Luc Lordeus, Junior v. U.S. Attorney General ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 20, 2008
No. 07-14007 THOMAS K. KAHN
________________________ CLERK
Agency No. A97-939-529
LUC LORDEUS, JUNIOR,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 20, 2008)
Before BIRCH and MARCUS, Circuit Judges and FORRESTER,* District Judge.
PER CURIAM:
*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
Luc Junior Lordeus seeks review of the Board of Immigration’s (“BIA’s”)
order affirming the Immigration Judge’s (“IJ’s”) decision denying his application
for asylum and withholding of removal under the Immigration and Nationality Act
(“INA”) and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 U.S.C.
§§ 1158, 1231(b)(3), 8 C.F.R. § 208.16(c). The record does not compel the
conclusion: (1) that Lordeus suffered past persecution based on the cumulative
effects of the incidents that all originated on 17 December 2003, including the one-
time beating and subsequent week-long detention; or (2) that Lordeus has a well-
founded fear of future persecution that is objectively reasonable, because the
Lavalas party is no longer in power in Haiti, and Lordeus failed to demonstrate that
he could not avoid a future threat by relocating to another region in Haiti. Thus,
substantial evidence supports the BIA’s conclusion that Lordeus failed to meet his
burden of showing that he was entitled to asylum. As such, Lordeus necessarily
failed to establish eligibility for withholding of removal and CAT relief.
Accordingly, we DENY Lordeus’s petition for review.
I. BACKGROUND
Lordeus, a native and citizen of Haiti, entered the United States without
inspection or parole on or about 20 February 2004. AR at 417. On 12 May 2004,
the Department of Homeland Security (“DHS”) issued Lordeus a Notice to Appear
2
(“NTA”), charging that he was subject to removal under INA § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being
admitted or paroled. Id.On 6 April 2004, Lordeus filed an application for asylum, withholding of
removal, and CAT relief. Id. at 359–72. Lordeus indicated on the application that
he sought asylum and withholding of removal based upon his political opinion and
membership in a particular social group. Id. at 363. Lordeus stated that he was
“really affraid [sic] of returning to Haiti because [he knew] that [his] life [was] still
in great danger and returning to [his] country [would] cause [him his] life.” Id.According to Lordeus, he and his family were members of “O.P.L.” and both he
and his “sibling” used to attend meetings. Id. at 364. Lordeus feared being
subjected to torture in Haiti “because [his] persecution never ended.” Id.In an attachment to the application, Lordeus explained that he was seeking
asylum because he and his family were persecuted by the Lavalas Party supporters
(“Lavalas supporters”). Id. at 369. Lordeus explained that, on 17 December 2003:
a group of men came to my Mother’s house, I was grab[bed] by the
hair and slam[med] against the walls, my Mother was beaten very
badly also, I [was] arrested and taken to jail for 1 week.
I was beaten very badly during interrogation. I was [a] member of a
group named University Quisqueya of Haiti. The Student[s,] as
everyone[,] wanted a change to Haiti because there is too much
injustice in Haiti.
3
My Family and I were mistreated, threaten[ed,] and torture[d].
Id. Lordeus “seriously feared” returning to Haiti because he believed he would be
killed. Id. Lordeus attached a copy of his birth certificate and passport. Id. at
370–72.
At the hearing on 20 April 2005, Lordeus, who was then represented by
counsel, admitted to the allegations in the NTA and conceded removability. Id. at
257. The IJ accepted a copy of the State Department’s 2004 Country Report on
Human Rights Practices for Haiti (“2004 Country Report”) into evidence. Id. at
259–60. On the same day, Lordeus filed additional documents in support of his
application, including: (1) an addendum to his asylum application; (2) a letter from
the Vice President of Academic Affairs, who attested that Lordeus had been
registered in a program at the University of Quisqueya (“University”) from March
to July 2003; (3) an affidavit from Kathleen Lordeus1 ; (4) a copy of Kathleen’s
University ID card; and (5) a 11 March 2005, U.S. Department of State travel
warning for Haiti (“Travel Warning”).2 Id. at 348–58.
