Ye Mon Aung v. Gonzales
| Decision Date | 26 July 2007 |
| Docket Number | No. 06-3148.,06-3148. |
| Citation | 495 F.3d 742 |
| Parties | YE MON AUNG, Petitioner, v. Alberto R. GONZALES, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joshua Bardavid (argued), New York, NY, for Petitioner.
Margaret A. Schutte (argued), Office of the United States Attorney, Indianapolis, IN, Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Richard Zanfardino, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before POSNER, MANION, and KANNE, Circuit Judges.
Ye Mon Aung is a native and citizen of Burma who entered the United States in 2003 aboard a ship docking in Texas. Aung requested asylum and, after finding his way to Wisconsin, a hearing was held. The immigration judge (IJ) denied the request for asylum, as well as Aung's requests for withholding of removal and deferral of removal under the Convention Against Torture (CAT). The Board of Immigration Appeals affirmed the decision of the IJ without opinion, and Aung petitioned this court for review. Finding no error in the IJ's decision, we deny the petition for review.
On May 3, 2005, Aung appeared before the IJ in support of his applications for asylum, withholding of removal, and deferral of removal under the CAT. Aung testified at his hearing and submitted identifying documents, photos, and reports on country conditions.
Aung lived in Rangoon, the capital of Burma, and opposed the military governmental regime.1 He supported the National League for Democracy (NLD), although he was not a member. In 1988, Aung participated in a large-scale popular Burmese uprising in protest of the government by joining a student hunger-strike. Aung faced no government retaliation for this protest.
In 1996, Aung began work as a crewman on a ship. His job took him out to sea for long stretches of time. In 1997, port officials requested a bribe from Aung upon his return from sea. When Aung refused, the officials confiscated his passport and seaman's identity card. This interfered with his ability to work as a seaman.
In 1998, some acquaintances of Aung's from the 1988 uprising contacted him and asked if he would join them in a ten-year anniversary rally. Aung was pleased to do so. He and the others spread the word that they planned to march to downtown Rangoon. The day that the rally was to take place, August 8, 1998, Aung went to a tea shop to meet with other protesters. Before they could begin their march, military trucks surrounded them and the protestors were arrested.
During his detention, Aung was interrogated, kicked, punched, and beaten. He was very frightened. Aung repeatedly claimed that he had only gone to the tea shop to purchase a cup of coffee. After three days, Aung was released and warned to stay away from political activities and associated people.
In 1999, Aung purchased back his passport and seaman's license. He set sail in 2000, stopping in different ports around the world, and did not return to Burma until June 2002. During his seafaring travels, Aung met some students in Thailand who were interested in the issue of forced labor in Burma. Aung explained that the Burmese government commonly used forced labor in the country's rural areas. The students proposed that they exchange information and Aung agreed to gather information on forced labor and send it to the students. He also agreed to bring the students' newsletters and other documents urging democracy's return to Burma. Upon arriving in Burma, Aung photocopied the students' materials and distributed them to his close friends and family.
When he returned to Burma in 2002, Aung lived with his sister in Rangoon. He called upon his relatives, including a cousin, to gather information on forced labor in the countryside surrounding the small town in which his mother lived. Once he received information from his family, Aung then passed it along to a friend who regularly traveled to Thailand. His friend delivered the information, and messages from Aung, to the students in Thailand. Aung sent information to Thailand twice; the first such transaction took place in July 2002. Later that year, the police called Aung and other known supporters of democracy to the local station and warned them to stay away from politics. The officers did not mention Aung's forced labor information exchange.
Aung's cousin was arrested by Burmese officials later that year. Aung had no information regarding the reasons for, or circumstances surrounding, this arrest. He believed it may have had something to do with the forced labor information that his cousin sent to him. Fearing that he might be next, Aung hid at a friend's home in the Rangoon suburbs. While in hiding, he heard, by word of mouth, that military intelligence officers had been looking for him at his mother's home and also in Rangoon. He also heard that his mother had been threatened with arrest and the closure of her business. Aung feared for his safety and contacted a "broker" to request assistance in fleeing the country.
