Chreng v. Gonzales , 471 F.3d 14 ( 2006 )

United States Court of Appeals
For the First Circuit
No. 06-1481
VANNARETH CHRENG,
Petitioner,
v.
ALBERTO R. GONZÁLES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Martin J. McNulty on brief for petitioner.
Aixa Maldonado-Quiñones, Assistant United States Attorney, and
Thomas P. Colantuono, United States Attorney, on brief for
respondent.
December 19, 2006
CAMPBELL, Senior Circuit Judge. Vannareth Chreng
petitions for review of an order by the Board of Immigration
Appeals ("BIA" or "Board") dismissing his appeal from an
immigration judge's ("IJ") denial of his applications for asylum
and withholding of removal, and ordering his removal to Cambodia.1
I. Background
A Cambodian national, Chreng applied for asylum,
withholding of removal and relief under the CAT, see supra note 1,
on January 15, 2002. On November 19, 2004, he appeared before an
IJ, and a removal hearing was held, during which he and the
government submitted evidence. On November 19, 2004, the IJ orally
announced a decision, later transcribed, ordering Chreng's removal
to Cambodia. Chreng appealed to the BIA. On February 21, 2006,
the BIA issued a per curiam order adopting and affirming the
decision of the IJ and dismissing the appeal. The BIA rejected
Chreng's motion to remand. This petition followed.
II. The Hearing and the IJ's Decision
A. Evidence Presented
Chreng was the only witness to testify at his removal
hearing. Additionally, he submitted documentary evidence,
including a copy of his I-589 form, certain internet background
1
Chreng's further claim for relief under the Convention
Against Torture ("CAT") was also denied; but as he does not address
that claim in this petition for review, it is waived. See Frazier
v. Bailey, 957 F.2d 920, 932 (1st Cir. 1992) (arguments not fully
presented in appellate brief are waived).
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information, including a 2004 statement from Madeleine Albright,
newspaper clippings and public statements from the Sam Rainsy
political party, to which he allegedly belonged. The government's
evidence consisted of the 2003 Department of State Cambodia
conditions report indicating improved political conditions there.
Chreng told the IJ that he was a 49-year-old male who
came to the United States on January 24, 2001. Married on November
27, 1986, he left behind his wife and three children ages 19, 17,
and 12. He was born on January 3, 1957 and was thus about 18 years
old at the time that Pol Pot took control of Cambodia. His father
and mother, uncle, and two older brothers were sent to "high
Angka," which he said meant they had been murdered. In March of
1979, Chreng joined the Molinaka political party, which opposed Hun
Sen, the Prime Minister of Cambodia and a key leader of the
Cambodian People's Party. Because of his opposition to Hun Sen,
Chreng said, he was arrested by Vietnamese agents on December 26,
1979 and sent to prison at Trapeang Thlong for a period of five
years. In March 1988, he was arrested once again and sent to fight
the Khmer Rouge guerillas at the Thailand border.
Chreng said that his first job was for the United Nations
Transitional Authority in Cambodia ("UNTAC") from 1991-1993. He
was in charge of helping people register to vote. Chreng monitored
voters in order to determine whether they were true Cambodians. He
opposed allowing Vietnamese immigrants to register to vote in the
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Cambodian elections since he believed that letting the Vietnamese
vote had ensured the victory of the Khmer Rouge. Chreng testified
that an individual named Sok May threatened him at this time
because he opposed petitioner's ideas as to who should vote. Sok
May only threatened but never attacked petitioner.
Chreng further testified that on January 2, 1991, when he
left the polls to pick up his motorcycle, Sok May told him that he
would be killed if he continued to prevent people from voting. On
cross-examination, Chreng stated that Sok May had threatened him on
November 30, 1991.
In 1991, Chreng became a member of the National United
Front For a Neutral, Peaceful Cooperative and Independent Cambodia
(hereinafter "FUNCINPEC") political party. His involvement in the
party included assisting in the recruiting of members, creating
flyers and banners, posting pictures and explaining the party's
principles. Chreng testified that the party advocated an end to
violence, assistance for Khmer women, finding justice, protecting
the country's territory, improving immigration laws, eradicating
corruption, and changing laws.
