Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric *

H. Holder, Jr. has been substituted for former Attorney General

Michael B. Mukasey as the respondent.

United States Court of Appeals

For the First Circuit

No. 08-1217

VEASNA TOUCH; SOKLY CHAT,

Petitioners,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,*

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

 OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lipez, and Howard, 

Circuit Judges.

Joseph A. MacDonald for petitioner.

Gregory G. Katsas, Assistant Attorney General, and Gregory D.

Mack, Senior Litigation Counsel, Office of Immigration Litigation,

for respondent.

June 4, 2009
Because Chat is a derivative applicant, her eligibility 1

for asylum depends on the status of her husband, Touch. See 8

U.S.C. § 1158(b)(3)(A); Ymeri v. Ashcroft, 387 F.3d 12, 14 (1st

Cir. 2004) ("[The applicant] filed an asylum application, and the

other family members rely on his application as derivative

applicants.").

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LIPEZ, Circuit Judge. Petitioners Veasna Touch ("Touch")

and Sokly Chat ("Chat"), citizens of Cambodia, seek review of a

decision of the Board of Immigration Appeals ("BIA") denying their

applications for asylum, withholding of removal, and relief under

the United Nations Convention Against Torture ("CAT"). Touch

claims that he was persecuted by Cambodian government forces and

supporters of the Cambodian People's Party on account of his

political opinions, and that he will face persecution if he returns

to Cambodia. The BIA rejected these claims and found that, even if

it credited Touch's testimony, he failed to sufficiently prove past

persecution or a well-founded fear of future persecution. Touch

challenges these determinations.

Concluding that the evidence before the BIA did not

compel it to find otherwise, we deny the petition.

I

On September 22, 2000, Touch entered the United States as

a nonimmigrant, with authorization to remain until March 21, 2001.

On March 5, 2001, he was joined by petitioner Chat, his wife.

Touch filed an application for asylum and withholding of removal on

June 7, 2001, listing Chat as a derivative applicant. The 1
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Department of Homeland Security served both petitioners with a

Notice to Appear and charged them with removability. At a hearing

held in April 2004, Touch and Chat conceded removability but

renewed their claims for asylum and withholding of removal, and

requested relief under CAT.

According to evidence before the immigration judge

("IJ"), Cambodia is a constitutional monarchy whose elected

government is controlled by the Cambodian People's Party ("CPP").

After elections in 1993, CPP formed a coalition with a rival party,

the National United Front for a Neutral, Peaceful, Cooperative, and

Independent Cambodia ("FUNCINPEC"). The coalition broke down in

1997, when the CPP leader, Hun Sen, led a violent coup against the

government, removing FUNCINPEC leaders and arresting and killing

their supporters. Elections in 1998 again led to violence, when

government forces and CPP supporters clashed with supporters of

FUNCINPEC and another rival political party, the Sam Rainsy party.

Today CPP still dominates the parliament, where Hun Sen serves as

prime minister.

Touch testified that he first became interested in

Cambodian politics in 1993, after discussions with his brother-inlaw, Dak Savy, who was secretary of the FUNCINPEC party at the

time. These discussions prompted Touch to join FUNCINPEC and begin

campaigning on their behalf. In the period before the 1993

elections, Touch spent twenty hours a week campaigning, sometimes
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delivering speeches in support of FUNCINPEC. Touch regularly

received threats from CPP supporters for his political activity.

In March 1993, Touch and others spoke at a campaign event at the

Kropom Chouk commune. During the event, a group of seven or eight

individuals got up and left, evidently displeased with the

speakers. Later, when Touch and the other campaigners were driving

home, the group appeared on the side of the road and fired on the

campaigners' car. Touch escaped serious injury by diving to the

car floor. The driver of the car, however, was shot in the

shoulder, and another occupant was shot in the back. 

In August 1993, two uniformed soldiers riding a

motorcycle threw a grenade at Touch's car, shouting, "this is your

gift for helping the FUNCINPEC party." Touch was able to avoid the

grenade by braking. It exploded and blew out his front left front

tire and damaged the front of the car. Touch was not injured. 

After the 1993 elections, Touch received a job through

his brother-in-law at the Cambodian Ministry of the Interior.

Touch held this position for over four years, until July 1997, when

he left in the wake of the coup led by Hun Sen. Concerned that he

might be targeted by CPP forces, Touch and his family fled Phnom

Penh for the Kandal province. Touch remained there for three or

four months.

