Robenson v. Ashcroft , 137 F. App'x 364 ( 2005 )

Not For Publication in West's Federal Reporter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. 04-2286
ROBENSON SEIDE,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Harvey J. Bazile, with whom Bazile & Associates, were on
brief, for petitioner.
Linda S. Wernery, Attorney, Office of Immigration Litigation,
Civil Division, with whom Peter D. Keisler, Assistant Attorney
General, Civil Division, Dennis J. Dimsey, Attorney, and
Christopher C. Wang, Attorney, Office of Immigration Litigation,
were on brief, for respondent.
June 30, 2005
STAHL, Senior Circuit Judge. Petitioner Robenson Seide
("Seide") seeks review of a decision of the Board of Immigration
Appeals ("BIA") affirming a denial of his application for asylum,
withholding of removal, and relief under Article 3 of the
Convention Against Torture ("CAT").1 Finding no error, we affirm.
I. Background
Seide is a native and citizen of Haiti. On August 25,
2001, he attempted, albeit unsuccessfully, to use a United States
passport that originally had been issued to another person to enter
the United States. Prior to seeking entry into the United States,
Seide lived in Port-au-Prince, Haiti with his wife, whom he married
in January 2001 and who still lives in Port-au-Prince. Seide was
born and grew up in Cavaillon, Haiti with his parents, two sisters,
and a brother. By August 2001, his parents and one sister lived in
St. Martin and his brother lived in the Dominican Republic.2
In September 2001, the United States Immigration and
Naturalization Service ("INS") initiated removal proceedings
against Seide.3 At his removal hearing before an Immigration Judge
1
The CAT's full name is the United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. Article 3 of the CAT
was implemented in the United States by the Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681, 2681-822 (codified at 8 U.S.C. § 1231).
2
Seide's other sister lived in the United States.
3
The Homeland Security Act of 2002, Pub. L. No. 107-296, §
471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. §
-2-
("IJ"), Seide conceded removability but applied for relief in the
form of asylum, withholding of removal, and relief under the CAT.
During the hearing, Seide testified that he came to the
United States to escape adverse treatment that he faced as a result
of his political activities.4 He claimed that he became involved
in politics in Haiti in 1999 when he joined Rassemblement des
Citoyens Patriotes ("RCP"), an organization devoted to pursuing
social and political reform in Haiti. He also said that he was a
member of Organisation des Militants Kavayone ("ODMK"), a group
that sought to bring about reform in Cavaillon. Seide routinely
traveled from his home in Port-au-Prince to Cavaillon.
Seide maintained that due to his reformist activities, he
began to experience adverse treatment in May 2000. He recounted
that on May 22, 2000, he was in the headquarters of RCP when the
building was shot at and invaded by supporters of the Lavalas
Party, Haiti's ruling political party. Seide averred that the
intruders killed one member of RCP, wounded fifteen to twenty
others, and stole documents that contained names and addresses of
RCP members.
291(a)), abolished the INS as an independent agency and transferred
many of its duties to a bureau of the Department of Homeland
Security.
4
The following account is derived from Seide's removal hearing
testimony and from his affidavit in support of his application for
relief from removal.
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Seide further testified that on July 14, 2000, four men
wearing shirts bearing the logo of the Lavalas Party broke into his
home while he was out, asked his servant for him by name, and
stole, among other things, his passport. The intruders allegedly
promised to return when he was in residence. Approximately two
weeks later, Seide obtained a replacement passport. After the
break-in, Seide vacated his home and, for several months, stayed
with friends and family in various locations within Port-au-Prince.
Then, in January 2001, he married and reestablished a permanent
home with his wife in Port-au-Prince. Throughout this time, Seide
continued to travel between and conduct political activities in
Port-au-Prince and Cavaillon.
Next, Seide claimed that on November 25, 2000, he was
attending mass in a church near Cavaillon with members of ODMK when
a group of men brandishing firearms entered the church and ordered
everyone inside to the ground. The mayor of Cavaillon, a member of
the Lavalas Party, was allegedly among the intruders. Seide stated
that he was physically attacked (though he did not require medical
treatment) and ordered to cease his political activities.
