Chhay v. Mukasey

• Citation: 540 F.3d 1
• Decision Date: 15 August 2008
• Docket Number: No. 07-2202.,07-2202.
• Parties: Maly CHHAY, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

540 F.3d 1

Maly CHHAY, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-2202.

United States Court of Appeals, First Circuit.

Submitted July 31, 2008.

Decided August 15, 2008.

Vanthan R. Un on brief for petitioner.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Greg D. Mack, Senior Litigation Counsel, on brief for respondent.

Before BOUDIN, Circuit Judge, SELYA, Circuit Judge, and DYK,^* Circuit Judge.

SELYA, Circuit Judge.

The petitioner, Maly Chhay, is a Cambodian national who seeks judicial review of a final order of removal entered by the Board of Immigration Appeals (BIA). She challenges a ruling declaring her ineligible for asylum, the denial of her cross-application for withholding of removal and protection under the United Nations Convention Against Torture (CAT), and the supposed trampling of her due process rights by an Immigration Judge (IJ). We lack jurisdiction over the asylum claim and find the remainder of her asseverational array unpersuasive. Hence, we deny the petition for review.

The facts are unremarkable. The petitioner lawfully entered the United States as a visitor on March 9, 2001 and married a United States citizen some four months thereafter. Her new husband filed an I-130 petition to her behoof along with an I-485 application for adjustment of her immigration status. These filings came to naught, in part because there was an absence of evidence that the parties intended to establish a life together. The couple soon divorced and, inasmuch as the petitioner had been denied an adjustment of status, the Department of Homeland Security instituted removal proceedings against her. See 8 U.S.C. § 1227(a)(1)(B).

The petitioner appeared in the immigration court on April 18, 2005, and indicated an intention to apply for asylum, withholding of removal, and protection under the CAT. The IJ ruled on timeliness grounds that she was ineligible to seek asylum. See id. § 1158(a)(2)(B) (providing a window of one year from the date of an alien's arrival in the United States within which to file for asylum). Some seven weeks later, the petitioner cross-applied for withholding of removal and protection under the CAT. She did not actually apply for asylum.

The matter came on for hearing on January 6, 2006, albeit before a different judge. The petitioner conceded removability but claimed that she feared persecution in her homeland due to her membership in the Sam Rainsy political party — a group that stood in opposition to the party in power led by Prime Minister Hun Sen. She testified that, prior to emigrating to the United States, she worked as an accountant in Phnom Penh and simultaneously served the Sam Rainsy party as an unpaid liaison to the Cambodian Center for Human Rights (the Center). In that capacity, she attended provincial seminars throughout Cambodia concerning human rights (specifically, the abuse of women by government officials). She claims to have worked closely with the Center's director, Kem Sokha, and to have reported the information that she learned to Sokha. He ostensibly used it to denounce the government.

According to the petitioner, she feared that the government knew of her role as an informer. She noted that since her arrival in the United States, Cambodian officials have arrested Sokha and other persons associated with the Sam Rainsy party. She views these arrests as a harbinger of what is likely to happen to her should she be repatriated.

To complement this testimony, the petitioner introduced a substantial amount of background information relating to conditions in her homeland. These exhibits included newspaper articles describing the arrests of Sokha and a broadcaster, Mam Sonando, in 2005.

Confronted with this and other evidence, the IJ focused on the petitioner's account of her partisan political activity. He stated that he was not persuaded by that aspect of the petitioner's testimony, explaining that it was wholly uncorroborated and thus inadequate to sustain her burden of proof. Relatedly, he found no credible evidence that torture was a likely result of repatriation. Consequently, he denied the petitioner's claims for relief and ordered her removal.

The petitioner appealed. The BIA adopted and affirmed the IJ's decision. In addition, it denied the petitioner's nascent due process claim premised on the IJ's supposed failure to consider relevant evidence. This timely petition for judicial review followed. See 8 U.S.C. § 1252(b)(1)-(2).

In immigration matters, this court ordinarily reviews the decision of the BIA. Stroni v. Gonzales, 454 F.3d 82, 86 (1st Cir.2006). Here, however, the BIA summarily affirmed, adopting the IJ's decision. In that circumstance, we review the IJ's decision directly. Id. at 86-87.

