Teng v. Mukasey

• Decision Date: 14 February 2008
• Docket Number: No. 07-1224.,07-1224.
• Parties: Rotana TENG, Petitioner, v. Michael MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

516 F.3d 12

Rotana TENG, Petitioner, v. Michael MUKASEY, Attorney General, Respondent.

No. 07-1224.

United States Court of Appeals, First Circuit.

Submitted December 3, 2007.

Decided February 14, 2008.

Joseph A. MacDonald on brief for petitioner.

Katharine E. Clark, Office of Immigration Litigation, Department of Justice, Peter Keisler, Assistant Attorney General, Civil Division, and Barry Pettinato, Assistant Director, on brief for respondent.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and STAHL, Senior Circuit Judge.

BOUDIN, Chief Judge.

Rotana Teng, a 41-year-old Cambodian national, entered the United States on July 27, 1997, overstayed his extended visa, and in October 2001, filed an application for asylum. The Immigration and Naturalization Service began removal proceedings against Teng, who conceded removability, but requested asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Hearings were held on his application in March 2004 and June 2005.

Teng said that his father, mother, sister, and two brothers were killed under Pol Pot's Khmer Rouge regime. That regime, as is well known, murderously dominated the country for several years following its take-over in 1975. Following an invasion by Vietnam in 1978, civil war ensued, slackening in the early 1990's and evolving into fierce rivalry between two other parties. The grim history to the end of 1998 is recounted in the State Department country report of February 1999 offered in evidence by Teng.

According to Teng, he participated in a 1991 rally against the Vietnam-supported incumbent Hun Sen government, and in 1992 he joined the opposition FUNCINPEC C party. At another rally in or around 1992, Teng was attacked by police and knocked unconscious; a friend of his was stabbed to death. Following elections in 1993, the FUNCINPEC party and its leader entered a power-sharing arrangement with Hun Sen's party, and Teng obtained a job at the post office. In his new job, he found that members of Hun Sen's party were stealing from the post office. He reported the information to the press and was himself accused of stealing and was fired in May 1997.

On the day of the firing, a fight broke out between Teng and some of the members of Hun Sen's party at the post office; Teng says that he and his brother, who came to his aid, were threatened by a man with a gun. About three weeks later, Teng's brother was shot and killed. Although it was classified as a robbery, Teng believed it to be a political murder related to the partisan fighting at the post office. The following week, Teng obtained a visa to travel to the United States. On July 5, 1997, military supporters of the Hun Sen regime launched a coup.

During this general period—roughly beginning in March of 1997—Teng was hiding in a nearby temple to avoid the increased threat of political violence. He says that he would occasionally pay short visits to his home to see his wife. On the night of the coup, he returned to his home and found that his wife and three-month-old daughter had been murdered. Fearing for his life, he obtained a visa to travel to Thailand. He went to Thailand on July 12, 1997, returned to Cambodia a few days later to retrieve money hidden in his home, and on July 26, 1997, flew to the United States.

At the close of the second hearing in June 2005, the immigration judge ("IJ") delivered a lengthy oral opinion denying Teng's requests for asylum, withholding of removal, and CAT relief, but granting voluntary departure. The IJ found that Teng's asylum application was untimely, that Teng was not a credible witness, and that the evidence did not support his claims that he had been persecuted or tortured or was likely to suffer persecution or torture if he returned to Cambodia.

On appeal, the Board of Immigration Appeals ("BIA") affirmed the IJ. Teng now seeks review in this court of his withholding and CAT claims but not his asylum claim.¹ He relies primarily upon claims that he was denied procedural due process, relegating an attack on the IJ's findings to a few pages at the close of the brief. It is true that the latter attack is made difficult by the deferential standard of review that applies to the agency's findings of fact and inferences from them; but the procedural claims—relating to allegedly inadequate translation and transcription—are quite weak and we begin with the merits.

