Bouapha Phommasoukha v. John Ashcroft ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1084
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Bouapha Phommasoukha, *
*
Petitioner, * Petition for Review of
* an Order of the United States
v. * Board of Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States,1 *
*
Respondent. *
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Submitted: February 18, 2005
Filed: June 3, 2005
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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit
Judges.
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GRUENDER, Circuit Judge.
1
Alberto Gonzales has been appointed to serve as Attorney General of the
United States and is substituted as respondent pursuant to Rule 43(c) of the Federal
Rules of Appellate Procedure.
Bouapha Phommasoukha, a 71-year-old native and citizen of the Lao People’s
Democratic Republic (“Laos”),2 petitions for review of a final order of the Board of
Immigration Appeals (“Board”). The Board affirmed without opinion the decision
of the Immigration Judge (“IJ”) denying Phommasoukha’s applications for asylum,
withholding of removal, and protection under the United Nations Convention Against
Torture. We remand to the Board for a determination of whether conditions in Laos
have sufficiently changed to overcome the presumption that Phommasoukha has a
well-founded fear of future persecution.
I. BACKGROUND
Bouapha Phommasoukha, a native and citizen of Laos, entered the United
States as a non-immigrant visitor on August 18, 1997, and remained beyond his
authorized stay. On August 21, 1998, Phommasoukha filed an application for asylum
with the Immigration and Naturalization Service (“INS”) Asylum Office.3 An asylum
officer interviewed Phommasoukha and, after deciding that Phommasoukha did not
qualify for a grant of asylum because of changed country conditions, referred the
application to the immigration court. The INS then initiated removal proceedings
2
Laos is a landlocked country in Southeast Asia between Vietnam and
Thailand. It has a population of 5.2 million. In 1975, the Communist movement
known as the Pathet Lao overthrew the U.S.-backed government, ending a
six-century-old monarchy. According to the U.S. Department of State’s Country
Report on Human Rights Practices, Laos remains an authoritarian, Communist state
under the control of a single political party, the Lao People’s Revolutionary Party.
Laos is gradually moving toward economic and political liberalization.
3
In March 2003, the functions of the Immigration and Naturalization Service
were transferred to the newly formed Department of Homeland Security (“DHS”).
See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25,
2002).
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against Phommasoukha by issuing a Notice to Appear, which alleged that he was
removable from the United States as an alien who remained in the United States
longer than permitted.
In removal proceedings before the IJ on March 1, 2000, Phommasoukha
admitted the charges in the Notice to Appear and conceded removability. The IJ
designated Laos as the country of removal. Phommasoukha renewed his requests for
asylum, withholding of removal, and protection pursuant to Article 3 of the United
Nations Convention Against Torture, or, in the alternative, voluntary departure.
Following an evidentiary hearing on May 1, 2002, the IJ concluded that
Phommasoukha did not prove that his imprisonment in a concentration camp
constituted persecution or that he had a well-founded fear of future persecution.
Accordingly, the IJ denied relief but granted Phommasoukha voluntary departure.
The Board affirmed the IJ’s decision without opinion. Phommasoukha filed this
timely petition for review.
Phommasoukha’s request for asylum is based on allegations of past persecution
and a well-founded fear of future persecution. Phommasoukha served in the Laotian
Royal Armed Forces from 1960 until the overthrow of the U.S.-backed Laotian
government by the Pathet Lao in 1975. During his service with the Royal Armed
Forces, Phommasoukha apparently worked with the United States Central
Intelligence Agency (“CIA”) to locate and monitor the Vietnamese army. After the
Pathet Lao assumed control of Laos, however, Phommasoukha was sent to a
concentration camp for “reeducation.” Phommasoukha testified at the evidentiary
hearing that he was kept in an underground cell, subjected to political indoctrination,
required to perform forced labor, and denied contact with family or other prisoners.
This testimony was corroborated by Paul Chanthalongsy Dao Heuang, a fellow
inmate at the concentration camp.
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Phommasoukha was released from the concentration camp in 1980 or 1981 and
was allowed to return to his family in the village of Savannakhet. Though the Pathet
Lao government apparently continued to monitor his activities, Phommasoukha was
allowed to work on the rice farm owned by his family. Phommasoukha testified that
he was, however, forced to serve as the local tax collector for the Laotian
government.
In 1996, Phommasoukha apparently used 20,000 Kips4 of tax revenue to buy
medicine for those who had assisted the CIA. When the Laotian government
discovered the misappropriation of money, it apparently brought corruption charges
against Phommasoukha. Though the administrative record does not contain
corroborating or other independent evidence of a conviction, Phommasoukha testified
that he was jailed for two days. Sometime later, he left Laos, allegedly fearing further
persecution arising out of his military service, his assistance to the CIA, and the
corruption charge. Phommasoukha left behind a wife and several children.
Phommasoukha seeks review of the Board’s decision to uphold the IJ’s denials
of his requests for asylum, withholding of removal, and protection under the United
Nations Convention Against Torture.
II. DISCUSSION
An alien is eligible for asylum as a refugee if he is unable or unwilling to return
to his home country because of persecution or a well-founded fear of persecution
based on one of the five statutorily protected grounds. See 8 U.S.C. §
4At present currency-exchange rates, 20,000 Kips is worth approximately
$1.97.