Seide further insisted that two months later, in January
2001, the coordinator of ODMK was arrested and held in custody for
a little over two weeks without being formally charged of a crime.
The coordinator allegedly died soon after his release due to
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injuries he sustained while in custody. Seide acknowledged that
while living in Haiti, he was never similarly detained.
Seide also recounted that on August 4, 2001, while
driving a relative's car (a car he had previously driven on only a
few occasions), he was followed and shot at by individuals in
another car. He asserted that he managed to escape on foot after
losing control of the car. Seide could not identify his attackers.
Moreover, although he indicated in his written affidavit that, as
he ran away, his attackers yelled political epithets at him, he did
not include this detail in his testimony before the IJ.
After considering all of the above, the IJ concluded that
Seide had failed to establish an entitlement to the relief that he
sought. She refused his request for asylum, finding that he did
not have a well-founded fear of future persecution in Haiti on
account of his political beliefs and that he had not established
that his departure from Haiti was caused by any prior politically-
motivated incidents. As to the August 2001 attack, the IJ found it
significant that Seide was driving a borrowed car, could not
identify his attackers, and did not testify that his attackers
yelled political epithets at him. She concluded that there was
insufficient evidence that he was the intended target of a
politically-motivated attack and that, given the circumstances, he
could not reasonably have viewed himself as the intended target of
such an attack. Further, she noted that the most recent of the
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other incidents occurred nine months before he left Haiti.5 From
this, she reasoned that Seide did not have a well-founded fear of
future persecution and that his attempt to enter the United States
was not "on account of threats . . . or mistreatment that he
received [due to] his political activities"; it was "a matter of
choice and not necessity."
The IJ then denied Seide's request for withholding of
removal because she found that he had "failed to establish a clear
probability of persecution" on account of his political beliefs if
he were returned to Haiti. Finally, she determined that Seide had
not shown that "the authorities would . . . subject him to torture"
if he were to return to Haiti, and thus, she denied his request for
relief under the CAT.
Seide appealed the IJ's decision to the BIA. After the
BIA adopted and affirmed the IJ's ruling, Seide filed this timely
appeal.
5
The IJ also found it significant that Seide applied for and
received a replacement passport immediately after the home
invasion; at all relevant times, he traveled between and engaged in
political activities in Port-au-Prince and Cavaillon; from January
to August 2001, he lived without incident with his wife in a
permanent home in Port-au-Prince; and he used another person's
passport to try to enter the United States rather than using his
own passport to legally gain access to St. Martin (where his
parents and one sister lived) or the Dominican Republic (where his
brother lived).
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II. Discussion
We uphold decisions of the BIA if they are "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (internal quotation marks omitted). This standard applies
to claims for asylum, withholding of removal, and relief under the
CAT. Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). "We
will reverse only if the petitioner's evidence would compel a
reasonable factfinder to conclude that relief was warranted." Id.Ordinarily, we review decisions of the BIA, and not those
of an IJ. See Njenga v. Ashcroft, 386 F.3d 335, 338 (1st Cir.
2004). But, if, as in this case, the BIA has adopted the opinion
of an IJ, then we must look to that decision instead and "treat the
findings and conclusion of the IJ as the [BIA's] own opinion."
Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003).
A. Asylum
An asylum applicant bears the burden of proving that he
"is unable or unwilling to return to [his country of nationality]
. . . because of [past] persecution or a well-founded fear of
[future] persecution on account of . . . political opinion." 8
U.S.C. § 1101(a)(42)(A); see 8 C.F.R. § 208.13(a). A showing of
past persecution entitles the applicant to a rebuttable presumption
of a well-founded fear of future persecution. See Mukamusoni v.
Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004). To carry his burden,
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Seide had to show that he left Haiti for the United States because
he faced past persecution or had a well-founded fear of future
persecution as a result of his political beliefs.6 See id. Still,
if he demonstrated only past persecution and the government was
able to rebut the presumption of a well-founded fear of future
persecution, he would not have been entitled to asylum. See id.The IJ found that Seide was ineligible for asylum because
he established only past persecution and the government succeeded
in rebutting the presumption of a well-founded fear of future
persecution, and he did not prove that his departure from Haiti was
caused by the past persecution. Because the evidence does not
"compel" that we reach a conclusion different from that of the IJ,
we affirm. See Settenda, 377 F.3d at 93.
Were it clear that Seide was the intended target of the
August 2001 automobile attack and that he was targeted because of
his political beliefs, this might be a more compelling case. But,
we cannot say that the evidence necessitated the conclusion that
Seide was, or that he reasonably could have viewed himself as, the
intended target of a politically-motivated attack in August 2001,
given that he could not identify his attackers, did not testify
6
To show past persecution, Seide had to provide "conclusive
evidence" that he was targeted because of his political opinions.
Ali v. Gonzales, 401 F.3d 11, 15 (1st Cir. 2005). And, to show a
well-founded fear of future persecution, he had to establish that
his "fear [was] both genuine and objectively reasonable." Aguilar-
Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999).
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that his attackers yelled political epithets at him, and at the
time of the attack, was driving a borrowed vehicle. Moreover, the
November 2000 incident, the most recent of the other incidents,
occurred nine months before Seide left Haiti. And, during that
period, Seide lived openly with his wife in Port-au-Prince and
continued to travel between and engage in political activities in
Port-au-Prince and Cavaillon. Thus, there is sufficient evidence
to support the IJ's finding that Seide was not the intended target
of a politically-motivated attack in August 2001; the incidents of
May, July, and November 2000 cannot fairly be viewed as the cause
of his August 2001 departure; and, despite those incidents, he did
not have a well-founded fear of future persecution on account of
his political beliefs in August 2001.7
B. Withholding of Removal
Because Seide failed to demonstrate his eligibility for
asylum, he is necessarily ineligible for withholding of removal.
7
Although we view the delay between the incidents in 2000 and
Seide’s departure in August 2001 as significant to the asylum
determination, our decision is informed by a number of other
factors as well. In particular, we find it noteworthy that Seide's
wife currently lives peacefully in Port-au-Prince; in all of
Seide's allegedly violent encounters with members of the Lavalas
Party, he was never injured to the point where he required medical
attention; and he used another person's passport to try to enter
the United States rather using his own passport to legally gain
access to St. Martin or the Dominican Republic (which supports the
IJ's conclusion that his seeking to enter the United States was "a
matter of choice and not necessity"). Moreover, if Seide truly
feared that supporters of the Lavalas Party were out to harm him
after the July 2000 home invasion, he probably would not have
immediately applied to the authorities for a replacement passport.
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See Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002) ("Because the
standard for withholding . . . is more stringent than that for
asylum, a petitioner unable to satisfy the asylum standard fails,
a fortiori, to satisfy the former." (internal quotation marks
omitted)). For this reason, the denial of his request for
withholding of removal is affirmed.
C. Convention Against Torture
An applicant seeking relief under the CAT must "establish
that it is more likely than not that he . . . would be tortured if
removed to the proposed country of removal." 8 C.F.R. §
208.16(c)(2). For an act to constitute torture, it must be, inter
alia, inflicted "by or at the instigation of or with the consent or
acquiescence of a public official." Elien v. Ashcroft, 364 F.3d
392, 398 (1st Cir. 2004); see 8 C.F.R. § 208.18(a)(1).
There is sufficient support for the IJ's conclusion that
Seide failed to establish that "it is more likely than not" that he
will be tortured if returned to Haiti. As we have said, the
evidence indicates that from January to August 2001, Seide lived
openly in Port-au-Prince and traveled between and engaged in
political activities in Port-au-Prince and Cavaillon. It also
supports the IJ's finding that, during this time, Seide was not
specifically targeted by any individuals, much less individuals
associated with the government. The denial of Seide's request for
relief under the CAT is affirmed.
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Affirmed.
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