Pheng v. Holder
2011 U.S. App. LEXIS 9709
| 1st Cir. | 2011Background
- Pheng, a Cambodian national, sought asylum, withholding of removal, and CAT relief after overstaying a visa and prior fraudulent entry attempt.
- An IJ found Pheng removable and denied asylum, WOR, and CAT relief, citing lack of persecution and insufficient nexus to a protected ground.
- Credibility issues were noted; the IJ found Pheng credible on rape but not that it was politically motivated or persecutory.
- BIA affirmed, agreeing that Pheng failed to show persecution, nexus to a protected ground, or corroboration, and noted her prior fraudulent entry undermined fear claims.
- Pheng appealed, arguing the rapes were politically motivated and thus constituted persecution; the agency record did not compel a nexus, and she failed to demonstrate persecution or future fear.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether rape by a police officer can establish persecution | Pheng argues rapes were politically motivated by government actors. | Government involvement not shown; rapes were personal crimes not tied to protected grounds. | Not established; no nexus to a protected ground required for asylum. |
| Whether there is a causal nexus between harm and a statutorily protected ground | Rapes linked to political circumstances and husband’s disappearance demonstrate nexus. | Record does not compel a nexus; harms appear personal and opportunistic. | No sufficient nexus; asylum claim fails. |
| Whether past persecution was shown to trigger a presumption of future persecution | Past rapes justify fear of future persecution. | Past persecution not established; presumption does not apply. | Presumption does not attach; asylum claim fails. |
| Whether the claim for withholding of removal or CAT relief was properly waived or unsupported | WAIVER or error in denial of WOR/CAT should be reconsidered. | Pheng waived WOR and CAT challenges by not articulating errors; independent grounds fail anyway. | Pheng's WOR/CAT claims not compelled; asylum denial controls. |
Key Cases Cited
- Lopez de Hincapie v. Gonzales, 494 F.3d 213 (1st Cir. 2007) (requires causal nexus between harm and protected ground)
- Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008) (quoting INS v. Elias-Zacarias for nexus standard)
- INS v. Elias-Zacarias, 502 U.S. 478 (Sup. Ct. 1992) (nexus requirement for political persecution)
- Nikijuluw v. Gonzales, 427 F.3d 115 (1st Cir. 2005) (rape not automatically persecution; must show protected ground nexus)
- Butt v. Keisler, 506 F.3d 86 (1st Cir. 2007) (presumption of future persecution and asylum standards)
- Vilela v. Holder, 620 F.3d 25 (1st Cir. 2010) (sole reliance on past persecution insufficient for future fear)
- Castillo-Diaz v. Holder, 562 F.3d 23 (1st Cir. 2009) (deferential substantial evidence standard in asylum review)