1
Lordeus’s sister, Kathleen, is sometimes referred to as “Katteline” in the record. See
AR at 354.
2
Lordeus also stated that he was filing the State Department’s 2005 Country Report on
Human Rights Practices for Haiti (“2005 Country Report”) as “Exhibit #6,” but a copy of that
report is not included in the record. See generally AR. As previously mentioned, the record
does, however, include the 2004 Country Report. AR at 392–411.
4
In his addendum, Lordeus stated that he and his cousin, Serge Pierre, who
was a professor in Cap Haitien, were “general participants in rallies against the
Lavalas government.” Id. at 350. Lordeus stated that, “[o]n December 5 2003,
members of the Lavalas government broke into one of the universities and beat
several students and smashed furniture in an attempt to stifle the students’
activities.” Id. Lordeus claimed that he had a videotape of the incident. Id. On 17
December 2003, he and Serge participated in a student rally where Lavalas
supporters threw rocks and bottles at them. Id. He and Serge “fled the rally and
went home late that night in order to avoid being followed and [to] avoid trouble
by Lavalas thugs.” Id. At around midnight, several heavily armed Lavalas
supporters came to Lordeus’s home, beat him, and hit him in the stomach. Id.Lordeus stated, “I still feel the effects of the blows today.” Id. Lordeus claimed
that the Lavalas supporters also beat Serge, and, when his mother began to scream,
one member “hit her with his hands to shut her up.” Id. Lordeus recognized two
“head Lavalas members,” Renee Civile and Nawoon Marcellus. Id. The Lavalas
supporters drove Lordeus and Serge to a prison where they were interrogated “for a
long time [in an attempt] to get further information about [their] anti-Lavalas
activities.” Id. After about one week, and “a lot of pressure from journalists and
radio,” Lordeus and Serge were released and they immediately went into hiding.
5
Id. Lordeus finally left Haiti for the United States to save his life after his uncle
told him the Lavalas supporters were looking for him. Id.In her affidavit, Kathleen stated that (1) Lordeus was not able to continue his
studies at the University “because of the socio-political problems of the country,”
and (2) Lordeus “had been very active against the fallen regime.” Id. at 354.
Kathleen explained that Lordeus
had been so persecuted that sometimes he could not go home. The
worst thing was, one day while we were at home some armed thugs
came to our house and arrested my little brother Junior and my cousin
Serge Pierre. They spent one week in jail, after several legal steps
they finally got their freedom. Junior was forced to leave the country
to save his life against the armed activists. Unfortunately, my cousin
Serge Pierre almost lost his life because he could not leave.
Id. Kathleen’s ID card indicated that she was admitted to the University in
September 2004. Id. at 356. The Travel Warning stated that visitors and residents
should remain vigilant in Haiti due to “the potential for spontaneous
demonstrations and violent confrontations between armed groups” and “due to the
absence of an effective police force in much of Haiti.” Id. at 358.
