Sayaxing v. I.N.S.

• Citation: 179 F.3d 515
• Decision Date: 19 April 1999
• Docket Number: No. 98-3161,98-3161
• Parties: Ly Ying SAYAXING, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

179 F.3d 515

Ly Ying SAYAXING, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 98-3161.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 19, 1999.

Decided April 19, 1999.

Petition for Review of an Order of the Board of Immigration Appeals No. A 73 425 990

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

Ly Ying Sayaxing, a national and citizen of Laos, appeals the denial of his petition for asylum by the Board of Immigration Appeals ("Board"). He claims that if he is forced to return to Laos, the communist government will persecute him for his political and religious beliefs. While we sympathize with Ying's concerns, we cannot say that the Board was wrong when it concluded that he failed to demonstrate an objectively reasonable basis for his fear and, that, therefore, he had not met the requirements of demonstrating a well-founded fear requirement for asylum.

I. History

A. Ying's Account of His Life in Laos

Ying is a forty-two-year-old citizen of Laos. He is a member of the Hmong ethnic minority, as well as a Christian, who lived in Lienchang, Laos. In 1985, he met and became friends with Thongoouk Saysangkhy, who was then a vice minister with the transportation ministry. At the time, Ying worked as the chief of accounting for the Lao Freight Forwarding Company, one of the state-run transportation companies that Thongoouk oversaw. The two initially spoke primarily about their work, but their conversations gradually evolved into political reform discussions. By 1987 they had invited two other government officials--Rasamy Khampoui and Feng Sakchittavuy, both from the Cultural Affairs Ministry--to join in their political exchanges.

During this period, Ying's company reassigned him to work in their Da Nang, Vietnam, office as the Branch Chief. As part of his responsibilities, Ying returned to Lienchang to present monthly reports to his supervisor. These trips lasted for one to two weeks. In addition to delivering his reports, Ying continued to meet with Thongoouk, Rasamy, and Feng to discuss political reform in Laos.

In 1990, as the four had agreed, Thongoouk presented the group's ideas about reform to the national assembly. Three days later, Thongoouk, Rasamy, and Feng were arrested and charged with opposing the communist government. According to Ying, the three were detained without a trial or advice of counsel. Ying believes he escaped a similar fate only because he happened to be out of the country when the arrests occurred. The three remained in a prison camp where they were tortured until 1992. During this period, Ying continued to visit them when he returned to Laos to deliver reports to his supervisor. He also visited Thongoouk's wife and child, buying food for them or sharing meals. Rasamy died while at the camp, but Thongoouk and Feng were eventually tried, convicted, and sentenced to fourteen years imprisonment.

Each time he returned to Laos from Vietnam, Ying had to pass through a guarded border crossing. He was never stopped, arrested, interrogated, or detained during this period. He testified that he believes he was not arrested because the Lao government was attempting to build a case against him in order to link him with Thongoouk, Rasamy, and Feng.

In 1993, two to three months after the conviction of Thongoouk and Feng, Ying's company reassigned him to his former position as chief of accounting in Lienchang. Ying became concerned about his status with the government because he was told the Da Nang position was no longer needed, yet he learned that he had simply been replaced by another official. The transfer also resulted in a pay cut for Ying. In addition, his assistant, who now assumed duties that were previously assigned to the chief of accounting, reported Ying's actions to Ying's supervisors directly. During this time, he continued to live in the same home. He was neither arrested nor physically attacked. No one searched his home. And, he was never summoned for questioning. Ying contends, however, that he was being watched "very closely."

In 1994, Ying obtained a travel visa for the United States, ostensibly to visit his ill mother-in-law. Ying argues that this trip was really motivated by his fear and subsequent desire to flee Laos. Although the Lao government denied his initial application for a visa, it ultimately granted him a visa after he demonstrated proof of ownership of property and that his family would remain in Lienchang. He arrived in the United States in June 1994 with permission to stay three months from the Lao government and one year from the U.S. government.

While in the United States, Ying learned that two strangers visited his wife at their home on two separate occasions. During these visits, the men questioned her about Ying's whereabouts, when she expected him to return, and whether they were in communication with each other. After each of these visits, Ying's wife wrote to him expressing concern and fear for his safety.

