Nou v. Mukasey , 542 F.3d 272 ( 2008 )

United States Court of Appeals
For the First Circuit
No. 07-1546
SOVANN NOU,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin, and Dyk,* Circuit Judges.
Thomas Stylianos, Jr., on brief for petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Mark
C. Walters, Assistant Director, and Theodore C. Hirt, on brief for
respondent.
September 19, 2008
*
Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. Sovann Nou (“Nou”) petitions for
review of a final order of removal entered by the Board of
Immigration Appeals (“BIA”), dismissing Nou’s appeal from a
decision of the Immigration Judge. The Immigration Judge (“IJ”)
denied Nou’s application for asylum, withholding of removal, and
relief under the Convention Against Torture. Because we agree that
substantial evidence supports the BIA’s conclusion that Nou was not
targeted on account of one of the protected statutory grounds, and
that he did not establish a well-founded fear of future
persecution, we conclude that the BIA did not err in rejecting
Nou’s asylum claim and in denying Nou’s petition for judicial
review.
I.
Nou, a native and citizen of Cambodia, has been living in
the United States since September 2001. While in Cambodia, Nou was
an active member of the Sam Rainsy Party, which is opposed to the
ruling party in Cambodia, the Cambodian People’s Party. Nou was
not, however, a party official. Nou worked in the Krakor District
as a Fisheries Officer for the Wildlife Division of the Cambodian
government. In that capacity, Nou was charged with enforcing
Cambodian fishing laws. Nou testified that in February 1998, while
Nou was working, he heard gunshots being fired at his government
building. Nou and others fled, jumping from the building into an
adjacent body of water. The next day, the police investigating the
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incident learned from several of the local villagers that the
shooters were a group of soldiers or police officers. Nou
testified that he was later threatened by soldiers who wanted to
fish using hand grenades in violation of Cambodian law. The
soldiers also tried to bribe Nou, but Nou declined to cooperate.
Nou testified that he sought and was granted relocation
to the province of Siem Reab, where he was again confronted and
threatened by soldiers wanting to fish using grenades. In 2000,
Nou took part in arresting and detaining a group of twenty
fisherman for fishing illegally using grenades and electric shock.
Several members of the Cambodian People’s Party were among those
arrested. After that incident, Nou claims that he received a
threat from an unidentified person that, if he did not cooperate,
he would be killed. Nou transferred a second time to the province
of Kampong Chanang. Several months after Nou’s transfer, he and
his entire work group were told to stop working, and he was fired
from his job.
Nou secured airline tickets to leave Cambodia. He and
his wife left through the Phnom Phen airport, using passports
issued in their own names. He left the country without incident.
In September 2001, Nou entered the United States as a
nonimmigrant B-2 visitor, authorized to remain in this country for
a temporary period not past March 6, 2002. On June 29, 2002, Nou
filed an application seeking asylum. On April 8, 2003, the
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Department of Homeland Security charged Nou with removal as a
nonimmigrant visitor who had remained in the country longer than
authorized.
In the removal proceedings, the IJ denied Nou’s
application for asylum, withholding of removal, and protection
under the Convention against Torture, and ordered Nou’s removal
from the United States to Cambodia. In his oral opinion, the IJ
found that Nou’s testimony was not credible. The IJ also found
that, even if he were to find Nou’s account credible as to the
incidents that Nou described, “any action which had been attempted
against [Nou] was not because of his membership in the Sam Rainsy
Party but because of his unwillingness to cooperate with the people
of the Cambodian People’s Party.” J.A. at 12. Accordingly, Nou
did not establish that “a reasonable person in his circumstances
would fear persecution on account of a statutorily protected
ground.” J.A. at 13. The IJ held that Nou had not established
that he was the victim of past persecution or that he would suffer
future persecution. The IJ also concluded that Nou had not
established that he would be likely to suffer torture if he was
returned to Cambodia, as required by the Convention Against
Torture.
