Vanessa Ilestin v. U.S. Attorney General , 291 F. App'x 252 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 27, 2008
No. 07-15912 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-543-172
VANESSA ILESTIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 27, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Vanessa Ilestin, a citizen and national of Haiti, seeks review of the Board of
Immigration Appeals’ (BIA’s) final order, affirming the Immigration Judge’s (IJ’s)
denial of her application for asylum and withholding of removal pursuant to the
Immigration and Nationality Act. 8 U.S.C. §§ 1158, 1231(b)(3). Ilestin asserts she
established refugee status as defined by the INA because her testimony showed she
was persecuted by Lavalas supporters due to her own and her then-boyfriend’s
political opinions. Thus, she asserts she is entitled to a rebuttable presumption of a
well-founded fear of persecution if returned to Haiti. Further, Ilestin contends she
met the burden required for withholding of removal under the INA by establishing
through her credible, sufficiently detailed testimony, that it is more likely than not
that she would be persecuted if returned to Haiti.1 After review, we deny Ilestin’s
petition.2
To the extent the BIA’s and IJ’s decisions were based on a legal
determination, our review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d
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Although Ilestin applied for relief under the United Nations Convention Against
Torture, and appealed the IJ’s denial of that claim to the BIA, she failed to address that issue in
her initial brief on appeal, and it is therefore deemed abandoned. See Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (stating “[w]hen an appellant fails to offer
argument on an issue, that issue is abandoned”).
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When the BIA issues a decision, we review only that decision, except to the extent the
BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.”
Id. (internal citations omitted). Here, we review both the BIA’s decision and the IJ’s decision, as
the BIA’s determination was based on the same reasoning as the IJ’s decision.
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814, 817 (11th Cir. 2004). The BIA’s and IJ’s factual determinations are reviewed
under the substantial evidence test, and we will affirm the BIA’s and IJ’s decisions
if they are “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286
(11th Cir. 2005) (internal quotations and citations omitted). “To reverse the IJ’s
fact findings, we must find that the record not only supports reversal, but compels
it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
I. CREDIBILITY
As a threshold matter, the BIA “must make clean determinations of
credibility.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). When
the agency does not make an adverse credibility determination, we consider the
petitioner’s testimony to be credible. Mejia v. U.S. Att’y Gen., 498 F.3d 1253,
1257 (11th Cir. 2007). If any alien provides credible testimony, it may be
sufficient, without corroboration, to establish her eligibility for relief from
removal. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006).
However, “[w]here the immigration judge determines that the applicant should
provide evidence which corroborates otherwise credible testimony, such evidence
must be provided unless the applicant demonstrates that the applicant does not
have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C.
§ 1229a(c)(4)(B). “No court shall reverse a determination made by a trier of fact
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with respect to the availability of corroborating evidence . . . unless the court finds
. . . that a reasonable trier of fact is compelled to conclude that such corroborating
evidence is unavailable.” Id. § 1252(b)(4).
Here, the IJ did not make an adverse credibility determination, and Ilestin’s
testimony is therefore considered credible. See Mejia, 498 F.3d at 1257. Further,
the BIA and IJ did not err in concluding that corroborating evidence was available
in the testimony of Ilestin’s ex-husband, Archelus. Ilestin testified Archelus was
present in Miami at the time of her hearing. However, Archelus did not testify at
the hearing, nor did he provide an affidavit, letter, or any statement corroborating
Ilestin’s claims she was persecuted on account of either his or her own political
opinion. Ilestin explained his absence as being due only to the fact they were
separated. The IJ and BIA noted this fact, and found Archelus could have come
forward to corroborate Ilestin’s own testimony they were both attacked due to their
political opinions. Further, Archelus’s absence was especially notable because
Ilestin asserted the primary basis of her persecution was Archelus’s political views
and activities.
II. ASYLUM
The Attorney General or Secretary of the Department of Homeland Security
has discretion to grant asylum if the alien meets the INA’s definition of “refugee.”
8 U.S.C. § 1158(b)(1)(A). A “refugee” is:
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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).
To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily protected 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). An asylum applicant can establish a well-
founded fear of future persecution by presenting “specific, detailed facts showing a
good reason that he or she will be singled out for persecution on account of” the
statutorily listed factor. Sepulveda v. U.S. Att’y. Gen., 401 F.3d 1226, 1231 (11th
Cir. 2004) (quotations omitted). This requires showing that an applicant’s fear of
persecution “is subjectively genuine and objectively reasonable.” Al Najjar, 257
F.3d at 1289.
