Sou v. Gonzales, 05-1668.
| Decision Date | 07 June 2006 |
| Docket Number | No. 05-1668.,05-1668. |
| Citation | 450 F.3d 1 |
| Parties | Ros SOU and Chantha Srey, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Thomas Stylianos, Jr., on brief for petitioners.
Michael J. Sullivan, United States Attorney (District of Massachusetts) and Michael Sady, Assistant United States Attorney (District of Massachusetts), on brief for respondent.
Before SELYA and LIPEZ, Circuit Judges, and SAYLOR,* District Judge.
Petitioners Ros Sou and Chantha Srey seek review of a final order of the Board of Immigration Appeals affirming a denial of their application for asylum, withholding of removal on the basis of political opinion and membership in a particular social group, and withholding of removal under the Convention Against Torture ("CAT"). Finding no error, we affirm.
Sou and Srey are citizens of Cambodia who presently reside in Massachusetts. They were married in a Communist forced-labor camp in 1978. After working in various capacities for a number of years, they established and operated a drug store out of their home in Phnom Penh. Srey was a trained pharmacist; Sou, who described himself as "a businessman," attended to sales and other business aspects of the store.
Petitioners' decision to leave Cambodia for the United States arose from events occurring in May and June 2002. A government worker named Ly came to Sou and Srey in early May and warned them that Sou was believed (1) to be a member of Khmer Seri or the Cambodian Freedom Fighters ("CFF")2 and associated with a man named Nou Uth Buntha; (2) to be a supporter of the Sam Rainsy Party ("SRP"); and (3) to have been a soldier in the 1970s in the army of the Lon Nol government and, as a result, to be "especially dangerous."3 Ly warned Sou that it would be safer if he went away for a while. Although Ly's statements made them fearful, petitioners did not leave the country at that time. Instead, they decided that Sou should go into hiding at his sister's home about 50 kilometers away.
Srey testified that several days later uniformed police arrived at her store in the afternoon and told her that they were looking for her husband. In the presence of customers, they held a gun to her chest and repeatedly demanded to know where he was. She said that she did not know, and they left. About two or three weeks later, after the "situation calm[ed] down," she sent a message to Sou telling him about the situation at home. After he returned home, they decided to leave Cambodia.
They spent several weeks preparing to leave the country, including obtaining a passport for Srey and visas from the U.S. Embassy. They sold off the inventory of their pharmacy and, on June 25, 2002, closed the store.4 They left Cambodia two days later. A Cambodian government official stamped Sou's passport with an exit visa, dated June 27. When questioned as to how he obtained the stamp, Sou explained that he gave his passport to someone else to get it stamped for him. Neither Sou, Srey, nor the individual who obtained the exit visa for Sou were questioned or detained. They boarded their flight apparently without incident and the next day, June 28, arrived in Los Angeles.
Petitioners did not bring their children, who were then 14, 15, and 16 years old, with them. The children were left in the care of a relative in Phnom Penh. They receive letters from their children, but do not speak with them on the phone.5
The Board found, among other things, that petitioners had no "political affiliations of their own." Both Sou and Srey testified that they were never members of any organization while they were in Cambodia. However, there is evidence that they had at least tangential association with three organizations.
First, Sou testified that he joined the army in 1971 to fight against the Communists in support of the government then in power, which was led by Lon Nol. His involvement in the army ended when the Khmer Rouge seized power in 1975. He believes that those who fought against the Communists are viewed by the current government as opponents who are especially dangerous when they engage in political activity. Sou stated in his application that he fears arrest, disappearance, and death as a result of his former military involvement.
Second, Sou testified that he was a close friend of a man named Nou Uth Buntha, who the government would later charge and convict as a "terrorist." Sou met Buntha through a neighbor in 1996 and they became close friends. He and his wife regularly socialized with him and, for some period of time, Buntha visited their home once or twice a month. Their conversations sometimes turned to politics, and Sou knew that Buntha was a member of a political party that was, at least for some period of time, opposed to the ruling party. Sou did not know, one way or the other, whether Buntha was a member of the CFF.
In December 2000, Sou learned from a Cambodian newspaper that Buntha had been arrested for being a part of an attempt by the CFF to overthrow the government.6 He was convicted and apparently sentenced to a prison term of 20 years.7 After learning of the arrest, Sou became worried that he would be arrested, and destroyed all pictures and letters in his possession that would link him to Buntha. Sou testified that, as far as he knows, Buntha was never released, was not given a fair trial, and probably was killed by the government. Sou also testified that he has never been a member of the CFF or participated in its activities. However, he testified that he fears that the Cambodian government has imputed or will impute the political beliefs of Buntha or the CFF to him because of their friendship, and that the government will cause him to be arrested, imprisoned without trial, or killed.