The 2004 Country Report stated that President Aristide resigned on 29
February 2004, and an interim government was installed. Id. at 392. A Tripartite
Counsel, consisting of one member from Aristide’s Lavalas Party, one member
from the Democratic Platform, and one member from the international community,
was formed. Id. Haiti suffered instability immediately following Aristide’s
6
departure, which “made the justice system inoperative for a few months.” Id.During the year, there were “credible reports of arbitrary killings” by the police
and pro-Lavalas partisans. Id. at 393. The report stated that systematic, state-
orchestrated abuses stopped under the interim government, but politically-
motivated violence continued, and there were numerous human rights abuses
against Aristide supporters. Id. The interim government’s ability to create a more
secure environment remained limited by year’s end, and there were credible reports
of politically-motivated disappearances. Id. at 393–94. Although Aristide had
filled many key police force positions with allies, the interim government
“inducted one class of new recruits, all of whom were vetted by the human rights
community.” Id. at 396. In addition, the United Nations established a civilian
police force to supplement the national police. Id. There were several reports of
arrests of pro-Lavalas supporters. Id. at 397. In the days after Aristide left office,
conflicts between the opposition groups increased, with instances of abuse reported
on both sides. Id. at 399. The report indicated that, by year’s end, the interim
government’s police force controlled central Port-au-Prince, pro-Aristide groups
maintained control of many of the Port-au-Prince slums, and anti-Aristide rebels
controlled many of the towns in the countryside. Id. From 30 September through
November, pro-Aristide partisans in Port-au-Prince launched a destabilization
campaign that included kidnaping, decapitation, and burning of police officers and
7
civilians. Id. at 400. In response to the campaign, the police conducted sweeps in
search of the perpetrators. Id. at 401. Stated differently, the country remained
unstable and chaotic.
Prior to his removal hearing, Lordeus filed two VHS cassettes along with an
English transcript, and pictures of Serge’s injuries. Id. at 376–87.
At the 5 December 2005 removal hearing, Lordeus testified in accord with
his petition’s allegations as noted above. After release from the week’s
incarceration, Lordeus and Serge went into hiding for two months in another city
before Lordeus came to the United States. Id. at 317–18. After Aristide left office,
Serge, who had returned to Port-au-Prince in March 2004, was beaten and shot by
Lavalas supporters. Id. at 318–20. Lordeus stated that, at the time of the hearing,
Serge lived in Port-au-Prince. Id. at 319. Neither Lordeus nor Serge had problems
while they were in hiding. Id. at 320.
In his written order, the IJ denied Lordeus’s application for asylum,
withholding of removal and CAT relief, and ordered Lordeus removed to Haiti. Id.
at 203. In his oral decision, the IJ stated that he did not dispute that the 17
December 2003 incidents Lordeus testified about had occurred. Id. at 212–13.
However, the IJ found that the events did not rise to the level of past persecution.
Id. at 213. The IJ found that Lordeus’s claim to a well-founded fear of future
persecution was undermined because his family remained in Haiti, and his sister
8
continued her studies at the University. Id. at 213–14. Moreover, the Lavalas
government that Lordeus feared was no longer in power and, while the Lavalas
supporters continued to undermine the government, the support had diminished.
Id. at 213. Although Serge was allegedly targeted, he remained in Haiti, and there
was no evidence that he was harmed on account of any protected ground. Id. at
214. Lordeus also had not shown that he suffered countrywide persecution, or that
he was unable to relocate, and the IJ noted that Lordeus had remained unharmed in
Haiti for two months following the beating and detention. Id. at 213–14. The IJ
also found that there was no evidence that Lordeus was targeted or singled out on
account of his political opinion, and the fact that Lordeus was released by the
Lavalas supporters after being paid a bribe undermined the notion that he was
sought for his political views. Id. at 215. The IJ also noted that there were some
inconsistencies in Lordeus’s testimony concerning when he attended the
University. Id. at 216.
Lordeus filed a notice of appeal in which he claimed that the IJ erred in its
findings that Lordeus: (1) did not meet his burden of proving past persecution or a
fear of future persecution; (2) would not be persecuted in light of the regime
change; (3) did not present evidence of persecution on account of any enumerated
grounds; and (4) testified inconsistently about when he attended the University. Id.
at 192, 197–98.