Sometime after his return to Phnom Penh, in 1998, Touch

changed political affiliations and joined the Sam Rainsy party. In
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preparation for national elections in July, Touch collected

donations and participated in Sam Rainsy campaign events. The CPP

won the election. Months of political unrest followed. Touch

participated in a series of political demonstrations in early

September 1998, protesting the election results. In the first of

these demonstrations, held on September 7 at the railroad station

near the University of Medicine, Touch spoke to a crowd of around

1,000 people. At some point, police fired on the demonstrators and

drove a car into the crowd, killing several people. Touch

testified that he was hit by the car, but managed to escape in the

confusion. At another demonstration held the same day at

Independence Monument, Touch was tied up, beaten, and forced to

drink wastewater by the police. He later became sick as a result.

The next day, September 8, Touch joined a demonstration

of 3,000 individuals, including students and Buddhist monks. He

was arrested by a police officer and beaten. Touch again joined a

demonstration on September 9, when 2,000 people marched from the

U.S. Embassy to the Cambodian National Assembly. Touch carried a

banner calling Hun Sen a "traitor" and demanding that he step down.

When police attacked the demonstrators, an officer struck Touch

with the butt of his rifle, causing him to collapse. He managed to

escape and again fled to a village in Kandal province. However,

that night two police officers came to Touch and Chat's home in

Phnom Penh. They questioned Chat at gun point about Touch's
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whereabouts, and threatened to kill Touch when they found him.

Chat urinated on herself in fear. The police stayed for thirty

minutes and searched the home, but they did not harm Chat. She

fled to her mother's house the next day, where she stayed for two

weeks.

Touch remained in Kandal province for three months. When

he returned to Phnom Penh, he shuttled between his mother's and

sisters' homes. The police never returned to look for him. For

the next two years, Touch continued to work for the Sam Rainsy

party and assisted his wife with her business. In 2000 he obtained

a passport through political associates who worked at the passport

office. On September 21, 2000, Touch boarded a flight and entered

the United States the next day. He testified that he has not been

interested in Cambodian politics since his arrival in the United

States.

On June 13, 2006, the IJ issued an opinion finding Touch

not credible and denying his application for asylum, withholding of

removal, and relief under CAT. Touch and Chat appealed. On

January 31, 2008, the BIA reversed the IJ's credibility

determination, but affirmed her order denying relief. It found

that even if the applicants' testimony were credited, they had

failed to prove past persecution or a well-founded fear of future

persecution. This petition for review followed.
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II

When the BIA adopts aspects of the IJ's opinion, we

review those portions of the opinion in addition to the BIA

decision itself. Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir.

2009). In contrast, "[w]hen the BIA issues its own opinion, we

review the Board's decision and not the immigration judge's."

Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir. 2004); Albathani v.

I.N.S., 318 F.3d 365, 373 (1st Cir. 2003) ("Ordinarily, Courts of

Appeals review decisions of the [BIA], and not those of an IJ.

When the BIA does not render its own opinion, however, and either

defers [to] or adopts the opinion of the IJ, a Court of Appeals

must then review the decision of the IJ." (internal quotation

marks, footnote, and citation omitted)).

The standard of review for claims of asylum, withholding

of removal, and relief under the CAT is "substantial evidence."

Rashad v. Mukasey, 554 F.3d. 1, 4 (1st Cir. 2009). Under this

standard, we do not disturb findings if they are "'supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.'" Segran v. Mukasey, 511 F.3d 1, 5 (1st

Cir. 2007) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)). This is a difficult standard for petitioners to surmount.

We reverse only if "'any reasonable adjudicator would be compelled

to conclude to the contrary.'" Tobon-Marin v. Mukasey, 512 F.3d

28, 30 (1st Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)).
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"[V]acatur requires that the evidence point unerringly in the

opposite direction." Bocova v. Gonzales, 412 F.3d 257, 262 (1st

Cir. 2005) (internal quotation marks and citation omitted).

A. Asylum and Withholding of Removal

Asylum is a discretionary form of relief, available only

to an individual who can prove that he is a "refugee" within the

meaning of the Immigration and Nationality Act ("INA"). Bonilla v.

Mukasey, 539 F.3d 72, 78 (1st Cir. 2008) (citing 8 U.S.C.

