Tung Van Dinh v. U.S. Attorney General , 618 F. App'x 464 ( 2015 )


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  •            Case: 14-13696   Date Filed: 06/29/2015   Page: 1 of 17
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-13696
    Non-Argument Calendar
    ________________________
    Agency No. A088-394-529
    TUNG VAN DINH,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    ________________________
    (June 29, 2015)
    Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
    PER CURIAM:
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    Tung Van Dinh, a Vietnamese citizen, seeks review of the Board of
    Immigration Appeals’s (“BIA”) final order affirming the Immigration Judge’s
    (“IJ”) denial of his application for asylum, withholding of removal, and
    withholding of removal under the United Nations Convention Against Torture and
    Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Dinh
    argues that he is eligible for asylum because he suffered past persecution and has a
    well-founded fear that he will be singled out for future persecution on account of a
    political opinion—his belief that the Vietnamese government should return land
    that was confiscated from the Catholic Church without due process.1 He also
    contends that the interpreter’s mistranslations during the merits hearing violated
    his due-process rights. After careful review, we affirm.
    I.
    Dinh, a native and citizen of Vietnam, and his wife and son were admitted as
    non-immigrant visitors to the United States on August 5, 2009.                       They had
    authorization to remain in the United States until February 4, 2010.
    On January 19, 2010, Dinh filed an application for asylum and withholding
    of removal, which he later amended. 2 On February 25, 2010, the Department of
    Homeland Security served Dinh with a Notice to Appear, charging him as
    1
    Dinh does not raise any arguments on appeal with respect to the denial of his claims for
    withholding of removal and CAT relief. Therefore, we address only the asylum issue.
    2
    Dinh’s wife and son were listed as derivative beneficiaries on Dinh’s asylum
    application and were co-respondents in the agency removal proceedings.
    2
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    removable under 8 U.S.C. § 1227(a)(1)(B) for having remained in the United
    States for a longer time than permitted. At the master calendar hearing, Dinh
    conceded removability and requested CAT relief in addition to asylum and
    withholding of removal.         Dinh filed a supplemental application for asylum,
    withholding of removal, and CAT relief on December 28, 2011.
    Dinh primarily sought asylum relief based on what he described as his
    political opinion that the Vietnamese government should return land that was
    confiscated from the Catholic Church after 1975. 3 He claimed that he feared
    torture, harm, or mistreatment if he returned to Vietnam. The following summary
    of facts is taken from Dinh’s original and supplemental applications for asylum
    and attached statements, in conjunction with Dinh’s testimony at the hearing
    before the IJ.
    Dinh’s father was a police officer employed by the United States-backed
    government in Saigon (now Ho Chi Minh City) until the Communists took over
    South Vietnam in 1975. After the regime change, Dinh’s father was arrested,
    imprisoned, and beaten. The government confiscated their house, and his family
    was forced to relocate and to make a difficult living off the land. Dinh’s brother
    fled to the United States by boat. Dinh alleged that the Communists beat and
    3
    Dinh also sought asylum based on his religion, Buddhism, but there is no evidence of
    religious persecution in the record, and Dinh does not argue this ground on appeal.
    3
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    tortured him and his family during this time. His siblings were prevented from
    attending college because they were not from a Communist family.
    In 1986, Vietnam underwent economic reforms. Dinh was able to attend
    college. He chose to work in tourism because he thought that his job would have
    nothing to do with politics. He earned degrees in management, English, and
    tourism. Dinh eventually became the director of a tourism company owned by the
    Vietnamese government.        The company managed tourist resorts in Vietnam,
    among other things. As director, he was able to afford a house and car and to take
    care of his family. He made around twenty-five to thirty times more than what the
    average Vietnamese citizen made.
    Over time, Dinh realized that the company was not a “legitimate” business
    and was being controlled by the government to benefit members of the Communist
    party.     For example, Dinh alleged that he had evidence that his supervisor
    organized a tour to the United States in 2009 for the purpose of laundering money.
    In addition, Dinh stated that when a child died in a swimming pool at one of the
    company’s resorts in 2008, he, as director, was held liable and risked incarceration
    and had to pay civil damages out of pocket. Dinh alleged that the legal system was
    corrupt and that he was in danger of being incarcerated without a trial because he
    was not a Communist party member and could not be trusted, given his father’s
    previous association with the democratic government of South Vietnam.
