Kesee v. Ashcroft ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-61006
Summary Calendar
KANNIKA KESEE,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------------------------------------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75 233 774
--------------------------------------------------------------
Before SMITH, DEMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Kannika Kesee, a native and citizen of Thailand, petitions this court for review of the Board
of Immigration Appeals’ (BIA) affirmance of the Immigration Judge’s (IJ) denial of her application
for withholding of removal and protection under the Convention Against Torture (CAT). When, as
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
in this case, the BIA adopts without opinion the IJ’s decision, this court reviews the IJ’s decision.
Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).
The Attorney General “may not remove an alien to a country if the Attorney General decides
that the alien’s life or freedom would be t hreatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.A. §
1231(b)(3)(A), INA § 241(b)(3)(A). “[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary. . . .” 8 U.S.C.A. §
1252(b)(4), INA § 242(b)(4).
The IJ found that there was “no indication in this case that anyone persecuted the respondent
for any reason, let alone for one of the five reasons set forth [in the withholding of removal statute].”
In addition, while the IJ acknowledged that case law had not set out the standards for determining
when forced sex for money would be a basis to qualify one for withholding of removal, she opined
that each case would have to be looked at on a case-by-case basis and that the age of the person
seeking relief would be relevant. The IJ considered that Kesee was 20 years of age when she agreed
to prostitute herself for the Valentine Massage parlor, “which is quite mature,” and that she was no
longer a young girl being taken advantage of like the young girls highlighted in the many reports of
forced prostitution in Thailand.
Accordingly, the IJ found that Kesee’s problems with the Valentine Massage parlor stemmed
not from the broader problem of forced prostitution in Thailand, but from her personal agreement
with a specific establishment to prostitute herself in exchange for money paid to her parents. No
reasonable adjudicator would be compelled to find to the contrary. See 8 U.S.C. § 1252(b)(4), INA
§ 242(b)(4).
-2-
An applicant seeking relief under CAT has the burden of proving that “it is more likely than
not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §
208.16(c)(2). The IJ discussed the requirements for seeking relief under CAT, including the
requirement that she consider past torture, gross, flagrant or mass violations of human rights within
the country of removal, and other conditions within the country. See 8 C.F.R. § 208.16(c). The IJ
then discussed the facts of the case, including Kesee’s agreement to prostitute herself in exchange for
money paid to her parents, her inability to leave the brothel when she desired, her escape from the
brothel, and the fact that, after she escaped and was living in her hometown and in Bangkok, she was
never approached or harmed in any way.
The IJ gave sufficient reasons why Kesee had not satisfied her burden of proof with respect
to her CAT claim, and a reasonable adjudicator would not be compelled to find to the contrary.
Based on the foregoing, Kesee’s petition for review is DENIED.
-3-