Bunthan v. Gonzales ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1496
SEDA BUNTHAN,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya and Cyr, Senior Circuit Judges.
Vanthan R. Un on brief for petitioner.
Michael J. Sullivan, United States Attorney, and Gina Walcott-
Torres, Assistant United States Attorney, on brief for respondent.
July 13, 2007
Per Curiam. The petitioner, Seda Bunthan, is a middle-
aged native and citizen of Cambodia. She entered the United States
on April 1, 2001, as a visitor, and overstayed the time allotted in
her visa. Within one year of her arrival, she sought asylum. When
her case was referred for the institution of removal proceedings,
she conceded removability and cross-applied for asylum, withholding
of removal, or protection under the Convention Against Torture
(CAT) on the ground that she had suffered from, and continued to
fear, persecution and torture related to her involvement in a
Cambodian political group.
An Immigration Judge (IJ) ruled that the petitioner had
failed to present sufficient evidence to support any ground for
relief. Consequently, he denied her application and ordered
removal. The Board of Immigration Appeals (BIA) adopted the IJ's
decision and affirmed his ukase. The petitioner now seeks judicial
review. Concluding, as we do, that there is substantial evidence
in the record to support the BIA's decision, we deny the petition.
We set out the petitioner's version of the raw facts.
She worked for many years as a schoolteacher in Takhmao, Cambodia.
On June 4, 1998, she and several other teachers joined the Sam
Rainsy Party (SRP). At the time, the SRP stood in opposition to
the reigning Cambodia People's Party (CPP) and its leader, Prime
Minister Hun Sen. The school committee took umbrage at this action
and chastised the teachers.
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During the 1998 elections, the petitioner claims to have
worked with the SRP's national campaign committee. Between August
23 and September 8 of that year, she participated in a long-running
demonstration against Hun Sen and his regime — a demonstration that
called for his resignation.1 She claims that, as a result of these
activities, shots were fired at her.2 Moreover, CPP adherents
tried to assault her. After a grenade explosion inflicted minor
injuries, she left the scene of the demonstration.
The petitioner also recounted an incident that happened
more than two years later. She claimed that, on January 20, 2001,
she and her husband came under fire as they were riding on a
motorcycle in the Takhmao market area. Shortly after this episode,
the petitioner repaired to the United States.
Upon the conclusion of the hearing, the IJ rendered a
bench decision. He determined that the petitioner had failed to
show either that she had suffered past persecution or that she
harbored a well-founded fear of future persecution. The IJ also
found that she had not shown a likelihood of torture were she to be
returned to her homeland. In explaining these findings, the IJ
1
There is also some suggestion in the hearing transcript that
the petitioner, along with other faculty members at her school,
participated in an April 1998 demonstration. The details of that
rally are hazy and, in all events, the petitioner does not mention
it in her appellate briefing.
2
Although the petitioner testified before the IJ about the
firing of shots, she made no mention of that in her asylum
application.
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construed the 1998 incident as an unfortunate case of police
overreaction, not a direct attack on the petitioner based on her
political views. He noted that the incident had occurred over two-
and-one-half years prior to the petitioner's exodus from Cambodia
and that, in the interim, the petitioner had "continued to maintain
her profession in that country."
The IJ also squarely addressed the 2001 incident. He
determined that it was much more likely to have been the product of
random criminal activity than to have been retribution for the
petitioner's political activities. In this regard, the IJ observed
that the petitioner, who initially had written in her asylum
application that Hun Sen's "hit men" had fired the shots, had
retracted that claim at the hearing and had conceded that she could
not identify the perpetrators.
The IJ concluded that, taken together, the 1998 and 2001
incidents did not fairly support the petitioner's claim of past
persecution. The fact that she had continued to maintain her
position as a schoolteacher until the date of her departure from
Cambodia further undermined any inference of past persecution.
Accordingly, the IJ rejected that theorem.
With respect to fear of future persecution, the IJ found
insufficient evidence to satisfy the objective component of the
applicable legal standard. In so holding, he emphasized that the
petitioner's husband and children continued to live unharmed in
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Cambodia. Based on these findings and conclusions, the IJ denied
the asylum and withholding of removal claims.
That left the CAT claim, which the IJ gave short shrift.
