Hang Kannha Yuk v. Ashcroft

Decision Date20 January 2004
Docket NumberNo. 02-9546.,02-9546.
Citation355 F.3d 1222
PartiesHANG KANNHA YUK, Sok Samnang Nhim, Thy Korng, Horn Yuk, and Sinoun Keth, Petitioners, v. John ASHCROFT, United States Attorney General, Respondent. American Immigration Law Foundation, Amicus Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Jeff Joseph, Denver, CO, for Petitioners.

Cindy S. Ferrier, Trial Attorney, (Linda S. Wendtland, Assistant Director, with her on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondent.

Mary A. Kenney, Nadine K. Wettstein, and Beth Werlin filed an amicus curiae brief for the American Immigration Law Foundation on behalf of Petitioners.

Before HENRY, HOLLOWAY, and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Petitioners, all members of the same extended family, are natives and citizens of Cambodia.1 Mr. Yuk is the lead petitioner, and the asylum applications of the others rely on essentially the same facts as his.2 They seek review of an order of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") decision denying their applications for asylum, withholding of removal and withholding under the Convention Against Torture. We affirm.

BACKGROUND

Petitioners entered the United States between March and June 1997, each with authorization to remain for six months. They initially came as tourists and to visit relatives in the United States. They applied for asylum under the Immigration and Nationality Act ("INA") § 208, 8 U.S.C. § 1158, in March 1998. While petitioners were residing in West Valley City, Utah, the Immigration and Naturalization Service ("INS") interviewed them regarding their asylum applications, referred those applications to the Immigration Court, and placed petitioners in removal proceedings by issuing them Notices to Appear before an IJ in Salt Lake City. See 8 C.F.R. § 208.14(c).3 Petitioners were charged with being subject to removal, under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States beyond the date authorized without receiving permission from the INS.

Before the IJ, petitioners admitted having remained in the United States longer than permitted and conceded that they were subject to removal. They filed addenda to their applications for asylum and also applied for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and under the Convention Against Torture.4

After conducting a hearing, the IJ denied petitioners' applications for asylum because they could not show that they had suffered persecution in the past, nor could they demonstrate a well-founded fear of persecution in the future. Petitioners appealed the IJ's decision to the BIA, which issued a summary affirmance without an opinion, pursuant to the new streamlining regulations then in effect. Petitioners seek review of that order.

Petitioners' claims for asylum are based upon Mr. Yuk's membership in and activities relating to the political party of Prince Norodom Ranariddh, the National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia ("FUNCINPEC"). Mr. Yuk became involved with the FUNCINPEC Party in 1982, when it was in its infancy. It was originally formed to oppose the Vietnamese-controlled government then in power. The FUNCINPEC Party attempted to bring a democratic form of government to Cambodia, as well as enable a return of the Cambodian monarchy.

Mr. Yuk initially worked covertly in intelligence gathering on behalf of the FUNCINPEC Party. He stated that in 1989 he assumed a supervisory role in intelligence gathering, with a hundred people under him. After 1989, Mr. Yuk was more open and public about his membership in and activities for FUNCINPEC. In 1993, Cambodia had an election monitored by the United Nations, in which the FUNCINPEC candidate, Prince Ranariddh, was elected Prime Minister. Mr. Yuk publicly recruited members for FUNCINPEC prior to the election. He related an incident in which a neighbor and government police officer confronted him and told him that, had he known that Mr. Yuk was a member of the FUNCINPEC party, he would have had him killed.

Despite Prince Ranariddh's victory in the election, Hun Sen, the former Communist Prime Minister and leader of the Cambodian People's Party ("CPP"), threatened civil war if the Prince did not share control of the government with the CPP. Prince Ranariddh was therefore forced to share control of the government with Hun Sen and the CPP. Mr. Yuk testified before the IJ that the FUNCINPEC Party was thwarted whenever it attempted to introduce legislation that its members desired. During this time period Mr. Yuk became the director of the National Police Academy. He avers that he was one of the leaders of FUNCINPEC, in one of the highest positions, and that he reported directly to two men who in turn reported directly to Prince Ranariddh.

