Veasna Touch; Sokly Chat v. Eric H. Holder, Jr., Attorney General

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

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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-in-
law, 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 pro-
democracy 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.

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