Inthasith v. Ashcroft , 97 F. App'x 859 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 14 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MOLY INTHASITH,
Petitioner,
v. No. 02-9552
(BIA No. A70-201-555)
JOHN ASHCROFT, Attorney General (Petition for Review)
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
Petitioner Moly Inthasith is a native and citizen of Laos. He seeks review
of a Board of Immigration Appeals (BIA) order, which summarily affirmed
a decision of an immigration judge (IJ) denying his application for asylum and
withholding of removal.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Inthasith entered the United States in 1992 pursuant to a valid B-2
nonimmigrant visa, with authorization to remain until March 1, 1993. Shortly
after his arrival, he timely filed a request for asylum and withholding. In 1998,
the Immigration and Naturalization Service (INS) 1
issued a notice to appear,
charging him with remaining in the United States without INS authorization.
Inthasith admitted the allegations in the notice to appear, conceded removability,
declined to designate a country for removal, and sought asylum and withholding
of removal. Following a hearing, the IJ issued an oral decision denying the
applications for asylum and withholding of removal, but granting Inthasith’s
request for voluntary departure. The BIA, by a single member, summarily
affirmed the IJ’s decision. Inthasith appealed. Exercising jurisdiction under 8
U.S.C. § 1252(a), we AFFIRM.
I
Inthasith testified that he was born in 1958 and raised in Laos. His father
was a soldier until 1980 on “the old government side” and absent from the home
for long periods of time. Admin. R. at 69–70. His mother was a homemaker and
Inthasith had only two or three years of education, after which he worked in
1
“The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (‘USCIS’) within
the newly formed Department of Homeland Security.” Batalova v. Ashcroft ,
355 F.3d 1246, 1248 n.1 (10th Cir. 2004).
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agriculture and helped his mother farm. When he was eighteen, he began buying
and selling goods, primarily agricultural products, but also illegal weapons “once
or twice.” Id. at 72.
Inthasith testified that he disagrees with the current government because
“they cause[d] my family to flee the country.” Id. at 73. He told his uncle that he
did not like the government. Although he trusted his uncle at the time, Inthasith
asserted that the uncle had “changed and he is now on the same side as [the
current, i.e., communist,] government.” Id. at 74. Inthasith further related that
his uncle had warned him to flee Laos and his mother told him he could not return
to Laos.
Additionally, Inthasith testified that while in Laos he helped those who fled
the country and tried to fight back to free Laos. His assistance included giving
money to help people cross between Thailand and Laos and arranging border
crossings, but did not extend to armed resistance or public opposition to the
government. He asserted that he left Laos because he thought a government
group was watching him; this “group” had questioned him about where he was
going and what he was doing. Id. at 76–77. He knew many others who had
trouble with the government, including a friend who was shot to death. However,
Inthasith was never arrested, hurt, or tortured in Laos, and he left with a valid
passport and a ticket in his own name.
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Inthasith’s family now lives in Thailand. Shortly after Inthasith left Laos
in 1992, his father, younger brother, and three-year old son died. Although
Inthasith stated he did not know how they died, he suspected they were poisoned
because they all died at the same time. The only reasons he could think of for
these supposed killings, however, were that “they did something” “to get in
trouble” or because his father had been a soldier some years before. Id. at 87.
Inthasith testified that he thought that if he returned to Laos, he would be
captured by the government and killed. He also believed that he would be treated
differently by the government, i.e., as an enemy, because of his world travels.
II
In addition to Inthasith’s testimony, the IJ considered reports on human
rights conditions in Laos (United States State Department Country Reports),
which contained no reports of political killings for 1997 or politically motivated
disappearances. However, the IJ noted that freedom of speech is restricted, there
is no right to privacy, and persons expressing hostility toward the government are
subject to arrest. Nonetheless, the 1997 Country Report reflects that many
Laotian refugees have returned and that there is no evidence that any of them
were punished for simply leaving the country.
The IJ first determined that Inthasith had not alleged past persecution,
“but only a reasonable possibility of future persecution.” Id. at 39. This finding
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is supported by counsel’s statement at the hearing that “we do not claim that
[Inthasith] suffered past persecution.” Id. at 92. The IJ further determined that
the record did not support a credible claim of future persecution, primarily
because Inthasith’s facts were vague, even though he had the opportunity to
provide specific facts regarding the supposed poisoning of his family members
and the opposition group he was allegedly helping with border crossings. The IJ
emphasized that Inthasith had never been arrested or harmed. Noting Inthasith’s
belief that his uncle had reported Inthasith’s anti-government activities, the IJ
found Inthasith’s claim that mere grumbling to a relative, even a communist party
member, would result in his custody and death to be farfetched. In addition, the
IJ expressed serious doubt that Inthasith would tell anyone in a government
position that he was providing funding to insurgents.
