FILED
                            NOT FOR PUBLICATION                                 MAR 10 2014

                                                                             MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                            U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KONG PRAK,                                      No. 10-71176

              Petitioner,                       Agency No. A095-442-763

  v.
                                                MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     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.***




       *
            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.
      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, 

, 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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