On May 23, 1993, Prince Norodom Ranariddh, President of
the FUNCINPEC, won the Cambodian elections. Petitioner had spent
three months campaigning for FUNCINPEC, including Sundays and
holidays. He initially testified that in May 1993, Sok May had
grabbed him by the collar. But when it was pointed out to Chreng
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that he had testified previously that Sok May had threatened him in
January of 1991, Chreng revised his testimony to say that it was
two unknown individuals who had grabbed his collar and punched him
while he stood by his motorcycle. On re-direct, Chreng testified
that this incident took place in May 1993, and that Sok May was not
involved. Chreng told the IJ that he did not know these two
individuals, who were wearing dark glasses. One grabbed him by the
collar and punched him in the face. Thereafter, Chreng could not
see anything. The other individual grabbed him by the shoulder,
threatened him, and told him to allow Vietnamese to register for
the election, otherwise he would be killed. After that, they
disappeared. While Chreng could not identify them, he thought that
only members of the People's Party would slap him in the face.
After the 1993 elections, Chreng worked as a staff member
for the post office at the Ponchentong airport receiving packages
and letters. Ten of his colleagues at work belonged to Hun Sen's
People's Party, whereas five belonged to the FUNCINPEC Party.
Chreng testified that he had problems with the members of the
People's Party because they would take the customers' packages and
letters.
On July 5 and 6, 1997, while Chreng was still working for
the post office, Hun Sen and his followers conducted a coup. Hun
Sen had ceased to be willing to share power with Prince Ranariddh.
During the coup, Chreng was separated from his family and went into
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hiding until the shooting subsided. He stayed in a water tunnel
for two days and then hid in a jungle when things calmed down. His
wife, with whom the children had been living, remained at their
address given in his I-589 form. Chreng hid for five months, from
July to December 1997, in the Kampong Speu Province of Cambodia.
He did not return to Phnom Penh until December 1997 because he
feared being killed by Hun Sen's party, which had tried to kill
FUNCINPEC party members.
Upon returning to Phnom Penh, Chreng joined the Sam
Rainsy political party. That party's goals were to eradicate
corruption, promote freedom and strive towards true democracy.
Although never a candidate for political office himself, Chreng
campaigned for Rainsy and urged people to vote for him. After the
1997 election, Chreng personally advised Rainsy on political
matters, meeting with Rainsy every Monday at party headquarters
from January 1998 to 2000. On July 26, 1998, Cambodia held a
second national election. For three months prior to the election,
Chreng campaigned every day in Kampon Speu, lifting banners,
posting pictures and promoting the party's vote among the people.
His campaign activities led to some problems. On the morning of
April 6, 1998, Chreng found an anonymous letter at the front door
of his house telling him to stop supporting Sam Rainsy's party or
he would be killed.
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When Hun Sen won the second election, some people,
including Chreng, protested, claiming that Hun Sen had won the
elections by fraud. On September 8, 1998, around 10,000 dissidents
gathered in front of the Wat Boton Temple. The demonstrators,
including petitioner, who held a microphone, walked in a line
toward the Independence Building. Once at the building, Hun Sen's
soldiers blocked the demonstrators and impeded them from proceeding
forward. Chreng testified that three soldiers approached him and
one hit him on the left shoulder with a black stick so hard that he
fell. Another soldier snatched the microphone from him, while a
third hit and kicked him. Chreng stated he did not suffer broken
bones, but a wound on his leg became infected. Chreng did not seek
medical attention for his injuries but rather applied traditional
medicine. He claimed that he did not see a doctor because he would
have been killed since most of them belong to Hun Sen's party.
Chreng stated that after being kicked, he was also photographed.
When the other demonstrators moved forward, petitioner used the
opportunity to escape and went to a stadium where he rested until
the following day.
On September 9, 1998, the demonstrators moved from the
Independence Building towards the American Embassy where they
appealed for a change in the electoral laws. From there, they
walked towards the Cambodian Parliament, but, before they reached
the Parliament, they again encountered Hun Sen soldiers with water
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vehicles blocking their way. As they tried to move forward, the
soldiers shot water at them in an effort to disperse the crowd.
Chreng testified that some people died and that when he escaped and
went home, he saw that the situation was bad. He was not injured
during the demonstrations. From September 9, 1998 to June 2000, he
was not employed because there was no work for Sam Rainsy party
people. Instead, he survived on his wife's "merchant" income.
Chreng testified that in June 2000, members of the Sam
Rainsy party gathered in front of a tomb built in remembrance of
those who had died "For the Cause of Justice." During the
ceremony, petitioner gave a speech on why those commemorated had
perished and blamed the adherents of Hun Sen. On his way home, he
was surreptitiously followed, then placed under arrest and
imprisoned for three days. While Chreng was not harmed in any way
when in detention, the police superintendent told him at the time
to stop supporting Sam Rainsy's party.