In the course of that review, we evaluate findings of fact, including credibility determinations, under a substantial evidence standard. Sok v. Mukasey, 526 F.3d 48, 52 (1st Cir.2008). This standard is deferential; absent an error of law, we will reverse only if the record is such as to compel a reasonable factfinder to reach a contrary determination. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.2007). Phrased another way, we will accept all findings of fact made by the IJ as long as those findings are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Abstract legal propositions are reviewed de novo, but with some deference to the agency's reasonable interpretation of statutes and regulations within its ken. See Pulisir v. Mukasey, 524 F.3d 302, 307 (1st Cir.2008); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

We start with the claim for asylum. The petitioner suggests before this court that she qualifies for an exception to the timeliness rules governing asylum applications and is thus eligible for asylum. This suggestion is meritless.

To qualify for asylum, an alien normally must show by clear and convincing evidence that she filed for that anodyne within one year of her arrival in the United States. 8 U.S.C. § 1158(a)(2)(B); see Pan, 489 F.3d at 84 n. 3. The petitioner did not seek asylum within that period. There is, however, an exception: an alien who files for asylum outside the one-year window may qualify by showing either extraordinary circumstances or changed country conditions. See 8 U.S.C. § 1158(a)(2)(D).

The petitioner's attempt to invoke this exception is late in coming. She had the opportunity to assert that claim before the second IJ but did not do so. By the same token, she made no claim before the BIA that the delay in filing for asylum resulted from either extraordinary circumstances or changed country conditions. Indeed, she neglected to raise her asylum claim at all before that body.

In this venue, the petitioner sings a new and different tune. She proclaims that the wave of arrests in 2005 marked a change in country conditions that justifies her untimely attempt to seek asylum. That does not explain, however, why she failed to raise the claim before the second IJ at the hearing held in January of 2006. Even less does it explain why she neglected to assert it in her subsequent filings with the BIA.

The law is clear that, given her failure to press the point before the BIA, the petitioner has not exhausted her administrative remedies. That, in turn, forecloses this court from exercising jurisdiction over any aspect of her asylum claim. See Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir.2007); Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.2004).

We turn next to the petitioner's claim for withholding of removal. To be eligible for withholding of removal, "an applicant has the burden of proving that, more likely than not, she would be subject to persecution on account of a statutorily protected ground should she be repatriated." Pulisir, 524 F.3d at 308; see 8 U.S.C. § 1231(b)(3)(B)(i) (listing the five protected grounds: race, religion, nationality, membership in a particular social group, and political opinion). The alien may carry this burden either by demonstrating past persecution or by direct proof of a likelihood of future persecution. Pulisir, 524 F.3d at 308.

The record does not contain even a hint of an intimation that the petitioner experienced any persecution prior to her exodus from Cambodia.¹ Consequently, the petitioner must satisfy her burden by proving a likelihood of future persecution. See, e.g., Melhem v. Gonzales, 500 F.3d 78, 81 (1st Cir.2007).

Under a statutory formulation in effect since 2005 (and applicable here), an alien may satisfy the devoir of persuasion on withholding of removal by her own testimony if that testimony is specific and credible. See REAL ID Act of 2005, Pub.L. No. 109-13, § 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(ii)); see also Pan, 489 F.3d at 86. But the alien has the burden of proof, and if her testimony is not itself compelling the absence of easily obtainable corroborating documentation can be the final straw. See Sela v. Mukasey, 520 F.3d 44, 46 (1st Cir.2008); Eke v. Mukasey, 512 F.3d 372, 381 (7th Cir.2008); Pan, 489 F.3d at 83; Hayek v. Gonzales, 445 F.3d 501, 508 (1st Cir.2006); see generally REAL ID Act § 101(a)(3). The substantial evidence test applies in these purlieus, and a reviewing court must accept the IJ's determinations with respect to the persuasiveness vel non of the alien's testimony, the availability of corroborating evidence, and the effect of non-production unless the record compels a contrary conclusion. See REAL ID Act § 101(e), 119 Stat. at 305 (codified at 8 U.S.C. § 1252(b)(4)); see also Eke, 512 F.3d at 381; Kho v. Keisler, 505 F.3d 50, 57 (1st Cir.2007).

In the case at hand, the IJ found a...