§ 1158(b)(1)). Under the INA, a "refugee" is a person outside his

country of nationality who is "unable or unwilling to return to

. . . 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). Proof that persecution has a ten percent chance of

occurring suffices to make a fear of persecution "well-founded."

See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).

Proof of past persecution raises a rebuttable presumption

of a well-founded fear of future persecution. Hernandez-Barrera v.

Ashcroft, 373 F.3d 9, 21 (1st Cir. 2004). That presumption may be

defeated only if the government demonstrates, by a preponderance,

either: (1) that there has been a fundamental change in

circumstances such that the applicant no longer has a well-founded

fear of persecution, or (2) that the applicant could avoid
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persecution by relocating to another part of the country of

nationality. Id.

1. Past Persecution

Proving past persecution is a "'daunting task.'" Butt v.

Keisler, 506 F.3d 86, 90 (1st Cir. 2007) (quoting Alibeaj v.

Gonzales, 469 F.3d 188, 191 (1st Cir. 2006)). The mistreatment

complained of must have "reached a fairly high threshold of

seriousness, as well as some regularity or frequency." Id. "An

important factor in determining whether [mistreatment amounts to

persecution] is whether the mistreatment can be said to be

systematic rather than reflective of a series of isolated

incidents." Bocova, 412 F.3d at 263 (citing In re O-Z & I-Z, 22 I

& N Dec. 23, 26 (BIA 1998)). "[M]istreatment ordinarily must

entail more than sporadic abuse in order to constitute

persecution." Id.; Guzman v. I.N.S., 327 F.3d 11, 15-16 (1st Cir.

2003).

In this case, the BIA concluded that petitioner failed to

establish that the March 1993 incident was on account of political

opinion, that any presumption of a well-founded fear of future

persecution created by the August 1993 incident was rebutted, and

that the incidents of September 1998, including the unfulfilled

threat against Touch, did not amount to persecution. Petitioner

challenges each one of these determinations.
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a. The March 1993 shooting was not on account of

political opinion

Regarding the March 1993 incident, Touch testified to the

IJ that he had been speaking at a political meeting, and that 7 or

8 individuals walked out of the meeting because "they don't like

our speech." Later, those same individuals shot at the car in

which Touch was riding. Although this testimony certainly suggests

that the shooters attacked Touch on account of his political

opinions, we may reverse only if the BIA was compelled to draw that

conclusion. See Tobon-Marin, 512 F.3d at 31 (concluding that

motive was not sufficiently proven because it remained possible to

explain the attackers' conduct in another way). Here, the IJ noted

that other explanations for the attack were possible. "The

attackers did not wear any uniform and did not say anything to

respondent. It is at least as likely that the attackers were

common thieves as government forces. The connection between

respondent's campaigning . . . and the actual shooting is mere

speculation." The evidence does not compel a contrary conclusion.

b. Any presumption resulting from the August 1993 event

was rebutted by subsequent events

The BIA's conclusions about the incident in August 1993

are also supported by substantial evidence. While the grenade

attack was undoubtedly serious, there was evidence refuting any

presumption of a well-founded fear of future persecution. Touch

testified that after the August 1993 attack, he retained his job at
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the Cambodian Ministry of the Interior. He also remained an active

FUNCINPEC member. In fact, Touch testified to no incidents of

mistreatment during the next five years, until 1998, when he

switched political parties. A long period without mistreatment

followed by disassociation with the target political organization

supports the BIA's conclusion that the August 1993 attack does not

give Touch reason to fear future persecution. See Pieterson v.

Ashcroft, 364 F.3d 38, 41, 45 (1st Cir. 2004) (affirming the BIA

where the applicant could point to no acts of persecution against

her during a five-year period in which she was uninvolved in

politics).

c. The events of September 7, 8, and 9 do not amount to

persecution

The BIA's conclusion that Touch's mistreatment during the

protests of September 7, 8 and 9 did not rise to the level of

persecution was supported by substantial evidence. As the IJ

pointed out, the government's mistreatment of Touch was largely a

"spasmodic" response to his participation in the protests. See

Guzman, 327 F.3d at 15. Moreover, although the government

unquestionably mistreated Touch during the protests -- beating him

and forcing him to drink wastewater -- Touch did not suffer serious

or permanent injuries. Albeaj v. Gonzales, 469 F.3d 188, 192 (1st

Cir. 2006) ("[A]lthough the police beat Albeaj during a prodemocracy demonstration in 1990, . . . Albeaj never testified to

any permanent or serious injuries."). On this record, the BIA was
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not compelled to conclude that the government's conduct during the

September demonstrations amounted to persecution.