Nou appealed to the BIA. The BIA assumed that Nou was
credible but agreed that his evidence did not establish that Nou
“was targeted on account of the statutory grounds.” J.A. at 2.
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The BIA also concluded that Nou could not establish a well-founded
fear of future persecution, given the ease with which he obtained
his passport and visa to enter the United States, and given the
changed political conditions in Cambodia.1 The BIA concluded that
Nou also had not established his claim for withholding of removal
or his claim under the Convention Against Torture. The BIA
dismissed Nou’s appeal. Nou timely petitioned for review. We have
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii).
II.
On review, petitioner challenges only the rejection of
his asylum claim. While we review the decision of the BIA, where,
as here, the BIA adopts portions of the IJ’s decision, we review
those adopted portions directly. Ouk v. Keisler, 505 F.3d 63, 67
(1st Cir. 2007). In doing so, we review findings of fact for
substantial evidence and questions of law de novo. Sok v. Mukasey,
526 F.3d 48, 52-53 (1st Cir. 2008).
An applicant seeking asylum bears the burden of
establishing that he is a “refugee” as defined by 8 U.S.C. §
1101(a)(42)(A). Diab v. Ashcroft, 397 F.3d 35, 39 (1st Cir. 2005);
8 U.S.C. § 1158(b)(1). To do so, the applicant “must show either
past persecution or a well-founded fear of future persecution.”
Albathani v. I.N.S., 318 F.3d 365, 373 (1st Cir. 2003); 8 C.F.R. §
1The BIA determined as well that Nou had not established
that the actions against him constituted persecution. In light of
our disposition, we need not reach this question.
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208.13(b). Proof of past persecution entitles an applicant to a
presumption of a well-founded fear of future persecution. 8 C.F.R.
§ 208.13(b)(1); Diab, 397 F.3d at 39. In addition, the regulation
requires that such past or future persecution must be “on account
of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 C.F.R. § 208.13(b)(1); Albathani,
318 F.3d at 373.
Nou’s central contention is that the evidence before the
IJ establishes his past persecution in Cambodia. This past
persecution, Nou argues, was either on account of his membership in
a particular social group--namely the Sam Rainsy political party--
or because of his political opinion.
We conclude that substantial evidence supports the BIA’s
finding that Nou has not shown that he was targeted “on account of”
any of the protected statutory grounds. Nou claimed that he
suffered persecution based on his membership in the Sam Rainsy
Party, a political party opposed to the controlling Cambodian
People’s Party. He testified that, in 2000, his uncle–-a Sam
Rainsy Party officer--was killed on his way to a Sam Rainsy Party
meeting. He also claimed that both he and his wife, as active Sam
Rainsy Party members, had been threatened by members of the
Cambodian People’s Party, and that he had been shot at and lost his
job in the Wildlife Division based on his party affiliation. When
pressed, however, Nou admitted that he had been threatened and shot
at and fired from his position because he enforced the ban on
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illegal fishing, and that others who were not members of the Sam
Rainsy Party were also fired. The BIA did not err in concluding
that the actions that Nou relies on were in response to Nou’s
efforts to enforce the ban on illegal fishing rather than his Sam
Rainsy Party membership.
Nou also asserts that he established a well-founded fear
of future persecution, even if he did not establish past
persecution. The BIA rejected Nou’s claim, finding that the ease
of Nou’s departure from Cambodia belied his claim that he ever
faced any real danger from the government, and that, moreover, the
political conditions in Cambodia do not support Nou’s contention.
For example, the Board noted that the Sam Rainsy Party actually
holds approximately 20% of the seats in the Cambodian national
assembly. See also Ly v. Mukasey, 524 F.3d 126, 132-33 (1st Cir.
2008) (discussing changed political conditions in Cambodia).
Substantial evidence supports the BIA’s conclusion that Nou did not
establish a well-founded fear of future persecution.
We have considered Nou’s other contentions and find them
to be without merit.
III.
Accordingly, the petition for judicial review is denied.
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