Ouk v. Gonzales, 06-1266.

• Citation: 464 F.3d 108
• Decision Date: 29 September 2006
• Docket Number: No. 06-1266.,06-1266.
• Parties: Sothy OUK, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 108

464 F.3d 108

Sothy OUK, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 06-1266.

United States Court of Appeals, First Circuit.

Submitted August 2, 2006.

Decided September 29, 2006.

Thomas Stylianos, Jr. on brief, for Petitioner.

Margot L. Nadel, Attorney, Office of Immigration Litigation, Peter D. Keisler, Assistant Attorney General, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, on brief, for Respondent.

Before TORRUELLA, LYNCH, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

Petitioner Sothy Ouk, a native and citizen of Cambodia, appeals from a final order of removal of the Board of Immigration Appeals (BIA), which denied her petition for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An Immigration Judge (IJ) found that Ouk had not previously been persecuted on the basis of a protected ground, and that she had not met her burden of establishing a well-founded fear of future persecution. He also found that she had failed to establish that it was more likely than not that she would be persecuted or tortured if she returned to Cambodia. In a per curiam order, the BIA adopted and affirmed the IJ's ruling. We affirm the BIA and deny the petition.

I.

On February 7, 2003, Ouk entered the United States as a non-immigrant visitor. She was permitted to remain in the United States until August 6, 2003. Ouk did not depart by that date, and thereafter her presence was unauthorized. On February 6, 2004, Ouk filed an application requesting political asylum and withholding of removal based on her political opinion and membership in a particular social group. She also requested protection under the CAT. On September 20, 2004, Ouk was served with a Notice to Appear in removal proceedings before an IJ. She conceded removability and renewed her application for asylum, withholding of removal, and CAT protection.

At her removal hearing on November 19, 2004, Ouk testified that she had suffered persecution in Cambodia on account of her political opinion and membership in the Sam Rainsy party, an opposition political party. Ouk testified that this persecution had come at the hands of the Cambodian People's Party.¹ In March 1997, Ouk and her husband attended a political protest. At that protest, the police beat members of opposition parties and threw hand grenades into the crowd. Ouk claimed that she was identified as a member of the Sam Rainsy party by her neighbor, a police officer who saw her at the demonstration. Ouk also testified that she believed that her husband was killed in July 1997 because of his opposition to the People's Party. Thereafter, Ouk "hid [her]self around the city of Phnom Penh" because she feared that the People's Party would try to kill her, too. Ouk stated that between 1997 and 2003 she attempted several times to come to the United States.

Ouk also testified that other members of her family had suffered persecution because of their political affiliations. She testified that her father, who had been a member of the National United Front for a Neutral, Peaceful, Cooperative, and Independent Cambodia (FUNCINPEC), another opposition political party, had been arrested by the People's Party, presumably because of his political activities. He then escaped Cambodia and emigrated to the United States, where he now lives as a legal permanent resident. In addition, Ouk reported that her older brother was killed by the Khmer Rouge, and she claimed that members of the People's Party had attempted to kill her younger brothers and sisters. Five of her siblings now live in the United States, while two of them still live in Cambodia.

Ouk also offered documentary evidence, including two expert reports diagnosing her with post-traumatic stress disorder and attesting to the reasonableness of her fear of returning to Cambodia.

In an oral decision, the IJ denied Ouk's application for asylum, withholding of removal, and CAT protection, but granted her the privilege of voluntary departure until January 18, 2005. In his opinion, the IJ stated that although he found Ouk's oral testimony generally to be credible, he was skeptical of her statements that she had been in hiding for the six years preceding her departure from Cambodia. The IJ also found that although Ouk's husband had disappeared, her husband's political opinion could not be imputed to her, and that Ouk "ha[d] experienced no difficulties while she was in Cambodia." Rather, she had applied for and received a passport in Cambodia, and had received an exit stamp upon leaving. The IJ further emphasized that Ouk's brother and sister, who also are members of the Sam Rainsy party, live safely in Cambodia, and that in the last election, the Sam Rainsy party won twenty-four seats in the national assembly. Finally, he referred to the Cambodian constitution's provision of the right to change the government peacefully and to a State Department report indicating that "citizens generally exercise this right in practice through periodic elections on the basis of universal suffrage."

On February 1, 2006, the BIA adopted and affirmed the IJ's ruling and extended the time within which Ouk could voluntarily depart the United States until April 2, 2006. The BIA specifically commented that "[o]ther than . . . minor bruises suffered as a result of crowd movement at a demonstration, the record [did] not indicate that [Ouk] was ever seriously harmed." The BIA also noted that the reasonableness of Ouk's fear of future persecution was undermined by her family's continued presence — without incident — in Cambodia.²

II.

Ouk argues in her petition for review that the IJ erred in (1) failing to find that she had established a well-founded fear of future persecution in Cambodia, (2) failing to recognize her emotional harm in evaluating her asylum claim, and (3) failing to consider her mental illness in ruling on her withholding of removal claim. Ouk also argues that the time period within which she is required to post her voluntary departure bond should be tolled from the date that she filed a petition for review in this court.

When the BIA adopts the IJ's opinion and discusses some of the bases for the IJ's decision, we have authority to review both the IJ's and the BIA's opinions. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir.2004) (citing Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004) ("[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ's decision, we have authority to review the decisions of both the IJ and the BIA.")).

To be eligible for asylum, an alien must demonstrate that she is a "refugee." 8 U.S.C. § 1158(b)(1)(A). To do so, the alien must show that she reasonably fears persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1101(a)(42)(A); see...