9
In his accompanying brief, Lordeus argued that the IJ erred in finding that he
did not suffer past persecution based on the 17 December 2003 incidents where:
(1) he was pelted with rocks and bottles; (2) the Lavalas supporters slapped his
mother and hit Lordeus “so hard in his stomach that the traumatic pain subsisted
long after”; and (3) Lordeus and Serge were taken to a prison, “interrogated with
more violence, then thrown in a cell, and left to die.” Id. at 11, 20–21. Lordeus
had a well-founded fear of future persecution because he demonstrated more than a
10% chance of being persecuted. Id. at 22. Lordeus also contended that the IJ
erred by finding that he would not be persecuted because of the regime change and
United Nations presence, even though Lordeus presented government documents
warning against travel there. Id. at 23–25. Further, Lordeus argued that the IJ
erred in finding that Lordeus did not have a political opinion because Lordeus “can
prove that he was persecuted based on his participation in student groups.” Id. at
26. Finally, Lordeus argued that the IJ erred in affording too much weight to
Lordeus’s testimony regarding his attendance at the University because it was not a
material fact in the case. Id. at 28–29.
The BIA dismissed Lordeus’s appeal. AR at 2. The BIA found that the
record did not support Lordeus’s claim of past persecution because neither the
throwing of rocks and bottles nor the beating and detention rose to the level of
persecution. Id. at 3. The BIA stated that the record also supported the IJ’s finding
10
that Lordeus’s family, including Serge, remained in Haiti without further problems.
Id. at 3. Although crime remained high and there were clashes among the various
political factions, “such chaotic conditions, without more” was not enough to
qualify Lordeus for asylum. Id. Therefore, Lordeus failed to show that he had a
well-founded fear of persecution. Id. Moreover, the BIA noted that Lordeus had
successfully relocated to another area for two months before coming to the United
States. Id. Therefore, Lordeus had not established that internal relocation was
unavailable. Id. The BIA acknowledged that violence continued in Haiti after
Aristide left the country in February 2004. Id. The BIA also found that Lordeus
was not entitled to withholding of removal or CAT relief because “the record does
not demonstrate a threat to his life or freedom or that it is likely that he would be
tortured in Haiti with the acquiescence of the government.” Id. at 3–4. The BIA
declined to address Lordeus’s arguments relating to the IJ’s findings that (1) the
incidents were not on account of a statutorily protected ground, and (2) Lordeus
had testified inconsistently about when he attended the University. Id. at 4 n.1.
II. DISCUSSION
Lordeus argues that the BIA erred in finding that he failed to meet his
burden of proving past persecution and a fear of future persecution because he
adequately presented evidence sufficient to demonstrate both. Moreover, he claims
that he demonstrated that the Lavalas supporters attacked and beat students often.
11
Lordeus contends that he suffered past persecution based on three incidents he
suffered at the hands of the Lavalas supporters because of his participation in
opposition rallies, and the BIA erred in concluding otherwise. Specifically,
Lordeus claims past persecution because Lavalas Party supporters threw bottles
and rocks at him, beat him, kidnaped him and held him for one week. Further,
Lordeus asserts that, even though members of his family remained in Haiti, his fear
was not diminished. He contends that the BIA erred in determining that he did
not have a well-founded fear of future persecution because the undisputed evidence
showed a pattern or practice of the Lavalas supporters persecuting students.
Moreover, Lordeus claims that the regime change did not lessen the Lavalas
supporter’s power and diminish his well-founded fear because the Lavalas
supporters still controlled and dominated the police and political powers in Haiti,
there has been no major change in the police force, and the 2004 Country Report
supports his claims. Lordeus also argues that the IJ erred in finding that the
inconsistencies in Lordeus’s testimony undermined his claim for asylum. Lordeus
further claims that the IJ erred in denying his claims for withholding of removal
and CAT relief. These claims and arguments were all advanced in his briefs and
at oral argument by his counsel.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. See Al-Najjar v. Ashcroft,
12
257 F.3d 1262, 1284 (11th Cir. 2001). Since the BIA did not expressly adopt the
IJ’s opinion, we should review the BIA’s decision. See AR at 2–4.
