Andre v. John D. Ashcroft , 102 F. App'x 180 ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1221
JACKY ANDRE,
Petitioner,
v.
JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Randall L. Johnson, with Johnson & Associates, P.C., on brief
for petitioner.
Thomas K. Ragland, Attorney, Office of Immigration Litigation,
Civil Division, Peter D. Keisler, Assistant Attorney General, and
Emily Anne Radford, Assistant Director, on brief for respondent.
July 14, 2004
Per Curiam. Petitioner Jacky Andre appeals the Board of
Immigration Appeals's ("BIA") order affirming the denial of his
applications for asylum, withholding of removal, and relief under
the Convention Against Torture. We affirm.
I.
Petitioner, a native and citizen of Haiti, entered the
United States from Canada at Buffalo, New York, on September 18,
1999. On September 5, 2000, petitioner filed an application for
asylum and withholding of removal with the Immigration and
Naturalization Service ("INS").1 This application was denied and
petitioner was charged with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i).
At a hearing before the Immigration Judge on May 22,
2001, petitioner admitted the factual allegations against him,
conceded removability, and requested asylum, withholding of
removal, and relief under the Convention Against Torture.
After a hearing on October 18, 2001, the Immigration
Judge denied petitioner's applications for asylum and withholding
of removal, finding that he was not a credible witness and that he
failed to prove past persecution or a well-founded fear of future
persecution. The Immigration Judge also denied petitioner's
1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
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request for relief under the Convention Against Torture, finding it
unlikely that he would be tortured in the future by the Haitian
government or with the consent or acquiescence of a government
official. Finally, the Immigration Judge denied petitioner's
request for voluntary departure in the exercise of discretion, and
pretermitted petitioner's application for adjustment of status
pursuant to 8 U.S.C. § 1255(i), stating that it lacked
jurisdiction.2
Petitioner appealed to the BIA, which affirmed the
Immigration Judge's decision on January 13, 2003. This appeal
followed.
II.
A. Asylum
Petitioner bears the burden of demonstrating his
eligibility for asylum. See Albathani v. INS, 318 F.3d 365, 373
(1st Cir. 2003). Petitioner may meet that burden by demonstrating
past persecution or a well-founded fear of future persecution based
on "race, religion, nationality, membership in a particular social
group, or political opinion." Id. (quoting 8 C.F.R.
§ 208.13(a)) (internal quotation marks omitted). To establish past
persecution, an applicant must provide "conclusive evidence" that
2
Petitioner does not appeal the denial of voluntary departure
and adjustment of status. We therefore only consider his claims
for asylum, withholding of removal, and relief under the Convention
Against Torture.
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he was targeted on any of the five grounds. Fesseha v. Ashcroft,
333 F.3d 13, 18 (1st Cir. 2003). To show a well-founded fear of
future persecution, an applicant must meet both subjective and
objective prongs. Id. To satisfy the objective prong, an
applicant's testimony alone may be sufficient, but it must
constitute credible and specific evidence of a reasonable fear of
persecution. El Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir.
2003). To meet the subjective prong, the applicant must show his
fear is genuine. See Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st
Cir. 1999). If an applicant has proved past persecution, "a
regulatory presumption that the applicant has a well-founded fear
of future persecution is triggered." Guzman v. INS, 327 F.3d 11,
15 (1st Cir. 2003) (citing 8 C.F.R. § 208.13(b)(1)).
"Determinations of eligibility for asylum or withholding
of deportation are reviewed under the substantial evidence
standard." Fesseha, 333 F.3d at 18. The agency decision is upheld
if it is "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Id. (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). Under the substantial
evidence standard, "[t]o reverse the BIA finding, we must find that
the evidence not only supports that conclusion, but compels it
. . . ." Elias-Zacarias, 502 U.S. at 481 n.1 (emphasis in
original).
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Petitioner testified to the following facts. He began
living with his aunt and uncle in Port-au-Prince after his mother
died in April 1988. In 1989, he became a member of the Parti
Agricole Industrial National ("PAIN"), a party that sought to
foster solidarity and to further democracy in Haiti. In September
1993, he began working for PAIN as a driver. Petitioner also
worked as a coordinator and mechanic for PAIN. The leader of PAIN
was Louis Dejoie II, a man whom petitioner knew personally.
In July 1995, the home of petitioner's aunt was set on
fire while he was in bed about to go to sleep. The neighbors put
the fire out before the house burned down. Petitioner was not
harmed. Petitioner testified that he believed the fire was started
because he was a member of PAIN. After this incident, petitioner
left his aunt's house and slept at different places until 1999,
although he continued to use his aunt's address as his place of
residence. Petitioner testified that his aunt received daily phone
calls from unknown individuals who asked for petitioner and said
they "would get" petitioner.
Petitioner's testimony described two incidents that
occurred in July 1999 relating to his job as a driver for PAIN.
The first incident involved an unidentified person who fired shots
in the air as the bus petitioner was driving passed by while other
people threw rocks at the bus which caused the windshield to
shatter. Petitioner was not harmed. Petitioner testified that he
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reported this incident to Louis Dejoie II. The second incident
involved a policeman who fired shots into the air after petitioner
had parked the bus and was walking home. Petitioner reported the
incident to the police who allegedly accused him of lying and
laughed at him.
