Khup v. Ashcroft

• Citation: 376 F.3d 898
• Decision Date: 16 July 2004
• Docket Number: No. 02-74059.,02-74059.
• Parties: Mang KHUP, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

376 F.3d 898

Mang KHUP, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-74059.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2004.

Filed July 16, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas J. Mills, Esq., United Methodist Committee on Relief — Justice for Our Neighbors, New York, NY, for the petitioner.

Rena I. Curtis, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A75 761 859.

Before THOMPSON, TASHIMA, and RAWLINSON, Circuit Judges.

TASHIMA, Circuit Judge.

Mang Hau Khup, a native and citizen of Burma (now known as Myanmar), has petitioned for review of a decision of the Board of Immigration Appeals ("BIA") denying his applications for asylum, withholding of removal, and protection under Article 3 of the Convention Against Torture ("CAT"). The Immigration Judge ("IJ") found Khup to be a credible witness, but denied relief on the grounds that he had not suffered past persecution and did not have a well-founded fear of future persecution. Khup contends that the record compels a finding that he suffered past persecution and that he more likely than not will be tortured if he is returned to Burma. We agree, and grant his petition for review.

BACKGROUND

Khup alleges that he was persecuted by the Burmese military on account of his religious activities and an imputed political opinion. As the IJ found Khup to be a credible witness, the following facts are drawn from Khup's testimony at his hearing before the IJ and from Khup's asylum declaration.

Khup is a Seventh Day Adventist ("Adventist") who until 1995 lived in Chin State in Burma. Although a majority of the population of Chin State is Christian, the majority religion of Burma is Buddhism and the highly repressive military government oppresses Christians. Khup trained to be an Adventist minister and was assigned to a ministry in Lezang village.

Khup's first run-in with the Burmese military occurred in November 1990, while he was worshiping at a church in Tungzang village. Soldiers stopped the service and forced Khup and the other worshipers at gunpoint to carry heavy military provisions for 20 miles over hilly terrain. The soldiers did not give Khup or the other porters any food during the forced march and treated them roughly. When they arrived at their destination that night, the soldiers released Khup and the others.

Khup later joined an Adventist evangelist minister named U Myint, who was trying to convert the Naga people in Kachin state to Christianity. The military warned U Myint and Khup not to promote Christianity, but they preached the gospel anyway. In June 1995, the military arrested U Myint in Mang Kring village. Villagers told Khup that the military had beaten and tortured U Myint throughout the night and had then killed him and dragged his body through the streets as a warning to others. The villagers told Khup that the military was looking for him too, so he fled and returned to Lezang village.

Upon Khup's return to Lezang village, he learned that the military was searching for him there also, so he went into hiding on a farm. He went from Lezang to Tungzang, but it was not safe there either. He then traveled to Rangoon (now known as Yangon) and used a passport broker to buy a passport. He could not go to the passport office himself, because he was on the run and would have been arrested.

Once Khup obtained his passport, he fled through Thailand to Malaysia and stayed there for five years. He did not apply for asylum while in Malaysia, because the Malaysian government did not offer asylum and in fact sent illegal immigrants back to Burma. He did not go to the United States embassy or any other foreign embassy in Kuala Lumpur to see if he was eligible for asylum, because he did not know that it was possible to do so.

A friend of Khup named U Thawng Lang, who was an Adventist pastor and an associate of U Myint, also fled to Malaysia, but later decided to return to Burma. Khup received a letter from U Thawng Lang, who reported that upon his return to Burma he had been arrested by the military at the airport. In the letter, U Thawng Lang stated that the military had put him into a forced labor camp, had beaten and tortured him, and had fed him only one small bowl of rice a day. The military had also forced him to carry military supplies in the Karen rebel area, and he had been able to escape during fighting with the rebels.

After receiving this letter from U Thawng Lang, Khup knew he could not return to Burma when his Malaysian work permit expired. He believed that he would have been subject to heightened scrutiny at the airport because of his Chin ethnicity, and the government officials would soon have found out about his connection to U Myint. When Khup heard about the Guam visa waiver pilot program, he emigrated to Guam.