On November 23, 2000, according to Chreng, Hun Sen was
planning a coup in front of the Department of Defense in order to
get rid of the Sam Rainsy party. On the following day, Chreng
attended a party meeting at the Cambodian Hotel. Suddenly,
Chreng's son ran in to tell him that three police officers had come
to their home to arrest him. According to his son, the officers
had also threatened to kill his wife if she did not reveal his
whereabouts, so his wife had asked that petitioner not return to
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the house. At the end of the day, he hid in the jungle. He
testified that thereafter, his life changed. He believed that
spies were following him everywhere he went. He testified that
people who had been arrested on November 23, 2000 all belonged to
the Sam Rainsy party and that ten of them had been killed, while
approximately 50 innocent people had been imprisoned. When
confronted with his own documentation, which stated that people
arrested were members of the Cambodian freedom fighters, Chreng
responded that Hun Sen fabricated that story in order to get rid of
Sam Rainsy party members.
Chreng came to the United States on January 24, 2001, on
a visitor's visa he had applied for at the American Embassy.
Although Cambodian officials were said to be looking for him on
November 24, 2000, he was able to get to the Embassy on November
30, 2000. He also obtained a passport on November 22, 2000 because
he was afraid he would be imprisoned. Chreng explained that he
remained in Cambodia for so long after November 24, 2000 because he
was waiting for things to calm down, in spite of the fact that he
was hiding. He testified that if he should now return to Cambodia,
he would be killed. In his application, he alleged that he could
no longer live in Cambodia because he was afraid of Hun Sen's
followers. He also said he was afraid for his wife and children,
not knowing where they were.
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During the hearing, petitioner submitted four public
statements made by the Sam Rainsy party denouncing certain acts of
violence taking place in Cambodia. Statements dated June and
October 2004, respectively, denounced a recent attempt by two
unknown motorcyclists on the life of a member of the Sam Rainsy
Steering Committee and chair of the council for the province of
Oddor Menchley, and a separate grenade-throwing incident by unknown
individuals, in which an active party member and two of his
children were injured. Chreng also submitted a July 2004 letter
from Madeleine Albright and statements from Senate Majority Leader
Bill Frist condemning statements allegedly made by Hun Sen that
were meant to intimidate the opposition. Chreng also submitted
newspaper articles relating to events taking place from 1997 to
2001.
The government's evidence at the hearing consisted of the
State Department's then most recent (2003) country conditions
report on Cambodia, to which the petitioner made no objection.
According to the report, there had been in the period of the report
no politically motivated disappearances; no reports of political
prisoners; greater media access for political parties and
candidates; a general governmental respect for the right to
associate; an ability for political parties to conduct their
activities freely without government interference; a decline in
political violence surrounding the July 2003 National Assembly
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elections; a smooth transfer of power to newly elected commune
councilors; no government coercion or prohibition in respect to
membership in political organizations; and a need for all three
major political parties to work together towards a new coalition,
as no had party won the required majority to form a government.
B. IJ's Decision
On November 19, 2004, the IJ issued an oral decision
denying petitioner any relief. While finding that petitioner's
testimony about his experiences in Cambodia was generally credible,
the IJ stated he needed to consider whether the facts, as related
by respondent Chreng, satisfied the elements in the definition of
"refugee." The first question was "whether or not the events
described by the respondent amount to past persecution." Although
finding that the petitioner had run into violent or potentially
violent situations in connection with his political activities, the
IJ held that petitioner's involvement in the September 8 and 9,
1998 demonstrations did not show persecution, as the violence was
not directed at him personally for the purpose of changing his
political beliefs or punishing him. Rather, the police were acting
to break up a demonstration and regain public order.
However, Chreng also described being arrested at his home
following a speech in support of his political party and being
detained for three days. In addition, Chreng described a police
search for him for the purpose of arresting him "for what can only
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be described as a political motive based on the information the
court has." The IJ, therefore, said, "the court is inclined to
give the respondent the benefit of the doubt on the issue of past
persecution and will so find." The IJ went on to state that
"having found past persecution, that creates only the presumption
of a well-founded fear of future persecution and the burden has
shifted to the Government to show a change of conditions that would
rebut that presumption" (emphasis supplied).
