Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-1336

SAMNANG SEN,

Petitioner,

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Martin J. McNulty on brief for petitioner.

Hillel R. Smith, Attorney, Office of Immigration Litigation,

Peter D. Keisler, Assistant Attorney General, and Terri J. Scadron,

Assistant Director, on brief for respondent.

October 26, 2005
The Immigration Judge also denied petitioner's claims for 1

withholding of removal and for relief under the Convention Against

Torture ("CAT"). However, because petitioner did not press those

claims on appeal to the Board of Immigration Appeals and did not

raise his CAT claim or develop his withholding of removal claim in

his brief to this court, those claims are therefore waived. See Un

v. Gonzales, 415 F.3d 205, 210 (1st Cir. 2005); Harutyunyan v.

Gonzales, 421 F.3d 64, 65 (1st Cir. 2005). 

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Per Curiam. This is a petition for review of the denial

of asylum. Petitioner, a native and citizen of Cambodia had 1

sought asylum on the ground that he had been persecuted in the past

on the basis of his membership in particular social groups, namely,

the Khmer People National Liberation Front ("KPNLF"), the

Democratic Liberal Buddhism Party ("DLBP"), and the Sam Rainsey

Party ("SRP"), all of which opposed the incumbent Hun Sen regime,

and that he feared that, if he returned to Cambodia, he would be

immediately arrested and probably killed because of his active

membership in the SRP. Where, as here, the Board of Immigration

Appeals ("BIA") has summarily affirmed the decision of the

Immigration Judge ("IJ"), we review the findings and conclusions of

the IJ. Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003). Finding

no error in the IJ's decision that the petitioner is statutorily

ineligible for asylum, we deny the petition.

To be entitled to asylum, an applicant bears the burden

of proving that he is a "refugee." See 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1); 8 C.F.R. § 1208.13(a); see also Xu v. Gonzales, 424

F.3d 45, 48 (1st Cir. 2005). To do that, the applicant must
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demonstrate either a well-founded fear of future persecution on

account of a protected ground, such as membership in a particular

social group, or past persecution on account of such a ground,

which entitles the applicant to a presumption of a well-founded

fear of future persecution. See 8 C.F.R. § 1208.13(b); see also

Xu, 424 F.3d at 48.

Establishing past persecution is a "daunting task," Diab

v. Ashcroft, 397 F.3d 35, 39 (1st Cir. 2005). To make such a

showing, the applicant must provide "conclusive evidence" that he

has suffered persecution on a protected ground, Romilus v.

Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004); conclusory allegations are

not sufficient, Negeya v. Gonzales, 417 F.3d 78, 83 (1st Cir.

2005). Because "persecution" is not a defined term, "it is in the

first instance the prerogative of the Attorney General, acting

through the BIA, to give content to it." Bocova v. Gonzales, 412

F.3d 257, 262 (1st Cir. 2005). Although the BIA does so on a caseby-case basis, id. at 263, it is clear that, "'to qualify as

persecution, a person's experience must rise above unpleasantness,

harassment, and even basic suffering,'" Ziu v. Gonzales, 412 F.3d

202, 2204 (1st Cir. 2005) (quoting Nelson v. INS, 232 F.3d 258, 263

(1st Cir. 2000)).

Where an applicant has not proved past persecution and

therefore does not benefit from a presumption of future

persecution, the applicant must satisfy both a subjective and an
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objective test to prove a well-founded fear of future persecution.

Diab, 397 F.3d at 39. "'The subjective test requires the applicant

to prove his fear is genuine, while the objective test requires a

showing by credible and specific evidence that this fear is

reasonable.'" Id. (quoting Mukamusoni v. Ashcroft, 390 F.3d 110,

119 (1st Cir. 2004)).

We review administrative asylum decisions under the

"highly deferential 'substantial evidence' standard. Harutyunyan

v. Gonzales, 421 F.3d 64, 67 (1st Cir. 2005). Where, as here, "the

agency's determination . . . is based, not on substantial evidence

supporting its decision, but on a petitioner's failure to provide

evidence that would support a holding his favor. . ., 'substantial

evidence' review permits [the court] to reverse 'only if the

petitioner's evidence would compel a reasonable factfinder to

conclude that relief was warranted.'" Xu, 424 F.3d at 48 (quoting

Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004)).

Under those deferential standards, we must deny the

petition. The record evidence does not compel the conclusion

either that petitioner was persecuted in the past or that he has an

objectively reasonable fear of being persecuted in the future.

As to past persecution, the IJ reasonably concluded that

the incidents cited by the petitioner do not rise to the level of

"persecution" for purposes of asylum eligibility. Although the

petitioner cites three incidents of having a gun pointed at him and
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one incident of receiving a threatening letter, he was not harmed

in any of those confrontations, and the threat was not particularly

credible and was never fulfilled even though petitioner remained in

Cambodia for two and a half years after receiving it. See Ziu, 412

F.3d at 205 (finding that two episodes of physical abuse not

resulting in serious injury and various threats "do not amount to

persecution under our case law"); cf. Un, 415 F.3d at 209-10, 210

n.3 (holding that verbal death threat could amount to persecution,

where a credible friend confirmed that the threateners were

planning to kill the petitioner). Petitioner's general allegations

that he was often threatened by Hun Sen's followers and followed by

the secret police are not sufficiently specific to fulfill his

burden of providing "conclusive" and "specific" evidence of

persecution. See Topalli v. Gonzales, 417 F.3d 128, 132 n.5 (1st

Cir. 2005). 

Nor does the evidence compel a finding that the incidents

where petitioner was held at gunpoint were motivated by his

political party membership. At the first such confrontation, the

soldiers stated that they had stopped petitioner's van because of

a curfew violation; and at the second, they stated that petitioner

and others had violated "local law." In the third incident, no

reason was given. Given the absence of even circumstantial

evidence of motive, the IJ was free to reject petitioner's
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speculation that the incidents were motivated by his party

membership. Ziu, 412 F.3d at 205.

As to future persecution, even assuming, as the IJ

implicitly did, that petitioner's fear of future persecution is

subjectively sincere, the evidence does not compel a finding that

petitioner's fear is objectively reasonable. The IJ reasonably

concluded that petitioner would not be viewed as a party activist,

based on petitioner's own testimony that he had no rank or position

in the SRP but was merely a member and had ceased his active

involvement in party activities after the 1998 elections and on the

fact that he was viewed as a government employee, which facilitated

his movement around the country, even after he had left his

government position. Furthermore, the 2002 State Department

Country Condition Report indicates that political parties normally

were able to conduct their activities freely without government

interference; that political violence associated with the February

2001 local elections was directed primarily at party activists and

candidates rather than mere members, see Khem v. Ashcroft, 342 F.3d

51, 54 (1st Cir. 2003); that the Government took action against

many alleged perpetrators of election-related violence; and that

the SRP won 1,346 local council seats, thus gaining some control

over the country's local governance, id. The IJ properly relied on

that report in concluding that petitioner's fear of future

persecution was not objectively reasonable. Negeya, 417 F.3d at
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84-85. That conclusion is further supported by the fact that

petitioner reported no further problems after March 1998 although

he remained in Cambodia for more than two years after that.

Accordingly, the petition is denied.