Khup entered Guam on January 9, 2001, and applied for asylum on March 6, 2001. The INS placed Khup in removal proceedings in June 2001 on the ground that he had overstayed the visa waiver pilot program. At Khup's merits hearing on his applications for relief from removal, the IJ found that Khup was a credible witness, but that he had not suffered past persecution and that he did not have a well-founded fear of future persecution. The BIA affirmed without opinion the IJ's decision pursuant to 8 C.F.R. § 3.1(e)(4) (2002).

JURISDICTION

The BIA had jurisdiction over Khup's appeal of the IJ's decision pursuant to 8 C.F.R. § 3.1(b)(3) (2002). Khup's removal proceedings began after April 1, 1997, and we therefore have jurisdiction over his petition for review pursuant to 8 U.S.C. § 1252(a)(1). See Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004).

STANDARD OF REVIEW

Where the BIA affirms an IJ's order without opinion, we review the IJ's order as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). Factual findings underlying the IJ's order are reviewed for substantial evidence. See Gormley, 364 F.3d at 1176. Under this standard, the IJ's eligibility determinations must be upheld if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To reverse the IJ's determinations, the evidence Khup presented at his hearing must have been such that a reasonable fact-finder would have been compelled to conclude that he was eligible for relief. See id. We review de novo claims of due process violations in the removal proceedings. Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir.2003) (en banc).

ANALYSIS

I. Asylum

Congress has given the Attorney General discretion to grant asylum to refugees. See 8 U.S.C. § 1158(b). To be eligible for asylum, Khup needed to show that he was unable or unwilling to return to Burma "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (citing 8 U.S.C. § 1101(a)(42)(A)).

A. Past Persecution

The IJ found that Khup had not suffered from past persecution, because he had only one serious run-in with the Burmese military (the forced porterage). The IJ concluded that although this "certainly constitutes harassment and discrimination against [Khup] by virtue of his ethnicity and his religious background," it did not rise to the level of persecution. Khup argues that the IJ ignored the anguish he suffered when his fellow preacher was arrested, tortured, and killed and when he was forced to flee the country.

Absent a statutory definition, the Ninth Circuit has defined persecution as "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc) (citation omitted). Although persecution is most often associated with a petitioner having suffered severe physical mistreatment, such as beatings or torture, threats can in some instances constitute persecution. See, e.g., Salazar-Paucar v. INS, 281 F.3d 1069, 1075 (9th Cir.) (holding that death threats together with beatings of family members and murders of political counterparts constitute past persecution), as amended by 290 F.3d 964 (9th Cir.2002); see also Thomas v. Ashcroft, 359 F.3d 1169, 1179 (9th Cir.2004) (noting that "threats of violence and death are enough to constitute persecution") (internal quotation marks and citation omitted); Ernesto Navas v. INS, 217 F.3d 646, 658 (9th Cir.2000) (noting that "[i]n asylum and withholding of deportation cases, we have consistently held that death threats alone can constitute persecution") (citation omitted).

Also, "persecution" is not limited to physical suffering. Kovac v. INS, 407 F.2d 102, 105-07 (9th Cir.1969); see also Li v. INS, 92 F.3d 985, 987 (9th Cir.1996) (noting that "an arrest of a family member at a church may provide the basis for past persecution of petitioner's family on account of religion"); Kahssai v. INS, 16 F.3d 323, 329 (9th Cir.1994) (per curiam) (Reinhardt, J., concurring) ("The fact that [petitioner] did not suffer physical harm is not determinative of her claim of persecution: there are other equally serious forms of injury that result from persecution."). Nevertheless, "[p]ersecution ... is an extreme concept that does not include every sort of treatment our society regards as offensive." Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003) (internal quotation marks and citation omitted).

Here, the IJ's finding that Khup's day of forced porterage did not rise to the level of persecution is supported by substantial evidence. The IJ reasoned that Khup did not suffer any ill effects from the episode, and his main...