In the spring of 1997 Mr. Yuk and the other petitioners were permitted to leave Cambodia for their trip to the United States. In July 1997, while petitioners were still in the United States, Hun Sen staged a bloody coup, forcing Prince Ranariddh and members of the FUNCINPEC Party to flee the country. There was evidence that a number of FUNCINPEC officials were killed during the violent coup, and that a number of other FUNCINPEC officials disappeared. Mr. Yuk stated that he feared that he could not return to Cambodia following the coup because he had been a high-ranking member of the FUNCINPEC Party, that his immediate supervisor had fled Cambodia and that his "mentor" had been killed by Hun Sen. In his addendum to his asylum application, Mr. Yuk stated:

I fear that I may be killed or jailed if I return to my country because I am a colonel in the Cambodian National Police, in charge of the National Police Training academy in the capitol city, Phnom Penh, and a member and officer of the FUNCINPEC Party. Relatives have written to me warning me not to come back.

Addendum at 1, Admin. R. at 351. Mr. Yuk also stated that his house and other possessions were seized by the CPP. He testified that CPP members had told his children who remained in Cambodia that if he returned to Cambodia, he would be killed. The record includes two letters from relatives in Cambodia urging him to remain in the United States because they feared for his safety if he returned.

He further asserted that his son, Hangseyha, had also been a member of FUNCINPEC and was caught in 1985 delivering messages about the CPP's efforts to learn about FUNCINPEC. Mr. Yuk stated that after this he did not see his son for a year, at which time the Cambodian police told him that Hangseyha was in jail, that he would die soon, and that Mr. Yuk and his family needed to see him soon if they wished to see him before he died. Mr. Yuk alleged that when they saw Hangseyha in jail, there was evidence that he had been tortured, and when he died, the family was not allowed to have a ceremony for him because they were told he had been a traitor. Mr. Yuk alleged that his son-in-law, Mr. Nhim, was equally in danger because of his activities with and membership in the FUNCINPEC Party.

Mr. Yuk provided documents showing his employment at the National Police Academy and his membership in the FUNCINPEC party. He also provided an affidavit from Thomas Filby Jurvic, a United States citizen who met the Yuk family while he was working in Cambodia. Mr. Jurvic stated that he feared both Mr. Yuk and Mr. Nhim would be in danger of being killed or imprisoned if they returned to Cambodia because of their high rank in the Cambodian civil national police force and their membership in and activities with the FUNCINPEC Party. He noted "the conflict between the two parties, FUNCINPEC and Hun Sen's CPP" and further stated he had "heard reports or rumors of Hun Sen's belligerent attitude towards FUNCINPEC." Jurvic Aff. at ¶ 12, Admin. R. at 376.

Mr. Nhim filed a separate asylum application, largely asserting the same claims as Mr. Yuk, averring that he was a major in the National Police and an active member in the FUNCINPEC party. He stated his belief that he would be imprisoned or killed because of his activities with FUNCINPEC intelligence, the National Police and his association with his father-in-law, Mr. Yuk. Mr. Nhim also testified that his house and possessions had been seized following the July 1997 coup.

Ms. Hang Yuk, Mr. Yuk's adult unmarried daughter, also filed a separate asylum application, based upon the activities and affiliations of her father and Mr. Nhim. As indicated, the applications of the remaining petitioners, Ms. Keth and Ms. Korng, depend upon the facts and allegations of their husbands, Mr. Yuk and Mr. Nhim.

On June 30, 1999, a merits hearing was held before the IJ. Mr. Yuk and Mr. Nhim, represented by counsel, testified consistently with their asylum applications. At the completion of the hearing, the IJ issued an oral decision denying petitioners' applications for asylum, for withholding of removal and for protection under the Convention Against Torture. He concluded they had not proven past persecution, and, to the extent they argued they became refugees by virtue of the 1997 coup, he determined that conditions in Cambodia had changed so that petitioners did not have a well-founded fear of future persecution should they return to Cambodia.

More specifically, the IJ concluded that Mr. Yuk was not a refugee when he left Cambodia:

He was only coming to the United States as a visitor. He had a good job when he left. He was the head of the National Police Academy when he left. He had a good living. And the fact that he and his family were allowed to come here to visit shows that he was well regarded by the government.

Oral Decision of the IJ at 4, Admin. R. at 94. The IJ then considered petitioners' claim that they became refugees in the summer of 1997 when Hun Sen staged the coup and some members...

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