Im v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAULINE IM; SITHA NGIN,  No. 05-70027
Petitioners,
Agency Nos.
v.
 A79-267-088
ALBERTO R. GONZALES, Attorney A79-267-089
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 17, 2007—San Francisco, California
Filed August 13, 2007
Before: Betty B. Fletcher, Eugene E. Siler, Jr.,* and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge B. Fletcher
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
9757
IM v. GONZALES 9759
COUNSEL
Emmanuel Enyinwa, Law Offices of Emmanuel Enyinwa,
San Francisco, California, for the petitioner-appellant.
Manuel A. Palau, U.S. Department of Justice, Civil Division,
Washington, D.C., for the respondent-appellee.
OPINION
B. FLETCHER, Circuit Judge:
I. Facts
In 1975 the Khmer Rouge seized power in Cambodia. Peti-
tioner Im — then 22 years old and one year out of high school
— was impressed into service as a forced laborer for the new
9760 IM v. GONZALES
totalitarian regime, and his family was killed. Four years later,
the Vietnamese army invaded Cambodia, removing the
Khmer Rouge from power. Vietnamese troops arrested Im in
July of 1979. No criminal charges were ever filed against Im,
and the army installed him as a prison guard in PJ, a small
prison in Phnom Penh that housed between 35 and 70 prison-
ers, including a number of Khmer Rouge. All of the guards
were Cambodian and none belonged to the Communist party.
At the top of the prison hierarchy was the prison chairman,
followed by the vice-chairman and five guards. Two of the
guards, including Im, worked in the administrative section.
The three remaining guards worked in the political section.
Im did not receive payment for his job but was given rice
and cooking oil in exchange for his labor. His principal duties
included distributing rice to the prisoners, taking them to
bathe or receive medical attention, and overseeing their fit-
ness and hygiene routines. Im’s job also required him to
unlock the cells of prisoners scheduled for interrogation and
hand them over to another guard, who would escort them to
an interrogation room. The prison had two such rooms: one
for regular interrogations and another for “serious” interroga-
tions. Upon completion of an interrogation, Im would lead the
prisoner back to his cell.
Although Im did not like his job, he continued working at
the prison for a year and a half because he could neither leave
his job nor refuse to escort prisoners from the interrogation
rooms without risking severe punishment. Im finally managed
to leave the prison in March of 1981, a move he pursued
because he didn’t “want to see the [prisoners] mistreated by
others.”
He subsequently took a job working at the Royal Hotel but
quit after two years to join an underground organization that
led guerrilla military activities against the occupying Viet-
namese government. In March 1983, Im was arrested by the
Ministry of the Interior for participation in anti-government
IM v. GONZALES 9761
activities. The Vietnamese tortured Im to acquire information
about the anti-government group and ultimately jailed him for
eight months. Following his release, Im returned home to his
wife and started a small business.
Im joined the Buddhist Liberal Democratic Party (“BLDP”)
in 1991 and ran for Congress as a member of that party in
1993. During the campaign, government soldiers thrice shot
at cars carrying Im and other BLDP members. Im lost the
election but was given a job with the Ministry of Rural Devel-
opment, a position he held until he became deputy general
director for the administration of the Ministry of the National
Assembly in 1998. At roughly the same time Im also joined
a new opposition party, known as the Sam Raimsy Party, with
the intention of running for Congress in 2002.
In January 2000, Im assisted other Sam Raimsy Party mem-
bers in their campaigns for local office. As a result of these
activities, he received two phone calls in which the callers
threatened to kill him if he did not suspend his campaign
activities. Im did not stop his political activities, and twice
that month unidentified individuals fired at his car. After one
shooting, a witness said that a government soldier had done
the shooting and then had run away. While Im reported these
incidents to the police, he testified that he did not think the
police took any action to find the perpetrators.