Stressing the paucity of evidence and the same familial
considerations previously mentioned, he concluded that the
petitioner would not likely face torture were she repatriated.
In sum, the IJ denied the petitioner's cross-application
for any form of relief (save voluntary departure) and ordered
removal if no voluntary departure occurred. The BIA subsequently
adopted and affirmed the IJ's decision. This timely petition for
judicial review followed.
Where, as here, the BIA has written separately while
adopting and affirming an IJ's decision, we look to both the BIA's
opinion and the IJ's opinion for purposes of judicial review. See
Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006). In conducting
this review, we assess the IJ's factual findings pursuant to the
substantial evidence standard. See id. That standard is quite
deferential and requires us to accept findings of fact as long as
they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); see 8 U.S.C. § 1252(b)(4)(B).
In the absence of an error of law — and we discern none here — we
may reverse the BIA's determination only if the evidence compels
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some other conclusion. See Sou v. Gonzales, 450 F.3d 1, 6 (1st
Cir. 2006); Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005).
In order to qualify for asylum, an alien first must
establish her status as a refugee, that is, a person who is unable
or unwilling to return to her homeland "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." 8 U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca,
480 U.S. 421, 428 (1987). Proof of past persecution gives rise to
a rebuttable presumption that a well-founded fear of future
persecution exists. See 8 C.F.R. § 208.13(b)(1); Orelien v.
Gonzales, 467 F.3d 67, 71 (1st Cir. 2006).
Persecution is a protean term, not defined by statute.
To rise to the level of persecution, the sum of the alien's
experiences must add up to more than mere harassment, garden-
variety mistreatment, or ordinary suffering. See Attia v.
Gonzales, 477 F.3d 21, 23 (1st Cir. 2007); Bocova v. Gonzales, 412
F.3d 257, 263 (1st Cir. 2005). In drawing this distinction, it
often is useful to determine whether particular mistreatment is
systematic as opposed to a collection of isolated incidents.
Bocova, 412 F.3d at 263.
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Here, the petitioner claims to have suffered past
persecution based on her political activities and opinion.3 The IJ
and the BIA found, however, that the petitioner did not suffer past
persecution on account of her political views. That finding is
supported by substantial evidence.4
At the hearing, the petitioner claimed that she had been
warned by school committee members about her fledgling political
allegiance and that she had been subjected to police brutality at
a demonstration in the fall of 1998. She conceded, however, that
she had never been arrested, imprisoned, or seriously harmed.
Moreover, she was an unlikely target; while she claimed that she
was active in the SRP, she did not organize others or play a
leadership role in the demonstration (or any other political event,
for that matter). This back-bench posture tends to undercut her
claim that she was specially targeted on account of political
opinion. See Morales v. INS, 208 F.3d 323, 330 (1st Cir. 2000).
3
Although the petitioner asserts in her brief that she also
was persecuted on account of her membership in a particular social
group, she makes no effort to define that social group. We deem
that claim abandoned. See Pan v. Gonzales, ___ F.3d ___, ___ (1st
Cir. 2007) [No. 06-2166, slip op. at 16] ("We long have held that
legal theories advanced in skeletal form, unaccompanied by some
developed argumentation, are deemed abandoned."); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (same).
4
In her brief, the petitioner suggests, without citation to
the record, that this finding rests on an adverse credibility
determination. It does not.
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The episode that occurred nearly three years later, in
2001, is even less probative of past persecution. The petitioner
wholly failed to show that the incident had anything to do with her
politics. By the same token, she failed to show that the
government played any part in it. Although she asserted in her
asylum application that two of Hun Sen's hit men had fired the
wayward shots, she retracted that assertion at the hearing and
admitted that she did not know who had pulled the trigger.
As the IJ remarked in his well-reasoned decision, these
two incidents add up to very little. Taken together, they fall far
short of compelling a finding of past persecution. See, e.g.,
Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005) (upholding
a finding that seven arrests over a two-year period, some
accompanied by beatings and detentions, did not constitute
persecution); Bocova, 412 F.3d at 263 (upholding a finding of no
persecution, notwithstanding testimony of two police beatings
occurring more than twenty-five months apart).
