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Saysana Naovaraj v. John Ashcroft, 03-3686 (2005)

Court: Court of Appeals for the Eighth Circuit Number: 03-3686 Visitors: 63
Filed: Mar. 16, 2005
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 03-3686 _ Saysana Naovaraj, * * Petitioner, * * Petition for Review of an v. * Order of the Board of * Immigration Appeals. Alberto Gonzales, Attorney General * for the United States of America, * UNPUBLISHED * Respondent. * _ Submitted: October 21, 2004 Filed: March 16, 2005 _ Before LOKEN, Chief Judge, MAGILL and BENTON, Circuit Judges. _ PER CURIAM. Saysana Naovaraj is a 29-year-old native and citizen of Laos who applied for asylum,
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                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3686
                                   ___________

Saysana Naovaraj,                      *
                                       *
             Petitioner,               *
                                       * Petition for Review of an
       v.                              * Order of the Board of
                                       * Immigration Appeals.
Alberto Gonzales, Attorney General     *
for the United States of America,      *    UNPUBLISHED
                                       *
             Respondent.               *
                                  ___________

                             Submitted: October 21, 2004
                                Filed: March 16, 2005
                                 ___________

Before LOKEN, Chief Judge, MAGILL and BENTON, Circuit Judges.
                             ___________

PER CURIAM.

       Saysana Naovaraj is a 29-year-old native and citizen of Laos who applied for
asylum, withholding of removal, and relief under the Convention Against Torture.
Following an evidentiary hearing, the Immigration Judge (“IJ”) denied relief, finding
that Naovaraj failed to prove either past persecution, which he concedes, or a well-
founded fear of future persecution on account of a statutorily protected ground if he
is returned to Laos. The Board of Immigration Appeals affirmed the IJ without
opinion. Naovaraj petitions this court for judicial review of the final order of
removal. We deny the petition for review.
       Naovaraj was born in 1975. Communist forces took power in Laos that year
and sent his father, a sergeant in the former government’s military, to a reeducation
camp. Naovaraj grew up with his paternal grandparents and did not meet his father
until the family obtained the father’s release from prison in 1988. Naovaraj’s father
visited his parents and Naovaraj from time to time for the next year or two and then
obtained a passport through bribery and brought Naovaraj and another son to the
United States in 1990.

        To be eligible for asylum, an applicant must show that he has a well-founded
fear of future persecution on account of his race, religion, nationality, membership
in a particular social group, or political opinion if he is returned to his native country.
8 U.S.C. §§ 1101(a)(42), 1158; 8 C.F.R. § 208.13(a). As an adult, Naovaraj must
establish a personal right to asylum; he may not obtain relief as a dependent based
upon his father’s claim. Naovaraj’s asylum claim is based on a fear that he will be
persecuted because of his father’s past military service and suspected support of an
anti-government group. Naovaraj testified that he experienced no persecution
growing up in Laos using his father’s surname, and his father’s parents continue to
live in Laos free of persecution. However, Naovaraj’s stepmother testified that, when
she visited Laos in 2002, her husband’s parents refused to let her stay overnight with
them because she had married their son, and one of her husband’s friends told her to
warn him not to come back because it was not safe for him. She was also warned that
it would not be safe for Naovaraj to return because Laotian law makes a child
responsible for his parent’s conduct if the parent cannot be located. Naovaraj’s father
testified that the government asked one of his brothers about the father’s whereabouts
on several occasions and killed the brother of one Laotian who fled the country.

      To establish a well-founded fear of future persecution, an alien must show
through credible, direct, and specific evidence that his fear is both subjectively
genuine and objectively reasonable. Melecio-Saquil v. Ashcroft, 
337 F.3d 983
, 986
(8th Cir. 2003). The IJ credited Naovaraj’s evidence, but found that it was too

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speculative to establish that Naovaraj’s fear of future persecution is objectively
reasonable. Specifically, the IJ found insufficient evidence that the government
would persecute or torture Naovaraj on the basis of his father’s activities long ago.
The IJ noted that Naovaraj’s stepmother has obtained visas and made several trips to
Laos under her married name of Naovaraj. The IJ cited the 2000 Department of State
Country Report on Laos, which reports that many Laotians who fled the country when
the communists took control have returned or visited relatives unmolested under a
government policy that welcomes back virtually all those who fled. We must affirm
the IJ’s decision if it is supported by substantial evidence in the administrative record
as a whole, that is, unless the evidence Naovaraj presented was so compelling that no
reasonable fact-finder could fail to find the requisite well-founded fear of future
persecution. Perinpanathan v. I.N.S., 
310 F.3d 594
, 597 (8th Cir. 2002).

       In his petition for review, Naovaraj contends that the IJ erred in finding that he
did not present sufficient evidence that his fear of future persecution is objectively
reasonable. After careful review of the administrative record, we conclude that he has
not satisfied our deferential standard of review. He presented no specific evidence
that the government of Laos is interested in him on account of his father’s political
activities or service as a low-ranking member of the former government’s military.
The vague testimony that Laotian law might hold a child responsible for his father’s
activities did not establish how this law might apply to Naovaraj, nor provide any
basis for finding that the government would invoke that law to punish Naovaraj at
this time. Given the Department of State report that many people have returned
unmolested to Laos in recent years, as Naovaraj’s stepmother has done, substantial
evidence supports the IJ’s finding that Naovaraj does not have an objectively
reasonable, well-founded fear of future persecution if he is removed to Laos.
Therefore, the denial of asylum must be affirmed.

     Naovaraj does not separately argue that the IJ erred in denying withholding of
removal to Laos or relief under the Convention Against Torture. Because those

                                          -3-
claims are evaluated under a more demanding standard of proof, denial of an asylum
claim requires the denial of related withholding of removal and Convention Against
Torture claims unless additional facts are relevant to the analysis of those claims, for
example, where there is evidence the petitioner may be tortured for reasons not
relevant to his asylum claim. See Habtemicael v. Ashcroft, 
370 F.3d 774
, 780-83 (8th
Cir. 2004). As there is no such evidence in this case, the petition for review is denied.
                        ______________________________




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Source:  CourtListener

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