During one night in July 2000, an unknown assailant fired
shots from an AK-47 rifle into Im’s home. Im believed that
the government was responsible for the shooting because only
government soldiers were issued AK-47’s. He reported the
shooting to the Sam Raimsy Party, which filed a human rights
complaint with the United Nations. Fearing for his life, Im
fled Cambodia with his wife, arriving in Los Angeles on Sep-
tember 11, 2000, as a non-immigrant B-2 visitor with authori-
zation to remain in the United States until March 10, 2001.
9762 IM v. GONZALES
II. Procedural History and IJ Hearing
Im filed an application for asylum on March 6, 2001, iden-
tifying his wife Sitha Ngin as a derivative asylum beneficiary.1
On July 23, 2001, the INS issued NTA’s as to Im and Ngin,
finding that they were subject to removal under INA
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), because of their sta-
tus as non-immigrant aliens who had remained in the country
beyond their required departure date. At a removal hearing
held on September 13, 2001, Im and Ngin conceded that they
were subject to removal. Im also renewed his applications for
asylum and withholding of removal, as well as for protection
under the Convention Against Torture (“CAT”). He again
listed Ngin as a derivative asylum applicant.
Im and Ngin appeared before an Immigration Judge (“IJ”)
for hearings on April 25, 2003, June 25, 2003, and August 21,
2003. After hearing testimony from both Im and his Asylum
Officer, the IJ found Im and Ngin removable as charged,
denied Im’s application for asylum and withholding of
removal under the INA and CAT, and granted him deferral of
removal under the CAT. The IJ also denied Ngin’s application
for asylum and ordered her removed because he did not
believe that she could receive derivative relief under the CAT.
The IJ explained the rationale for his decision at the conclu-
sion of the August 21, 2003 hearing and then again in his
written order. At the hearing’s end, the IJ informed Im that he
was barred from receiving asylum relief or the withholding of
removal because he had worked as a prison guard, which the
IJ believed rendered him a former persecutor. The IJ acknowl-
edged, however, that he was “going to find all of [Im’s testi-
mony regarding the threats to his safety] completely
1
Im’s wife is also a party to this appeal, separate from her status as a
derivative asylum beneficiary.
IM v. GONZALES 9763
believable and true,” and that “there’s no dispute that [the
assassination attempt] happened.”2
The IJ echoed this position in his written order, stating,
“applicant presented testimony which was believable, consis-
tent and sufficiently detailed, therefore he was found to be
credible.” The IJ also added “that [Im] has established by a
preponderance of the evidence, that it is more likely than not
he would be tortured, that is to say, subjected to extreme cruel
abuse by the security forces . . . if he were returned to Cambo-
dia.”
Because of the significant risk that Im would be tortured if
returned to Cambodia, the IJ granted him a deferral of
removal under the CAT.
Im timely filed a notice of appeal to the Board of Immigra-
tion Appeals (“BIA”) on September 12, 2003, and the Depart-
ment of Homeland Security (“DHS”) filed a cross-appeal,
challenging the IJ’s grant of deferral of removal under the
CAT. While these appeals were pending, Ngin filed a motion
on July 28, 2004, asking that the BIA sever her case from
Im’s and remand hers to the immigration court to allow her
to file her own applications for asylum, withholding of
removal, and protection under the CAT. On December 21,
2004, the BIA adopted and affirmed the IJ’s decision, dis-
missed the appeals by Im and DHS, and denied Ngin’s motion
2
The IJ further noted that “Respondent’s claim of past persecution
which includes an assassination attempt on his life was attributed to mem-
bers of a group associated with the government and frankly which the gov-
ernment is unable or unwilling to control, is documented by objective
evidence including newspaper reports which are in the record.” He also
found that the State Department’s Country Condition reports are “entirely
consistent with the Respondent’s claim of past persecution and his asser-
tion of a well-founded fear of future persecution.” In fact, the Cambodian
Country Reports on Human Rights practices reveal that a number of Sam
Raimsy Party members were assassinated in 2000, and numerous attempts
were made on the lives of other party members.
9764 IM v. GONZALES
to remand. Im then timely filed the instant petition for review
on January 3, 2005.
