ 208.18(a)(1). Torture does not include "lesser forms of cruel,
inhumane or degrading treatment or punishment." Id. §
208.18(a)(2).
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Ang has provided no evidence that he has ever been
physically harmed by political adversaries. The vague threats by
Hun Sen's supporters clearly do not rise to the level of torture.
See, e.g., Ambartsoumian v. Ashcroft, 388 F.3d 85, 94 (3d Cir.
2004) (concluding that "sporadic veiled threats" did not establish
a founded fear of prospective torture). The broadcasted death
threat does not satisfy the definition of torture because the IJ
supportably attributed that threat to a disgruntled ex-employee and
not to a public official. See 8 C.F.R. § 208.18(a)(1); see also
Kasneci v. Gonzales, 415 F.3d 202, 205 (1st Cir. 2005).
Consequently, we hold that the IJ appropriately refused to grant
relief under the CAT.4
We need go no further. For the reasons elucidated above,
we uphold the BIA's final order.
The petition for judicial review is denied.
4
We do not consider whether the alleged threats to Mean
constitute the basis for a claim of torture because the IJ
supportably found Ang's testimony about those threats to be
implausible.
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