Pheng v. Holder

• Decision Date: 12 May 2011
• Docket Number: No. 10–1627.,10–1627.
• Citation: 640 F.3d 43
• Parties: Vantha PHENG, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

640 F.3d 43

Vantha PHENG, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–1627.

United States Court of Appeals, First Circuit.

Submitted April 4, 2011.Decided May 12, 2011.

Thomas Stylianos, Jr., on brief for petitioner.Kristin A. Moresi, Trial Attorney, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Shelley R. Goad, Assistant Director, on brief for respondent.Before LYNCH, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.LYNCH, Chief Judge.

A Cambodian woman, Vantha Pheng, petitions for review of the denial of her applications for asylum, withholding of removal (WOR), and relief under the Convention Against Torture (CAT). We will assume familiarity with the standards for granting such relief from removal and with the deferential substantial evidence standard of judicial review, under which we will reverse the decision of the Board of Immigration Appeals (BIA) only if “a ‘reasonable adjudicator would be compelled to conclude to the contrary.’ ” Castillo–Diaz v. Holder, 562 F.3d 23, 26 (1st Cir.2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review the decision of the BIA and “those portions of the [Immigration Judge]'s opinion that the BIA has adopted.” Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir.2004).

Pheng entered the United States on a six-month visitor visa in December 2002, and in June 2004 was issued a Notice to Appear for overstaying that visa. Before an Immigration Judge (IJ), she conceded removability and pursued an application she had filed in October 2003 for asylum, WOR, and CAT relief. Previously, in 2000, Pheng had attempted to enter the United States using a false photo-substituted passport and visa. She was interviewed at the Newark airport, but she refused to reveal her true identity and stated that she had no fear of returning to Cambodia. She was removed subject to an order of expedited removal. Pheng failed to disclose this information on her 2003 asylum application and initially lied about it at her asylum hearing.¹

All told, the IJ conducted six hearings over nearly four years, with Pheng testifying at three of the hearings. The IJ found Pheng's testimony credible in part, but held that she had not met her burden to show she had been or would be persecuted, and so did not qualify for asylum or WOR. The IJ also found she had not demonstrated eligibility for protection under the CAT. The IJ detailed several reasons for the decision.

First, even accepting that certain misfortunes had happened to Pheng and her husband between 1996 and 2000, a period during which they campaigned and demonstrated in support of the opposition Sam Rainsy party, none of these misfortunes rose to the level of persecution.² Second, Pheng, who had argued that her husband's killing in 2003, after she had fled Cambodia, buttressed her own claim of persecution, had failed to provide any evidence other than her own surmise that her husband's reported death was on account of political opinion. Third, Pheng had not shown that her remaining family in Cambodia, including her father, sister, and two children (who remained with Pheng's father), had suffered any harm. Fourth, despite repeated warnings that her credibility was at issue and ample time during continuances to secure affidavits from family members who were well-placed to corroborate her story, Pheng had failed to produce any such corroborating evidence.³ There is ample evidence in the record to support these four conclusions, and so we turn to the central point of Pheng's claims.

Pheng's petition for review focuses mainly on the IJ's finding that Pheng's testimony that she was raped by a Cambodian policeman, while credible, did not satisfy Pheng's burden to prove she had been persecuted on account of a protected ground. See Anacassus v. Holder, 602 F.3d 14, 19 (1st Cir.2010) (explaining petitioner's burden of proof). We describe Pheng's testimony.

Pheng's husband left home in late November 2000 after a friend who was also part of the political opposition was killed, and Pheng had no contact with him or knowledge of his whereabouts after he left. In April 2001, while Pheng's children were visiting family for the Cambodian New Year holiday and Pheng was at home alone, a policeman described in Pheng's written application as a captain knocked on the door. When she asked the policeman who he was looking for, he said he wanted to give Pheng information about her husband. He then pointed his gun at her, pushed her into the house, and raped her. In her asylum application, Pheng wrote that afterward, the man promised to remove her name from a “blacklist.” The rapist did not say anything to suggest that he raped her because of her or her husband's political activities.

Pheng said the same policeman raped her four more times but she gave little description of the next three assaults, much less of the reasons, explaining only that he came up with “some irrational reason to rape me,” and that each time, like the first, she was alone at home when the rapist appeared at her door and said he had news about her husband.

She testified she was last raped in September 2002. This time her family was at home with her when the rapist knocked at the door, claiming to have information about Pheng's husband. At the hearing Pheng testified that, at the man's request, she left her home and went with him in his car on a journey of about forty-five minutes. When she refused his sexual overtures in the car, he threatened to kill her and her children if she did not have sex with him. After he raped her, he drove her home. In Pheng's written application, the description was different: Pheng said that the man was furious her family was there, “pretended to arrest” her, and forced her into the car before he drove her into the woods and raped her. In her application, she also said she told her father and sister everything about the rape, and they told her she should leave Cambodia, which she did within three months of the September 2002 rape, leaving her children to remain in Cambodia with her father.

While accepting Pheng's testimony that she had been raped, the IJ found that Pheng had not shown this was persecution.

The respondent has not proven to this Court's satisfaction that ... the rapes were politically motivated. As horrendous as they may have been and the Court believes that they occurred, the respondent has not established that she sought safety elsewhere.... She continued to live in Cambodia for another two months in the same location, continuing to run her business.... Again, it does not appear to this Court's satisfaction that the rapes were motivated by anybody seeking to harm the respondent on account of her political opinion or on account of her relationship to her husband, but rather that the individual in question appears to have identified her as vulnerable....

Pheng appealed to the BIA, arguing that the IJ's findings were clearly erroneous, an argument the BIA rejected. The BIA agreed with the IJ that Pheng had not met her burden of showing persecution, particularly her burden of showing that the rapes were politically motivated or that the other harm she suffered rose to the level of persecution. The BIA also pointed to Pheng's failure to produce corroborative evidence. Further, the BIA found that Pheng's disclaimer of any fear of returning to Cambodia during her fraudulent 2000 attempt to enter the United States undermined her claim that she feared future political persecution.

On petition for judicial review, Pheng primarily argues that the IJ was required to find that the rapes constituted political persecution because they were committed by a government officer and because that officer had said he had information about Pheng's husband, who had been politically active and was missing during the period when the rapes took place.⁴ There is no such requirement. Rather, to carry her burden of proving eligibility for asylum, Pheng was required to “provide sufficient evidence to forge an actual connection between the harm and some statutorily protected ground.” Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007). The record in Pheng's case did...