III. Analysis
A. Standard of Review
Questions of law — including the BIA’s determination that
Im is ineligible for asylum or withholding of relief — are
reviewed de novo. See Garcia-Quintero v. Gonzales, 455 F.3d
1006, 1011 (9th Cir. 2006); Hernandez v. Reno, 258 F.3d 806,
812 (8th Cir. 2001) (holding that “[the] . . . conclusion that
[petitioner] is ineligible for asylum or withholding relief is a
legal determination which we review de novo”). Where, as
here, the BIA adopts the IJ’s decision as the final agency
determination in a case, we review the IJ’s decision. Falcon-
Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir. 2003).3
Moreover, where the BIA simply affirms the results of the
IJ’s decision and does not offer any statutory analysis or indi-
cate that it intends to create a legal precedent — as it has in
this case — the decision is not entitled to Chevron deference.
Miranda Alvarado v. Gonzales, 449 F.3d 915, 920-24 (9th
Cir. 2006); see also Hernandez, 258 F.3d at 812 (holding that
the Board’s conclusion that petitioner persecuted others is a
legal determination that the court reviews de novo, not a
determination subject to Chevron deference).4 Also, to the
3
The government argues that we should review both decisions, as this
court stated in Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir. 2000). This
position misreads Kataria, which only applies when the BIA “adopts the
IJ’s decision while adding its own reasons.” Id. Here the BIA never added
its own reasons for affirming the IJ. Instead, it offered a perfunctory reci-
tation of the IJ’s decision, which it then affirmed.
4
Respondent has argued only that Chevron deference applies, and does
not assert that the agency decision in question is entitled to the lesser form
of deference established by Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944). But even if the government had argued that Skidmore deference
was appropriate, the agency’s determination, which referred to none of the
IM v. GONZALES 9765
extent that the agency’s determination is based upon an inter-
pretation of circuit law — a factor that is unclear in this case
due to the brevity of the proffered decision — the agency is
not owed any deference. See Acosta v. Gonzales, 439 F.3d
550, 553 n.4 (9th Cir. 2006).
We accept the petitioner’s testimony as true where, as here,
the IJ found him to be credible. Halaim v. INS, 358 F.3d
1128, 1131 (9th Cir. 2004).
B. Assistance in Persecution
[1] In denying Im’s petition for asylum and withholding of
removal under the INA and CAT, the IJ made clear that his
decision was based wholly on Im’s putative status as a former
persecutor. “Under the INA, any person who has ordered,
incited, assisted, or otherwise participated in [the] persecution
of any person on account of a protected ground is ineligible
for asylum and withholding of removal.” Miranda Alvarado,
449 F.3d at 925 (citing 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)
(A)(i), 1231(b)(3)(B)(i), and 8 C.F.R. § 208.13(c)(2)(i)(E))
(quotations omitted). Similarly, past persecutors are ineligible
for withholding of removal under the CAT, see 8 C.F.R.
§§ 208.16(d)(2), 1208.16(d)(2); 8 U.S.C. § 1231(b)(3)(B)(i),
but are eligible for deferral of removal under the CAT. See 8
C.F.R. §§ 208.17(a) & 1208.17(a); Miranda Alvarado, 449
F.3d at 925 n.7.
In reviewing the decision of the IJ, we must consider
whether the IJ adopted the appropriate legal standard for
relevant persecutor case law (of either federal or BIA extraction), does not
satisfy the Skidmore factors. See Miranda Alvarado, 449 F.3d at 924 n.6
(explaining why an IJ decision did not warrant Skidmore deference). The
factors include: “the thoroughness evident in its consideration, the validity
of its reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade.” Skidmore, 323 U.S. at
140.
9766 IM v. GONZALES
determining if petitioner assisted, or participated in, acts of per-
secution.5 This inquiry encompasses two sub-issues: whether
petitioner’s actions constituted purposeful, material assistance
for the persecution, and whether any persecutory acts were
done on account of a protected ground. Because we find that
Im did not assist in the persecution of others, we need not
consider whether he acted on account of a protected ground.
