Kong Prak v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KONG PRAK,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-71176
Agency No. A095-442-763
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2014 **
Pasadena, California
Before: BYBEE and IKUTA, Circuit Judges, and ZILLY, Senior District Judge. ***
FILED
MAR 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.

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Kong Prak, a native and citizen of Cambodia, petitions for review of a final
order of the Board of Immigration Appeals, affirming the decision of an
immigration judge (“IJ”) to deny his application for asylum, withholding of
removal, and protection under the provisions of the Convention Against Torture
(“CAT”). We have jurisdiction generally under 8 U.S.C. § 1252 and we have
jurisdiction to review the denial of asylum as the appeal presents mixed questions
of fact and law. Khan v. Holder, 584 F.3d 773, 780 (9th Cir. 2009). We deny the
petition for review.
The IJ determined that Prak should have known that the Cambodia Freedom
Fighters (“CFF”) was a terrorist organization, as defined in 8 U.S.C. §
1182(a)(3)(B)(vi), during the time that he was a member and solicited others for
membership, and therefore was ineligible for asylum. See 8 U.S.C. §
1158(b)(2)(A)(v); 8 U.S.C. § 1182(a)(3)(B)(iv)(V). The IJ was not obligated to
consider the factors set forth in the Foreign Affairs Manual (“FAM”), which refers
only to factors that must be considered in evaluating a visa application. 9 FAM
40.32 n2.1. Furthermore, the IJ’s decision is supported by substantial evidence as
Prak admitted in his asylum application that he was an active member of the CFF
at the time the CFF engaged in terrorist activity, as defined in § 1182(a)(3)(B)(iii),
by attempting a violent coup of the Cambodian government. Because Prak failed
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to establish by clear and convincing evidence that he should not reasonably have
known that the CFF was a terrorist organization when he solicited individuals for
membership, Prak was ineligible for asylum. See § 1182(a)(3)(B)(iv)(V)(cc).
PETITION FOR REVIEW DENIED.
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