United States Court of Appeals

For the First Circuit

No. 02-2401

SAVRY KEO,

Petitioner,

v.

JOHN D. ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Lipez and Howard, Circuit Judges.

Martin J. McNulty was on brief for petitioner.

Russell J. Verby, Attorney, Office of Immigration Litigation,

Robert D. McCallum, Jr., Assistant Attorney General, Civil

Division, and David V. Bernal, Assistant Director, were on brief

for respondent.

August 22, 2003
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LYNCH, Circuit Judge. Petitioner Savry Keo seeks review

of the denial of his application for asylum and withholding of

deportation. Keo entered the United States on a visa in 1997 to

visit family. Several months later, Keo applied for asylum with

the Immigration and Naturalization Service (INS), claiming he

feared persecution in light of a violent coup d'état that had taken

place in his native Cambodia. After a hearing, an Immigration

Judge (IJ) denied Keo's petition. The Board of Immigration Appeals

(BIA) affirmed the IJ's decision without opinion, and this petition

followed. We affirm.

I.

 On June 6, 1997, Keo entered Los Angeles, California, to

visit his mother and younger sister for a month and then return to

Cambodia. Only two days before his scheduled return flight, a

bloody coup erupted in Cambodia during which the Cambodian People's

Party (CPP) ousted from power the National United Front for a

Neutral, Peaceful, Cooperative, and Independent Cambodia

(FUNCINPEC). Keo declined to return to his home country, citing

various news reports of violence directed toward FUNCINPEC members.

Approximately two months after the outbreak of fighting, on

September 19, 1997, Keo submitted an application for asylum to the

INS.

Keo was given an assessment interview on February 25,

1999, after which the interviewing asylum officer recommended
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against granting Keo asylum. On March 2, 1999, the INS commenced

removal proceedings against Keo. Keo acknowledged that he was

removable from the United States and sought asylum as well as

withholding of removal. On March 15, 2000, a hearing was conducted

on these issues before an IJ. 

In Keo's asylum application and testimony, he explained

that he had been employed as a police officer in Cambodia since

1980. Starting in 1993, when the United Nations sponsored

elections in Cambodia, Keo began to develop preliminary ties with

FUNCINPEC. He had previously been a member of the CPP because he

viewed such political membership as a prerequisite to government

employment. This suspicion was confirmed, according to Keo, when

he was suspended from his job for three months in 1993 due to his

contacts with the FUNCINPEC party. As Keo later acknowledged,

though, this suspension was at least partially attributable to his

failure to follow direct orders. 

After returning to work from his suspension, Keo did not

reestablish his ties with the FUNCINPEC party until 1996. At that

time, he "secretly" joined FUNCINPEC through conversations with his

general supervisor in the police department, Mr. Hosak, who Keo

testified was a prominent member of the FUNCINPEC party. Shortly

thereafter, Hosak promoted Keo to the rank of Lieutenant Colonel,

which resulted in Keo's FUNCINPEC membership becoming widely

suspected among his co-workers.
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Keo testified that soon after learning of the CPP coup

while in America, his wife, who remained in Cambodia, informed him

that Hosak had been killed and that he too would be in danger if he

returned to Cambodia. These warnings were substantiated, according

to Keo, when a relative who had traveled from America to Cambodia

reported that Keo remained an active target of the CPP due to his

affiliations with FUNCINPEC, his status as a former CPP official,

and his relationship with Hosak. The relative also noted that

several weeks after the coup, CPP forces had entered and searched

Keo's home. Additionally, Keo presented to the IJ three letters

from people presently residing in Cambodia that indicated he would

face imminent danger should he return. In one letter, a colleague

of Keo's from the police force wrote that his fellow officers

believe him to be a "traitor that . . . ran away from [his]

responsibilities, country and nation." In another letter, written

in 1999, Keo's uncle warned that the CPP "army came to the village

. . . about 4-5 times looking for you" and "will always [be]

looking for you." 

After considering Keo's testimony and asylum application

along with the asylum officer's assessment and a 1999 State

Department report on human rights practices in Cambodia, the IJ

found that Keo had "not established that if he were to return to

Cambodia . . . he would be persecuted or [that he] has a wellfounded fear of persecution." First, the IJ noted that while Keo
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might legitimately fear retaliation or prosecution for abandoning

his job as a police officer, such fears were not based on

politically motivated persecution. Second, the IJ was not

convinced that Keo's membership in FUNCINPEC was truly a matter of

public knowledge in Cambodia, pointing out that Keo had testified

that his membership was secret. Third, the IJ pointed out that

even assuming that "it was not a secret that [Keo] was a member of

the FUNCINPEC Party, that party presently is part of a coalition in

Cambodia . . . and members of that party are sharing power with the

CPP." The IJ denied Keo's requests for asylum and withholding of

removal and granted his request for voluntary departure. 

