Andre v. John D. Ashcroft ( 2004 )


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  •                Not For Publication in West's Federal Reporter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.
    -2-
    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.
    -3-
    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).
    -4-
    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
    -6-
    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
    -7-
    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.
    -8-
    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).
    -9-
    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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