Sam Neang Keo Chan v. Ashcroft

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to lst Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1499
SAM NEANG KEO CHAN,
Petitioner,
v.
JOHN ASHCROFT, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW FROM AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Martin J. McNulty on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Terri J.
Scadron, Assistant Director, and Carol Federighi, Office of
Immigration Litigation, Civil Division, on brief for respondent.
March 30, 2004
STAHL, Senior Circuit Judge. Petitioner-appellant Sam
Neang Keo Chan applied for political asylum pursuant to 18 U.S.C.
§ 1158(b)(1) and withholding of removal pursuant to 8 U.S.C. §§
1101 et seq. and 1229a. The Immigration Judge (IJ) denied Chan’s
application, and the Board of Immigration Appeals affirmed that
decision without opinion. We affirm the Board’s decision on the
ground that it is supported by substantial evidence.
I. BACKGROUND
Chan, a forty-six year old native of Cambodia, last
entered the United States on October 8, 1998, on a non-immigrant
visa. Despite her visa's expiring on November 6, 1998, Chan
remained in the United States and on January 19, 1999, applied for
political asylum and withholding of removal.
This case takes place against the turbulent political
backdrop of Cambodian history. After decades of turmoil, in 1993
the Cambodian government was established as a constitutional
monarchy. King Sihanouk was named Head of State, and Prince
Ranariddh and Hun Sen served as First and Second Prime Ministers,
respectively. In July, 1997, Hun Sen overthrew Prince Ranariddh,
and a period of violence ensued. Subsequently, Hun Sen agreed to
democratic elections, which he won in July, 1998. According to
State Department reports, the 1998 electoral campaign and its
aftermath "were marred by protests, voter intimidation, and
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partisan violence, some of it government-directed." Political
stability has since been achieved through a coalition government.
Chan’s application for asylum, affidavit, and hearing
testimony set forth the following allegations: She was born on
December 29, 1958, in Phnom Penh, Cambodia, and married Seng Hong
on July 7, 1978. The couple had three children, now approximately
twenty, seventeen, and eight years of age. Under the Pol Pot
regime, Chan’s family was forced to move from their home in Phnom
Penh to the province area. Her father was taken away and
presumably killed, her brother was executed, and Chan was enslaved
in “the hard labor force.”
In early 1998, Chan became a member of the Sam Rainsy
party, a rival of Hun Sen. On April 20, 1998, Chan received her
membership card and attended a meeting with her uncle, Lon Phon, a
prominent leader in the Sam Rainsy party. While she stood by the
door greeting some of the 200 supporters in attendance, four Hun
Sen soldiers arrived on motorcycles. They fired their weapons in
the air, pointed a gun at Chan’s head, and threatened to kill her
if the meeting continued. Fearing harm, the Sam Rainsy supporters,
including Chan and Lon Phon, fled.
On July 11, 1998, Chan and four other Sam Rainsy
supporters, while distributing campaign materials in a Phnom Penh
marketplace, were approached by three Hun Sen soldiers. One
soldier, identified by Chan as the security chief of the
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marketplace, put a gun to Chan’s head.1 He pulled the papers from
her hands and warned her that she would “have a short life” if she
continued to support the Sam Rainsy party.
After Hun Sen won the parliamentary elections on July 26,
1998, the leaders of the opposing parties, Prince Ranariddh and Sam
Rainsy, accused Hun Sen of fraud. Chan attended rallies where Sam
Rainsy supporters declared Hun Sen a stealer, a dictator, and a
Vietnamese puppet. The political protests were particularly
violent between September 7 and September 13, 1998. Chan alleged
that on September 14, 1998, thirty thousand Sam Rainsy supporters,
including Chan, convened outside the United States Embassy, waving
United States, Cambodian, and Buddhist flags. Eight thousand riot
police were deployed. Chan asserted that police used guns, clubs,
chains and water cannons to disperse the crowd. Protesters were
arrested, beaten, and killed, but Chan was able to escape unharmed.
She subsequently walked sixty kilometers to safety in the village
of Kampong Chamlong.
The following day, Hun Sen soldiers arrived at Chan’s
home, apparently looking for her. Chan’s mother refused to inform
the soldiers of the location of either Chan or Chan’s husband, Seng
Hong. One week later, the soldiers returned and ransacked Chan’s
home. Chan’s mother was forced to the ground at gunpoint and
1
The IJ stated, apparently in error, that the gun was placed
to Chan's stomach.
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asked, “Do you want to eat bullets or do you want to tell us where
your children are?” Seng Hong has been missing since the September
14 demonstration, as have two of Chan’s friends. Chan's uncle and
his family fled the country.
Chan contends that because she is a well-known Sam Rainsy
supporter, she fears she will be persecuted if she returns to
Cambodia. She is also concerned for her three children; they
remain in Cambodia with Chan's mother but do not attend school
because Chan fears for their safety.
