United States Court of Appeals

For the First Circuit

No. 10-1627

VANTHA PHENG,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Torruella and Thompson, Circuit Judges.

Thomas Stylianos, Jr., on brief for petitioner.

Kristin A. Moresi, Trial Attorney, Office of Immigration

Litigation, Tony West, Assistant Attorney General, Civil Division,

and Shelley R. Goad, Assistant Director, on brief for respondent.

May 12, 2011
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LYNCH, Chief Judge. A Cambodian woman, Vantha Pheng,

petitions for review of the denial of her applications for asylum,

withholding of removal (WOR), and relief under the Convention

Against Torture (CAT). We will assume familiarity with the

standards for granting such relief from removal and with the

deferential substantial evidence standard of judicial review, under

which we will reverse the decision of the Board of Immigration

Appeals (BIA) only if "a 'reasonable adjudicator would be compelled

to conclude to the contrary.'" Castillo-Diaz v. Holder, 562 F.3d

23, 26 (1st Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We

review the decision of the BIA and "those portions of the

[Immigration Judge]'s opinion that the BIA has adopted." Romilus

v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).

Pheng entered the United States on a six-month visitor

visa in December 2002, and in June 2004 was issued a Notice to

Appear for overstaying that visa. Before an Immigration Judge

(IJ), she conceded removability and pursued an application she had

filed in October 2003 for asylum, WOR, and CAT relief. Previously,

in 2000, Pheng had attempted to enter the United States using a

false photo-substituted passport and visa. She was interviewed at

the Newark airport, but she refused to reveal her true identity and

stated that she had no fear of returning to Cambodia. She was

removed subject to an order of expedited removal. Pheng failed to
On cross-examination at her asylum hearing, when 1

initially asked whether she had ever been to the United States

before she came in 2002, Pheng answered, "No, never." When

confronted with evidence of her earlier fraudulent attempt to

enter, Pheng eventually admitted this denial was a lie. She also

claimed that she had intended to apply for asylum in 2000 and had

been afraid to return to Cambodia, but had panicked when

interviewed. The Immigration Judge (IJ) found that the transcript

of that interview, far from revealing anything indicating panic on

Pheng's part, rather revealed that Pheng "was sticking to a

particular story and refused to budge from it."

Pheng testified that in 1996 and 1998, members of a rival 2

party came to their home and threatened them with harm; in 1997,

they fled to the Thai border for several months during a coup

d'état, returning to find their home and shop vandalized; in 1998,

police officers chased them, hit Pheng on the back, and struck

Pheng's husband and detained him overnight when the couple

participated in a demonstration protesting electoral fraud; in

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disclose this information on her 2003 asylum application and

initially lied about it at her asylum hearing.1

All told, the IJ conducted six hearings over nearly four

years, with Pheng testifying at three of the hearings. The IJ

found Pheng's testimony credible in part, but held that she had not

met her burden to show she had been or would be persecuted, and so

did not qualify for asylum or WOR. The IJ also found she had not

demonstrated eligibility for protection under the CAT. The IJ

detailed several reasons for the decision.

First, even accepting that certain misfortunes had

happened to Pheng and her husband between 1996 and 2000, a period

during which they campaigned and demonstrated in support of the

opposition Sam Rainsy party, none of these misfortunes rose to the

level of persecution. Second, Pheng, who had argued that her 2
October 2000, they were prevented by police from handing out

provisions at a Buddhist temple; and in November 2000, a friend who

was also a member of the political opposition was killed, and

Pheng's husband, assuming that the killing was politically

motivated, fled the following day.

Eventually, in September 2008, without explanation for 3

the delay, and despite her earlier testimony that "in Cambodia you

don't have [a] birth certificate," Pheng produced some basic

documents: an extract of her husband's death certificate, extracts

of her children's birth certificates, and an extract of her

marriage certificate, all dated November 17, 2006. We point out

that while the BIA erred in saying that Pheng had produced no death

certificate for her husband, that error was immaterial to Pheng's

claims of persecution and harmless, as nothing in the extract of

the death certificate provided any information about the

circumstances of the man's death.

