Im v. Gonzales
| Decision Date | 13 August 2007 |
| Docket Number | No. 05-70027.,05-70027. |
| Citation | 497 F.3d 990 |
| Parties | Pauline IM; Sitha Ngin, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Emmanuel Enyinwa, Law Offices of Emmanuel Enyinwa, San Francisco, CA, for the petitioner-appellant.
Manuel A. Palau, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent-appellee.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A79-267-088, A79-267-089.
Before B. FLETCHER, EUGENE E. SILER, JR.,* and HAWKINS, Circuit Judges.
I. Facts
In 1975 the Khmer Rouge seized power in Cambodia. Petitioner Im — then 22 years old and one year out of high school — was impressed into service as a forced laborer for the new 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 prisoners, 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 fitness 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" interrogations. 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 Vietnamese government. In March 1983, Im was arrested by the Ministry of the Interior for participation in anti-government 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 Development, 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 members 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 September 11, 2000, as a non-immigrant B-2 visitor with authorization to remain in the United States until March 10, 2001.
II. Procedural History and IJ Hearing
Im filed an application for asylum on March 6, 2001, identifying 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 status 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 conclusion 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 acknowledged, however, that he was "going to find all of[Im's testimony regarding the threats to his safety] completely 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, consistent 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 Cambodia."
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 Immigration Appeals ("BIA") on September 12, 2003, and the Department 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, dismissed the appeals by Im and DHS, and denied Ngin's motion to remand. Im then timely filed the instant petition for review on January 3, 2005.
III. Analysis
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) (). 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 indicate 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 ().4 Also, to the extent that the agency's determination is based upon an interpretation 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).
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...
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