Maurice Sinvilien Joseph v. U.S. Attorney General , 304 F. App'x 788 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10250 ELEVENTH CIRCUIT
DECEMBER 19, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A97-929-742,
A97-929-743
MAURICE SINVILIEN JOSEPH,
MONIQUE JOSEPH ALEXANDRE,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 19, 2008)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Maurice Sinvilien Joseph and his wife, Monique Joseph Alexandre, citizens
of Haiti, petition for review of the Board of Immigration Appeals’s (“BIA”) order
affirming the Immigration Judge’s (“IJ”) denial of asylum and withholding of
removal under the Immigration and Nationality Act (“INA”) and the United
Nations Convention Against Torture (“CAT”). After review, we deny in part and
dismiss in part the petition.
I. BACKGROUND
On November 25, 2003, Joseph entered the United States as a nonimmigrant
visitor. In January 2004, Joseph and his wife, Alexandre, applied for asylum,
withholding of removal and CAT relief. Alexandre had entered several weeks
earlier.
On December 20, 2004, the Department of Homeland Security issued a
Notice to Appear (“NTA”) charging Joseph and Alexandre with staying in the
United States beyond May 23, 2004 without authorization. Joseph and Alexander
admitted the allegations in the NTA.
A. Alleged Persecution
In his asylum application and hearing testimony, Joseph stated that he had
been a police investigator with the Haitian National Police (“HNP”) and claimed
he was persecuted by pro-Lavalas HNP supervisors because he had assisted in
United States criminal prosecutions. According to Joseph, the Lavalas Party was
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trying to take control of and politicize the police department. Joseph’s supervisors
thought he was an agent for the United States and that he was working against the
corrupt Haitian police force.
In 2000, Joseph worked closely with the United States embassy in Haiti as it
investigated a visa fraud scheme. More recently, Joseph traveled to the United
States and testified as a government witness in the federal criminal trial of Curtis
Wharton, who was charged with murdering his wife while they were in Haiti.1
According to Joseph, some of his supervisors did not like that Joseph had
cooperated with the Wharton prosecution, and one supervisor, Alcius Guerby,
testified on Wharton’s behalf in the United States trial.
On October 21, 2003, after Joseph had testified, another supervisor, Jude
Perrin, questioned Joseph about his cooperation on the Wharton case and asked if
he was being paid by the United States to work against the Haitian government.
Joseph felt threatened by Perrin and did not return to work afterward.
A week later, on October 27, 2003, Joseph’s house was sprayed with gun
fire. Just before the shooting began, Joseph heard someone who sounded like
Guerby state that Joseph would “pay dearly” for working with the United States.
1
Wharton was ultimately convicted of, among other things, foreign murder of a United
States national. See United States v. Wharton, 320 F.3d 526 (5th Cir. 2003).
3
After the incident, Joseph’s wife left for the United States, and Joseph went into
hiding.
Joseph submitted an October 27, 2003 incident report prepared by a Haitian
justice of the peace. The incident report stated that Joseph’s house and a vehicle
parked nearby were riddled with bullets and that shells of different caliber weapons
were found on the ground. Joseph reported hearing a voice matching Guerby’s
state before the attack that Joseph had worked for the United States embassy and
would pay for that dearly. Joseph also reported that the attack followed an October
21 interview by Jude Perrin of the Central Office of the Judiciary Police, who
interrogated Joseph about his ties to United States embassy and his participation in
the Wharton investigation.2
Two weeks later, Joseph received a call from Perrin ordering him to join
another police investigator, Pierre Honale Bonnet, in a special operation. Like
Joseph, Bonnet had assisted the United States with the Wharton prosecution and
2
At the hearing, Joseph introduced photographs of his home that he said a neighbor took
after the 2003 shooting. However, the photographs were date-stamped April 15, 1997. The IJ
continued the hearing so that the photographs could be forensically examined to determine their
age, but the examination results were inconclusive. The IJ expressed concern about the
photographs. On appeal, the BIA agreed with the IJ that the photographs were “suspicious.”
Joseph does not challenge this fact finding.
4
had been pressured by police supervisors. Unlike Joseph, however, Bonnet
decided to return to work and was killed during the special operation.3
Joseph left Haiti for the United States on November 25, 2003. One of
Joseph’s neighbors wrote a letter stating that after Joseph’s departure, armed men
came to Joseph’s home on several occasions looking for him and asking for
information.
The 2005 Country Report on Human Rights Practices in Haiti states that
arbitrary killings were committed by the HNP, former military forces opposing
Aristide, Lavalas partisans and street gangs paid by Aristide. Much of the
violence stemmed from the armed rebellion that ousted Aristide in February 2004.
Armed attacks and common crime against civilians spread panic and fear. Pro-
Lavalas partisans were responsible for violence and killings in Port-au-Prince,
including the killing of police officers. In September 2004, during “Operation
Baghdad,” a surge of political violence that lasted several weeks, hundreds of
people were killed and property was destroyed or burned. Many of the killings
3
Joseph submitted a newspaper obituary announcing Bonnet’s death and stating that a
funeral would be held on November 25, 2003. The obituary did not give any details of how
Bonnet had died.
