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,
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
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 WOP. 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.
2
Second, Pheng, who had argued that her 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.
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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,
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 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 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,
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.
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There is no such 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,
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,
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.
No evidence compelled the IJ or BIA to conclude that the rapes had a nexus to a statutorily protected ground as required to show persecution.
See Socop v. Holder,
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,
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,
The petition is denied.
Notes
. On cross-examination at her asylum hearing, when 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 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 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 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).
. Pheng also argues for the first time in this court that 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,