Court withdraws couple's asylum eligibility

Saturday, April 12, 2008
Bob Egelko, Chronicle Staff Writer
San Francisco Chronicle (California, USA)

A federal appeals court withdrew its ruling Friday that declared a Fresno couple eligible for political asylum in the United States despite the husband's background as a guard in a Cambodian prison where inmates were allegedly persecuted.

The Ninth U.S. Circuit Court of Appeals in San Francisco had ruled in August that Pauline Im had played no more than a marginal role in the mistreatment of prisoners and thus should not be considered a persecutor, which would require that he be deported. The court said Im and his wife, Ngin Sitha, were eligible for asylum because they had shown Im would face political persecution in Cambodia.

But the court withdrew the ruling Friday and said the outcome of the case would depend on another dispute that the U.S. Supreme Court has agreed to hear in the term that starts in October. That case involves a former prison guard in Eritrea, where the inmates included religious minorities who were persecuted.

A federal appeals court in New Orleans ruled last year that the Eritrean guard, Daniel Negusie, had assisted in the persecution and was ineligible for asylum even though he had not injured any prisoners and had opposed their mistreatment. The court noted that Negusie had been armed, had stood guard while prisoners were kept in the sun for punishment, and had denied them access to showers and fresh air.

The Supreme Court agreed last month to hear Negusie's appeal and is scheduled to rule on his case by June 2009. In the meantime, the Fresno couple are in limbo, said their lawyer, Emmanuel Enyinwa.

Enyinwa said the two cases differed because Im had not been armed, played no role in the mistreatment of prisoners and had merely followed superiors' instructions to lock and unlock cell doors when prisoners were taken for interrogation. The lawyer said he disagreed with the Ninth Circuit's decision to withdraw its ruling but now expects the court to order a new round of arguments after the Supreme Court rules on Negusie.

Im's family was killed when the Khmer Rouge took power in Cambodia in 1975, and he was put to work as a forced laborer, the court said in last year's ruling. After working as a prison guard following the Vietnamese invasion that ousted the Khmer Rouge, he joined a guerrilla movement, was imprisoned and tortured by the Vietnamese, but then was released and became a political activist.

The couple fled after Im received death threats and assailants fired on their car and their house in 2000, the court said. They now run a doughnut shop in Fresno.

E-mail Bob Egelko at begelko@sfchronicle.com.

Former Cambodian prison guard ruled eligible for U.S. asylum

Tuesday, August 14, 2007
Bob Egelko, Chronicle Staff Writer
San Francisco Chronicle (San Francisco, Calif., USA)

A Cambodian who fled to the United States in 2000 after assassination attempts by political rivals was ruled eligible for asylum Monday by a federal appeals court, which said his work as a prison guard for the post-Khmer Rouge regime did not implicate him as a persecutor.

Pauline Im, who now lives in Fresno with his wife, was denied asylum by an immigration judge in 2003 because of the nearly two years he spent as a guard in a small Cambodian prison run by the Vietnamese army. Some of the prisoners were members of the Khmer Rouge, the communist movement that the Vietnamese ousted in 1979.

Im's duties included feeding the prisoners, taking them to bathe and receive medical attention, and unlocking their cells and handing them to another guard who would take them away for interrogation.

The immigration judge concluded that Im would face political persecution if he returned to Cambodia - a finding that would ordinarily qualify him for asylum in the United States - but he said Im was ineligible because he had taken part in persecution.

The appeals court, in a 3-0 ruling, disagreed, saying not everyone who works in an oppressive system is implicated in persecution.

The panel cited the Supreme Court's reference to a guard who had cut the hair of concentration camp inmates before their execution, conduct the court described as ghastly but only peripheral to persecution. By contrast, the appeals court ruled last year that a man who acted as an interpreter for Peruvian guardsmen while they interrogated and tortured their prisoners provided essential services for the persecutors and was ineligible for asylum.

Im played no more than a marginal role in the mistreatment of prisoners, said Judge Betty Fletcher: He never beat a prisoner, did not select anyone for imprisonment or interrogation, and merely followed superiors' instructions to unlock cell doors, something anyone else could have done.

The ruling makes both Im, 53, and his wife, Ngin Sitha, 48, eligible for asylum. The couple run a doughnut shop in Fresno and have a 15-year-old daughter in Cambodia whom they haven't seen in six years, said their lawyer, Emmanuel Enyinwa.

Im's family was killed when the Khmer Rouge took power in 1975, and he was put to work as a forced laborer, the court said. After working as a prison guard following the Vietnamese invasion, he joined a guerrilla movement, was imprisoned and tortured by the Vietnamese, but then was released and became a political activist and congressional candidate.

While working for the largest opposition party in 2000, he received death threats, then had his car and his house fired on by unknown assailants, who Enyinwa said were most likely adherents of a rival party. While Im's party filed a complaint with the United Nations, Im and his wife fled to the United States and applied for asylum.

E-mail Bob Egelko at begelko@sfchronicle.com.