Kin v. Holder

Decision Date18 February 2010
Docket NumberNo. 05-73079.,05-73079.
Citation595 F.3d 1050
PartiesSombath KIN; Bunnary Prak, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division; Ernesto H. Molina, Senior Litigation Counsel, for respondent Attorney General Holder.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A078-112-730, A095-302-631.

Before: ANDREW J. KLEINFELD and RICHARD C. TALLMAN, Circuit Judges, and DAVID M. LAWSON,* District Judge.

TALLMAN, Circuit Judge:

Bunnary Prak ("Prak") and Sombath Kin ("Kin") (collectively "Petitioners") are natives and citizens of the Kingdom of Cambodia. They petition for review of the Board of Immigration Appeals' ("BIA") final order affirming the Immigration Judge's ("IJ") adverse credibility finding as to each of them and denying their appeal. As a result of the unfavorable credibility determination, the IJ found Petitioners ineligible for asylum, withholding of removal, and relief under the United Nations Convention Against Torture. The BIA affirmed the IJ's adverse credibility finding against each Petitioner in separate opinions. Because the BIA's adverse credibility findings are supported by substantial evidence, and therefore Petitioners fail to carry their burden of showing entitlement to relief, we deny the consolidated petition for review.

I

Kin and Prak, husband and wife, entered the United States on June 28, 2001, and March 29, 2002, respectively, without valid immigrant visas, reentry permits, border crossing cards, or other entry documents required by the Immigration and Nationality Act. The government issued Notices to Appear on July 3, 2002, their cases were consolidated for the merits hearing, and Petitioners conceded the charge of removability. Petitioners claim persecution based on political opinion and membership in a particular social group.

Both Prak and Kin testified that they are members of the Sam Rainsy Party ("SRP"). Prak testified that she has been a member of the SRP since 1995 or 1996 and that she has given the party between four and five thousand dollars. She attended a demonstration in 1998 in which SRP members protested the outcome of a recent Cambodian election. Her participation in the demonstration consisted of taking food and drink to the protestors each day of the demonstration.

Prak claimed she was arrested in the Mean Chey District of Phnom Penh by five government officers on October 31, 1998. She described how she was forced into a vehicle and initially taken to a prison facility called "January 7th" and was interrogated about her participation in the demonstration. Prak testified that she was slapped, kicked, hit with electrical batons, and suffocated. Her skull was fractured. She testified that she was transferred to another prison, T-3, on November 11, 1998, and was soon visited by human rights workers who helped her get medical treatment and took pictures of her wounds. Prak stated that she appeared in court once, but was sent back to prison until her release on November 17, 1999. The prison release order Prak offered in evidence listed her birthday as being in the year 1962, which is incorrect, and Prak testified that she did not know why her birth year was wrong on the prison release form.

Prak stated that the human rights personnel kept her in a safe place for a week after her release, but she eventually moved back to her house until January 2001. After hearing that she was still wanted by the authorities, Prak moved with her children to the home of a Cambodian official, His Excellency Ouk Moeurn. Prak and her children changed their names and Prak did not work.

Prak testified that she applied for a visa at the U.S. Embassy in December 2000, but her application was denied. Prak claims that in June 2001, Ouk Moeurn helped her escape to the United States by stating she was his wife, and providing her with a tourist visa bearing the name Heang Kimheng. She testified that if she had not done this, she would not have been able to escape. She stated that she is afraid that she will be arrested or killed if she is forced to return to Cambodia.

Kin testified that his birth name is Roth Pon, even though his birth certificate lists his birth name as Sombath Kin. He then stated that he changed his name to Kin when he started working as a reporter. Kin also testified that he worked for the Proleant Cheat newspaper from January 1985 to November 1998. He also stated that he worked for the United Nations Transitional Authority. Kin testified that he has been a member of the SRP since 1995 and that he wrote reports in an effort to "ameliorate the party." Kin said he participated in the 1998 demonstration by reporting the events and acting as a "propagandist." He testified that his articles were published in the Proleant three times per week and he spoke at the demonstration three times per day. He claimed the government's military force finally dispersed the demonstrating crowd by throwing grenades into the demonstration and firing rounds either into the air or straight at participants.