Notably absent from Pheng's documentation was any

statement from any family member corroborating her accounts. This

was particularly significant because, while testifying about a

series of rapes she endured in Cambodia, Pheng testified that

family members were present the last time the rapist appeared at

her door and that she told her father and her sister everything

about the rape. This is not an instance in which the trier of fact

would be compelled to conclude that corroborating evidence is

unavailable. 8 U.S.C. § 1252(b)(4).

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husband's killing in 2003, after she had fled Cambodia, buttressed

her own claim of persecution, had failed to provide any evidence

other than her own surmise that her husband's reported death was on

account of political opinion. Third, Pheng had not shown that her

remaining family in Cambodia, including her father, sister, and two

children (who remained with Pheng's father), had suffered any harm.

Fourth, despite repeated warnings that her credibility was at issue

and ample time during continuances to secure affidavits from family

members who were well-placed to corroborate her story, Pheng had

failed to produce any such corroborating evidence. There is ample 3
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evidence in the record to support these four conclusions, and so we

turn to the central point of Pheng's claims.

Pheng's petition for review focuses mainly on the IJ's

finding that Pheng's testimony that she was raped by a Cambodian

policeman, while credible, did not satisfy Pheng's burden to prove

she had been persecuted on account of a protected ground. See

Anacassus v. Holder, 602 F.3d 14, 19 (1st Cir. 2010) (explaining

petitioner's burden of proof). We describe Pheng's testimony.

Pheng's husband left home in late November 2000 after a

friend who was also part of the political opposition was killed,

and Pheng had no contact with him or knowledge of his whereabouts

after he left. In April 2001, while Pheng's children were visiting

family for the Cambodian New Year holiday and Pheng was at home

alone, a policeman described in Pheng's written application as a

captain knocked on the door. When she asked the policeman who he

was looking for, he said he wanted to give Pheng information about

her husband. He then pointed his gun at her, pushed her into the

house, and raped her. In her asylum application, Pheng wrote that

afterward, the man promised to remove her name from a "blacklist."

The rapist did not say anything to suggest that he raped her

because of her or her husband's political activities.

Pheng said the same policeman raped her four more times

but she gave little description of the next three assaults, much

less of the reasons, explaining only that he came up with "some
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irrational reason to rape me," and that each time, like the first,

she was alone at home when the rapist appeared at her door and said

he had news about her husband.

She testified she was last raped in September 2002. This

time her family was at home with her when the rapist knocked at the

door, claiming to have information about Pheng's husband. At the

hearing Pheng testified that, at the man's request, she left her

home and went with him in his car on a journey of about forty-five

minutes. When she refused his sexual overtures in the car, he

threatened to kill her and her children if she did not have sex

with him. After he raped her, he drove her home. In Pheng's

written application, the description was different: Pheng said that

the man was furious her family was there, "pretended to arrest"

her, and forced her into the car before he drove her into the woods

and raped her. In her application, she also said she told her

father and sister everything about the rape, and they told her she

should leave Cambodia, which she did within three months of the

September 2002 rape, leaving her children to remain in Cambodia

with her father.

While accepting Pheng's testimony that she had been

raped, the IJ found that Pheng had not shown this was persecution.

The respondent has not proven to this Court's

satisfaction that . . . the rapes were politically

motivated. As horrendous as they may have been and the

Court believes that they occurred, the respondent has

not established that she sought safety elsewhere. . . .

She continued to live in Cambodia for another two months
Pheng also argues for the first time in this court that 4

she has been persecuted on account of her membership in the social

group of "spouses of Opposition Party members who have fled or

otherwise gone missing." She failed to exhaust this claim before

the agency, and may not raise it for the first time in a petition

for review. 8 U.S.C. § 1252(d)(1); Silva v. Gonzales, 463 F.3d 68,

72 (1st Cir. 2006). The social group claim would in any event

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in the same location, continuing to run her

business . . . . Again, it does not appear to this

Court's satisfaction that the rapes were motivated by

anybody seeking to harm the respondent on account of her

political opinion or on account of her relationship to

her husband, but rather that the individual in question

appears to have identified her as vulnerable . . . .