Petitioner flew to Canada, where he stayed with a friend
for fifteen days before entering the United States. When asked why
he did not remain in Canada, petitioner stated that he had
relatives and friends in the United States and knew he would be
safe here. Petitioner also testified that, since his arrival in
the United States, he learned that PAIN's headquarters had been
burned down and Louis Dejoie II had died.
1. Credibility
The Immigration Judge found that petitioner was not a
credible witness. "[W]hen a hearing officer who saw and heard a
witness makes an adverse credibility finding and supports it with
specific findings, an appellate court ordinarily should accord it
significant respect." Aguilar-Solis, 168 F.3d at 571. In this
case, the Immigration Judge supported her credibility determination
with specific findings which "amply justified the IJ's conclusion
that the petitioner's testimony lacked crediblility." Id. The
Immigration Judge noted several inconsistencies in petitioner's
testimony relating to the alleged instances of persecution. First,
petitioner testified that he reported the first July 1999 incident
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to Louis Dejoie II. Petitioner also testified that he learned of
Louis Dejoie II's death after his arrival in the United States.
However, one of the documents petitioner submitted stated that
Louis Dejoie II died in 1998. When confronted with this
inconsistency, petitioner merely repeated his prior testimony.
Second, petitioner originally testified that, in the first July
incident, shots were fired at the tires of the bus he was driving.
He later testified that these shots were fired into the air. The
Immigration Judge also noted other inconsistencies in petitioner's
testimony that supported an adverse credibility finding. The
Immigration Judge supported her credibility determination with
specific findings, and nothing in the record before us compels a
contrary conclusion. See id.
2. Past Persecution
The Immigration Judge found that petitioner's testimony,
were it credible, did not sustain his burden of proving either past
persecution or a well-founded fear of future persecution. "To
qualify as persecution, a person's experience must rise above
unpleasantness, harassment, and even basic suffering." Nelson v.
INS, 232 F.3d 258, 263 (1st Cir. 2000). We are not compelled to
make a decision contrary to the Immigration Judge and BIA based on
a favorable reading of petitioner's testimony. Petitioner was
never physically harmed in any way, nor was he ever confined.
Petitioner also failed to show that the alleged incidents of
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persecution occurred as a result of his political opinion or any
other protected ground.3 We agree with the Immigration Judge's
finding that it was more likely that the July 1999 incidents where
petitioner was driving a bus with "PAIN" written on the side
occurred due to the general civil unrest in Haiti than to
petitioner's political opinion. The Immigration Judge's and BIA's
conclusion that petitioner failed to show past persecution is
therefore supported by substantial evidence.
3. Future Persecution
Substantial evidence also exists to support the
determination that petitioner did not demonstrate a well-founded
fear of future persecution. Because petitioner did not prove past
persecution, he is not entitled to the regulatory presumption of a
well-founded fear of persecution. See Guzman, 327 F.3d at 15.
Petitioner could still establish a well-founded fear of future
persecution by proving that his fear is "both genuine and
objectively reasonable." Aguilar-Solis, 168 F.3d at 572. We focus
our discussion on the objective prong. The relevant inquiry is
"whether a reasonable person in the asylum applicant's
circumstances would fear persecution on account of a statutorily
3
There was no evidence that the fire at the home of
petitioner's aunt was set intentionally, much less that the fire
was set due to petitioner's membership in PAIN. Regarding the
alleged threatening telephone calls to petitioner's aunt, there is
again no evidence demonstrating a political motive for the calls.
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protected ground." Id.; see also Fesseha, 333 F.3d at 19.
Petitioner argues that he has a well-founded fear of future
persecution because he and his political party, PAIN, faced
persecution in the past, and because the documentary evidence he
submitted shows that there is a pattern of political crime and
disorder in Haiti. However, as stated above, petitioner has not
met his burden of proving past persecution on account of his
membership in PAIN. We also agree with the Immigration Judge that,
at best, petitioner's documentary evidence, including country
reports, shows that Haiti has suffered a great deal of unrest and
crime. This evidence does not compel a finding that a reasonable
person in petitioner's circumstances would fear persecution on
account of a statutorily-protected ground.
Because we find substantial evidence to support the
Immigration Judge's and BIA's findings that petitioner was not a
credible witness, failed to demonstrate past persecution due to a
protected ground, and failed to demonstrate a well-founded fear of
future persecution due to a protected ground, we affirm the denial
of asylum.
B. Withholding of Removal
If a petitioner is unable to satisfy the less stringent
standard for asylum, he is a fortiori unable to satisfy the test
for withholding of deportation. Albathani v. INS, 318 F.3d 365,
372 (1st Cir. 2003).
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C. Convention Against Torture
Petitioner's final argument is that he will be tortured
if he is deported to Haiti. Under Article III of the Convention
Against Torture, petitioner must demonstrate that it is more likely
than not that he will be tortured if removed to Haiti in order to
obtain relief. 8 C.F.R. § 208.16(c)(2). The regulations
implementing the Convention Against Torture define torture as
"severe pain or suffering, . . . inflicted 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). Petitioner has not presented any evidence that any
governmental official or other person acting in official capacity
has tortured petitioner, and his documentary evidence does not
substantiate his allegations of torture in Haiti. See Elien v.
Ashcroft, 364 F.3d 392, 399 (1st Cir. 2004). We see no reason to
disturb the findings of the Immigration Judge as to the Convention
Against Torture and the BIA's affirmance thereof.
III.
For the reasons stated above, the BIA's order is
affirmed.
Affirmed.
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