The IJ discussed and credited the 2003 Department of
State country conditions report for Cambodia. According to the IJ,
"this Court notes that the situation in Cambodia has changed
significantly, in a political sense, from the situation that
existed when the respondent was involved in politics four years
ago." The IJ quoted from the report section on Human Rights
Practices for the Year 2003 that "the government did not coerce or
forbid membership in political organizations. Political parties
normally were able to conduct their activities freely without
government interference . . . ." The IJ also quoted from a later
section of the report describing the 2003 elections in which, for
the first time, local level elections were held for the purpose of
electing commune councilors for 1,621 communes in Cambodia. The IJ
noted that the Sam Rainsy party had won 1,346 seats across those
1,621 communes, and that while the People's Party was again
victorious, they were required to share power with the other
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parties in all but 148 of those communes. According to the report,
the transfer of power to the newly elected councilors was smooth.
The IJ concluded: "On the basis of this report and for other
reasons, the Court finds that the government has successfully
rebutted the presumption of a well-founded fear of future
persecution."
While finding the government had successfully rebutted
the presumption, the IJ went on to note that when "arrested and
held by the government for three days in June of 2000 he [Chreng]
was not beaten or tortured and admittedly encountered 'no
problems.'" The IJ continued: "Although the government was looking
for him allegedly to arrest him in November of 2000, there is no
way of telling whether he would have been mistreated in connection
with that arrest or whether the government had any legitimate basis
for that arrest. The respondent did not stick around to find out
so it is not just the report on country conditions that would
support the conclusion that there is not an adequate basis to find
objectively a well-founded fear, but there is also the fact that
respondent, in personal persecution terms, was not treated in such
a way as to suggest he would be tortured or killed because of his
connection to the Sam Rangsi [sic] Party."
The IJ then stated, "Having made these findings, the
Court makes the further finding that the respondent [Chreng] has
not met his burden with regard to his eligibility application for
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asylum. Accordingly, that application for asylum is hereby
denied." The IJ went on to state that since Chreng had failed to
meet the more lenient standard for asylum, it follows that he fails
to meet the more stringent standard for withholding of removal.
Regarding CAT relief, the IJ held that there was no suggestion that
the government of Cambodia would be likely to torture petitioner
should he return to Cambodia.
III. Chreng's Appeal to the BIA
In his motion of appeal to the BIA, Chreng asserted he
had no objection to the immigration court's recitation of the facts
but believed that it was unfair for him to have to show both that
he experienced past persecution and also that present country
conditions made it dangerous for him to return to Cambodia, in
light of his individual circumstances. He also alleged that he had
learned of the importance of present country conditions only after
his testimony, and that if the granting of immigration relief
necessitated such evidence, then he should be entitled to present
the same. The petitioner asked the BIA to remand the case to the
IJ for further testimony regarding country conditions.
The BIA expressly adopted and affirmed the decision of
the IJ. It also stated: "The Immigration Judge correctly concluded
that the Department of Homeland Security (DHS) successfully
rebutted the presumption of future persecution by demonstrating
that country conditions had changed in Cambodia." The BIA denied
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Chreng's motion to remand stating that the relevance of the
present-day country conditions "requirement" (sic) was evident from
agency regulations. It noted that Chreng had not presented any
prima facie evidence that country conditions in Cambodia were such
that he would have a well-founded fear of persecution if he
returned to his country of origin.
IV. Discussion
Chreng argues in his petition on appeal that the IJ and
the BIA erred in finding that the government had successfully
rebutted the presumption of a well-founded fear of future
persecution. He contends that the IJ misread the country
conditions report and seeks reversal or remand of the decision.
We begin with the premise that the IJ and BIA did, in
fact, find that Chreng had experienced past persecution, leading to
the rebuttable presumption that he had a well-founded fear of
future persecution were he to return to Cambodia. This leaves open
the question whether there was substantial evidence to support the
IJ's and the Board's further findings that the government had
rebutted this presumption. We believe there was.2
2
While the IJ's language, quoted previously in this opinion,
indicates a finding of past persecution, the IJ went on to say,
somewhat murkily, that "in personal persecution terms," Chreng may
not have been treated so as to suggest he would be tortured or
killed because of his connection to the Sam Rainsy party. The
government seizes upon this language as undermining the finding of
past persecution, arguing that because Chreng did not appeal from
this language to the BIA, he failed to exhaust administrative
remedies, leaving us without jurisdiction. But we think that the
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Determinations denying asylum are reviewed for
substantial evidence. The Board's decision will be upheld if
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). This standard is deferential: the Board's
decision must be upheld unless "the record evidence would compel a
reasonable fact finder to make a contrary determination." Guzman
v. INS, 327 F.3d 11, 15 (1st Cir. 2003) (citing Aguilar-Solis v.
