Aung, Ye Mon v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3148
YE MON AUNG,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A98-365-506
____________
ARGUED MAY 4, 2007—DECIDED JULY 26, 2007
____________
Before POSNER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. 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.
2 No. 06-3148
I. BACKGROUND
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.
A. Aung’s Testimony
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 gov-
ernment 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 re-
turn 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
1
The military authorities in Burma promote the use of the
name “Myanmar” as the conventional name for the state, but
the United States has not recognized this change. See CIA,
The World Fact Book, available at https://www.cia.gov/library/
publications/the-world-factbook/geos/bm.html#top.
No. 06-3148 3
meet with other protesters. Before they could begin their
march, military trucks surrounded them and the protes-
tors 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, includ-
ing 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 reg-
ularly 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
4 No. 06-3148
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 rea-
sons 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 look-
ing 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 eventu-
ally 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.
B. The IJ’s Decision
Aung conceded at his asylum hearing that his 1998
arrest and beating did not rise to the level of past persecu-
tion 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.
No. 06-3148 5
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 supply-
ing 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 informa-
tion 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 infor-
mation 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.
6 No. 06-3148
Having determined that Aung did not meet the stan-
dards 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.
II. ANALYSIS
Where, as here, the BIA adopts the IJ’s decision without
comment, we review the IJ’s findings of fact and reason-
ing 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 rea-
sonable, 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 persecu-
tion 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
No. 06-3148 7
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 (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 Cir. 2007). Such determinations are
afforded substantial deference. Korniejew v. Ashcroft, 371
F.3d 377, 382 (7th Cir. 2004).
We cannot say that the IJ’s adverse credibility determi-
nation was not supported by substantial evidence in this
case. Aung’s stated reasons for his fear fell apart upon
questioning, revealing that his claims were supported by
mere rumors and speculation. When questioned as to why
he believed that the authorities might arrest him for
distributing information on forced labor, Aung admitted
that he had never been caught with such materials.
Despite repeated opportunities to do so, Aung was unable
to explain how the authorities might have learned of his
activities, and why they might care. The following excerpt
from the asylum hearing is exemplary:
Q: Well you were never caught with any material like
leaflets, or the magazine articles about [forced] labor,
correct?
A: No, no, no, not like that.
Q: So I don’t understand why the military officer
would be asking your mother about you for any reason.
A: At the time, (indiscernible) was released from
house arrest, and when I go back in 2002, the army
called me and then they told me to stay away from
politic.
Q: But they had no information that you’d ever been
involved in politics did they?
8 No. 06-3148
A: I was arrested one time in 1998, and at that time,
they warned me not to be involved in politic in the
future.
R. p. 93. Aung points only to his 1998 arrest, which was
years before he sent information on forced labor to Thai-
land, and which he concedes did not amount to persecu-
tion. Many of Aung’s other answers were equally non-
responsive. See, e.g., R. p. 81, 83, 87, 90, 96.
Nor could Aung support his claim that his cousin was
arrested because of their information smuggling activi-
ties. Upon questioning by the IJ, Aung admitted that he
in fact did not know why his cousin was arrested, but
merely speculated that it could have been because he
passed information to Aung. R. p. 82.
When questioned about any trouble that the Burmese
government had caused his mother because of his political
views, Aung said that they expect her to feed the rice
from her business to their soldiers and to sell rice to the
government at a discounted price. R. p. 91. But this, and
the fact that Aung had to pay bribes for travel documents,
are very consistent, as the IJ noted, with the general
corruption that is unfortunately common in Burma. R.
p. 95. Indeed, Aung was able to move in and out of the
country with as much ease as can be expected given the
corruption.
While we have warned that discrepancies that may
arise due to an applicant’s limited English skills should
not be held against him, this is not that case. See Jamal-
Daoud, 403 F.3d at 923. Aung had the benefit of an
interpreter at the asylum hearing and there is no in-
dication that the interpreter was deficient in any way.
Throughout the hearing, Aung asked for clarification
when he did not understand the questions asked of him.
The IJ appeared to patiently question Aung in order to
reach the answers to his questions. Aung even stated that
No. 06-3148 9
the reason he applied for asylum in the United States, but
not in any of the other countries he traveled through, was
because of his familiarity with the English language. R.
p. 97.
We therefore cannot say that the IJ’s decision was based
on anything but the legitimate discrepancies, non-respon-
sive answers, and general weaknesses in Aung’s case. The
IJ’s adverse credibility determination was supported by
substantial evidence and we will not disturb it.
Where, as here, the IJ finds the applicant’s testimony
incredible, his claim for asylum will fail unless he
can provide “a convincing explanation of the discrepan-
cies or extrinsic—and credible—corroborating evidence.”
Korniejew, 371 F.3d at 382-83 (citing Capric v. Ashcroft,
355 F.3d 1075, 1086 (7th Cir. 2004)). Aung has done
neither. He was unable to explain the discrepancies in
his testimony, and offered little evidence outside of his
testimony. The IJ had Aung’s statement that he made
when he applied for asylum, a photo of Aung commemorat-
ing the sixteenth anniversary of the 1988 popular upris-
ing in front of the Burmese Embassy in New York City,
Aung’s identifying documents and educational credentials,
a 2004 U.S. State Department Human Rights Report, and
a 2004 Reporters Without Borders Report, none of which
did anything to support Aung’s fear of future persecution,
either subjectively or objectively. The BIA’s denial of
Aung’s request for asylum must stand.
B. Withholding of Removal and the Convention Against
Torture
An applicant seeking withholding of removal under
§ 241(b)(3) of the INA must demonstrate a clear prob-
ability of future persecution. 8 U.S.C. § 1231(b)(3);
Shmyhelskyy, 477 F.3d at 481. An applicant seeking
10 No. 06-3148
deferral of removal under the CAT must show that it is
“more likely than not” that he will be tortured if removed.
8 C.F.R. § 1208(16)(c)(2); Shmyhelskyy, 477 F.3d at 482. As
both of these standards are greater than that required of
asylum applicants, Aung’s failure to prevail on his
asylum claim necessarily precludes the success of either
his withholding of removal claim or his CAT claim.
Shmyhelskyy, 477 F.3d at 481-82 (citing Selimi v. Ashcroft,
360 F.3d 736, 741 (7th Cir. 2004); Stankovic v. INS, 94
F.3d 1117, 1119 (7th Cir. 1996)).
III. CONCLUSION
For the foregoing reasons, Aung’s petition for review is
DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-26-07