Third, Sou testified that, by 1998, he had become interested in the SRP. He conceded that he was not a member of the SRP and "was never active in [SRP] activities" while in Cambodia, although he had donated "some money and medicine" to the party. There is no evidence as to when he made this donation, or in what amount. Sou became a member of the SRP sometime after he left Cambodia.8 According to background information in the record, there have been documented cases of government abuses directed toward SRP activists and candidates, including harassment, threats of death and of loss of citizenship documents, and the withholding of routine services. Some SRP activists have been killed under suspicious circumstances. Sou believes that SRP supporters are at risk generally for arrest, detention, and death.
The former Immigration and Naturalization Service brought removal proceedings against petitioners and issued Notices to Appear on February 27, 2003. Petitioners admitted the truth of the factual allegations in the Notices, conceded removability, and sought the opportunity to apply for political asylum, withholding of removal, and withholding of removal pursuant to CAT. They applied for such relief with Sou as the principal applicant and Srey as his derivative beneficiary.
After a hearing, the Immigration Judge ("IJ") concluded that petitioners' accounts lacked credibility and denied their application. The IJ focused on what he determined were a number of implausibilities in their story and concluded that the Cambodian government was not looking for Sou. In particular, he was unconvinced that the government would begin looking for Sou approximately a year and a half after Buntha's arrest and some months after his death. Further, Sou could have been found easily in a number of ways: through surveillance of his home or business (which was not closed until June 25); by checking with his relatives at their homes; or by intercepting him when he and his wife obtained their exit visas and attempted to leave the country. The IJ found Srey's testimony that she was questioned at gunpoint unconvincing. He added that, "to the extent that [their account] may be true... the Cambodian government has a legitimate concern in questioning associates of known and convicted terrorists in order to gather additional information." Therefore, the IJ concluded, petitioners failed to meet their burden to prove that (a) they were unable or unwilling to return to their country because of a well-founded fear of persecution on account of membership in a particular social group or political opinion; or (b) that it was more likely than not that they would be subject to government-sanctioned torture if removed to Cambodia.9
Petitioners timely appealed this decision to the Board. The Board "assum[ed] the credibility of [Sou and Srey's] testimony." It then related Srey's testimony that she "was confronted by Cambodian police and asked about the location of her husband," and their belief that "they are under investigation due to their affiliation with a friend who was arrested for terrorism." The Board found that they "have no political affiliations of their own, they were allowed to leave Cambodia, and their children remain in Cambodia at this time." It then concluded by "agree[ing] with the Immigration Judge that, under these circumstances, [they] have failed to demonstrate a well-founded fear of returning to Cambodia at this time," and dismissed their appeal.10 Petitioners have petitioned for review of the Board's dismissal to this court, arguing that they have proved their entitlement to asylum.11
Where, as here, the Board does not summarily adopt the IJ's decision but instead makes an independent decision, the Board's decision is the final administrative order reviewed by the court. See Xu, 424 F.3d at 48; Njenga v. Ashcroft, 386 F.3d 335, 338 (1st Cir.2004).
Our review of the Board's decision is quite limited. As to the Board's...
To continue reading
Request your trial
-
Brown v. Nucor Corp.
...without any argumentation as to how it applies to [this] case, does not raise the issue of its application on appeal.” Sou v. Gonzales, 450 F.3d 1, 6 n. 11 (1st Cir.2006) (internal quotation marks and citations omitted here and throughout); accord Johnson v. United States, 734 F.3d 352, 360......
-
Khan v. Holder, s. 13–2106
...to the contrary”—every circuit court considering the statutory change has held that the standard did not change. See Sou v. Gonzales, 450 F.3d 1, 6 n. 12 (1st Cir.2006); Xiao Ji Chen v. Gonzales, 434 F.3d 144, 157 (2d Cir.2006); Dia v. Ashcroft, 353 F.3d 228, 247–48 & nn. 17–18 (3d Cir.2003......
-
Doe v. Holder
...mention every piece of evidence that it considered. See Jin Yi Liao v. Holder, 558 F.3d 152, 156 n. 3 (2d Cir.2009); Sou v. Gonzales, 450 F.3d 1, 8 n. 15 (1st Cir.2006). We thus conclude that Doe has not established a violation of his rights under the Due Process Clause. * * * Doe's unoppos......
-
Castillo-Diaz v. Holder
...8 C.F.R. § 1208.13(b). Doing so requires proving that her fear is both subjectively genuine and objectively reasonable. Sou v. Gonzales, 450 F.3d 1, 7 (1st Cir.2006). Demonstrating objectively reasonable fear requires showing that "`a reasonable person in [her] circumstances would fear pers......