To secure a withholding of removal on grounds of persecution, the applicant must show that he would be "more likely than not" to suffer persecution on one of the statutory grounds—here, because of political opinion—a standard that the Supreme Court has defined as a "clear probability."² INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Further, "[i]f the applicant is determined to have suffered past persecution in the proposed country of removal ... it shall be presumed that the applicant's life or freedom would be threatened in the future in the country of removal." 8 C.F.R. § 208.16(b)(1)(i).

Teng offered no direct evidence of his likely treatment should he return to Cambodia; rather his case rests on the presumption that would be triggered if he established past persecution on political grounds. The deaths of Teng's parents and other family members under Pol Pot are horrible; but by the time of Teng's hearings, that regime had been out of power for many years. Teng's colorable basis for claiming any threat to himself based on a statutory ground focuses on the 1990s. Here, four incidents predominate.

The first, chronologically, is Teng's beating by soldiers in 1992 and the second his discharge from his government post in May 1997; assuming Teng's credibility, both could be regarded as contributing to a claim of persecution but neither alone nor together would they likely be enough under the precedents. See Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir.2000). The former was a one-time incident; the latter, not a threat to his life or liberty. See Alibeaj v. Gonzales, 469 F.3d 188, 191-92 (1st Cir.2006). Much more serious are the deaths of his wife and daughter and of his brother.

Possibly these latter deaths were incidents of random violence preceding and accompanying the military coup, and do not evidence political persecution against Teng. But he was an active member of a political party; his brother was murdered in suspicious circumstances shortly after a partisan battle within the government-run post office; and Teng's wife and daughter were murdered during a coup as part of which Hun Sen's forces reportedly engaged in door-to-door searches for opponents.

Indeed, the IJ denied Teng's claim not because his story did not amount to persecution, but because she did not believe his testimony (a matter to which we return). The BIA, by contrast, did include one sentence in its affirmance suggesting as an alternative ground that "even if considered credible", Teng had not shown a likelihood of persecution because he "was never harmed in Cambodia." But the murders of Teng's wife and daughter, if intended to retaliate against Teng himself, could arguably constitute persecution of him even though the violence was not directed personally at him. Cf. Jorgji v. Mukasey, 514 F.3d 53, 57-58 (1st Cfr.2008).³

The question remains whether Teng's story was true. The IJ resolved the credibility issue against Teng, and we review that determination for substantial evidence; the findings below are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007). Although that is a deferential standard, the IJ must provide "a specific, cogent, and supportable explanation" for rejecting an alien's testimony. Heng v. Gonzales, 493 F.3d 46, 48 (1st Cir.2007).

The IJ premised her adverse credibility determination in part on Teng's demeanor during the hearing; in part on inconsistencies and implausibilities in Teng's description of his behavior during the period surrounding the July 1997 coup; and in part on a series of minor inconsistencies in his testimony, which taken alone do not undermine his core narrative, but which could call into question Teng's general veracity. We address these subsidiary determinations one by one.

The IJ noted during the hearing that Teng's demeanor was suspect and referred again to his demeanor in her oral decision. The IJ alone saw the witness, such judgments are partly intuitive and hard to articulate, and the IJ's judgment is entitled to some weight. Cf. Heng, 493 F.3d at 48. Still, a consistent story, independently supported in important respects and unmarred by implausibilities or inconsistencies, could not normally be disregarded merely because the witness—especially one from a different culture and unversed in English—simply struck the decision-maker as untruthful.

Certain aspects of Teng's account did have some independent support: that he was a member of the FUNCINPEC party, and that his brother, wife and daughter were murdered around the time of a bloody coup during which the supporters of Hun Sen targeted the opposition. Teng submitted his party membership card and death certificates, although those documents were not authenticated. News reports included in the record indicate that political killings and door-to-door searches did take place in July 1997 and many Cambodians fled to Thailand.

But Teng's testimony was also marked by discrepancies. Teng indicated that he was in hiding in a temple beginning in March 1997 because he...