Heng v. Gonzales

• Citation: 493 F.3d 46
• Decision Date: 12 July 2007
• Docket Number: No. 06-1479.,06-1479.
• Parties: Dany HENG, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

493 F.3d 46

Dany HENG, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 06-1479.

United States Court of Appeals, First Circuit.

Submitted January 9, 2007.

Decided July 12, 2007.

Martin J. McNulty on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Terri J. Scadron, Assistant Director, Civil Division and Janet A. Bradley, Trial Attorney, Civil Division, Office of Immigration Litigation, United States Department of Justice, on brief for respondent.

Before Howard, Circuit Judge, Selya, Senior Circuit Judge, and Shadur,^* Senior District Judge.

HOWARD, Circuit Judge.

Dany Heng petitions for review of an order of the Board of Immigration Appeals (BIA) rejecting her claims for asylum and withholding of removal. Heng is a native of Cambodia who came to the United States on a tourist visa in February 2001. In March 2003, she applied for asylum, claiming that she had been persecuted on account of her membership in a Cambodian political party. Three months later, the Department of Homeland Security commenced removal proceedings against Heng for overstaying her visa. Heng appeared before an immigration judge (IJ) and conceded removability but sought asylum. The IJ ruled that Heng's asylum application was untimely and that the late filing was not excused by extraordinary circumstances or changed conditions. See 8 U.S.C. § 1158(a)(2). The IJ therefore treated Heng's asylum request as a request for withholding of removal.

Heng was the only witness at her removal hearing. Through a translator, she testified as follows. Heng was born in Cambodia in 1958 and married Seng Sophal in 1984. She and her husband were members of the Sam Rainsy Party (SRP), a political rival to the Cambodian People's Party headed by Prime Minister Hun Sen, a former member of the Khmer Rouge. Heng's mother and older sister had been killed by the Khmer Rouge during Pol Pot's reign.

Heng's husband worked on behalf of the SRP every day. Heng was less active but did raise funds to support the party. In April 1996, police officers loyal to the People's Party came to Heng's house and held Heng and her husband at gun point. The officers told Heng and her husband to cease their political activities and to take down a pro-SRP poster hanging on their wall. When Heng's husband refused to take down the poster, the officers threatened to kill him.

Just before the 1998 national election, People's Party members tried to kill members of the SRP. Heng and her husband were able to escape the violence and temporarily relocated to another part of the country. When they returned home, they continued working for the SRP. Shortly after their return, Heng and her husband were assaulted by People's Party officials while attempting to distribute SRP literature. At that time, the officers threatened to kill Heng and hit her on the shoulder with a gun.

The People's Party won the 1998 national election. Shortly thereafter, government officials arrested Heng's husband, but he was able to escape. In September 1998, Heng and her husband were detained while leading another protest. The police beat Heng's husband in front of her and then separated them. Heng was detained for three days, given no water, and was almost suffocated while imprisoned. SRP officials were, however, able to secure Heng's release.

In November 2000, a battle broke out between government forces and the SRP. The government forces murdered several of Heng's husband's associates and wanted to murder him as well, but he escaped. This was the last time that Heng saw her husband. Heng came to the United States in February 2001. In January 2003, Heng learned from her sister that her husband had been murdered by People's Party officials.

The IJ rejected Heng's withholding of removal claim on the ground that she was not a credible witness. The IJ gave four reasons for this credibility determination: (1) it was not believable that People's Party members would come to Heng's house to order her to take down an SRP poster hanging on an interior wall; (2) Heng stated at her hearing that SRP members secured her release from prison but stated in her asylum application that human rights workers obtained her release; (3) Heng testified that her husband was arrested after the 1998 national election but did not mention this incident in her asylum application; and (4) Heng first testified that she learned about her husband's death while in Cambodia but then testified that she learned about his death after coming to the United States. Heng appealed to the BIA, which affirmed in a per curiam order adopting the IJ's opinion.

Heng initially challenges the ruling that her asylum application was untimely. We lack jurisdiction over this aspect of her petition for review and therefore consider only whether her claim for withholding of removal was properly denied. See Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir.2006); Mehilli v. Gonzales, 433 F.3d 86, 92 (1st Cir.2005).

Withholding of removal is available if "the alien's life or freedom would be threatened in the destination country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005) (quoting 8 U.S.C. § 1231(b)(3)(A)). To qualify for withholding of removal, the alien must demonstrate either that she has suffered past persecution on account of a protected ground (thus creating a rebuttable presumption that she may suffer future persecution) or that it is more likely than not that she will be persecuted on account of a protected ground if sent to the destination country. Id.; see Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir.2005) (explaining that applicant for withholding of removal must show a "clear probability" of persecution upon removal from the United States).

While we normally review the BIA decision, where as here the BIA adopted the IJ's decision we review the IJ's decision directly. Simo v. Gonzales, 445 F.3d 7, 11 (1st Cir.2006). When reviewing a determination that a petitioner was not credible, we ask whether the adverse credibility determination is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. Under this standard, we will not upset the IJ's determination "unless any reasonable adjudicator would be compelled to conclude to the contrary." Hoxha v. Gonzales, 446 F.3d 210, 216 (1st Cir.2006). However, a petitioner's testimony may not be rejected unless the IJ has provided a specific, cogent, and supportable explanation for this conclusion. Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.2004). Moreover, where an IJ's adverse credibility finding rests on an analysis of the petitioner's testimony and not her demeanor, the finding may receive "less than [the] usual deference." Toloza-Jimenez v. Gonzales, 457 F.3d 155, 159 (1st Cir.2006).

We have reviewed the IJ's grounds for the adverse credibility determination and find them inadequate, alone and in combination. The IJ's first ground was his disbelief that People's Party operatives would enter Heng's house to remove an SRP sign hanging on an interior wall. The IJ's description of Heng's testimony is inaccurate. Heng did not testify that the operatives came to her house to remove the sign. Rather, she testified that the operatives knew that her husband was a leader of the SRP and came to the house to threaten violence if he...