Ying's wife and his children remain in Laos, where she continues to live in their family-owned home in Lienchang. In addition, Ying's eight acres of land and five fish ponds remain under his ownership. His wife and children, who attend school, have not been arrested or harmed since he left.

B. The Immigration Proceedings

In 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause as to why Ying should not be deported for remaining in the United States beyond his one year allowance. Ying conceded he had stayed longer than he had been granted permission to remain and petitioned for political asylum.

After hearing Ying's testimony, the Immigration Judge ("IJ") questioned Ying's credibility. Specifically, the IJ found suspect Ying's claim that the Lao government was attempting to silence Ying but at the same time permitted him to travel between Laos and Vietnam long after it had detained Thongoouk, Rasamy, and Feng. The IJ also found that Ying's fear was based purely on speculation rather than an objectively reasonable fear.

Ying petitioned the Board, which, in turn, dismissed his appeal. The Board found that Ying had failed to demonstrate that his fear was objectively reasonable. Specifically, it found that he had failed to present evidence that the Lao government was investigating him while he was in Laos. He also did not explain why he was treated differently than Thongoouk, Rasamy, and Feng and not detained or arrested. In addition, Ying failed to explain to the Board's satisfaction why the Lao government, which supposedly suspected him of crimes similar to those for which it detained and tortured Thongoouk, Rasamy, and Feng, granted him a travel visa to the United States. It noted that the visits by the strange men had not been adequately explained as well. Finally, the Board found the fact that his family and property had not been harmed while he was abroad undercut his contention that he would be persecuted upon his return to Laos because of his political and religious beliefs.

After this dismissal, Ying filed a motion for the Board to reopen his case and reconsider its dismissal. This motion is still pending. In addition, Ying appeals the Board's dismissal to this Court, focusing solely on the concerns raised because of his political beliefs.

II. Analysis

A. Standard of Review

In considering Ying's claims under the Immigration and Nationality Act ("Act"), we review legal questions de novo. See Hartooni v. INS, 21 F.3d 336, 340 (7th Cir.1994). We defer to the Board's factual findings, reversing the Board only if the record lacks substantial evidence to support its factual conclusions. See Angoucheva v. INS, 106 F.3d 781, 788 (7th Cir.1997); see also 8 U.S.C. sec. 1105a(a)(4) (requiring appellate courts to uphold the Board's conclusions if "supported by reasonable, substantial, and probative evidence on the record as a whole"). Thus, if the Board concludes that an asylum applicant fails to present specific facts that he or she has been persecuted or has good reason to fear that he or she will be singled out for persecution in the future, we will not disturb that conclusion unless the evidence is "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Angoucheva, 106 F.3d at 788 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

B. Ying Claims He Has a Well-Founded Fear of Future Persecution

Under the Act, Congress authorized the Attorney General to grant asylum to aliens who are "refugees." See 8 U.S.C. sec. 1158(b). The Act defines a "refugee" as an alien who is unable or unwilling to return to his or her country of origin "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." 8 U.S.C. sec. 1101(a)(42)(A). Thus, asylum may be granted upon past persecution or upon a well-founded fear of future persecution. See Iliev v. INS, 127 F.3d 638, 642 (7th Cir.1997). The burden falls on the asylum applicant to establish that he or she is a refugee under the Act. See Cuevas v. INS, 43 F.3d 1167, 1170 (7th Cir.1995).

While the statute is silent as to what actually constitutes persecution, this Court has defined it as behavior that "threaten[s] death, imprisonment, or the infliction of substantial harm or suffering." Sharif v. INS, 87 F.3d 932, 935 (7th Cir.1996). The behavior, however, does not need to be life-threatening; for example, torture and economic deprivation may also constitute persecution, if "the resulting conditions are sufficiently severe." Id. Similarly, we have stated that "punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate" also constitutes persecution. Cuevas, 43 F.3d at 1170 (quoting De Souza v. INS, 999 F.2d 1156, 1158 (7th Cir.1993))...