Sok v. Mukasey

• Decision Date: 22 May 2008
• Docket Number: No. 07-2113.,07-2113.
• Parties: Sopheap SOK, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

526 F.3d 48

Sopheap SOK, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-2113.

United States Court of Appeals, First Circuit.

Submitted February 8, 2008.

Decided May 22, 2008.

Joseph A. MacDonald, on brief for petitioner.

Joan H. Hogan, Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, and Linda S. Wendtland, Assistant Director, on brief for respondent.

Before TORRUELLA, LYNCH, Circuit Judges, and TASHIMA,^* Senior Circuit Judge.

TORRUELLA, Circuit Judge.

Sopheap Sok overstayed her visitor's visa to the United States. More than one year after entry, she applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), alleging that she had suffered persecution in her native Cambodia and feared future persecution on account of her political beliefs. The immigration judge ("IJ") dismissed her asylum claim as untimely, and denied the withholding and CAT claims on the merits. The Board of Immigration Appeals ("BIA") affirmed and ordered Sok removed. Sok now petitions this court for review of the denial of her withholding and CAT claims. We deny her petition with respect to the CAT claim. However, because the BIA and IJ gave a legally insufficient explanation of why Sok failed to prove that she suffered past persecution in Cambodia, we grant the petition with respect to the withholding claim, vacate the BIA's order of removal, and remand the case for further proceedings.

I. Background

We summarize the evidence as Sok presented it to the IJ in her hearing testimony and in the affidavit accompanying her asylum application; we then consider the IJ's and BIA's findings in relation to that evidence. Mihaylov v. Ashcroft, 379 F.3d 15, 18 (1st Cir.2004); see also Mukamusoni v. Ashcroft, 390 F.3d 110, 121 (1st Cir. 2004) (information in asylum application affidavit may be used to satisfy burden of proof in removal proceedings).

In 1995, Sok and her husband, Ratha Chhin, became members of the Khmer National Party ("KNP"). The KNP, which later changed its name to the Sam Rainsy Party ("SRP"), is a political rival to the Cambodian People's Party ("CPP") headed by Hun Sen. From the beginning of their affiliation with the KNP/SRP, Sok and Chhin campaigned actively on behalf of the party. In January 1996, they received a letter telling them they would have a "a big problem" if they continued to support the KNP. In May 1996, graffiti was painted on their house stating, "Your life as being a traitor will not be easy if you help the Sam Rainsy against the CPP."

In early July 1997, Sok, Chhin, and their children fled their home for a town on the Thai border a day before Hun Sen attempted to take control of the government in a coup. The family returned some five months later and found that their house had been burglarized.

In May 1998, SRP leader Sam Rainsy appointed Chhin as chief of the SRP electoral committee in the Phsar Depo quarter of Phnom Penh. Two weeks later, a police lieutenant named Khy Kok went to Sok's house and warned Chhin that he must stop supporting the SRP, or he would kill or harm Chhin's family. Lieutenant Kok also threatened Sok directly, telling her, "[I]f you do not listen to me, I will destroy you."

In July 1998, Hun Sen and the CPP won the national elections. The SRP and another opposition party claimed fraud. In September 1998, Chhin led some 300 people in a public rally to protest the election results. They were met in a public square by soldiers with fire trucks, who sprayed them with wastewater and beat many of them, including Chhin. Sok witnessed the soldiers beating her husband; his nose was bloody and he had been handcuffed. When she attempted to help him, a soldier grabbed her by the hair and pulled her back, and then began beating her on the leg and shoulder until she fell unconscious. When she regained consciousness, she found herself in jail and in pain from the blows the soldiers had dealt her. During her detention, she was given a cup of water and a handful of rice each day. Sok and Chhin were released three days later thanks to the efforts of human rights workers who intervened on their behalf. A private doctor treated Sok and Chhin for their injuries. Sok testified that she did not go to the hospital because she was afraid to go, as the public doctor there was part of the CPP government.

In January 2000, Sam Rainsy appointed Chhin to another SRP post in Phnom Penh. A week after his appointment, two unidentified men stopped Sok and Chhin on their motorcycle, pulled Chhin off, and kicked and punched him. Sok received some scratches when the motorcycle fell to the ground, and ran a short distance in an attempt to find help. She heard the men tell Chhin that if he did not stop supporting the SRP he would be dead. Sok stated that this incident "terrified [her] to death."