The most serious of the events of September 1998 was the

threat against Touch's life on September 9. Unfulfilled threats

rarely prove past persecution, being construed more naturally as

evidence of a well-founded fear of future persecution. Lim v. INS,

224 F.3d 929, 936 (9th Cir. 2000). Such threats are evidence of

past persecution "[i]n certain extreme cases, . . . particularly

where those threats are combined with confrontation or other

mistreatment." Id. The unfulfilled threat must be "'so menacing

as to cause significant actual suffering or harm.'" Butt, 506 F.3d

at 91 (quoting Lim, 224 F.3d at 936); see also Tamara-Gomez v.

Gonzales, 447 F.3d 343, 346-47, 349 (5th Cir. 2006) (finding past

persecution where the FARC regularly threatened the applicant with

death, told his wife they would kill him and kidnap their sons,

bombed his neighborhood, broke into and vandalized his home, and

tracked and murdered several of his associates); Li v. Atty Gen. of

the U.S., 400 F.3d 157, 164-65 (3d Cir. 2005).

While there is no doubt that the threat to Touch was

serious, the BIA was not compelled to conclude that it rose to the

level of persecution. Although Chat was understandably scared, she

was not harmed during the encounter with the police officers. The

officers never returned to their home, and never threatened Touch

or his family again. When Touch returned to Phnom Penh after three
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months in hiding, he again became politically active, collecting

food and money for the Sam Rainsy party and attending meetings at

party headquarters. The BIA thus had substantial evidence to

conclude that the threat was not extreme enough to rise to the

level of persecution. See Lim, 224 F.3d at 936 (concluding that a

threat did not rise to the level of persecution where "Lim carried

on for six years without harm and without fleeing").

Notably, the BIA appears to have viewed the record in

this case as showing a number of serious isolated incidents, rather

than systematic political persecution. More than five years

separated the events of August 1993 from those of September 1998.

As the BIA pointed out, Touch worked in the government and

continued to be politically active during this time. After the

events of September 1998, Touch remained in Cambodia without

incident for two more years. It has now been eight years since

Touch left Cambodia, and his family there has not been mistreated

in that time. He is no longer politically active. Considered as

a whole, this record does not compel the conclusion that Touch has

been subject to a "pattern of targeted political harassment."

Topalli, 417 F.3d at 132.

For these reasons, we find that the BIA's determination

that Touch did not suffer past persecution is supported by

substantial evidence.
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2. Future Persecution

To prove a "well-founded fear of future persecution," an

applicant must show that his fear of persecution is both

subjectively genuine and objectively reasonable. See Bocova, 412

F.3d at 262. In this case, the BIA noted that Touch and Chat

"continued to live without incident for a prolonged period

following the September 1998 police threat," that Touch "had no

problems in leaving his homeland" or obtaining a visa, and that

Touch currently has no interest in Cambodian politics. Moreover,

"[t]here has been no showing that anyone, including the police or

any Cambodian official, is currently interested in either [Touch or

Chat] for any reason, much less based on their political views or

the political activities last engaged in by [Touch] over 7 years

ago." The BIA held that this record does not establish a well

founded fear of being persecuted upon returning to Cambodia. The

evidence does not compel a contrary result.

We need not independently reach the question of

withholding of removal. The standard of proof required for asylum

("well-founded fear of persecution") is less stringent than that

required for withholding of removal ("more likely than not to face

persecution"). See Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir.

2004). It follows that if an applicant is unable to prove

eligibility for asylum, the applicant will be unable to prove

eligibility for withholding of removal. Bocova, 412 F.3d at 262.
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B. Convention Against Torture

Touch also asks us to reverse the determination that he

did not qualify for relief under CAT. See 8 U.S.C. § 1231; 8

C.F.R. § 1208.16(c). However, Touch fails to develop any argument

to this end in his brief. For this reason, we deem the argument

waived. See Negeya v. Gonzales, 417 F.3d 78, 85 (1st Cir. 2005);

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

The petition for review is denied.