On appeal, Inthasith contends that he qualified as a refugee because of the
deaths of his family members (which he labeled as killings) and because of
alleged surveillance of him by government authorities. He further argues that the
IJ erred in relying on the Country Reports “to the exclusion of other documentary
evidence.” Finally, he challenges the BIA’s summary disposition of his appeal.
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III
To establish eligibility for asylum, Inthasith must first prove he was a
refugee as defined in 8 U.S.C. § 1101(a)(42)(A). Vatulev v. Ashcroft , 354 F.3d
1207, 1208 (10th Cir. 2003). The statute defines a refugee as a person unable or
unwilling to return to his home 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).
Inthasith bears the burden of proving statutory eligibility. See Woldemeskel v.
INS , 257 F.3d 1185, 1188 (10th Cir. 2001). Because this case does not involve
past persecution, Inthasith needed to show a well-founded fear of future
persecution. This required him to first demonstrate an objective basis for such
fear by “credible, direct, and specific evidence in the record, of facts that would
support a reasonable fear [of] . . . persecution.” Yuk v. Ashcroft , 355 F.3d 1222,
1233 (10th Cir. 2004) (further quotations omitted). “Once an objective basis is
shown, [Inthasith] must show that his . . . subjective fear is genuine.” Id.The IJ determined that Inthasith had failed to meet his burden of
establishing refugee status. When the BIA summarily affirms an IJ’s decision,
we review the IJ’s analysis as if it were that of the BIA. Tsevegmid v. Ashcroft ,
336 F.3d 1231, 1235 (10th Cir. 2003). Our standard is deferential. We review
the IJ’s resolution of initial refugee status for substantial evidence and must
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uphold the IJ’s determination that Inthasith is not eligible for asylum if it is
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Yuk , 355 F.3d at 1233 (further quotations omitted).
To establish grounds for reversal, Inthasith “must show that the evidence he
presented was so compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” INS v. Elias-Zacarias , 502 U.S. 478, 483–84
(1992). We do not, however, weigh the evidence, nor do we “question the [IJ’s]
credibility determinations as long as they are substantially reasonable.”
Woldemeskel , 257 F.3d at 1192.
To the extent Inthasith may be relying on the deaths of family members in
support of a reasonable fear of future persecution, the IJ found this testimony
lacked credibility. The reasons given for this finding–lack of specific facts, no
reports of political killings–satisfy our requirement that credibility determinations
“must be substantially reasonable.” Sviridov v. Ashcroft , 358 F.3d 722, 727 (10th
Cir. 2004) (citation omitted). The IJ also noted that Inthasith’s description of his
assistance to some group opposed to the government was very vague and lacking
in details. In addition, the Country Reports relied on constitute probative
evidence in a well-founded fear case. See Tsevegmid , 336 F.3d at 1235–36.
Contrary to Inthasith’s claim, the record simply does not establish Inthasith
participated in “opposition activities which might subject the family to possible
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sanctions.” Aplt. Br. at 20. Accordingly, the IJ’s factual findings are conclusive
because Inthasith has failed to demonstrate that any reasonable adjudicator would
be compelled to conclude to the contrary. See Tsevegmid , 336 F.3d at 1235(quotations omitted).
The IJ also denied Inthasith’s application for withholding of deportation.
For entitlement to withholding, Inthasith must establish “a clear probability of
persecution, . . . a higher standard than that for asylum.” Yuk , 355 F.3d at 1236
(quotation omitted). “Because Inthasith[] failed to meet the lower standard of
showing entitlement to asylum, the IJ correctly denied [his] application for
withholding of removal.” Id.
Finally, we have upheld the BIA’s summary affirmance procedures against
various challenges. See Yuk , 355 F.3d at 1228–32 (upholding summary
affirmance regulations as comporting with due process and administrative law
principles); Batalova v. Ashcroft , 355 F.3d 1246, 1251–54 (10th Cir. 2004)
(upholding review by single BIA member); Sviridov , 358 F.3d at 726–27
(upholding BIA’s procedures against claim that BIA failed to comply with
applicable regulations and denied Inthasith due process).
IV
We have carefully examined the record and conclude that the IJ’s
credibility determinations are substantially reasonable. See Woldemeskel ,
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257 F.3d at 1192. In addition, the IJ’s decision is “supported by reasonable,
substantial and probative evidence on the record as a whole” and will be upheld
for that reason. Id. at 1189. For these reasons, we DENY the petition for review
and AFFIRM the BIA’s decision to deny asylum and withholding of deportation.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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