According to documents in the record, Chan visited the
United States from June 24 to October 21, 1997, during the height
of the coup. She had no affiliation with Sam Rainsy or any other
political party until the following year. After the April 1998
incident involving the Hun Sen soldiers at the Sam Rainsy meeting,
she traveled to China, where she remained from May 16 until May 30,
1998. On June 11, 1998, Chan again traveled to the United States
and returned to Cambodia on July 5, 1998.2
Following the demonstration at the U.S. Embassy, Chan
left Cambodia on October 7, 1998, and arrived in San Francisco the
next day. On January 14, 1999, she filed an application for
2
On June 9, 1998, the American Consulate in Phnom Penh issued
Chan a non-immigrant visa that was valid for multiple entries until
June 19, 1999. Chan contends that the visa was issued on June 19,
1997.
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political asylum and withholding of removal.3 On May 2, 2000, an
Immigration Judge heard her case. On October 10, 2000, the IJ
issued a decision denying Chan’s application. She appealed to the
Board of Immigration Appeals, which affirmed the decision without
opinion pursuant to 8 C.F.R. § 1003.1(e)(4). She now seeks
judicial review of the decision of the Board.
II. DISCUSSION
In her petition for review, Chan contends that the Board
erred in affirming the IJ’s decision. She claims that the IJ
erroneously found her testimony not to be credible and that she
adduced sufficient evidence to prove that she is both a victim of
past persecution and a likely target of future persecution.
A. Applicable law
This court reviews the Board's findings of fact and
credibility under a "substantial evidence" standard. Mediouni v.
INS, 314 F.3d 24, 26 (1st Cir. 2002) (citing Yatskin v. INS, 255
F.3d 5, 9 (1st Cir. 2001)). "Board determinations of statutory
eligibility for relief from deportation, whether via asylum or
withholding of deportation, are conclusive if 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.'" Id. at 26-27 (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 480 (1992)). Unless the applicant puts
3
Later in the proceedings, Chan added a request for protection
pursuant to the United Nations Convention Against Torture.
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forth evidence “so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution,” we will uphold a
denial of asylum. Elias-Zacarias, 502 U.S. at 483-84. When the
Board affirms without opinion, as it did here, we review the
decision of the Immigration Judge. Quevedo v. Ashcroft, 336 F.3d
39, 43 (1st Cir. 2003).
The standard for withholding deportation is stricter than
that for asylum, thus “a petitioner unable to satisfy the asylum
standard fails, a fortiori, to satisfy the former.” Mediouni, 314
F.3d at 27 (quoting Velasquez v. Ashcroft, 305 F.3d 62, 64 n.2 (1st
Cir. 2002)). Accordingly, we address Chan's asylum claim first.
An asylum applicant bears the burden of proving either
past persecution or a well-founded fear of future persecution.
Id.; 8 C.F.R. § 208.13(b). In establishing a well-founded fear of
future persecution, the applicant must prove “both a genuine
subjective fear and an objectively reasonable fear of persecution”
on the grounds of race, religion, nationality, membership in a
particular social group, or political opinion. Mediouni, 314 F.3d
at 27. An objectively reasonable fear “requires a showing ‘by
credible, direct, and specific evidence . . . facts that would
support a reasonable fear that the petitioner faces persecution.’”
Civil v. INS, 140 F.3d 52, 55 (1st Cir. 1998) (quoting Ravindran v.
INS, 976 F.2d 754, 758 (1st Cir. 1992)). Here, the merits of
Chan’s claims rest largely on the credibility of her accounts.
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B. Past persecution
A finding of credibility is paramount in asylum cases.
See Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998). The IJ found
that Chan’s account of past persecution lacked the “ring of truth”
necessary to credit her account of alleged persecution, pointing to
discrepancies between newspaper accounts of the September 14, 1998
demonstration and Chan's account. According to Chan’s testimony
and asylum application, the demonstration involved thirty thousand
protesters and eight thousand riot police in front of the Embassy.
News sources in the record, however, assert that the demonstration
began with two hundred protesters and grew to fifteen to twenty-
five hundred protesters. Published articles also indicate that
eight thousand Hun Sen supporters, not police, were transported to
the city and that although fifty-three people have been missing
since the demonstration, there were no proven deaths. The IJ
concluded that this evidence contradicted Chan’s testimony that she
“saw people being killed and being beaten everywhere.”
Chan contends that these inconsistencies are minor
discrepancies that do not affect her credibility. See Wang v. INS,
352 F.3d 1250, 1253 (9th Cir. 2003) ("minor inconsistencies and
minor omissions relating to unimportant facts will not support an
adverse credibility finding”) (quoting De Leon-Barrios v. INS, 116
F.3d 391, 393 (9th Cir. 1997)). While the discrepancies concerning
the September demonstration are not overwhelming, they do concern
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facts that are central to her claims. See De Leon-Barrios, 116
F.3d at 393 (discrepancies between applications are not minor
because they serve as the basis for applicant’s alleged fear of
persecution); see also Borjorques-Villanueva v. INS, 194 F.3d 14,
16 (1st Cir. 1999). Under our deferential standard of review, see
Kalitani v. Ashcroft, 340 F.3d 1, 5 (1st Cir. 2003), we will not
disturb the IJ's determination that the discrepancies were material
to her credibility.
