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Click here for the full text of this decision FACTS:Puangsuk Hongyok is an adult female native and citizen of Thailand. In 1999 or 2000 she entered the United States at or near Los Angeles, either without inspection or as a tourist. In February 2003, authorities charged her with being removable as an alien illegally present in the United States. She appeared before an immigration judge (IJ), who found that she was in the United States illegally and thus was removable. Because Hongyok was unable to establish that she had sought asylum within one year of entering the United States, Hongyok sought withholding of removal and relief under the Convention Against Torture (CAT), 8 C.F.R. ��1208.16-.18, in lieu of asylum. She contended that she would be subject to persecution and torture, because she was a member of a “particular social group” composed of victims of sex trafficking who have escaped. Hongyok testified that she had intended to leave Thailand to come to the United States with people who had promised her a job. Instead, her passport was taken away from her, and she was taken to New York and forced to work as a prostitute to repay a $45,000 debt owed to the people who had brought her to the United States. She was confined inside a New York brothel for six months by persons she identified as Kim and Yok. At the end of her time in New York, someone told Hongyok that she had paid off $30,000 of the debt. She was then taken to Chicago and later to Atlanta. Apparently her stay in Atlanta was unprofitable for the traffickers, who told her to return to New York. Instead, Hongyok used money she had received in Atlanta to fly to Los Angeles. She went from Los Angeles to Philadelphia, Atlantic City and Houston. She was arrested for prostitution in all three of the latter cities. Hongyok testified that she still owed $5,000 to Kim and Yok, who are still looking for her and have called her mother in Thailand “about five times” to say Hongyok still owed them money and was in “big danger” of being hurt. Hongyok believed associates of Kim and Yok would kill her if she returned to Thailand. She argued that there was nowhere in Thailand where she would be safe from the traffickers. Hongyok did not believe the Thai government would protect her from Kim and Yok or their gang, because the Thai police have been thoroughly corrupted by sex traffickers. She also presented documentary evidence reporting a widespread sex trade in Thailand and southeastern Asia and the Thai government’s toleration of and complicity in sex trafficking. Although the IJ granted withholding of removal and relief under the CAT, the Board of Immigration Appeals (BIA) reversed. The BIA declined to categorize escaped sex trafficking victims as a particular social group and found that Hongyok’s fears of persecution were based on an outstanding debt. The BIA further determined that Hongyok had failed to meet her burden to prove that persecution on her return to Thailand was “more likely than not.” The BIA pointed out that Hongyok had not specified when the alleged threatening phone calls to her mother had been made; it concluded that the callers “seemed more interested in having the debt repaid than in seeking [Hongyok].” HOLDING:The court denied the petition seeking review of the BIA’s opinion. First, the court disagreed with the government’s contention that Hongyok failed to exhaust her administrative remedies before filing the petition for review of the BIA decision. The government emphasized that Hongyok’s proposed group of “sex trafficking victims who escape from a sex trafficking ring” was not adopted by the IJ and thus was not before the BIA on the government’s appeal. Instead, the IJ defined the protected social group as “sex slaves from foreign countries who are brought to the United States under false pretenses and forced at the threat of death and destruction to participate in sexual activities.” But the court stated it was not aware of a case “conditioning federal court jurisdiction on the absence of insignificant semantic differences between a petitioner’s proposed social group and the definition formulated by the agency.” No alien, the court stated, is entitled to statutory withholding of removal unless the attorney general finds that there is a “clear probability,” i.e., “”[u]nless it is more likely than not,’ that the alien will be subjected to persecution on account of race, religion, membership in a particular social group or political opinion if she is returned to her country of origin.” The BIA’s finding, the court stated, was supported by its observations that Hongyok did not specify whether the calls to her mother were made recently and did not otherwise indicate how the people she fears would harm her would find her in Thailand, given that she need not declare to anyone why she was returning or discuss her experiences in the United States. Because a reasonable finder of fact would not have been compelled to find that it is more likely than not that Hongyok would be persecuted on her return to Thailand, the court stated that it was obliged to affirm the BIA’s conclusion. OPINION:Smith, J.; Garwood, Smith and DeMoss, JJ.

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