Tuesday, August 14, 2007
Former Cambodian Jail Guard May Seek Asylum—Ninth Circuit
Limited and Coerced Role in Persecution of Fellow Citizens Not Grounds for Denial, Court Says
By a MetNews Staff Writer
A former jail guard who worked for a despotic regime but was not actually involved in interrogations or physical abuse of prisoners is not disqualified from seeking asylum, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel overturned an immigration judge’s ruling that Pauline Im and his wife, natives of Cambodia, were ineligible for asylum or for withholding of deportation because Im participated in the persecution of Cambodian prisoners by the country’s Vietnamese occupiers.
The IJ erred because Im’s limited and coerced role in the incarceration of his fellow citizens was not “purposeful, material assistance for the persecution,” Senior Judge Betty B. Fletcher wrote for the court.
Im, whose testimony was found credible, told that IJ that when the Khmer Rouge—a vicious Communist movement responsible for the deaths of perhaps two million fellow Cambodians—gained power in 1975, he was forced to serve them as a laborer. Four years later, the Vietnamese forced the Khmer Rouge out of power; Im said he was then forced to work as a prison guard.
Paid for his services in rice and oil, his duties included ensuring prisoners received medical attention, taking them to bathe, and overseeing their fitness and hygiene routines. Im testified he was also responsible for escorting prisoners to and from interrogation.
Facing severe punishment, he said, he continued work as a guard for a year and a half before escaping and gaining employment at the Royal Hotel. He quit after two years, he testified, to join an underground organization whose mission was to overthrow the Vietnamese government.
Im later joined the Buddhist Liberal Democratic Party and ran for congressional office. He lost the election, but worked in both the Ministry of Rural Development and the Ministry of the National Assembly.
Around the same time, Im joined the Sam Raimsy Party. His affiliation with both parties exposed him to numerous death threats and resulted in being shot at, he testified.
Im arrived in Los Angeles in 2001 and sought asylum. The IJ denied the application, fiding that while Im had “established by a preponderance of the evidence, that it is more likely than not he would be tortured, that is to say, subjected to cruel abuse by the security forces…if he were returned to Cambodia,” his work as a prison guard made him a former persecutor, and thus ineligible for asylum by statute.
But Senior Judge Betty B. Fletcher, writing for the Ninth Circuit, said that Im’s conduct was not material because it was not “central, or integral, to the relevant persecutory acts.”
“Im never beat any prisoner in his time as a prison guard. He did not decide who was imprisoned in the jail, and he had no say in which prisoners were interrogated. He was never present for a single interrogation, and never saw a single prisoner beaten. Im was charged with unlocking the doors to prisoners’ cells based on instructions from superiors and leading them back to their cells following interrogations. Only on one occasion did he escort a prisoner to an interrogation room. On all other occasions this was handled by guards other than Im.”
Past cases applying the statute to prison or camp guards, the judge noted, involved such egregious conduct as shooting prisoners or serving as an interpreter during torture.
The court remanded the case so that the attorney general can exercise his discretion on whether to grant asylum.
Judge Michael Daly Hawkins and Senior Judge Eugene Siler of the Sixth Circuit, sitting by designation, joined in the opinion.
The case is Im v Gonzales. 05-70027.
Copyright 2007, Metropolitan News Company