The petitioner's contention that she had a well-founded
fear of future persecution fares no better. Without a showing of
past persecution, the petitioner must make the requisite showing
unaided by any presumption. She failed to do so.
A well-founded fear of persecution must be both
subjectively genuine and objectively reasonable. See Toloza-
Jiménez v. Gonzales, 457 F.3d 155, 161 (1st Cir. 2006); Palma-
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Mazariegos v. Gonzales, 428 F.3d 30, 35 (1st Cir. 2005). This
record reveals no objectively reasonable basis for such a fear.5
The two isolated incidents already discussed hardly suffice to lay
a foundation for the contention, and other uncontradicted evidence
in the record indicates that the political climate in Cambodia has
improved since the date of the petitioner's departure. The State
Department's 2004 report on country conditions adequately evinces
that, in 2002, the government for the first time held nationwide
local-level elections. The SRP participated and won over 1,300
councilmanic seats. Because the SRP is now a legitimate player in
Cambodian politics, there seems little reason to fear targeted
persecution on account of allegiance to that party.
If more were needed — and we doubt that it is — the fact
that the petitioner's family continues to reside in Cambodia
without apparent incident strongly suggests that persecution does
not await upon her return. See Zheng v. Gonzales, 416 F.3d 97, 101
(1st Cir. 2005); Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir.
1999).
The petitioner's alternative claim for withholding of
removal need not detain us. A claim for withholding of removal
5
To be sure, the record suggests that Cambodia is not a
tranquil place. Generally speaking, however, evidence of episodic
violence or human rights violations affecting all citizens is
inadequate, without more, to establish a likelihood of future
persecution. Ravindran v. INS, 976 F.2d 754, 759 (1st Cir. 1992).
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"places a more stringent burden of proof on an alien than does a
counterpart claim for asylum." Olujoke, 411 F.3d at 22 (quoting
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)).
It follows, a fortiori, that the rejection of the petitioner's
claim for asylum necessitates a similar disposition of her claim
for withholding of removal.
That brings us to the petitioner's claim for relief under
the CAT. To prevail on such a claim, the petitioner has the burden
of demonstrating that it is more likely than not that she will be
tortured if returned to her homeland. See 8 C.F.R. § 208.16(c)(2);
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 . . . by
or at the . . . acquiescence of a public official or other person
acting in an official capacity." 8 C.F.R. § 208.18(a)(1).
In this instance, the petitioner has failed to point to
any evidence that would allow us to set aside the denial of her CAT
claim. The documentary evidence that she introduced (internet news
articles and the like) does no more than make generalized
references to the commission of atrocities against the local
populace from time to time by Hun Sen's henchmen. Random
atrocities are not to be countenanced, but the record is bereft of
any evidence — let alone substantial evidence — suggesting that
those atrocities are targeted at persons like the petitioner. To
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say it is more likely than not that the petitioner will be
subjected to torture if she returns to Cambodia is pure
speculation. Because the evidence does not "point[] unerringly in
the opposite direction," Laurent v. Ashcroft, 359 F.3d 59, 64 (1st
Cir. 2004), we must uphold the determination that the petitioner
failed to prove her claim for relief under the CAT.
There is one loose end. The petitioner introduced into
evidence at the hearing several articles that described acts of
general violence committed against SRP candidates. She now
asseverates that her due process rights were violated because the
IJ failed to discuss this evidence.
We review the question of whether a party's due process
rights have been infringed de novo. Morales, 208 F.3d at 327. For
due process protections to attach, there must be a cognizable
property or liberty interest at stake. Naeem v. Gonzales, 469 F.3d
33, 38-39 (1st Cir. 2006). The petitioner has no property interest
in asylum. See Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st Cir.
2005). She does have a liberty interest in a fair hearing — but
here, the petitioner received all the process that was due. An
agency need not "dissect in minute detail" every argument or piece
of evidence that the petitioner puts forward. Raza v. Gonzales,
484 F.3d 125, 128 (1st Cir. 2007). It is sufficient that the
agency considers the evidence adduced and constructs a plausible
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decision that allows a reviewing court to follow its reasoning.
See id. That is what occurred here.6
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
6
We add a coda: to the extent that attacks on candidates of
the SRP have occurred, that is of little relevance here. The
petitioner has never been a candidate.
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