[2] Individuals are only rendered ineligible for asylum if
they have provided purposeful, material assistance for the acts
of persecution. See Miranda Alvarado, 449 F.3d at 927-29;
see also Vukmirovic, 362 F.3d at 1252; Hernandez, 258 F.3d
at 813. “Whether [petitioner’s] assistance was material is
measured by examining the degree of relation his acts had to
the persecution itself: How instrumental to the persecutory
end were those acts? Did the acts further the persecution, or
were they tangential to it?” Miranda Alvarado, 449 F.3d at
928.
[3] In answering these questions, we have relied on the
Supreme Court’s interpretation of a similarly worded statute,
§ 2(a) of the Displaced Persons Act (“DPA”), in Fedorenko
v. United States, 449 U.S. 490 (1981). See Miranda Alvarado,
449 F.3d at 925; Vukmirovic, 362 F.3d at 1251-52. See also
Hernandez, 258 F.3d at 813. The Fedorenko Court considered
the actions of a Ukrainian prison guard who worked at the
Nazi concentration camp in Treblinka. In discussing whether
5
The IJ and BIA are required to “ ‘engage in a particularized evaluation
in order to determine whether an individual’s behavior was culpable to
such a degree that he could be fairly deemed to have assisted or partici-
pated in persecution.’ ” Vukmirovic v. Ashcroft, 362 F.3d 1247, 1252 (9th
Cir. 2004) (quoting Hernandez, 258 F.3d at 813); see also Miranda Alva-
rado, 449 F.3d at 927. This assessment of culpability requires the court to
“evaluate the entire record.” Hernandez, 258 F.3d at 814. Failure to look
at the whole record is legal error. Id. at 814-15. While we have concerns
with the evaluation performed by the BIA and IJ in this case, we need not
decide whether it constituted legal error because we find that Im did not
assist in the persecution of others.
IM v. GONZALES 9767
Fedorenko’s actions rendered him ineligible for receiving ref-
ugee status as an “individual[ ] who had ‘assisted the enemy
in persecuting [civilians],’ ” Displaced Persons Act of 1948,
Pub. L. No. 80-774, 62 Stat. 1009 (1948), the court outlined
a continuum of conduct along which an individual’s actions
could be situated. The Court stated:
[A]n individual who did no more than cut the hair of
female inmates before they were executed cannot be
found to have assisted in the persecution of civilians.
On the other hand, there can be no question that a
guard who was issued a uniform and armed with a
rifle and a pistol, who was paid a stipend and was
regularly allowed to leave the concentration camp to
visit a nearby village, and who admitted to shooting
at escaping inmates on orders from the commandant
of the camp, fits within the statutory language about
persons who assisted in the persecution of civilians.
Other cases may present more difficult line-drawing
problems but we need decide only this case.
Fedorenko, 449 U.S. at 512 n.34 (emphasis added).
[4] As we explained in Miranda Alvarado, while cutting an
inmate’s hair was “ghastly,” it was not essential to the forth-
coming execution and would not, standing alone, amount to
persecution. 449 F.3d at 928. “Thus, the hair cutters did not
‘assist or otherwise participate in’ persecution.” Id. On the
more “culpable” end of the spectrum, the prison guard who
shoots at escapees directly participates in their persecution: in
short, “[h]ad he not shot, that particular act would not have hap-
pened.”6 Id.
After noting that the continuum “is not an exact or absolute
6
Miranda Alvarado suggests that the simple act of being a guard may
shade an individual toward the culpable end of the spectrum; however, as
discussed infra, Im’s conduct is more analogous to that of the hair cutter.
9768 IM v. GONZALES
one . . . [and] difficult line-drawing problems will always per-
sist,” we proceeded to analyze the appropriate placement for
Miranda Alvarado. Id. Miranda Alvarado joined the Peruvial
Civil Guard in Lima, where he was employed as an interpreter
for other officers who were interrogating guerrilla members.
During the interrogations the suspected guerrillas were often
subjected to electrical shocks or beaten with rubber batons.