    4
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    In 2007, Dinh discovered that his company operated a tourist resort on land
    that had been confiscated from the Catholic Church after the Communists took
    over in 1975. The land was worth around $200 million. Dinh believed that the
    confiscation was wrong and that the land should be returned to the Church. On
    numerous occasions, Dinh raised the issue of the wrongful appropriation of the
    land with his supervisor, Nzuyen Hoanz Bien,4 a high-ranking official in the
    department of labor. Dinh also was asked by the Catholic Church to speak on its
    behalf, but the government threatened him not to help the Church.
    Dinh was told not to discuss the land confiscation issue with anyone else.
    On one occasion after Dinh voiced his complaints regarding the land, Nzuyen
    responded, “Do you want to die? If we return the land to the Church, how could we
    make money? How could we survive?” Dinh believed that if he told anyone else
    about the land he would be imprisoned or killed. According to Dinh, anyone who
    asked the government to return the Vatican’s land was imprisoned, including Hing
    When Lee, a pastor. Other religious leaders who protested the confiscation of land
    owned by churches were also imprisoned. Furthermore, Dinh said that his lawyer
    in Vietnam was imprisoned for opposing the government around this same time.
    4
    Nzuyen’s name may have been inaccurately transcribed or translated, as Dinh suggests,
    and is actually “Nguyen.” Nonetheless, we refer to Dinh’s supervisor as “Nzuyen” for
    consistency with the administrative record.
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    Dinh left Vietnam with his family in 2009 because he feared being
    imprisoned or killed if he continued to speak out about the land issue. By the time
    Dinh left, his company wanted him and his family to go because he “became a
    thorn.” He resigned from the company upon leaving the country. After he left
    Vietnam, Dinh’s house was confiscated, and he may have been labeled a dissident.
    In response to questions from the IJ, Dinh clarified that he did not report
    anything regarding the confiscated land to anyone besides his friends and Nzuyen
    while he lived in Vietnam, and that Nzuyen was the only person who ever said
    anything threatening to him regarding the land. Dinh also testified that he was not
    a member of a political party and did not participate in anti-communist
    demonstrations, which were forbidden in Vietnam.
    When the IJ asked if Dinh had ever been physically harmed in Vietnam,
    Dinh replied, “I became openly against them just before I left so they did not have
    time to harm me physically” and said that he was “only threatened.” He had been
    beaten and kicked by police when he was a child and in high school, but after
    1993, no one in the Communist regime physically harmed him, though the
    government “made a lot of verbal threats and . . . supervise[d] [him].”        For
    example, Dinh had to write reports on his activities every year.
    Dinh included several documents with his application, including a 2012
    Country Report on Human Rights Practices prepared by the United States
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    Department of State. According to the Country Report, land-rights protestors
    alleging that the government confiscated their land without proper compensation
    reported physical harassment and intimidation by local authorities.          Arbitrary
    arrests and detention continued to be a problem, particularly for political activists.
    While Vietnamese law provided criminal penalties for government corruption,
    corruption was still a major problem. Dinh also attached what appears to be a
    2009 news article from an unknown source stating that lawyer Le Cong Dinh and
    other Vietnamese citizens were imprisoned for political activism. Dinh asserts that
    Le Cong Dinh was his lawyer who was arrested.
    The IJ denied Dinh’s application for asylum, withholding of removal, and
    CAT relief. The IJ did not enter an adverse credibility finding, but noted that he
    did not believe everything Dinh had said, highlighting that Dinh’s theory of
    persecution had shifted over the course of his filings and the hearing. Specifically,
    the IJ noted that Dinh had not emphasized the wrongful-confiscation issue in his
    written applications, but that it became the central issue at the hearing.
    The IJ found that Dinh had not demonstrated past persecution. In explaining
    his conclusion, the IJ noted that Dinh had not been physically beaten for more than
    20 years before he applied for asylum. In addition, the IJ found, Dinh had risen to
    a high-level job in his company, had traveled extensively, and had earned a high
    income.
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    The IJ also determined that Dinh failed to demonstrate a well-founded fear
    of future persecution. Dinh’s testimony was the only evidence that his boss had
    ever threatened him, which the Judge concluded was insufficient to meet Dinh’s
    burden of proving an objectively reasonable fear of future persecution.