Moreover, other elements of Chan's account undermine her
claim of past persecution. According to Chan, she was first
threatened by Hun Sen soldiers on April 20, 1998, the day she
received her membership card and attended a meeting of Sam Rainsy
supporters. Yet she left Cambodia for a two-week visit to China
less than one month later. She also traveled to the United States
on June 11, 1998, and returned to Cambodia on July 5, 1998.4 In
doing so, she subjected herself to inspections that typically
accompany international flights. Had she been the target of
persecution, it is likely that she would have encountered some
difficulty in her travels. Moreover, had she been as frightened by
the April 20 incident as she suggests, it also is likely that she
would have been reluctant to return to Cambodia on both occasions.
4
Chan stated that these trips were for "pleasure" when
questioned about them during the hearing.
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In addition, Chan continued to work at the Phnom Penh
marketplace following her alleged assault by the chief of
marketplace security. Such conduct is not consistent with
victimization. Moreover, Chan has suffered no physical harm, an
important consideration in our analysis of past persecution. See
Guzman v. INS, 327 F.3d 11, 15-16 (1st Cir. 2003); Lim v. INS, 224
F.3d 929, 936 (9th Cir. 2000). We therefore hold that the IJ's
conclusion that Chan failed to prove past persecution is supported
by substantial evidence.
C. Well-founded fear of future persecution
Chan also seeks to establish eligibility for asylum by
adducing specific evidence justifying a well-founded fear of future
persecution. See Velasquez, 342 F.3d at 58; Aguilar-Solis v. INS,
168 F.3d 565, 572 (1st Cir. 1999). She must prove that her fear is
both genuine and objectively reasonable. Aguilar-Solis, 168 F.3d
at 572.
Chan claims that her life was threatened on two occasions
prior to the September 14 demonstration, yet she continued to live
and work unharmed in Phnom Penh for nearly five months following
the first threat. Chan also remained in Cambodia for more than
three weeks after the September 14 demonstration. She had a valid
passport and United States visa, and it is likely that she would
have fled immediately had she actually believed her life was in
imminent danger.
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Moreover, as the IJ pointed out, Chan was one of many Sam
Rainsy supporters in Cambodia. She held no position of power
within the party, and indeed had not even joined until 1998. See
Khem v. Ashcroft, 342 F.3d 51, 54 (1st Cir. 2003) (upholding the
denial of asylum on the basis that petitioner, a Cambodian citizen,
was not subject to future persecution because she was a low-level
party member, never made public speeches, and never held a party
office).
We also defer to the IJ's findings concerning changed
conditions in Cambodia. “Changed country conditions often speak
volumes about the objective reasonableness of an alien’s fear that
persecution lurks should he return to his homeland.” Aguilar-
Solis, 168 F.3d at 572. The record indicates the return of
political stability to Cambodia since shortly after the September
14 demonstration. Moreover, Chan's children and mother continue to
live in Cambodia; although the children do not attend school
because of Chan's fears, there is no record evidence indicating
that they face objective danger. “The fact that close relatives
continue to live peacefully in the alien’s homeland undercuts [her]
claim that persecution awaits [her] return.” Khem, 342 F.3d at 54(quoting Guzman, 327 F.3d at 16). Thus, we are not compelled to
find that Chan genuinely and reasonably fears future persecution in
Cambodia.
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D. Chan's due process claim
Lastly, Chan contends that she was denied due process as
a result of the translation services provided to her. She asserts
that the IJ was unable to adequately evaluate her demeanor -- and
accordingly, her credibility -- because the translations were not
immediately provided after each word, but rather were given at the
conclusion of Chan’s answers.
While an adverse credibility determination may be
reversed in the case of an inaccurate translation, see Amadou v.
INS, 226 F.3d 724, 726 (6th Cir. 2000) (applicant denied due
process because translator was incompetent); Perez-Lastor v. INS,
208 F.3d 773, 777-78 (9th Cir. 2000) (asylum applicant was
prejudiced by incompetent translation), Chan makes no such claim
here. Rather, she merely argues that she was generally
disadvantaged by the manner in which her testimony was translated.
There is no indication that any such objections were made at the
asylum hearing. See Albathani v. INS, 318 F.3d 365, 375 (1st Cir.
2003) (affirming the Board’s denial of asylum where applicant
failed to question the accuracy of translation at his hearing and
asserted no specific errors in translation on appeal). Nor does
Chan specify any particular translated statement as problematic, or
explain how she was prejudiced thereby.
Moreover, while we have acknowledged that a “witness’s
demeanor is often a critical factor in determining his veracity,”
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Aguilar-Solis, 168 F.3d at 570-71, it does not appear that the IJ
relied upon Chan's demeanor in determining that her testimony was
not credible. Instead, he based his credibility finding on Chan’s
account of the September 14 demonstration. We conclude that Chan’s
due process rights were not violated on the basis of the
translation.
For the reasons set forth above, we affirm the Board of
Immigration Appeals’ judgment as to Chan's petitions.5
5
As noted supra, our holding as to the asylum claim obviates
further consideration of the withholding of deportation claim. See
Mediouni, 314 F.3d at 27.
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