Miranda Alvarado denied personally torturing the suspects
and said that he could do nothing about it because “it would
have affected [his] performance rating and [he] would not
have been promoted.” Id. at 918. Although he claimed that he
quit because of his objection to the torture, Miranda Alvarado
only resigned after six years and his resignation form cited
“family reasons.” Id.
In deciding Miranda Alvarado’s case, the IJ noted that
Miranda Alvarado “was a necessary part of the interrogation.
Without his services as a Quechua interpreter, the interroga-
tions could not proceed. With his services, they did proceed.”
Id. at 928. We agreed with the IJ, explaining that petitioner’s
acts were not “peripheral to persecution. Rather, he performed
an integral role in facilitating the persecution.” Id. Miranda
Alvarado translated questions between the administration of
electric shocks and beatings. Id. “Without the translation,
there would have been no reason for the torture to occur as it
did, as its point was to elicit information.” Id. Moreover,
Miranda Alvarado made “no colorable claim that his actions
were motivated by . . . extenuating circumstances.” Id. at 929.
Considering the record as a whole, the court determined
that Miranda Alvarado “present[ed] a case perhaps at the mar-
gin of the culpability required under the statute.” Id. However,
the court found that because his services “were integral to the
particular form of persecution that occurred,” his conduct fell
just on the wrong side of the culpability line. Id.
[5] If Miranda Alvarado presents a case at the margin of
culpability, Im falls safely on the non-culpable side, even
IM v. GONZALES 9769
without considering the fact that he had no viable alternative
to his job as a prison guard. The touchstone of the “assis-
tance” analysis under Miranda Alvarado, and, less explicitly,
under Fedorenko, is the degree to which petitioner’s conduct
was central, or integral, to the relevant persecutory acts.
Unlike the proscribed conduct in Fedorenko (shooting prison-
ers) and Miranda Alvarado (interpreting a suspect’s answers
between beatings and electrical shocks), Im’s actions were
hardly integral to the persecution of prisoners at PJ.
Im never beat any prisoner in his time as a prison guard. He
did not decide who was imprisoned in the jail, and he had no
say in which prisoners were interrogated. He was never pres-
ent for a single interrogation, and never saw a single prisoner
beaten. Im was charged with unlocking the doors to prisoners’
cells based on instructions from superiors and leading them
back to their cells following interrogations. Only on one occa-
sion did he escort a prisoner to an interrogation room. On all
other occasions this was handled by guards other than Im.
[6] In the same way that cutting the hair of female concen-
tration camp inmates before their execution was a trivial,
albeit ghastly, administrative task that necessarily preceded
the persecutory act, so too were Im’s acts of opening an
assigned cell door prior to interrogation.7 While this action
necessarily preceded the interrogations, it was not “integral”
to them, unlike the translation services at issue in Miranda
Alvarado. If Im did not unlock the door, any other guard
could have done the same, or the interrogator could have
unlocked the door himself. Im’s presence or absence did not
influence in any way the pace, schedule, or number of interro-
gations. If Im was not there, the same individuals would have
been interrogated on the same days by the same interrogators.
7
If anything, Im’s act is probably less related to the persecution, insofar
as it lacks the dehumanizing quality of the pre-execution hair-cutting.
9770 IM v. GONZALES
[7] Insofar as Im’s conduct is no more essential or integral
to the persecutory acts than the paradigmatic example of non-
essential assistance (hair-cutting), and clearly less central or
integral than the example of borderline assistance (interpret-
ing), Im’s acts cannot constitute “assistance in persecution.”
In finding otherwise, the IJ committed legal error.
Because the IJ found that Im had established both past per-
secution and a well-founded fear of future persecution, we
grant the petition for review, vacate, and remand so that the
Attorney General may exercise his discretion as to whether to
grant asylum. See Quan v. Gonzales, 428 F.3d 883, 890 (9th
Cir. 2005). We also note that Ngin is eligible for asylum pur-
suant to the derivative status provision of INA § 208(b)(3). 8
U.S.C. § 1158(b)(3); see also 8 C.F.R. § 208.21 (2002). The
petition for review is hereby:
GRANTED.