    Finally, the IJ concluded that there was an insufficient nexus between any
    persecution and a protected ground. The IJ found that it was not clear “what the
    real nexus in this case is,” and that Dinh had failed to show that his opposition to
    the Vietnamese government’s confiscation of the land constituted an expression of
    political opinion, citing the BIA’s opinion in Matter of N–M–, 25 I. & N. Dec. 526
    (BIA 2011).5        Consequently, the IJ denied Dinh’s application for asylum,
    withholding of removal, and CAT relief.
    Dinh appealed the IJ’s decision to the BIA. The BIA affirmed the IJ’s
    decision “for the reasons stated therein” and wrote separately only to address
    Dinh’s arguments on appeal. Among other things, the BIA concluded that (1) the
    IJ was required to consider all the evidence in the record and therefore did not err
    in noting a shift in the theory of persecution between Dinh’s testimony at the
    5
    In Matter of N–M–, the BIA concluded that, in some circumstances, opposition to
    official corruption can constitute political opinion or imputed political opinion. 25 I. & N. Dec.
    at 528. According to the BIA, activities such as “founding or being active in a political party that
    opposes state corruption,” attending or speaking at political rallies against state corruption,
    writing or distributing materials about state corruption, or threatening to expose corruption to
    others could constitute the expression of a political opinion or may lead the persecutor to impute
    such an opinion to the asylum applicant. 
    Id. & n.1.
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    hearing and his prior statements in the asylum applications; (2) while Dinh argued
    that the IJ improperly required evidence of physical harm, Dinh did not challenge
    the finding that nothing happened to him during his time living under the
    Communist regime; (3) as a matter of law, Dinh must show more than a fear of
    retaliation based solely on his opposition to the wrongful confiscation of the land,
    and Dinh’s opposition did not constitute an actual political opinion; and (4) Dinh
    failed to show that the alleged translation problems caused the IJ to misunderstand
    the nature of his claim or its factual basis. The BIA dismissed Dinh’s appeal.
    Dinh now brings this petition for review.
    II.
    Normally, we review only the BIA’s decision. Al Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1284 (11th Cir. 2001). But because the BIA’s decision expressly
    adopted the IJ’s decision “for the reasons stated therein,” we review the IJ’s
    decision as well. 
    Id. We review
    administrative factual determinations under the “highly
    deferential substantial evidence test.” Adefemi v. Ashcroft, 
    386 F.3d 1022
    , 1026-
    27 (11th Cir. 2004) (en banc). We view the record and draw all reasonable
    inferences in favor of the administrative agency’s decision. 
    Id. at 1027.
    “We must
    affirm the BIA’s decision if it is supported by reasonable, substantial, and
    probative evidence on the record considered as a whole.” 
    Id. (internal quotation
    9
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    marks omitted). To reverse a factual finding, we must find that the evidence
    compels a contrary conclusion. 
    Id. “[E]ven if
    the evidence could support multiple
    conclusions, we must affirm the agency’s decision unless there is no reasonable
    basis for that decision.” 
    Id. at 1029.
    We review constitutional challenges regarding removal proceedings de novo.
    Lapaix v. U.S. Att’y Gen., 
    605 F.3d 1138
    , 1143 (11th Cir. 2010).
    III.
    Dinh argues the BIA erred in adopting the IJ’s decision because he presented
    sufficient evidence of past persecution, a well-founded fear of future persecution,
    and a nexus between such persecution and his political opinion.
    To be eligible for asylum, an applicant must be a “refugee.” 8 U.S.C.
    § 1158(b)(1)(A). A “refugee” is defined as follows:
    any person who is outside any country of such person’s
    nationality . . . and who is unable or unwilling to return
    to, and is unable or unwilling to avail himself or herself
    of the protection of, that 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). The applicant bears the burden of proving that he is a
    refugee. 8 U.S.C. § 1158(b)(1)(B)(i). To make this showing, the applicant must
    present specific and credible evidence demonstrating that he (1) was persecuted in
    the past based on one of the protected grounds, or (2) has a well-founded fear that
    10
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    he will be persecuted in the future based on one of the protected grounds. Ruiz v.
    U.S. Att’y Gen., 
    440 F.3d 1247
    , 1257 (11th Cir. 2006). The protected ground must
    be “at least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i).
    Demonstrating past persecution creates a rebuttable presumption that the
    applicant has a well-founded fear of future persecution. 