To the extent that the BIA’s decision was based on a legal determination, our
review is de novo. See Mohammed v. Ashcroft, 261 F.3d 1244, 1247–48 (11th
Cir. 2001). The BIA’s factual determinations are reviewed under the substantial
evidence test. See Forgue v. United States Att’y Gen., 401 F.3d 1282, 1286 (11th
Cir. 2005). Under the substantial evidence test, “we cannot find, or consider, facts
not raised in the administrative forum, nor can we reweigh the evidence from
scratch.” Id. We must affirm the BIA’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Id.(citation omitted). We will only reverse the agency’s factual determinations only
where the record compels reversal. See Mendoza v. United States Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003). The record is reviewed in the light most
favorable to the BIA’s decision, and all reasonable inferences are drawn in favor of
that decision. See Forgue, 401 F.3d at 1286.
“Any alien who is physically present in the United States or who arrives in
the United States . . ., irrespective of such alien’s status, may apply for asylum.”
INA § 209(a)(1); 8 U.S.C. § 1158(a)(1). The Attorney General may grant asylum
if an alien is a refugee within the meaning of the INA. See Mejia v. United States
Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). The INA defines “refugee” as:
13
[A]ny 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). The alien bears the burden of showing “with specific
and credible evidence . . . (1) past persecution on account of a statutorily protected
ground or (2) a well-founded fear of future persecution on account of a protected
ground.” Mejia, 498 F.3d at 1256.
We have indicated that “persecution is an extreme concept, requiring more
than a few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Sepulveda v. United States Att’y
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted); see also Djonda
v. United States Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (minor beating
and brief detention does not constitute persecution). Nonetheless, being shot at
constitutes past persecution, even if the attack is unsuccessful. See Sanchez
Jimenez v. United States Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007)
(“[A]ttempted murder is persecution.”); see also Mejia, 498 F.3d at 1257–58
(attempted attacks over 18 months, culminating in roadside assault at gunpoint,
resulting in broken nose, constituted persecution). In addition, serious physical
14
injury is not required “where the petitioner demonstrates repeated threats combined
with other forms of severe mistreatment.” De Santamaria v. U.S. Attorney Gen.,
525 F.3d 999, 1009 (11th Cir. 2008) (holding that the record compelled a finding
of past persecution because petitioner “suffered the trauma of repeated death
threats, two physical attacks, the murder of a family friend, and a kidnaping cut
short only by a harrowing escape” over the course of two years); see also Ruiz v.
Gonzales, 479 F.3d 762, 766 & n.2 (11th Cir. 2007) (record compelled the
conclusion that Ruiz suffered past persecution because it indicated that, over the
course of five months, the FARC beat him on two occasions, telephoned threats to
him, and held him against his will for 18 days). “We may consider a threatening
act against another as evidence that the petitioner suffered persecution where that
act concomitantly threatens the petitioner.” De Santamaria, 525 F.3d at 1009 n.7.
“To establish asylum based on past persecution, the applicant must prove (1)
that she was persecuted, and (2) that the persecution was on account of a protected
ground.” Silva v. United States Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)
(emphasis added). “In assessing past persecution [this Court is] required to
consider the cumulative impact of the mistreatment the petitioner[] suffered.”
Mejia, 498 F.3d at 1258 (emphasis in original) (citation omitted).
A showing of past persecution creates a rebuttable presumption of a
well-founded fear of future persecution. See Sepulveda, 401 F.3d at 1231. That
15
presumption may be rebutted if the government demonstrates by a preponderance
of the evidence either that: (1) “[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded fear of
persecution in the applicant’s country of nationality,” or (2) “[t]he applicant could
avoid future persecution by relocating to another part of the applicant’s country of
nationality . . . , and under all the circumstances, it would be reasonable to expect
the applicant to do so.” 8 C.F.R. §§ 208.13(b)(1)(i)(A)-(B), 208.13(b)(1)(ii).
“If the applicant fails to demonstrate past persecution, an applicant may still
establish asylum based upon proof of a well-founded fear of future persecution.”
De Santamaria, 525 F.3d at 1007 (emphasis added) (citing 8 C.F.R.