Kin stated that he was arrested on November 10, 1998, in the Kompong Thoum Province. Kin stated that he believed his wife was at home at the time he was arrested. He was taken to a police station for 12-13 hours and was eventually told that he was arrested for his participation in the demonstration. He was interrogated and hit with the butt of a gun, a plastic baton, and an electrical stick. Kin states that he was then sent to Phnom Penh City and placed in prison for three months where he was tortured weekly and not allowed to communicate with anyone. Kin was eventually moved to T-3, where he stayed for thirteen months.

After two unsuccessful attempts to obtain release from the courts in May and August of 1999, Kin was conditionally released by the Supreme Court of Cambodia in December 1999. His release was conditioned on him revoking a report written against the government. After his release, Kin hid from officials and received help from a Cambodian senator, His Excellency Sitha Thach, to escape to the United States. Kin entered the United States under the name Vannarath Heang. He stated that he could not use his real name because he was under investigation and would not have been allowed to leave Cambodia.

Senator Thach testified for Petitioners at the hearing before the IJ. At the time of the hearing, Senator Thach told the court he was a senator representing the SRP in the Kingdom of Cambodia and had served in that position since March 1999. Senator Thach testified that he has known Kin since 1996 or 1997 when they were both working for local newspapers.

Senator Thach claimed that he was one of the founding members of the SRP, and that both Prak and Kin are also members. Additionally, Senator Thach testified that members of the SRP received threats, went missing, or were killed during the period leading up to the 1998 election. He also said that in 1998 he led a post-election protest in which both Petitioners participated. Senator Thach testified that he asked the United Nations Human Rights Organization to assist Petitioners after he learned of their arrests. He believed Petitioners were arrested as a result of their participation in the demonstration.

Senator Thach stated that he knew Prak stayed with His Excellency Ouk Meourn when she was released from prison. Senator Thach also testified that he introduced Kin to people who could help him escape to the United States. When asked about whether he helped Kin or Prak get released from prison, Senator Thach stated that he wanted the human rights agency to speak for them (Prak and Kin), but that he never personally petitioned any Cambodian court on their behalf.

The IJ received testimony on behalf of Prak and Kin in a consolidated hearing. The IJ denied relief based on a finding of adverse credibility against both Petitioners. The IJ listed several reasons for these adverse findings: (1) Petitioners' demeanor; (2) Prak's possession of two passports bearing different names and birth dates that also conflicted with her prison release order; (3) inconsistency between Petitioners' testimony and a letter written by Senator Thach; (4) Petitioners' failure to mention the 1998 demonstration in either of their petitions for asylum with no credible explanation as to why it was omitted; (5) Prak's lack of proof of her party membership; (6) Kin's use of a false name, date of birth, and visa to enter the United States and obtain a visa extension; (7) a letter from the United Nations and a United Nations photo identification of Kin that appear to have been altered; (8) inconsistency in the testimony regarding Prak's location at the time of Kin's arrest; and (9) inconsistency between sworn statements in Petitioners' asylum applications and the testimony of Senator Thach.

The BIA dismissed Petitioners' appeals by issuing a one-page per curiam order for each. The BIA found that the IJ's adverse credibility determination was based on Petitioners' demeanor and material inconsistencies between each Petitioner's testimony, Senator Thach's testimony, and the documentary evidence. The BIA highlighted Petitioners' failures to mention their participation in the 1998 demonstration in their applications for asylum, their testimonial inconsistency regarding where Prak was on the day Kin was arrested, and the inconsistency regarding whether Senator Thach petitioned Cambodian courts for either Petitioner's release. Petitioners filed their Petition for Review within the 30-day time limit, giving us...

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