Pheng appealed to the BIA, arguing that the IJ's findings

were clearly erroneous, an argument the BIA rejected. The BIA

agreed with the IJ that Pheng had not met her burden of showing

persecution, particularly her burden of showing that the rapes were

politically motivated or that the other harm she suffered rose to

the level of persecution. The BIA also pointed to Pheng's failure

to produce corroborative evidence. Further, the BIA found that

Pheng's disclaimer of any fear of returning to Cambodia during her

fraudulent 2000 attempt to enter the United States undermined her

claim that she feared future political persecution.

On petition for judicial review, Pheng primarily argues

that the IJ was required to find that the rapes constituted

political persecution because they were committed by a government

officer and because that officer had said he had information about

Pheng's husband, who had been politically active and was missing

during the period when the rapes took place. There is no such 4
suffer from the same problem as her political opinion claim.

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requirement. Rather, to carry her burden of proving eligibility

for asylum, Pheng was required to "provide sufficient evidence to

forge an actual connection between the harm and some statutorily

protected ground." Lopez de Hincapie v. Gonzales, 494 F.3d 213,

218 (1st Cir. 2007). The record in Pheng's case did not compel the

IJ and BIA to conclude that Pheng had established this "critical"

causal nexus. See Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.

2008) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)).

Rape, repugnant as it is, is committed for many reasons,

even when committed by government officials. There was no evidence

here that the rapes were committed for political reasons, or that

the government knew about or authorized the sexual assaults. See

Nikijuluw v. Gonzales, 427 F.3d 115, 120-21 (1st Cir. 2005).

Pheng's description of the rapes in her oral testimony and written

application was sparse, and she did not recount anything the rapist

said or did that would support an inference that he was motivated

by her or her husband's political activities. In fact, Pheng's

mention of the rapist's offer to shield and protect her by getting

her named removed from a "blacklist" suggested otherwise.

Nor did anything in the 2002 and 2007 Cambodia country

condition reports Pheng submitted substantiate her claim of

politically motivated rape. In fact, the reports both stated that

while Cambodian law prohibits rape, rape is common in Cambodia.
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No evidence compelled the IJ or BIA to conclude that the

rapes had a nexus to a statutorily protected ground as required to

show prosecution. See Socop v. Holder, Nos. 09-1477, 09-1478, 2011

WL 291094, at *1, *4 (1st Cir. Jan. 31, 2011) (unpublished)

(holding that petitioner had not shown her repeated rape was tied

to a protected ground). Rather, as the IJ concluded, the evidence

suggested that the rapist took personal advantage of information

that Pheng was vulnerable in her husband's absence. Pheng cannot

demonstrate past persecution.

In this court, Pheng has relied exclusively on the rapes

in 2001 and 2002 to establish that she fears future persecution of

the same type. Cf. Vilela v. Holder, 620 F.3d 25, 28 (1st Cir.

2010) (describing petitioner's sole reliance on showing past

persecution). However, because Pheng did not establish past

persecution, she is not entitled to the rebuttable presumption that

she would suffer future persecution. 8 C.F.R. § 1208.13(b)(1);

Butt v. Keisler, 506 F.3d 86, 91 (1st Cir. 2007). And she did not

meet her burden of showing any other basis for an objectively

reasonable fear of future persecution on a statutorily protected

ground. See Butt, 506 F.3d at 91; Nikijuluw, 427 F.3d at 122. The

asylum claim fails.

Pheng has not argued to this court that the BIA's and

IJ's decisions denying her WOR or protection under the CAT were

erroneous, and so she has waived both claims. Nikijuluw, 427 F.3d
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at 120 n.3. In any event, since the standard for withholding of

removal is higher than for asylum, Pheng necessarily failed to meet

that burden when she failed to meet her asylum burden. VillaLondono v. Holder, 600 F.3d 21, 24 n.1 (1st Cir. 2010). Nor were

the BIA and IJ compelled by the evidence to find that Pheng had

shown, as required for protection under the CAT, that it was more

likely than not that she would be subject to "severe pain and

suffering" at the hands of or with the consent or acquiescence of

a "public official or other person acting in an official capacity."

8 C.F.R. § 208.18(a)(1); see also Chhay v. Mukasey, 540 F.3d 1, 7

(1st Cir. 2008).

The petition is denied.