§ 208.13(b)(2)). A well-founded fear of future persecution can be established by
“specific, detailed facts showing a good reason to fear that he will be singled out
for persecution” on account of a protected ground. Ruiz v. United States Att’y
Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (citation omitted). As an alternative to
demonstrating that he would be “singled out for persecution,” an alien may show a
pattern or practice in the subject country of persecuting members of a statutorily
defined group of which the alien is a part. 8 C.F.R. § 208.13(b)(2)(iii). The alien
must show that his fear of persecution is “subjectively genuine and objectively
reasonable.” Ruiz, 440 F.3d at 1257. “The subjective component is generally
satisfied by the applicant’s credible testimony that he or she genuinely fears
16
persecution. . . . In most cases, the objective prong can be fulfilled either by
establishing past persecution or that he or she has a good reason to fear future
persecution.” Al Najjar, 257 F.3d at 1289 (citation and quotation marks omitted).
In addition, the regulations note:
An applicant does not have a well-founded fear of persecution if the
applicant could avoid persecution by relocating to another part of the
applicant’s country of nationality or, if stateless, another part of the
applicant’s country of last habitual residence, if under all the
circumstances it would be reasonable to expect the applicant to do so.
8 C.F.R. § 208.13(b)(2)(ii); see also Ruiz, 440 F.3d at 1258–59 (adverse-credibility
case) (noting that alien’s fear of future persecution was undermined because his
family remained in the country of origination without persecution); Arboleda v.
United States Att’y Gen., 434 F.3d 1220, 1223–24 (11th Cir. 2006) (discussing the
codification of the “country-wide” requirement and listing cases); Mazariegos v.
Office of United States Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001)
(explaining, without addressing the regulation, that, under the “country-wide”
requirement, “it is not unreasonable to require a refugee who has an internal
resettlement alternative in his own country to . . . establish that such an option is
unavailable”).
The regulations identify several considerations relevant to whether it would
be “reasonable” for an alien to relocate, including:
17
whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country,
administrative, economic or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age, gender,
health, and social and familial ties.
8 CFR § 208.13(b)(3). “In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in the past, it
shall be presumed that internal relocation would not be reasonable.” 8 C.F.R.
§ 208.13(b)(3)(ii).
The burden regarding withholding of removal and CAT relief is higher than
the asylum standard. See Forgue, 401 F.3d at 1288 n.4. Thus, a petitioner who
fails to establish eligibility for asylum is usually unable to carry the burden
regarding withholding of removal and CAT relief. See id.; Al Najjar, 257 F.3d at
1292–93.
Initially, the BIA acknowledged that the IJ made no explicit adverse
credibility finding with regard to Lordeus’s testimony about the alleged incidents
of persecution. AR at 2. Therefore, Lordeus’s testimony with regard to the
incidents that occurred on 17 December 2003 are accepted as credible. See De
Santamaria, 525 F.3d at 1011 n.10 (“Where an IJ fails to explicitly find an
applicant’s testimony incredible and cogently explain his or her reasons for doing
so, [this Court] accept[s] the applicant’s testimony as credible.”).
18
Viewing the record in the light most favorable to the BIA’s decision, and
drawing all reasonable inferences in favor of that decision, substantial evidence
supports the BIA’s determination that Lordeus did not suffer past persecution. See
Forgue, 401 F.3d at 1286. Lordeus testified that he and Serge attended a
demonstration at the University on 17 December 2003. AR at 311–12. According
to Lordeus, the demonstration was broken up by Lavalas supporters who, with the
help of the police, threw stones at and beat the demonstrators. Nothing in the
record compels a finding that Lordeus was injured at the demonstration. See
generally AR. Later that evening, Lavalas supporters broke into Lordeus’s home,
beat him, hit him in the head with their weapons, slapped his mother, and kidnaped
Lordeus and his cousin. Id. at 313–14. Although Lordeus stated in his addendum
to his application that he could “still feel the effects of the blows today,” there is
nothing in the record to compel a finding that Lordeus was injured as a result. Id.