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1101(a)(42)(A).5 The burden of proving past persecution or a well-founded fear of
future persecution rests with the alien applying for asylum. 8 C.F.R. § 208.13(a)
(2005). If the alien establishes that he suffered past persecution, then he is entitled
to a rebuttable presumption that he has a well-founded fear of future persecution. 8
C.F.R. § 208.13(b)(1). The burden then shifts to the DHS to show by a
preponderance of the evidence that there has been a fundamental change in
circumstances in the alien’s home country such that the alien no longer has a well-
founded fear of persecution. Id. “If the DHS does not satisfy this burden of rebuttal,
the applicant is eligible for asylum.” De Brenner v. Ashcroft, 388 F.3d 629, 636 (8th
Cir. 2004).
In his petition for review, Phommasoukha argues that the Board erred when it
found that his imprisonment in a concentration camp failed to rise to the level of
persecution. As a result of this error, Phommasoukha argues, the Board also erred
when it misallocated to him the burden of proving a well-founded fear of future
persecution. When the Board affirms an IJ’s decision without an opinion, we will
treat the IJ’s decision as a final agency action. Al Tawm v. Ashcroft, 363 F.3d 740,
743 (8th Cir. 2004). Therefore, “[w]e apply substantial evidence review to the
[agency’s] factual findings and de novo review to its legal determinations.”
Amador-Palomares v. Ashcroft, 382 F.3d 864, 866 (8th Cir. 2004).
5
Section 1101(a)(42)(A) defines a refugee as:
[A]ny person who is outside any country of such person’s nationality or, in the
case of a person having no nationality, is outside any country in which such
person last habitually resided, and who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself of the protection of, that
country 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[.]
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Phommasoukha provided credible evidence that he served in the Royal Armed
Forces during the Laotian civil war and that he was imprisoned in a Pathet Lao
concentration camp after his military service. The IJ, however, found that
Phommasoukha’s imprisonment in a concentration camp does not constitute past
persecution. The IJ also found that Phommasoukha failed to carry his burden of
proving that he had a well-founded fear of future persecution. Consequently, the IJ
denied Phommasoukha’s application for asylum under 8 U.S.C. § 1158.
We believe the IJ’s conclusion that Phommasoukha’s imprisonment in a Pathet
Lao concentration camp does not constitute past persecution is not supported by
substantial evidence. See Lau May Sui v. Ashcroft, 395 F.3d 863, 869 (8th Cir. 2005)
(reviewing the Board’s factual finding of no past persecution under the substantial-
evidence standard). The purpose of Phommasoukha’s imprisonment was to make him
more compliant to the political dogma of the authoritarian government. As part of the
Communist reeducation regimen, Phommasoukha was subjected to “indoctrination
meetings,” denied contact with his family, and required to perform forced labor. His
imprisonment by the Pathet Lao regime continued for approximately four to six years
with little change in treatment or conditions. See Manivong v. INS, 164 F.3d 432, 433
(8th Cir. 1999) (concluding that the petitioner, a citizen of Laos who spent almost one
year in a labor camp because of his anti-Communist opinions, “was at one time the
victim of persecution”). The IJ, however, erroneously focused solely on the apparent
lack of physical harm to Phommasoukha at the concentration camp. Based on his
lengthy imprisonment in a concentration camp operated by a brutal authoritarian
regime and the substantial deprivations he suffered during his internment, we simply
cannot agree with the IJ’s factual finding that Phommasoukha did not suffer past
persecution due to his protected status of political dissident. See Mikhael v. INS, 115
F.3d 299, 303 n.2 (5th Cir. 1997) (noting that persecution is broader than merely
physical harm).
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As a result of this erroneous factual determination, the IJ improperly placed the
burden of establishing a well-founded fear of future persecution on Phommasoukha.
De Brenner, 388 F.3d at 638-39. Phommasoukha, an alien who suffered past
persecution due to his political opinions, should have been entitled to a presumption
of having a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1) (“An
applicant who has been found to have established such past persecution shall also be
presumed to have a well-founded fear of persecution on the basis of the original
claim.”). The burden then should have shifted to the DHS to prove by a
preponderance of the evidence that conditions in Laos have undergone a fundamental
change from the time of the persecution such that the basis for Phommasoukha’s
well-founded fear of future persecution has been eliminated. 8 C.F.R. §§
208.13(b)(1) and 208.13(b)(1)(i)(A). From the IJ’s order, however, we understand
that the burden of proving a well-founded fear of future persecution improperly
remained on Phommasoukha throughout the proceedings.
“When the BIA applies an incorrect legal standard, the proper remedy typically
is to remand the case to the agency for further consideration in light of the correct
standard.” De Brenner, 388 F.3d at 639 (quoting Corado v. Ashcroft, 384 F.3d 945,
948 (8th Cir. 2004)) (internal quotation omitted). The IJ applied the incorrect legal
standard based on the erroneous conclusion that Phommasoukha’s confinement in a
concentration camp does not rise to the level of past persecution. Therefore, in light
of Phommasoukha’s credible claim of past persecution, we remand this case for a
determination of whether conditions in Laos are sufficiently changed to overcome the
presumption that Phommasoukha has a well-founded fear of future persecution.
III. CONCLUSION
Bouapha Phommasoukha’s imprisonment in a Communist-run concentration
camp constitutes past persecution based on his political opinion. Accordingly, the
burden of proving a fundamental change in the conditions of Laos such that
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Phommasoukha does not have a well-founded fear of future persecution is on the
DHS. We reverse and remand to the Board for further proceedings consistent with
this opinion.
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