INS, 168 F.3d 565, 569 (1st Cir.1999)).
A petitioner's well-founded fear presumption can be
rebutted by a showing that conditions in the applicant's native
country have so changed that he no longer has a well-founded fear
of future persecution. 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B); see El
Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir. 2003). When the
conditions in the country of origin have changed so dramatically as
to undermine the well-foundedness of the fear, the presumption
disappears and the applicant is not entitled to asylum. Civil v.
INS, 140 F.3d 52, 66 (1st Cir. 1998). However, changes of only a
very general nature in country conditions may not suffice. Quevedo
v. Ashcroft, 336 F.3d 39, 44 (1st Cir. 2003). To rebut the
presumption, the changes must be such as to "have negated the
IJ's and the BIA's basic assumptions -- that Chreng was subjected
to past persecution so as to give rise to the presumption of future
persecution -- are manifest. Additionally, as we agree with the IJ
and the BIA that the presumption of future persecution was
rebutted, we need not further consider this contention.
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particular applicant's well-founded fear of persecution." Fergiste
v. INS, 138 F.3d 14, 19 (1st Cir. 1998). Account must be taken of
the individual's particularized substantiated fear. See Yatskin v.
INS, 255 F.3d 5, 10 (1st Cir. 2001).
In this case, the government's rebuttal took the form of
the circumstances presented in the 2003 country conditions report.
While "[t]he advice of the State Department is not binding,"
Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998) (citations and
internal quotation marks omitted), State Department reports are
"generally probative of country conditions." Palma-Mazariegos v.
Gonzales, 428 F.3d 30, 36 (1st Cir. 2005). Evidence in these
reports never "automatically trump[s]" petitioner's specific
evidence, Waweru v. Gonzales, 437 F.3d 199, 203 (1st Cir. 2006)
(citations and internal quotation marks omitted) (emphasis in
original), and is "open to contradiction," Zarouite v. Gonzales,
424 F.3d 60, 63 (1st Cir. 2005). Further, as already noted,
"abstract evidence of generalized changes in country conditions,
without more, cannot rebut a presumption of a well-founded fear of
future persecution." Palma-Mazariegos, 428 F.3d at 35. However,
where a report demonstrates fundamental changes in the specific
circumstances that form the basis of a petitioner's presumptive
fear of future persecution, it "may be sufficient, in and of it
itself," to rebut that presumption. Id. at 36. The latter appears
to be the case here, as the IJ and the BIA effectively found.
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Chreng's claim of fear relied on how the People's Party
was treating members of the opposition. The IJ found that the
country conditions report negated Chreng's fears of future ill-
treatment. Political parties, according to the report, were now
able to conduct their activities with relative freedom. In
particular, the People's Party was now forced by the results of
recent elections to work in conjunction with the FUNCINPEC and the
Sam Rainsy parties, as each of the latter had shared to some degree
in the victory. The report stated that the CPP had won 73 seats in
the National Assembly, while the FUNCINPEC party won 26 seats and
the Sam Rainsy party 25 seats. No party won the two-thirds
majority required to form a government. The IJ also took note of
the report's finding that in 2002, following the first national
commune local-level elections, the CPP had won the most seats, but
the Sam Rainsy party had also won 1,346 seats in 1,621 communes.
As a consequence, the CPP party was required to share power with
other parties in all but 148 of those communes. Moreover, the
government was not forcing its citizens to join any particular
party, and power had been transferred smoothly.
The report also said there had been no politically
motivated disappearances and no reports of political prisoners.
There was greater media access for political parties and candidates
and a general governmental respect for the right to associate.