at 350; see generally AR. After they beat him, on the same day, the Lavalas
supporters took Lordeus to a prison where he was kept for approximately one
week. Id. at 314–15. While he was detained, Lordeus and Serge were
interrogated. Id. Although Lordeus described an incident that occurred at another
university on 5 December 2003, he admitted he was not involved in that
demonstration, and, although he stated that a similar demonstration occurred at the
University that same day, he also conceded that he was safe inside a classroom at
19
the time of the incident. Id. at 300–01, 309–10. We have held that a kidnaping
coupled with beatings before and during the kidnaping, and threatening phone
calls, amounted to persecution. See Ruiz, 479 F.3d at 766 n.2. We have also
determined that serious physical injury is not necessarily required to establish past
persecution. See De Santamaria, 525 F.3d at 1009. However, unlike the series of
incidents in Ruiz, which occurred over the course of five months, and unlike the
repeated threats in De Santamaria, which occurred over the course of two years, the
events in the instant case, which all originated on 17 December 2003, lasted only
five days. See id.; Ruiz, 479 F.3d at 763–64. Thus, even though he was not
necessarily required to show that he was seriously injured, Lordeus has failed to
demonstrate “repeated threats combined with other forms of severe mistreatment.”
See De Santamaria, 525 F.3d at 1009. Therefore, the record does not compel
reversal of the BIA’s finding that Lordeus did not suffer past persecution. See
Mendoza, 327 F.3d at 1287.
Further, substantial evidence supports the BIA’s determination that Lordeus
failed to demonstrate a well-founded fear of future persecution. As previously
discussed, he failed to establish past persecution, so there is no presumption of
future persecution. See Sepulveda, 401 F.3d at 1231. Lordeus argues that he
established a pattern or practice in Haiti of the Lavalas supporters persecuting
students. However, the 2004 Country Report indicates that, while instability
20
continued in Haiti, the government was no longer substantially controlled by the
Lavalas Party. AR at 392. Next, Lordeus maintains that, even after Aristide’s
departure, the Lavalas supporters still controlled the police force. However, the
2004 Report indicates that the interim government had begun inducting new
recruits, and the United Nations established a civilian police force in order to
support the national police. Id. at 396. Moreover, although the Lavalas supporters
continued to wreak havoc in Haiti, particularly in Port-au-Prince, the anti-Aristide
rebels and the interim government police had begun taking control back of many of
the areas of central Port-au-Prince as well as the countryside, and there many
reports of arrests of pro-Lavalas supporters and activists. Id. at 397, 399–401.
Because substantial evidence supports the conclusion that the Lavalas Party is not
in control of either the government or the police force, Lordeus was not entitled to
a presumption that relocation would not be reasonable. See 8 C.F.R.
§ 208.13(b)(3)(ii). As such, Lordeus’s objective fear is undermined because the
record reflects that Lordeus’s parents and three sisters, including Kathleen, who
was admitted to the University in September 2004, continue to reside in Haiti. See
Ruiz, 440 F.3d at 1259; AR at 294–95, 356. Significantly, even Serge, whom
Lordeus testified was shot and persecuted by the Lavalas supporters shortly after
Aristide left office, remained in Port-au-Prince. AR at 319. Thus, although
Lordeus may subjectively fear future persecution, substantial evidence supports a
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conclusion that his fear is not objectively reasonable. See Ruiz, 440 F.3d at 1257.
Accordingly, the record does not compel a reversal of the BIA’s finding that
Lordeus did not have a well-founded fear of future persecution by the Lavalas
supporters. See Mendoza, 327 F.3d at 1287.
III. CONCLUSION
Therefore, Lordeus fails to establish a claim for asylum on the merits. As
such, he also fails to establish eligibility for withholding of removal and CAT
relief. See Forgue, 401 F.3d at 1288 n.4. Accordingly, we DENY Lordeus’s
petition for review.
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