If the alien establishes past persecution, there is a presumption that her life
or freedom would be threatened upon return to that country unless the government
shows by a preponderance of the evidence that the country’s conditions have
changed such that the applicant would no longer be threatened upon removal, or
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that the alien could reasonably relocate within the country. 8 C.F.R.
§ 208.13(b)(1).
“An imputed political opinion, whether correctly or incorrectly attributed,
may constitute a ground for a well-founded fear of political persecution within the
meaning of the INA.” Al Najjar, 257 F.3d at 1289 (quotation omitted). “An
asylum applicant may prevail on a theory of imputed political opinion if he shows
that the persecutor falsely attributed an opinion to him, and then persecuted him
because of that mistaken belief about his views.” Id. (alterations and quotations
omitted).
A. Past Persecution
The BIA’s determination that Ilestin failed to prove she was persecuted on
account of the imputation of Archelus’s political opinion to her is supported by
reasonable, substantial, and probative evidence. As to the first incident, in which
she was slapped unconscious, Ilestin testified the five men who showed up at her
house and proceeded to beat Archelus slapped her only after she attempted to
intervene in the attack. While that attack may have resulted in her being knocked
unconscious, Ilestin provided no testimony or corroborative evidence
demonstrating she was slapped for any reason other than to stop her from
interfering in their attack on Archelus. Further, Ilestin provided no evidence
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establishing that Archelus himself was attacked on account of an enumerated
ground.
As to the second incident, in which Ilestin was raped and stabbed, Ilestin
testified that a man approached her while she was selling goods as a vendor. Other
than asking her if she was the mother of Archelus’s children, the man made no
reference to Archelus, his political opinions, or those of Ilestin. Ilestin testified
when this man and another individual arrived at her house, they began “talking a
lot and also making a lot of noise.” One of the men then proceeded to rape her,
and the other ultimately stabbed her in her thigh. Despite the horrific nature of this
attack, Ilestin offered no testimony showing these men made any reference to her
own or Archelus’s political opinion. Again, she provided no corroborative
evidence.
Accordingly, because Ilestin’s testimony alone failed to establish a nexus
between the attacks she suffered and any protected ground, and because it was
reasonable for the IJ and BIA to expect corroborative evidence when Archelus was
available by being present in Miami, substantial evidence supports the finding
Ilestin did not establish past persecution on account of a protected ground.
B. Well-Founded Fear
While Ilestin asserts she was entitled to a rebuttable presumption of having a
well-founded fear of future persecution, as discussed above, Ilestin did not
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establish she was persecuted on account of a protected ground, and thus, no such
presumption applies. See 8 C.F.R. § 208.13(b)(1). Moreover, substantial evidence
supports the determination of the IJ and BIA that Ilestin did not satisfy her burden
of establishing a well-founded fear of future persecution. While Ilestin has
arguably satisfied the subjective component, establishing she genuinely fears
persecution, substantial evidence supports the BIA’s determination that she failed
to establish a well-founded fear because the record shows she did not satisfy the
objective component of demonstrating that she has a good reason to fear future
persecution. See Al Najjar, 257 F.3d at 1284, 1289. Ilestin failed to establish she
would be singled out for persecution based on Archelus’s political opinion, as
Archelus now resides in the United States, and in any event, she provided no
evidence establishing Archelus’s political opinion was imputed to her. Further,
Ilestin did not establish a well-founded fear based on her own political opinion, as
she offered no testimony she was personally politically active, and her children
have continued to live in Haiti without any difficulty. See Sepulveda, 401 F.3d at
1231. Moreover, while Ilestin stated she would be arrested and killed if returned to
Haiti, the Country Reports she submitted show the Haitian police are addressing
corruption in their ranks, and are targeting the pro-Lavalas criminal gangs.
Accordingly, the BIA did not err in affirming the IJ’s denial of Ilestin’s asylum
claim, as substantial record evidence supports that determination.
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III. WITHHOLDING OF REMOVAL
To qualify for withholding of removal under the INA, an alien must show
that if returned to his country, the alien’s life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1231(b)(3). If a petitioner is unable to meet the
standard of proof for asylum, he is generally precluded from qualifying for
withholding of removal. Al Najjar, 257 F.3d at 1292-93. Thus, because Ilestin
was unable to meet her burden of proof to establish eligibility for asylum, it
follows she is also unable to meet the higher burden of qualifying for withholding
of removal. See id.
PETITION DENIED.
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