Political parties, moreover, were able to conduct their activities
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freely without government interference. There had been a decline
in political violence during the July 2003 National Assembly
elections; a smooth transfer of power to newly elected commune
councilors; no government coercion or prohibition as to membership
in political organizations; and a need for all three major
political parties to work together towards a new coalition, as no
party had won the required majority to form a government. See also
Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006) (finding no
well-founded fear of future persecution for member of Sam Rainsy
party and citing the 2003 Cambodia country conditions report for
the fact that there were no reports of politically motivated
disappearances or of political prisoners); Ang v. Gonzales, 430
F.3d 50, 57 (1st Cir. 2005) (finding no well-founded fear of future
persecution and noting that "[t]he FUNCINPEC and the CPP are both
integral parts of the coalition government that now rules
Cambodia"). We think the Department of State's country conditions
report provided substantial evidence to support the IJ's and BIA's
finding that the government had rebutted the presumption of future
persecution.
Once the government rebutted the presumption, the burden
shifted back to petitioner to show the existence of new sources of
possible persecution. In Re N-M-A, 22 I&N Dec. 312, 321 (BIA
1998). Chreng argued to the BIA he did not know until it was too
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late that he had to produce any such further evidence.3 But the
need to do so followed from the same statute and accompanying
regulations under which he sought immigration relief. Under 8
C.F.R. § 208.13(b)(1)(iii)(2005), once the government has rebutted
the presumption, an "applicant may be granted asylum based on past
persecution alone if 1) the applicant has demonstrated compelling
reasons for being unwilling or unable to return to his country of
nationality or last habitual residence; or 2) the applicant has
established that there is a reasonable possibility that he may
suffer other serious harm on return to that country." Hernandez-
Barrera v. Ashcroft, 373 F.3d 9, 23 (1st Cir. 2004). Chreng was
thus on notice that further evidence would be needed in the event
3
Chreng does not on appeal refer to the statements he
submitted to the IJ from Madeleine Albright and Bill Frist
condemning comments and veiled threats made by Hun Sen in 2004
against the Sam Rainsy Party. These can be said to cast a shadow
on the more optimistic assessment issued in 2003 by the Department
of State but, by themselves, were not enough to establish that Hun
Sen and his people were actually re-engaging in systemic violence
against the adherents of the Sam Rainsy Party. Given the 2003
country conditions report, we cannot say that a reasonable fact-
finder must find that Chreng had a well-founded fear of future
persecution should he be returned home at this time. That a
country's politics remain volatile, leaving open the possibility of
deterioration and including some measure of sporadic violence, does
not necessarily establish an alien's well-founded fear of future
persecution should he be returned to that country. As noted
earlier, Chreng did not take issue with the country conditions
report during the IJ's hearing. In his appeal to the BIA, Chreng
acknowledged that he had not addressed the issue of future
persecution: "It is patently unfair that the Respondent must
present his asylum case based upon past persecution without knowing
that he must also make the case that country conditions presently,
based upon his individual circumstances, make it dangerous for him
to return to Cambodia" (emphasis in original).
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the IJ determined, as he did, from the country conditions report
that the presumption had been rebutted.
Chreng argues that a "full reading of the Country reports
on Human Rights Practices for Cambodia (2003) . . . shows beyond
any doubt that Cambodia is still a very imperfect and troubled
society, and that the Appellant is justifiably frightened to return
there." It is true that the country report describes ongoing human
rights violations and systematic deficiencies in the political
process, but it also outlined significant and specific improvements
in the political atmosphere, as well as plausible reasons for
believing that violence against members of the Sam Rainsy Party had
lessened. With sufficient evidence of changed country conditions
in the political sphere and no error in the IJ's reliance on or
interpretation of the country conditions report, we believe the
agency's denial of asylum must stand. Asylum is a matter committed
in major degree to the immigration agencies, which are entitled
within reasonably broad parameters to make their assessments,
provided always there is substantial evidentiary support.
This conclusion also disposes of Chreng's withholding of
removal claim. As noted earlier, that claim places a "more
stringent burden of proof on an alien than does a counterpart claim
for asylum." Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st
Cir. 2005). While eligibility for asylum requires a well-founded
fear of future persecution, withholding of removal requires that
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the alien show a clear probability of future persecution. See
Aguilar-Solis, 168 F.3d at 569 n.3. It follows, then, that,
because the petitioner's claim for asylum fails, so too does his
counterpart claim for withholding of removal.4
The petition for review is denied.
4
Chreng also argues in his brief on appeal that in some cases
involving past persecution, even if there is little likelihood of
future persecution, asylum may be granted as a matter of discretion
for humanitarian reasons if the alien has suffered an atrocious
form of persecution. Even assuming arguendo such exceptional
circumstances might exist here, Chreng did not raise this argument
before the IJ or the BIA, and thus it is waived.
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