In May 2000 three policemen, led by Lieutenant Kok, went to Sok's house. When she answered the door, Kok put a gun to her neck and ordered her and her children into the bedroom and made them lie on the floor. While Kok stood watch at gunpoint, the other two men ransacked the house. After thirty minutes, one of the men said, "Let's go. I got it." The men took some documents, jewelry, and $2,000 cash. Before leaving, Kok warned Sok: "Anyone [who] acts against [the] CPP, his or her life will be in trouble." Following this incident, Sok urged Chhin to stop campaigning for the SRP; Chhin replied that he would continue to fight for democracy as long as he was alive. He told her that if she was afraid of dying, she could hide somewhere for her safety.

Prompted, according to Sok, by these repeated threats, she departed for the United States in July 2000, leaving Chhin, her two children, and sister behind. In November 2001, Sok's sister called to inform her that Hun Sen's men had arrested Chhin, and Chhin called some three weeks later to tell her he had been imprisoned for nineteen days on suspicion of being connected to the Cambodian Freedom Fighters. In February 2002, Sok's sister called to inform her that Chhin had been shot dead, along with some twenty others, and that their bodies were found under a bridge south of Phnom Penh. Her sister told Sok that Chhin was murdered for political reasons. Sok's two children have continued to live in Cambodia under her sister's care and with the assistance of remittances sent from the United States by Sok, who is gainfully employed; the children are today seventeen and eighteen years old.

Sok filed for asylum, withholding of removal, and CAT protection on August 19, 2002. On May 22, 2006, the IJ issued an oral decision denying Sok's application and ordering her removed. He dismissed her asylum claim as untimely, and found that she had not demonstrated the requisite risk of torture for CAT protection. Moreover, while the IJ found Sok generally credible, he concluded that her withholding claim also failed because the evidence presented did not show past persecution. He gave the following explanation:

The only time she was taken into custody was when she intervened at a demonstration wherein her husband was apparently being bullied and beaten by the police. After that, she was released. The other events to which she testified had to do with having received threats. Even in her affidavit in support of late filing, [Sok] says that she hoped to return at some point to reunite with her husband and two children. Apparently, the events which had occurred to her were not sufficient to cause her to seek political asylum in the United States.

On only one issue — the murder of Sok's husband Chhin — the IJ found Sok's testimony "unreliable and unconvincing" because "this is the sort of evidence that is capable of being verified." He elaborated:

Is there no death certificate even though the body was cremated? Could twenty people have been found murdered under a bridge or in a pond and no police report was made? Is it that twenty people were found murdered under a bridge and there was no investigation? Remember now that the police might have been complicit in this, but still an investigation would have to be conducted even if there was a cover-up afterwards. . . . Is it there could be no newspaper report of this incident? Certainly, if twenty people are found murdered under a bridge, there had to be some newspaper report of this. . . . But this anecdotal hearsay testimony without corroboration is insufficient to prove the point.

The IJ then found that the evidence did not establish a likelihood that Sok would be persecuted if returned to Cambodia. He took account of a statement in the State Department's 2005 country report that there were no reported political killings in Cambodia in 2005; he also noted that Sok's children continue to live unharmed in Cambodia. The IJ accordingly denied Sok's application for withholding of removal.

The BIA adopted and affirmed the IJ's decision in its entirety. With respect to the withholding claim, the BIA added only that "[t]he harm [Sok] reported to have suffered while in Cambodia consisting of one arrest and several threats without more, is not deemed to rise to the level of persecution." We consider this to be a summary affirmance of the withholding ruling, and accordingly review the IJ's decision as if it were the BIA's. Molina de Massenet v. Gonzáles, 485 F.3d 661, 663 (1st Cir.2007).

II. Discussion

A. Claim for CAT Relief

In her petition for judicial review of the BIA's decision, Sok makes no argument with respect to the CAT claim beyond an introductory assertion that "[t]he record establishes the merits of [her] claims for withholding of removal, and protection pursuant to the [CAT]." We accordingly deem this claim waived, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990), and review only the claim for withholding of removal.¹

B. Standard of Review and Law on...