Louis-Martin Dalberiste v. U.S. Attorney General , 308 F. App'x 400 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13250 ELEVENTH CIRCUIT
JANUARY 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A79-441-324
LOUIS MARTIN DALBERISTE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 23, 2009)
Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Louis Martin Dalberiste seeks review of the Board of Immigration Appeals’
(“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying his
application for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”) and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment
(“CAT”), INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(c).1 Upon
review, we DENY the petition.
I. BACKGROUND
Dalberiste, a native and citizen of Haiti, arrived in the United States at West
Palm Beach, Florida on or about 8 May 2002. See Administrative Record (“AR”)
at 212. The Department of Homeland Security (“DHS”) served Dalberiste with a
notice to appear (“NTA”) on 9 May 2002, charging him with removability under
INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the
United States without being admitted or paroled, or who arrived in the United
States at any time or place other than as designated by the Attorney General. Id. at
212-13. On 23 January 2003, Dalberiste appeared before an IJ, admitted the
allegations contained in the NTA, and conceded removability. Id. at 63, 66. That
same day, Dalberiste filed an application for asylum and withholding of removal,
alleging persecution on the basis of political opinion because he opposed the
1
Dalberiste does not challenge the BIA’s denial of CAT relief in his petition for review
and thus has abandoned this issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2
(11th Cir. 2005) (per curiam).
2
Fanmi Lavalas Party and then-president Jean-Bertrand Aristide. Id. at 78, 85-90,
102, 176, 180.2
In support of his application, Dalberiste filed a number of articles regarding
conditions in Haiti. See id. at 126-175. These articles stated that journalists who
opposed the Lavalas Party were subjected to severe harassment, including
threatening telephone calls, assaults, beatings, illegal arrests, and even murder. Id.
at 129-30. No incidents of direct censorship of journalists by the state were
reported, however. Id. at 130. The record also included the 2005 U.S. State
Department’s Country Report on Human Rights Practices for Haiti (“2005 Country
Report”), which noted that there were credible reports of arbitrary killings
committed by the Lavalas Party as well as by street gangs, who were suspected of
being paid and armed by President Aristide’s supporters. Id. at 111. While Haitian
law provided for freedom of speech and of the press, most journalists practiced
some form of self-censorship, and there were several reports of high-profile
journalists being threatened, attacked, and/or killed by the Haitian National Police,
Aristide supporters, and other individuals. Id. at 118-19.
At his September 2006 removal hearing, Dalberiste testified that he had
worked as an on-air journalist at a radio station in Saint Louis du Nord, Haiti, since
2
According to Country Report, President Aristide was ousted from the presidency by an
armed rebellion and left Haiti in 2004. Id. at 111, 116.
3
1999. He stopped working at the station following a 22 December 2001 broadcast
during which he discussed a recent failed coup d’etat and spoke out against
President Aristide and the Lavalas regime. Id. at 78, 85-90, 104. After Dalberiste
made these remarks, a large crowd of Lavalas supporters, who were known to
“crack down” on anyone who criticized the government, gathered outside the radio
station and attempted to enter the station.3 Id. at 90-93. Fearing that he would be
beaten or killed, Dalberiste escaped and fled to an area called Gallon, where he
remained for four months.4 Id. at 92-94. Dalberiste learned from his mother, who
visited him several times while he lived in Gallon, that on the night of the
broadcast, members of the Lavalas crowd had come looking for him at her house.
They “shook” and “jerked” her and threatened to “take her away” if she did not
reveal his whereabouts. On occasion, unidentified persons would throw stones at
her house. Id. at 96-98.
On cross-examination, Dalberiste stated that although Aristide was no longer
in Haiti, Dalberiste would be in danger if he returned to Haiti because the Lavalas
Party still existed. Id. at 102. He could not relocate to a different city because
3
Dalberiste testified that he did not actually see the people assembled outside, but was
told by another radio station employee that they were Lavalas supporters. See id. at 91-93.
4
Although Dalberiste stated in his asylum application that the crowd destroyed the radio
station after he had already escaped, see id. at 187, the IJ found that there was no evidence in the
record to support this statement, see id. at 48, 51.
4
Haiti was a small country, and he would not able to hide because he would have to
work in public. He had been able to live without incident in Gallon only because
he remained in hiding while he lived there. Id. at 102-03. In response to the IJ’s
questioning, Dalberiste testified that individuals conducted surveillance on his
mother’s house in case he returned, but no one had attempted to enter the house as
they had on the night of the radio station incident. Id. at 107. The only other
adverse incident relating to his political beliefs that he experienced before the radio
station incident occurred in 1995 when he was a student. According to Dalberiste,
after he spoke out against the government, an “element” told him that “they would
burn [him] out” if he returned to the country. Id. at 105-06.
The IJ denied Dalberiste’s application for relief and ordered him removed
to Haiti. Id. at 37. The IJ found that Dalberiste’s testimony was generally
credible, but that he had failed to meet the burden for asylum because, even
assuming the truth of his testimony, the incident at the radio station, the event in
1995, and the harassment of Dalberiste’s mother did not amount to past
persecution. Id. at 49-52. The IJ further found that Dalberiste had not
demonstrated a well-founded fear of future persecution because his notoriety as a
political activist was not likely to have outlasted his four-year absence from Haiti,
Aristide’s regime had ended, and Dalberiste’s family had remained unharmed. Id.
at 53-54. The IJ noted that although Dalberiste had shown general conditions of
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political violence, inhumane actions, and lack of security in Haiti, these general
conditions did not qualify him for asylum. Id. at 54-55. Because Dalberiste failed
to meet the lower burden of proof for asylum eligibility, his claims for withholding
of removal and CAT relief also failed. Id. at 55.