Aung left Burma on January 28, 2003. He traveled through several European countries, Mexico, and eventually arrived in Texas. Aung has spoken to his mother and sister by telephone since his flight from Burma. They informed him that the authorities had visited his mother's home on two occasions and that officials had detained, interrogated and threatened his mother in their effort to locate Aung.
Aung conceded at his asylum hearing that his 1998 arrest and beating did not rise to the level of past persecution but nonetheless argued that he held a well-founded fear of future persecution on the basis of his political opinion. R. p. 100. The IJ found that Aung's testimony at the asylum hearing was not credible and that Aung did not have an objectively well-founded fear of future persecution. The IJ, therefore, denied Aung's asylum petition.
The IJ based his conclusions on several aspects of Aung's testimony. The IJ noted that Aung was not politically active in any way after his final return to Burma in 2002 other than to exchange information with the students in Thailand, and that Aung had traveled in and out of Burma on many occasions. R. p. 49-50.
The IJ characterized Aung's testimony regarding his cousin's arrest as "vague and confusing." R. p. 51. Aung initially stated that his cousin was arrested for supplying information to him, but then admitted that he had merely heard by word of mouth that his cousin was arrested, without any information as to why or how. R. p. 51, 82. As to Aung's testimony that military intelligence officers had looked for him at his mother's home, the IJ noted that Aung based "his claim essentially on information received from a trader, who was passing by his mother's home, some seven hours away from Rangoon, where he lived." R. p. 52. The IJ further noted that Aung could not explain why the authorities would look for him at his mother's, rather than where he lived with his sister in Rangoon. R. p. 52.
Aung was able to leave Burma without any difficulty after securing an exit permit. Shortly before he left Burma, Aung also obtained an extension of his passport. R. p. 53. Furthermore, the issue of forced labor in Burma is no secret. It has been well documented through the work of international organizations as well as in U.S. State Department Human Rights Reports. R. p. 53. Aung does not suggest that he received any notoriety for his information dissemination or that his name was ever published in relation to the forced labor cause. R. p. 54. Aung traveled through a number of countries before arriving in the United States, and did not file for asylum in any of them. The IJ concluded that, in essence, Aung had merely made "an unsupported allegation that military intelligence would like to speak to him." R. p. 55.
Having determined that Aung did not meet the standards for asylum, the IJ concluded that he could not meet the higher standards required for withholding of removal under § 241(b)(3) of the Immigration and Nationality Act (INA) or relief under the CAT. Thus, the IJ denied all three of Aung's requests.
Where, as here, the BIA adopts the IJ's decision without comment, we review the IJ's findings of fact and reasoning as though they were those of the BIA itself. Boci v. Gonzales, 473 F.3d 762, 765-66 (7th Cir.2007) (citing Mousa v. INS, 223 F.3d 425, 428 (7th Cir.2000)). We apply the substantial evidence standard, and "uphold the BIA's denial of relief as long as it is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir.2007) (quoting Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir.2006); Koval v. Gonzales, 418 F.3d 798, 804 (7th Cir.2005)).
A. Asylum
An applicant claiming asylum as a refugee must show that he is "unable or unwilling to return to [his] country 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. § 1101(a)(42)(A); see Sina, 476 F.3d at 461. "The applicant bears the burden of proving that he is eligible for asylum." Sina, 476 F.3d at 462 (quoting Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir.2005) (citing Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.2005); 8 C.F.R. § 208.13(a))). We will not disturb the IJ's decision unless the petitioner shows that "the evidence not only supports reversal but compels it." Shmyhelskyy v. Gonzales, 477 F.3d 474, 478 (7th Cir.2007) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
An IJ's adverse credibility determinations "must be made with reference to specific, cogent reasons that bear a legitimate nexus to the finding." Adekpe v. Gonzales, 480 F.3d 525, 530 (7th...
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