    Ruiz, 440 F.3d at 1257
    . If
    the applicant cannot show past persecution, the applicant must show a “well-
    founded fear of future persecution that is both subjectively genuine and objectively
    reasonable.”    
    Id. An applicant’s
    credible testimony that he fears persecution
    generally satisfies the subjective component.       
    Id. To satisfy
    the objective
    component, the applicant must either show past persecution or present specific,
    detailed facts showing a good reason to fear that he will be singled out for future
    persecution. Al 
    Najjar, 257 F.3d at 1289-90
    .
    “[P]ersecution is an extreme concept requiring more than a few isolated
    incidents of verbal harassment or intimidation[.]” Rodriguez v. U.S. Att’y Gen.,
    
    735 F.3d 1302
    , 1308 (11th Cir. 2013) (internal quotation marks omitted). The IJ
    must consider the cumulative effect of any alleged incidents to determine whether
    an alien suffered past persecution.      
    Id. A single
    death threat is generally
    insufficient to qualify as persecution. See Silva v. U.S. Att’y Gen., 
    448 F.3d 1229
    ,
    1237 (11th Cir. 2006) (concluding that a “condolence note” containing an implicit
    death threat was “an example of harassment and intimidation, but not
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    persecution”). Minor physical abuse and brief detentions also do not amount to
    persecution. Kazemzadeh v. U.S. Att’y Gen., 
    577 F.3d 1341
    , 1353 (11th Cir.
    2009). However, serious physical injury is not required if the applicant also shows
    repeated threats combined with other forms of severe mistreatment.               De
    Santamaria v. U.S. Att’y Gen., 
    525 F.3d 999
    , 1009 (11th Cir. 2008).
    Assuming arguendo that Dinh’s belief that the Catholic Church’s land was
    unlawfully taken without due process and should be returned constituted a political
    opinion, and therefore a protected ground for purposes of asylum, Dinh still has not
    shown that there was no reasonable basis for the denial of Dinh’s application for
    asylum. See 
    Adefemi, 386 F.3d at 1029
    .
    First, substantial evidence supports the determination that Dinh did not
    suffer past persecution. The record shows that, when Dinh was young, Dinh’s
    father was arrested, imprisoned, and beaten for working for the United States-
    backed government in South Vietnam. Because of this, Dinh and his family
    suffered beatings and severe economic deprivations.         However, there is no
    evidence that any persecution Dinh experienced when he was younger was tied to
    Dinh personally or was on account of Dinh’s political opinion. See 
    Rodriguez, 735 F.3d at 1309
    (“The pattern of persecution must be ‘tied to the applicant
    personally.’”) (quoting In re A–K–, 24 I. & N. Dec. 275, 278 (BIA 2007)); 
    Ruiz, 440 F.3d at 1257
    .
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    Dinh’s testimony at the hearing was that, since 1993, he had not suffered any
    physical harm from the police or the government. Indeed, as an adult, he became a
    highly paid government employee who lived comfortably. The “crux” of Dinh’s
    asylum claim, as he puts it, was Dinh’s opposition to the wrongful confiscation of
    the Catholic Church’s land and the resulting threats he received from his
    supervisor.   But the only specific threat Dinh testified about was a single
    ambiguous death threat, which alone is insufficient to show more than harassment
    or intimidation. See 
    Silva, 448 F.3d at 1237
    . And while Dinh’s testimony also
    generally indicates that he received other threats from Nzuyen not to speak out
    about the land, the record does not compel the finding that these incidents were
    “severe” or “extreme” enough to amount to persecution. See 
    Kazemzadeh, 577 F.3d at 1353
    ; De 
    Santamaria, 525 F.3d at 1009
    .
    Substantial evidence likewise supports the finding that Dinh did not have an
    objectively reasonable and well-founded fear of future persecution. Dinh testified
    that he first learned of the land confiscation in 2007, and that, from that point until
    he left Vietnam in 2009, he raised the issue with his supervisor, Nzuyen, on
    numerous occasions. However, during this same time, Dinh continued to work as
    a highly paid government employee, and he traveled to and from the United States.
    The only specific threat Dinh testified about was an ambiguous death threat from
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    his supervisor. Such isolated intimidation does not compel a finding that Dinh’s
    fear of being singled out for future persecution was objectively reasonable.