Pursuant to 8 C.F.R. § 1003.1 (a)(7) (2003) (formerly 8

C.F.R. § 3.1(e)(4)), the BIA affirmed the IJ's decision without

opinion.

II.

When faced with a substantial evidence challenge, this

court reviews BIA decisions to determine whether they are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992) (internal quotation marks omitted); Albathani

v. INS, 318 F.3d 365, 372 (1st Cir. 2003). Where, as here, the BIA

has summarily affirmed without opinion under 8 C.F.R. §

1003.1(a)(7), we treat the findings and conclusions of the IJ as

those of the Board. Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir.
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2003). As such, the IJ's determination must stand unless we "find

that the evidence not only supports [petitioner's] conclusion, but

compels it." Elias-Zacarias, 502 U.S. at 481 n. 1; Albathani, 318

F.3d at 371. 

Only applicants who qualify as a "refugee" within the

meaning of 8 U.S.C. § 1101(a)(42) are entitled to asylum. See id.

§ 1158(b)(1); 8 C.F.R. § 208.13(a) (2000). Two routes are

available to meet this standard. First, an applicant can qualify

as a refugee if he or she carries the burden of demonstrating a

well-founded fear of future persecution on the basis of one of five

statutory factors: race, religion, nationality, membership in a

particular social group, or political opinion. Id. § 208.13(b)(1);

El Moraghy v. Ashcroft, 331 F.3d 195, 202-03 (1st Cir. 2003). To

do so, an applicant must demonstrate that his or her fear is both

genuine and objectively reasonable. See Aguilar-Solis v. INS, 168

F.3d 565, 572 (1st Cir. 1999). Alternatively, an applicant has a

presumption of a well-founded fear of future persecution if he or

she carries the burden of showing past persecution on the basis of

one of the statutory factors. El Moraghy, 331 F.3d at 202-03;

Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001).

Although Keo claimed in his asylum application that he

was subject to past persecution from 1975 until 1979 at the hands

of the Khmer Rouge, his appeal rests primarily on the claim that he

has a well-founded fear of future persecution. Keo argues that the
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IJ's conclusion to the contrary was not based on substantial

evidence and that the IJ improperly relied on adverse credibility

determinations that were the result of difficulties in translating

Keo's testimony from Khmer to English. After a careful review of

the record, we find that the evidence does not compel a conclusion

contrary to that reached by the IJ, and thus we affirm. 

Even if Keo has a genuine fear of returning to his native

Cambodia, the record does not compel the conclusion that this fear

derives from the threat of persecution on the basis of Keo's

political beliefs. As the IJ noted in his decision, and as Keo

admitted in his testimony, the FUNCINPEC party now retains some

authority in a new coalition government that formed in Cambodia in

November 1998. Keo's status as a member of FUNCINPEC does not

compel the conclusion that he would be in danger should he return

to Cambodia. Moreover, the IJ had sufficient evidence to find that

Keo's ties to FUNCINPEC are not a matter of public knowledge in

Cambodia. Accepting that some of Keo's testimony was ambiguous due

to translation difficulties, Keo was ultimately quite clear that he

did not officially join FUNCINPEC until 1996, and, even then, did

so secretly. And while Keo also testified that this secret was

discovered when Hosak promoted him, the IJ had sufficient evidence

to find that Keo had not met his burden of establishing that his

FUNCINPEC membership was a matter of public knowledge. Finally,

much of the evidence that Keo presented -- in particular the three
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letters warning him of danger should he return to Cambodia --

suggested that any danger Keo might face in Cambodia would stem

from his co-workers' perception that he "abandoned" his country by

not returning to his official duties after the coup. As both the

IJ and the interviewing asylum officer noted, any such reaction is

not based on Keo's race, religion, nationality, membership in a

particular social group, or political opinion. 

For the same reasons, we decline to upset the IJ's

refusal to grant withholding of removal. See Mediouni v. INS, 314

F.3d 24, 27 (1st Cir. 2002) ("Because the standard for withholding

deportation is more stringent than that for asylum, a petitioner

unable to satisfy the asylum standard fails, a fortiori, to satisfy

the former." (internal quotations omitted)). 

III.

We affirm the decision of the BIA denying the application

for asylum and withholding of removal; the order permitting

voluntary departure stands.