Celicourt v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 20-1201
JACKY CELICOURT,
Petitioner,
v.
WILLIAM P. BARR,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Melanie Chaput, with whom Chaput Law Office was on brief, for
petitioner.
Vanessa M. Otero, Trial Attorney, U.S. Department of Justice,
Office of Immigration Litigation, Jeffrey Bossert Clark, Acting
Assistant Attorney General, Anthony P. Nicastro, Assistant
Director, Office of Immigration Litigation, on brief for
respondent.
November 17, 2020
BOUDIN, Circuit Judge. Jacky Celicourt ("Celicourt"),
a citizen of Haiti, petitions this Court to review a Board of
Immigration Appeals ("BIA") decision to deny Celicourt's requests
for asylum and withholding of removal under the Immigration and
Naturalization Act ("INA") and for protection under the Convention
Against Torture ("CAT").
Celicourt's claims in this case stem from an incident in
Haiti on November 2, 2017 when, he alleges, a Jeep was waiting for
him as he left his mother's home and tried to run him over. As he
hid under another car, the Jeep's occupants shot at him and yelled
that they would "get" him anyway. Celicourt went to the police
but could not identify the assailants. Celicourt thinks that they
were members of the Tèt Kale political party, which opposes his
political views.
On March 12, 2018, Celicourt entered the United States
with a visitor's visa. He overstayed, and on January 24, 2019, he
was ordered to appear before an Immigration Judge. In the hearing,
Celicourt made three arguments. First, in support of asylum, he
claimed that he was a refugee "unable or unwilling to return to,
and ... unable or unwilling to avail himself or herself of the
protection of, [his home] country" due to his membership in the
Pitit Dessalin party and his political opinions. 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1)(A). Second, he argued that his "life
or freedom would be threatened" in Haiti on account of his
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political participation in the Pitit Dessalines and thus that he
was eligible for withholding of removal. 8 U.S.C. § 1231(b)(3)(A).
Finally, Celicourt contended that it was "more likely than not"
that he would be tortured if he were removed to Haiti and therefore
that the United States had an obligation under Article 3 of CAT
not to remove him. 8 C.F.R. § 208.16(c)(4).
The Immigration Judge found that Celicourt was a
credible witness but that his claim of being attacked "on account
of a protected ground," such as his participation in the Pitit
Dessalines, was "essentially based on speculation and conjecture."
Similarly, the court found that "specific grounds [for believing
Celicourt would be subjected to torture] do not exist." The court
then denied his petition, and, on appeal, the BIA agreed.
"We review an [Immigration Judge's] findings of fact,
including the determination of whether persecution occurred on
account of a protected ground, under the familiar and deferential
substantial evidence standard." Ivanov v. Holder, 736 F.3d 5, 11
(1st Cir. 2013) (internal citation omitted). Under that standard,
"the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C. § 1252(b)(4)(B).
Asylum. For the purposes of asylum relief, "[t]he burden
of proof is on the applicant to establish that the applicant is a
refugee." 8 U.S.C. § 1158(b)(1)(B)(i). The applicant can "satisfy
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this obligation by showing that she has been persecuted in the
past on account of [race, religion, nationality, membership in a
particular social group, or political opinion] or, alternatively,
that a well-founded fear of future persecution on such a ground
exists." Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217 (1st
Cir. 2007).
Regardless of whether the applicant attempts to show
past or future persecution, the applicant must show (1) serious
harm (either past or anticipated); (2) that the harm occurred or
will occur "on account of" race, religion, nationality, membership
in a particular social group, or political opinion (the "nexus"
requirement); and (3) a connection between the harm and government
action or inaction. See Aguilar-De Guillen v. Sessions, 902 F.3d
28, 33 (1st Cir. 2018). "[A]n inability to establish any one of
the three elements of persecution will result in a denial of the
asylum application." Id. (internal citation omitted).
Celicourt testified that he could not identify his
attackers. "[I]n the absence of a positive identification,"
Celicourt was required "to furnish some credible evidence of the
motivation underlying the threats." Lopez de Hincapie, 494 F.3d
at 219. Here, his attorney stated that Celicourt thought his
assailants were attacking him due to his political activity because
"[t]here was no other motivation except for his political
activity." That is not enough. Because Celicourt could not
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establish a nexus between the 2017 attack and a protected ground,
his petition was properly denied.
Celicourt also argues that in Haiti there is a pattern
of persecution of members of Pitit Dessalines by members of the
ruling Tèt Kale party such that he should be granted refugee status
due to his "well-founded fear of persecution." 8 C.F.R.
§ 1208.13(b)(2). But federal regulations require "a reasonable
likelihood of persecution of all persons in the group." Sosa-
Perez v. Sessions, 884 F.3d 74, 82 (1st Cir. 2018) (internal
citation omitted). Haiti's political violence, said the BIA, was
not so widespread to "establish that similarly situated persons to
the respondent are persecuted by [Tèt Kale]." The record does not
compel a different conclusion.
Withholding of Removal. To make out a claim for
withholding of removal, Celicourt "bears the burden of
establishing his eligibility . . . by demonstrating that it is
'more likely than not' that he will be persecuted on account of
one of the five protected grounds if removed" to Haiti. Hernandez-
Lima v. Lynch, 836 F.3d 109, 113 (1st Cir. 2016). Like a request
for asylum, a claim for withholding of removal requires a "nexus"
between the alleged persecution and one of the statutorily
protected grounds. See 8 C.F.R. § 1208.16(b).
In Hernandez-Lima, the petitioner "offered only an
unsupported theory that any harm he suffered was on account of a
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protected ground." 836 F.3d at 115. As in Hernandez-Lima,
Celicourt testified that he did not know who shot at him and
provided only an unsupported theory of their motivation. He needed
something more to prove a nexus.
Convention Against Torture. To be eligible for CAT
relief, Celicourt must show that, "more likely than not," he will
be tortured if he returns to Haiti. 8 C.F.R. § 208.16(c)(2).
Torture is defined as "any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person
. . . by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity." 8 C.F.R. § 208.18(a)(1). We review a denial
of CAT protection under the substantial evidence rubric. Lopez de
Hincapie, 494 F.3d at 220.
Celicourt did not put forward any proof that he was, or
might in the future be, attacked by "state actors or alternatively,
that the authorities would be in some way complicit (or, at least,
acquiescent) in the torture." Id. at 221. His only proof of state
actor involvement is that the Tèt Kale party was in power at the
time of his incident.
Moreover, Celicourt testified that, after he was
attacked in 2017, he filed a police report with local authorities.
Although that report did not result in any arrests, a failed
investigation does not automatically constitute acquiescence.
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Thus, the record does not compel a conclusion that a state actor
acquiesced to or was responsible for the 2017 incident or that,
"more likely than not," state actors would be complicit in
torturing Celicourt in the future.
The petition is denied.
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