    While Dinh’s criticism of the Vietnamese government, viewed in light of
    evidence of Vietnam’s practice of incarcerating political and land-rights activists,
    weighs in favor of a finding that Dinh had an objectively reasonable fear of
    persecution if he returned to Vietnam, it does not compel such a finding because
    the record supports the IJ’s and BIA’s determinations that Dinh was not a political
    activist, was not Catholic, and was not directly or overtly opposed to Communism.
    Thus, the record does not compel a finding that Dinh had good reason to fear that
    he will be singled out for future persecution. See Al 
    Najjar, 257 F.3d at 1289-90
    .
    In short, substantial evidence supports the decision that Dinh did not
    establish past persecution or a well-founded fear of future persecution.        See
    
    Adefemi, 386 F.3d at 1026-29
    . Therefore, we do not address Dinh’s remaining
    arguments that he established a sufficient nexus between his political opinion and
    the threat of future persecution.
    IV.
    Dinh also argues that his due-process rights to a fair hearing were violated
    because he was deprived of a suitable interpreter.          According to Dinh, the
    interpreter’s deficiencies caused the IJ to believe that there were discrepancies in
    Dinh’s testimony that did not, in fact, exist.
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    We briefly review the some of the translation issues during the hearing. At
    one point, Dinh’s attorney interrupted the hearing to express his concern that
    Dinh’s testimony was being summarized by the interpreter. The IJ instructed Dinh
    to only speak one sentence at a time so his testimony could be translated. He also
    directed Dinh’s attorney, who spoke Vietnamese, to object to the translations if
    there were any further problems. On another occasion, when Dinh was explaining
    whether he reported the land issue to anyone apart from his supervisor, Dinh’s
    attorney suggested that the interpreter did not fully understand the vocabulary Dinh
    was using. The interpreter stated that there was no vocabulary issue and that she
    noticed that some of Dinh’s answer was not relevant to the question asked. The IJ
    instructed the interpreter to repeat whatever Dinh said regardless of its relevance.
    Thereafter, Dinh stated that he could not understand some of the interpreter’s
    translations. After some further discussion, the IJ determined that the interpreter
    was translating correctly and that the hearing should proceed.
    The Fifth Amendment entitles petitioners in removal proceedings to due
    process of law, which requires that petitioners “be given notice and an opportunity
    to be heard in their removal proceedings.” 
    Lapaix, 605 F.3d at 1143
    ; see Alhuay v.
    U.S. Att’y Gen., 
    661 F.3d 534
    , 548 (11th Cir. 2011) (reviewing a due process claim
    based in part on the lack of an interpreter). To obtain relief based on a due-process
    violation, the petitioner must show both (1) violation of due process and (2)
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    substantial prejudice. 
    Lapaix, 605 F.3d at 1143
    . To show substantial prejudice,
    the petitioner “must demonstrate that, in the absence of the alleged violations, the
    outcome of the proceeding would have been different.” 
    Id. Here, even
    if the interpreter mistranslated portions of Dinh’s testimony or
    made it more difficult to understand, Dinh fails to show that any errors caused him
    substantial prejudice.   While many of the translations contained grammatical
    errors, the thrust of Dinh’s testimony was comprehensible. Dinh and his attorney
    both spoke English and Vietnamese, and the record shows that translation issues
    did not cause the IJ to misunderstand the factual basis of Dinh’s asylum claim.
    The IJ’s summary of Dinh’s testimony is consistent with the remainder of the
    record and with Dinh’s presentation of the evidence on appeal.
    We disagree with Dinh’s contention that the translation issues caused the IJ
    to believe there were discrepancies in his testimony. First, the IJ did not make an
    adverse credibility finding. Second, the IJ’s discussion of issues related to Dinh’s
    credibility focused on the differences between the theories of persecution asserted
    in Dinh’s written materials and the theory of persecution relied upon at the hearing,
    not on any inconsistencies in his testimony at the hearing. Therefore, Dinh has not
    shown that, in the absence of the alleged violations, the result would have been
    different. See 
    Lapaix, 605 F.3d at 1143
    .
    V.
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    In sum, we conclude that substantial evidence supports the agency’s decision
    that Dinh did not suffer past persecution or have a well-founded fear of future
    persecution. Furthermore, Dinh was not prejudiced by any violations of his due-
    process rights during the merits hearing. Accordingly, we deny Dinh’s petition for
    review.
    PETITION DENIED.
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