Celestin v. Garland ( 2021 )

Case: 20-60501 Document: 00516112600 Page: 1 Date Filed: 12/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 1, 2021
No. 20-60501
Lyle W. Cayce
Summary Calendar Clerk
Antoine Celestin,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A203 803 755
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Antoine Celestin, a native and citizen of Haiti, petitions for review of
an order by the Board of Immigration Appeals dismissing his appeal from the
denial of his applications for asylum, withholding of removal, and protection
under the Convention Against Torture. We DENY the petition.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60501
We review a Board of Immigration Appeals (“BIA”) decision and
consider the immigration judge’s decision only to the extent it influenced the
BIA. Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018). Factual findings
are reviewed for substantial evidence and legal determinations are reviewed
de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Under
the substantial evidence standard, we may not overturn a factual finding
unless the evidence compels a contrary result. Martinez-Lopez v. Barr, 943
F.3d 766, 769 (5th Cir. 2019). We review the BIA’s denial of a motion for
remand for abuse of discretion. Suate-Orellana v. Barr, 979 F.3d 1056, 1062
(5th Cir. 2020).
Celestin argues that the BIA erred by affirming the immigration
judge’s determination without considering the evidence he presented with
his brief to the BIA. The BIA noted that it did not consider new evidence
presented for the first time on appeal. The BIA treated Celestin’s submission
of evidence as a motion to remand and then denied the motion because the
evidence did not alter the outcome of the case. As Celestin admits in his
brief, the evidence simply corroborates his testimony, which was found to be
credible. This was not an abuse of the BIA’s discretion. See Suate-Orellana,
979 F.3d at 1062.
Celestin also argues that the BIA erred in finding that he had not
suffered past persecution because the Haitian government was unwilling to
help him. Celestin testified, however, that he did not report his alleged abuse
to the police out of fear for his safety from the perpetrators. We agree with
another panel of this court that whether a petitioner has reported private
violence to police is one factor that may be considered, as is the futility of
reporting such violence. See Arevalo-Velasquez v. Whitaker, 752 F. App’x
200, 201 (5th Cir. 2021). In rejecting Celestin’s assertions of past
persecution and “additional harm in the future,” the BIA specifically
discussed the incidents he related about his life in Haiti as well as his two
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return trips to there while he lived in Chile. The BIA found that nothing in
his testimony showed that any past harm was inflicted by or with the
acquiescence of the government. Though the record supports that he was
mistreated, the incidents do not show that he was targeted as an individual
and do not compel a finding of past persecution in light of his testimony that
he was able to return to Haiti for his parents’ funerals without incident. See
Qorane v. Barr, 919 F.3d 904, 909–10 (5th Cir. 2019). The evidence does not
cause us to disturb the findings of the BIA with regards to the asylum claim.
The harm described in this case does not qualify as past persecution. See
Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006).
Similarly, the evidence does not compel the conclusion that there is
an objectively reasonable, well-founded fear of future persecution. See Lopez-
Gomez, 263 F.3d at 445. Not only did the BIA find that Celestin produced no
“credible, direct or specific evidence” that the Haitian government was
unwilling or unable to protect him from people who wanted to harm him for
being a homosexual male, but the scant evidence in the record supporting
Celestin’s claim does not compel a conclusion that Celestin has a well-
founded fear of future prosecution. Thus, Celestin has not shown that the
BIA erred in affirming the denial of his application for asylum. Because the
standard of proof is higher for withholding of removal than it is for asylum,
the challenge to the denial of the application for withholding of removal fails
as well. See Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012).
Celestin also challenges the BIA’s finding that he had not shown that
it was more likely than not that he would be tortured with the acquiescence
of the government if removed to Haiti. See Efe v. Ashcroft, 293 F.3d 899, 907
(5th Cir. 2002). Celestin did not present any evidence for his Convention
Against Torture claim that differed from his asylum or withholding of
removal claim. See Dayo v. Holder, 687 F.3d 653, 659 (5th Cir. 2012). He has
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not shown that the BIA erred in affirming the denial of his application for
protection under the Convention Against Torture.
PETITION DENIED.
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