Sen v. Gonzales

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1336
SAMNANG SEN,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Martin J. McNulty on brief for petitioner.
Hillel R. Smith, Attorney, Office of Immigration Litigation,
Peter D. Keisler, Assistant Attorney General, and Terri J. Scadron,
Assistant Director, on brief for respondent.
October 26, 2005
Per Curiam. This is a petition for review of the denial
of asylum.1 Petitioner, a native and citizen of Cambodia had
sought asylum on the ground that he had been persecuted in the past
on the basis of his membership in particular social groups, namely,
the Khmer People National Liberation Front ("KPNLF"), the
Democratic Liberal Buddhism Party ("DLBP"), and the Sam Rainsey
Party ("SRP"), all of which opposed the incumbent Hun Sen regime,
and that he feared that, if he returned to Cambodia, he would be
immediately arrested and probably killed because of his active
membership in the SRP. Where, as here, the Board of Immigration
Appeals ("BIA") has summarily affirmed the decision of the
Immigration Judge ("IJ"), we review the findings and conclusions of
the IJ. Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003). Finding
no error in the IJ's decision that the petitioner is statutorily
ineligible for asylum, we deny the petition.
To be entitled to asylum, an applicant bears the burden
of proving that he is a "refugee." See 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1); 8 C.F.R. § 1208.13(a); see also Xu v. Gonzales, 424
F.3d 45, 48 (1st Cir. 2005). To do that, the applicant must
1
The Immigration Judge also denied petitioner's claims for
withholding of removal and for relief under the Convention Against
Torture ("CAT"). However, because petitioner did not press those
claims on appeal to the Board of Immigration Appeals and did not
raise his CAT claim or develop his withholding of removal claim in
his brief to this court, those claims are therefore waived. See Un
v. Gonzales, 415 F.3d 205, 210 (1st Cir. 2005); Harutyunyan v.
Gonzales, 421 F.3d 64, 65 (1st Cir. 2005).
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demonstrate either a well-founded fear of future persecution on
account of a protected ground, such as membership in a particular
social group, or past persecution on account of such a ground,
which entitles the applicant to a presumption of a well-founded
fear of future persecution. See 8 C.F.R. § 1208.13(b); see also
Xu, 424 F.3d at 48.
Establishing past persecution is a "daunting task," Diab
v. Ashcroft, 397 F.3d 35, 39 (1st Cir. 2005). To make such a
showing, the applicant must provide "conclusive evidence" that he
has suffered persecution on a protected ground, Romilus v.
Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004); conclusory allegations are
not sufficient, Negeya v. Gonzales, 417 F.3d 78, 83 (1st Cir.
2005). Because "persecution" is not a defined term, "it is in the
first instance the prerogative of the Attorney General, acting
through the BIA, to give content to it." Bocova v. Gonzales, 412
F.3d 257, 262 (1st Cir. 2005). Although the BIA does so on a case-
by-case basis, id. at 263, it is clear that, "'to qualify as
persecution, a person's experience must rise above unpleasantness,
harassment, and even basic suffering,'" Ziu v. Gonzales, 412 F.3d
202, 2204 (1st Cir. 2005) (quoting Nelson v. INS, 232 F.3d 258, 263
(1st Cir. 2000)).
Where an applicant has not proved past persecution and
therefore does not benefit from a presumption of future
persecution, the applicant must satisfy both a subjective and an
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objective test to prove a well-founded fear of future persecution.
Diab, 397 F.3d at 39. "'The subjective test requires the applicant
to prove his fear is genuine, while the objective test requires a
showing by credible and specific evidence that this fear is
reasonable.'" Id. (quoting Mukamusoni v. Ashcroft, 390 F.3d 110,
119 (1st Cir. 2004)).
We review administrative asylum decisions under the
"highly deferential 'substantial evidence' standard. Harutyunyan
v. Gonzales, 421 F.3d 64, 67 (1st Cir. 2005). Where, as here, "the
agency's determination . . . is based, not on substantial evidence
supporting its decision, but on a petitioner's failure to provide
evidence that would support a holding his favor. . ., 'substantial
evidence' review permits [the court] to reverse 'only if the
petitioner's evidence would compel a reasonable factfinder to
conclude that relief was warranted.'" Xu, 424 F.3d at 48 (quoting
Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004)).
Under those deferential standards, we must deny the
petition. The record evidence does not compel the conclusion
either that petitioner was persecuted in the past or that he has an
objectively reasonable fear of being persecuted in the future.
As to past persecution, the IJ reasonably concluded that
the incidents cited by the petitioner do not rise to the level of
"persecution" for purposes of asylum eligibility. Although the
petitioner cites three incidents of having a gun pointed at him and
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one incident of receiving a threatening letter, he was not harmed
in any of those confrontations, and the threat was not particularly
credible and was never fulfilled even though petitioner remained in
Cambodia for two and a half years after receiving it. See Ziu, 412
F.3d at 205 (finding that two episodes of physical abuse not
resulting in serious injury and various threats "do not amount to
persecution under our case law"); cf. Un, 415 F.3d at 209-10, 210
n.3 (holding that verbal death threat could amount to persecution,
where a credible friend confirmed that the threateners were
planning to kill the petitioner). Petitioner's general allegations
that he was often threatened by Hun Sen's followers and followed by
the secret police are not sufficiently specific to fulfill his
burden of providing "conclusive" and "specific" evidence of
persecution. See Topalli v. Gonzales, 417 F.3d 128, 132 n.5 (1st
Cir. 2005).
Nor does the evidence compel a finding that the incidents
where petitioner was held at gunpoint were motivated by his
political party membership. At the first such confrontation, the
soldiers stated that they had stopped petitioner's van because of
a curfew violation; and at the second, they stated that petitioner
and others had violated "local law." In the third incident, no
reason was given. Given the absence of even circumstantial
evidence of motive, the IJ was free to reject petitioner's
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speculation that the incidents were motivated by his party
membership. Ziu, 412 F.3d at 205.
As to future persecution, even assuming, as the IJ
implicitly did, that petitioner's fear of future persecution is
subjectively sincere, the evidence does not compel a finding that
petitioner's fear is objectively reasonable. The IJ reasonably
concluded that petitioner would not be viewed as a party activist,
based on petitioner's own testimony that he had no rank or position
in the SRP but was merely a member and had ceased his active
involvement in party activities after the 1998 elections and on the
fact that he was viewed as a government employee, which facilitated
his movement around the country, even after he had left his
government position. Furthermore, the 2002 State Department
Country Condition Report indicates that political parties normally
were able to conduct their activities freely without government
interference; that political violence associated with the February
2001 local elections was directed primarily at party activists and
candidates rather than mere members, see Khem v. Ashcroft, 342 F.3d
51, 54 (1st Cir. 2003); that the Government took action against
many alleged perpetrators of election-related violence; and that
the SRP won 1,346 local council seats, thus gaining some control
over the country's local governance, id. The IJ properly relied on
that report in concluding that petitioner's fear of future
persecution was not objectively reasonable. Negeya, 417 F.3d at
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84-85. That conclusion is further supported by the fact that
petitioner reported no further problems after March 1998 although
he remained in Cambodia for more than two years after that.
Accordingly, the petition is denied.
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