Myint v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2009
No. 08-60246
Summary Calendar Charles R. Fulbruge III
Clerk
KYAW MYINT, also known as Kyaw Kyaw Myint,
Petitioner,
v.
MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A98 553 731
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Kyaw Myint petitions for review of a final order of removal of the Board
of Immigration Appeals (BIA). The BIA affirmed the immigration judge’s (IJ)
decision denying Myint’s applications for asylum under 8 U.S.C. § 1158,
withholding of removal under 8 U.S.C. § 1231(b)(3), and protection under the
Convention Against Torture (CAT), 8 C.F.R. §§ 1208.16(c), 1208.18. We affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-60246
I
Myint is a native and citizen of Burma who arrived at the port of entry in
Laredo, Texas without a valid entry document in February 2005. Three days
after his arrival, an asylum officer conducted a credible-fear interview. Under
oath, Myint stated that he came to the United States seeking political asylum.
He stated that soldiers in Burma had harassed him and threatened him with
arrest and detention because he opposed the government and was a member of
the Chin National Front (CNF).
In his asylum application, Myint claimed that he was seeking asylum
based on his race and political opinion. Myint stated that he was beaten during
an encounter between the supporters and opponents of Daw Aung San Suu
Kyi—a female leader of the National League for Democracy Party (NLD). This
violent incident is famously referred to as the “Depeyin incident.” Myint
explained that “during the confusion [he] got hit in the right side of [his] face”
but was able to escape further harm. He called his wife and parents to let them
know what had happened but avoided returning to his home because he knew
the “military intelligence” would be looking for him. Myint then left the country
for Bangkok.
While Myint was hiding in Bangkok, he contacted his family in Burma and
learned that the “military intelligence” had interrogated his wife about Myint’s
whereabouts and had “interrogate[d] and threaten[ed]” his parents. According
to Myint, “[t]he harassment and mistreat[ment] of [his] wife reached a point
where [she] got scared” and ran away from Burma.
Myint also claimed that the information recorded at his credible-fear
interview was incorrect and that it was “very obvious” that the officer recording
his statements was “confused.” Myint noted that the officer wrote that he was
threatened for being a “CNA member,” but that “CNA is for Chin ethnic and I
am not Chin, but Sino-Shan.” Myint stated that “[a]lthough I was allowed to
review the paper, my English was very weak and it was hard for me to read
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No. 08-60246
script style writing.” Thus, he claims that he signed the paper, believing the
officer had written what Myint had told him, and only realized the report was
inaccurate when he reviewed the statement with his attorney.
In his testimony before the immigration court, Myint stated that there was
“no past persecution whatsoever” and that his claim for asylum and related relief
was based on a fear of future persecution. Myint said that, since arriving in the
United States, he had been calling home every few months to check on things
and learned that, two months prior to his hearing, the “military intelligence” had
come to his house and asked about him. He testified that his parents also told
him that other people who participated in the Depeyin incident had been killed,
but Myint did not know how his parents got this information.
The IJ found Myint not to be credible. The IJ based his adverse credibility
determination in part on Myint’s failure to corroborate any of his claimed
political activities in Burma, which allegedly included (1) passing out pamphlets
for the NLD when he was in high school, (2) meeting with fellow students at the
Government Technical College (GTC), and (3) participating in the Depeyin
incident. The IJ specifically noted that Myint did not produce any of the
pamphlets he formerly distributed and that his alleged distribution could not
have been significant because he subsequently “was allowed to enter college
without any apparent difficulty.” The IJ further noted that Myint did not
produce any medical documentation to confirm the injury he allegedly sustained
during the Depeyin incident.
With respect to the Depeyin incident, the IJ found corroboration
particularly necessary because it was the only experience described by Myint
that “even remotely approache[d] the level necessary to establish eligibility for
asylum or withholding [of removal].” The IJ further found that the incident was
“well-known,” “well documented,” and involved more than a hundred people, and
therefore it would be “easy for someone to claim involvement in that incident
and to provide some details regarding the incident.” The IJ also noted that
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No. 08-60246
corroborative evidence should have been available because (1) Myint still had
immediate family in Burma, as well as friends at the GTC, any of whom should
have been able to provide him with affidavits or other supporting documents to
confirm his story, (2) Myint had an “editor cousin” in the United States who
should have been able to confirm parts of the story but who did not appear to
testify, and (3) Myint had over a year and a half since arriving in the United
States to obtain corroborating documents, and if he anticipated seeking asylum
on arrival as he claimed, then he could and should have been gathering
documents before his arrival.
The IJ also found that the record evidence contradicted Myint’s
unsupported claim that he would be detained if he returned to Burma.
Specifically, the IJ noted that “in all of the materials admitted into evidence”
relating to the Depeyin incident, there was no report indicating that “persons
who escaped from immediate arrest [were] still being arrested,” and that reports
instead suggested that “actions” were only being taken against the NLD
“leaders,” and not unofficial members like Myint. The IJ further stated that
there was “no evidence of any adverse action . . . taken against [Myint’s] family
[in Burma], except perhaps for some questioning as to [Myint’s] whereabouts.”
Therefore, the IJ stated that it was “too big a jump for this Court to make to
assume that the Government wants to torture and kill [Myint] simply because
they are asking about and trying to locate him.”
The IJ also based his adverse credibility determination on Myint’s
“disagree[ment] with what was said at the initial credible[-]fear interview.” The
IJ wrote that the credible-fear document indicated that Myint “felt he was in
danger because of his past (at least suspected) membership in CNF; there [wa]s
no mention whatsoever of the Depeyin incident or of any of the events/steps
[Myint] took thereafter.” The IJ rejected Myint’s stated explanation that there
was confusion during the interview due to Myint’s limited knowledge of English
because “the interview was conducted in Burmese, with a Burmese interpreter.”