Dalberiste appealed the IJ’s decision to the BIA, arguing that he had
established past persecution on account of his political opinion and that he had a
well-founded fear of future persecution because conditions for journalists in Haiti
were still dangerous and had not changed and because the Lavalas Party remained
a viable and violent political force. Id. at 13, 19, 33-34. In any event, he asserted,
he was entitled to a presumption of future persecution based on his having
established past persecution. Id. at 19-20. The BIA affirmed, and Dalberiste now
seeks review of the BIA’s denial of relief.
II. DISCUSSION
Because the BIA adopted the IJ’s decision without opinion, we treat the IJ’s
decision as the final agency determination and review the IJ’s analysis as if it were
the BIA’s. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We
review de novo the IJ’s legal conclusions. See Hernandez v. U.S. Att’y Gen., 513
F.3d 1336, 1339 (11th Cir. 2008) (per curiam). Findings of fact are reviewed
under the substantial evidence test, which requires us to affirm the IJ’s decision “if
it is supported by reasonable, substantial, and probative evidence on the record
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considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.
2005) (quotation marks and citation omitted).
On appeal, Dalberiste argues that he showed past persecution because his
life was threatened after he criticized President Aristide and the Lavalas regime
during the 22 December 2001 radio broadcast. He contends that this entitled him
to a presumption of future persecution and that the government has failed to rebut
this presumption. He also argues that the 2005 Country Report, which stated that
conditions for journalists in Haiti continued to be dangerous, demonstrated that it is
more likely than not that he will be persecuted if returned to Haiti.
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1) (2008). The Attorney
General or Secretary of Homeland Security has discretion to grant asylum if the
alien satisfies his burden of establishing that he is a “refugee.” See INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is defined as:
any person who is outside any country of such person’s nationality or, in
the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A).
7
Thus, to establish asylum eligibility, the alien must, with specific and
credible evidence, establish (1) past persecution on account of a statutorily listed
factor, or (2) a “well-founded fear” that the statutorily listed factor will cause such
future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. If the
alien establishes past persecution, it is presumed that his life or freedom would be
threatened upon return to the country of removal. The government can overcome
this presumption by showing that the country’s conditions have changed such that
the applicant’s life or freedom would no longer be threatened or that the alien
could relocated within the country and it would be reasonable to expect him to do
so. 8 C.F.R. §§ 208.13(b), 208.16(b).
An alien who has not shown past persecution may still be entitled to asylum
if he can demonstrate a well-founded fear of future persecution on account of a
statutorily listed factor. See Sepulveda, 401 F.3d at 1231; 8 C.F.R.
§ 208.13(b)(2). To prevail, the applicant’s fear of persecution must be both
“subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.
We have repeatedly stated that “persecution is an extreme concept,
requiring more than a few isolated incidents of verbal harassment or intimidation,
and that mere harassment does not amount to persecution.” Sepulveda, 401 F.3d
at 1226 (quotation marks, citation, and alteration omitted). The allegedly
persecutory events to which Dalberiste testified amounted to no more than a
8
handful of isolated incidents of verbal intimidation. There is no evidence in the
record that either Dalberiste or his mother was ever detained or physically injured
during their encounters with the Lavalas Party supporters. The harassment
Dalberiste suffered thus did not rise to the level of extremity required to show past
persecution. See, e.g., Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91 (11th
Cir. 2006) (per curiam) (finding no persecution where asylum petitioner was
detained by Chinese government for five days but suffered no injuries);
Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir. 2001) (finding
no persecution where petitioner lost his job and was forced to take menial work
but was never physically harmed, arrested, or detained).5
We further conclude that Dalberiste failed to show a well-founded fear of
future persecution because the record does not support a finding that Dalberiste
was so famous a political activist that his notoriety with the Lavalas Party would
survive his four-year absence from Haiti. See Sepulveda, 401 F.3d at 1231-32(holding that the petitioner did not demonstrate a well-founded fear of future
persecution where the evidence did not indicate that her notoriety as an activist
5
Dalberiste argues in his petition for review, and argued in his brief to the BIA, that the IJ
erred in finding that there was no nexus between his on-air political statements and the arrival of
the angry mob at the station. Although the IJ did not explicitly make such a finding, we note that,
even assuming a connection between the crowd and Dalberiste’s statements, this incident still
did not amount to persecution, especially given the lack of any evidence that anyone was
actually injured or physically harmed.
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would outlast her four-year absence from Colombia). Moreover, as Dalberiste
noted at his hearing, Aristide was no longer in power in Haiti, and his family
continued to live peacefully in Haiti. Dalberiste thus failed to show specific,
detailed facts demonstrating that he had a good reason to fear being singled out for
future persecution. See Al-Najjar, 257 F.3d at 1287; 8 C.F.R. §§ 208.13(b)(2),
208.16(b)(2).
Inasmuch as the record does not compel a finding that Dalberiste suffered
past persecution or has a well-founded fear of persecution on account of a
protected ground, he cannot satisfy the more stringent standard applicable to a
claim for withholding of removal or CAT relief. See Forgue, 401 F.3d at 1288 n.4
(noting that where petitioner fails to establish claim of asylum on merits, his
claims for withholding of removal and CAT relief necessarily fail).
III. CONCLUSION
Dalberiste seeks review of the BIA’s denial of asylum and withholding of
removal. Because the evidence does not compel a finding that Dalberiste suffered
past persecution or has a well-founded fear of future persecution on account of his
political opinion or any other protected ground, we DENY the petition.
PETITION DENIED.
10