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were believed to have been carried out by pro-Lavalas gangs and some members of
the HNP.4
The Country Report indicated that there was widespread corruption in all
branches of the government. However, after Aristide resigned, the interim
government made some progress reforming HNP by firing corrupt officers,
conducting prompt investigations of human rights abuses, arresting suspected
officers, shuffling leadership and inducting new recruits cleared by human rights
organizations. By November 2005, more than fifty police officers had been fired
or jailed on allegations of corruption.
Joseph also submitted several newspaper articles from October 2004
reporting waves of violence by pro-Aristide gangs in Haiti. These gangs murdered
policemen, looted businesses and terrorized civilians as part of a systematic
campaign to destabilize the country and facilitate Aristide’s return to power.
B. Immigration Proceedings
The IJ denied all requested relief. The IJ concluded that Joseph was
statutorily ineligible for asylum and withholding of removal because he had failed
to show he was targeted because of a political opinion or an imputed political
opinion. On appeal, the BIA affirmed and adopted the IJ’s decision. The BIA also
4
According to Joseph, another unnamed officer who cooperated with the Wharton
prosecution disappeared during “Operation Baghdad.”
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noted that Joseph had failed to show how his cooperation with the United States
created the impression that he was politically opposed to the Haitian government or
Lavalas. The BIA concluded that, at most, the evidence showed that the attack on
Joseph’s house was a private act of violence. Joseph filed this petition for review.
II. DISCUSSION
To be eligible for asylum, a petitioner must show that he suffered past
persecution or has a well founded fear of future persecution “on account of” a
protected ground. See INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); see also 8
C.F.R. § 208.13(b). An imputed political opinion is a statutorily protected ground.
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001). A political
opinion may be imputed if the persecutors mistakenly attribute a political opinion
to the asylum applicant “and then persecute[ ] him because of that mistaken belief
about his views.” Id. (brackets omitted)
The alien must show not only that the persecutor imputed a political opinion
to him, but also that the persecution was motivated by that imputed political
opinion. See Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir.
2007). Evidence of acts of private violence or criminal activity do not demonstrate
persecution on a protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258
(11th Cir. 2006). We will not reverse a finding that an alien failed to demonstrate a
nexus between the alleged persecution and the alien’s actual or imputed political
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opinion, unless the evidence compels the conclusion that the alien has been or will
be persecuted “‘because of’ his political opinion.” Rodriguez Morales, 488 F.3d at
890.5
Here, substantial evidence supports the finding that Joseph was a victim of
criminal violence rather than political persecution.6 Specifically, there is evidence
in the record that: (1) the HNP has suffered from endemic corruption and its
members have engaged in criminal violence and arbitrary killings; (2) pro-Lavalas
partisans have killed police officers as part of a strategy to destabilize the country
and bring former president Aristide back to power; (3) Joseph’s pro-Lavalas HNP
supervisors were corrupt and attempting to take control of the HNP; (4) these
supervisors targeted Joseph because they saw his cooperation with the United
States as a sign that he would fight against their corruption; and (5) since Aristide
resigned from power, progress has been made to weed out corrupt and violent HNP
5
Where, as here, the BIA adopts and affirms the reasoning of the IJ, we review the
decisions of both the BIA and the IJ. Al Najjar, 257 F.3d at 1284. We review legal
determinations de novo, D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004),
and factual determinations under the substantial evidence test, Al Najjar, 257 F.3d at 1283.
Under the highly deferential substantial evidence standard, we will reverse a finding of fact
“only when the record compels a reversal; the mere fact that the record may support a contrary
conclusion is not enough to justify a reversal.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th
Cir. 2004) (en banc).
6
We lack jurisdiction to consider Joseph’s newly raised claim that he was persecuted on
account of his membership in a particular social group–former HNP officers who cooperated
with the United States–because Joseph failed to raise this particular social group argument with
the BIA. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We
thus dismiss Joseph’s petition with respect to this claim.
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officials and reform the HNP. These facts suggest Joseph’s HNP supervisors were
motivated, at most, by their own political opinions, not a political opinion they
imputed to Joseph. See Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437-38 (11th
Cir. 2004) (explaining that it is the victim’s, and not the persecutor’s, political
opinion that must motivate the persecution).
We cannot say the evidence compels a finding that Joseph was or will be
persecuted on account of an imputed political opinion. Because Joseph failed to
carry his lower burden of proof with regard to asylum, he is also ineligible for
withholding of removal. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4
(11th Cir. 2005). Given the recent reforms made within the HNP, the evidence
also does not compel a conclusion that Joseph would more likely than not be
tortured by the Haitian government if returned to Haiti.
DENIED IN PART, DISMISSED IN PART.
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