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No. 08-60246
The IJ noted that “the discrepancy is not just a single word here or there, but is
with the entire statement made by [Myint] to the credible[-]fear officer.”
Based on the inconsistencies and lack of corroboration, the IJ found Myint
not credible; denied his applications for asylum, withholding of removal, and
protection under the Convention Against Torture; and ordered him removed to
Burma. The BIA dismissed Myint’s appeal, and this petition for review followed.
II
This court reviews factual findings of the BIA and IJ for substantial
evidence and questions of law de novo.1 The conclusion that an applicant is not
eligible for asylum, withholding of removal, or relief under the CAT is a factual
conclusion,2 and the “findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”3 In order to reverse
the BIA, this court must decide “not only that the evidence supports a contrary
conclusion, but also that the evidence compels it.”4 The applicant must show
“that the evidence is so compelling that no reasonable factfinder could reach a
contrary conclusion.”5
III
To be eligible for asylum, an applicant has the burden of proof to establish
that he is a “refugee.”6 A person is a refugee if he has suffered past persecution
1
Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
2
See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (“We apply [the substantial
evidence test] in reviewing an IJ’s factual conclusion that an applicant is not eligible for
asylum, withholding of removal, and relief under the Convention Against Torture.” (citations
omitted)).
3
Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
4
Id. (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005)).
5
Id. (citing Zhao, 404 F.3d at 306).
6
8 C.F.R. § 1208.13(a).
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No. 08-60246
or has a well-founded fear of future persecution.7 Because Myint testified that
there was “no past persecution whatsoever,” we consider only whether Myint
established a well-founded fear of future persecution.
Proof of a well-founded fear of future persecution requires a showing of a
subjective fear of persecution that is objectively reasonable.8 An applicant need
not show that he will be persecuted if returned to his country, but only that
persecution is a “reasonable possibility.”9 To establish the objective
reasonableness of a well-founded fear of persecution, the applicant must show:
“(1) he possesses a belief or characteristic a persecutor seeks to overcome by
means of punishment of some sort; (2) the persecutor is already aware, or could
become aware, that the alien possesses this belief or characteristic; (3) the
persecutor has the capability of punishing the alien; and, (4) the persecutor has
the inclination to punish the alien.”10
To qualify for withholding of removal, an alien must show a “clear
probability” of persecution in the proposed country of removal.11 Similarly, to
establish entitlement to protection under the CAT, an applicant must show that
it is more likely than not that he would be tortured if removed to the proposed
country of removal.12 The “clear probability” standard for withholding of
removal and the CAT protection is more rigorous, and thus more difficult for an
7
8 C.F.R. § 1208.13(b).
8
Chen, 470 F.3d at 1135; see also Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir.
2006) (“The alternative asylum ground, a well-founded fear of persecution, results when a
reasonable person in the same circumstances would fear persecution if deported.”).
9
Chen, 470 F.3d at 1135 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)).
10
Id. at 1135-36 (quoting Zhao, 404 F.3d at 307).
11
Cardoza-Fonseca, 480 U.S. at 430-31; Girma v. INS, 283 F.3d 664, 667 (5th Cir.
2002).
12
See 8 C.F.R. § 1208.16(c)(2).
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No. 08-60246
alien to meet, than the “well-founded fear” standard for asylum.13 Accordingly,
failure to satisfy the lower standard of proof required to establish eligibility for
asylum necessarily results in a failure to demonstrate eligibility for withholding
of removal and protection under the CAT.14
IV
The record does not compel reversal of the agency’s finding that Myint
failed to establish a well-founded fear of future persecution due to, among other
things, the inconsistency between his statements at his initial credible-fear
interview and his subsequent written declaration and testimony.15 At his initial
credible-fear interview, Myint stated that he had been threatened and harassed
by soldiers in Burma on account of his membership in the CNF. By contrast, in
his written application and testimony, Myint claimed that he had been harassed
by soldiers in Burma due to his Sino-Shan background and involvement in the
NLD and the Depeyin incident. Further, Myint’s stated explanation in his
declaration—that he did not understand what the interviewing officer wrote in
English and that the officer was “confused” about his story—is unpersuasive.
As the IJ noted, during his credible-fear interview, Myint had a Burmese
interpreter and never raised any concerns of a misunderstanding at that time.
Additionally, Myint’s subjective fear of future prosecution is not supported
by objective evidence. Myint did not submit any evidence regarding his
distribution of pamphlets in high school, medical documentation of the injury he
claimed to have received during the Depeyin incident, or any affidavits from
family or friends, despite the fact that Myint claims to be in regular contact with
his immediate family. Instead, Myint submitted only documentary evidence on
Burma that the IJ gave little weight because the articles and reports were
13
See INS v. Stevic, 467 U.S. 407, 424-25 (1984); Girma, 283 F.3d at 666-67.
14
See Girma, 283 F.3d at 667.
15
See Chun v. INS, 40 F.3d 76, 78-79 (5th Cir. 1994).
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No. 08-60246
general in nature. Further, Myint does not claim to be an NLD leader or that
his family has experienced any persecution besides questioning about Myint’s
whereabouts.
Because the evidence does not compel a reasonable adjudicator to conclude
that Myint has a well-founded fear of future persecution, we affirm the IJ’s
decision.
AFFIRMED.
8