Michel v. Mukasey

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2166
CELONY MICHEL,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Stafford,* Senior District Judge.
Robert M. Warren on brief for petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, and Anthony Wray
Norwood, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
July 28, 2008
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*Of the Northern District of Florida, sitting by designation.
Per Curiam. The petitioner, Celony Michel, is a Haitian
national and a self-proclaimed member of a Haitian political group
known as the Democratic Convergence. He seeks judicial review of
a final order of the Board of Immigration Appeals (BIA) denying his
petition for asylum, withholding of removal, and protection under
the United Nations Convention Against Torture (CAT). Ceding
appropriate deference to the BIA's decision, we deny the petition.
The facts are relatively straightforward. On August 25,
2001, the petitioner entered the United States using an altered
passport and an assumed name. Shortly after his arrival, the
Immigration and Naturalization Service (INS) apprehended him. The
INS then charged him with being an alien subject to removal from
the United States. See 8 U.S.C. §§ 1182(a)(6)(C)(i),
1182(a)(7)(A)(i)(I). The petitioner conceded removability but
cross-applied for asylum, withholding of removal, and protection
under the CAT.
At an ensuing hearing before an immigration judge (IJ),
the petitioner described three instances of mistreatment allegedly
occurring in 1996, 1999, and 2001. He argued that these incidents
established past persecution on account of his political opinion
and, therefore, triggered a presumption of future persecution
should he be repatriated. See 8 C.F.R. § 1208.13(b)(1). In
elaboration, he explained that his association with the Convergence
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party had made him a target for supporters of Haiti's then-
President Jean-Bertrand Aristide.
Of the three incidents, two involved unjustified arrests,
incarceration without charges, and imprisonment in terrible
conditions. Following the first arrest in 1996, the petitioner
left his wife and children in Maissade to seek shelter with other
family members in L'Hermit. The second arrest occurred in 1999
when he returned to Maissade for a visit. The petitioner claims
that he was beaten but he did not seek medical attention.
The petitioner later moved from L'Hermit to Port-au-
Prince. In 2001, after he voted for a Convergence party candidate
in an election, members of the opposition Lavalas party (a group
beholden to President Aristide) beat him. Following this incident,
he left Haiti for the United States. According to the petitioner,
Lavalas adherents from time to time asked his wife, who remained in
the country, about his whereabouts — but nothing in the record
indicates either that these inquiries were threatening or that
violence was imminent if he returned to Haiti.
The IJ found that the petitioner was credible and had
established past persecution on account of his political viewpoint.
The IJ also found, however, that the petitioner could not sustain
the presumption of a well-founded fear of future persecution — the
showing required for a grant of asylum — because Aristide was no
longer in power in Haiti and the circumstances had fundamentally
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changed. See 8 C.F.R. § 1208.13(b)(1)(i)(A). Thus, no relief was
available to him.
After considering the petitioner's appeal, the BIA
affirmed these findings and conclusions. Consequently, the
petitioner could not satisfy the requisite burden of proof for
asylum. That meant that his claim for withholding of removal
necessarily failed. See Attia v. Gonzales, 477 F.3d 21, 24 (1st
Cir. 2007); see also INS v. Stevic, 467 U.S. 407, 430 (1984)
(explaining that the alien's burden for withholding of removal is
a "clear probability of persecution"). The BIA also affirmed the
IJ's determination that the petitioner had not demonstrated that,
more likely than not, he would be tortured with the connivance or
acquiescence of the Haitian government if he were repatriated.
That ended the petitioner's CAT claim. See 8 C.F.R. §
1208.16(c)(4).
In the alternative, the petitioner asked the BIA to
remand the case for the consideration of new evidence. The BIA
denied the motion, finding that the proffered evidence did not
materially augment any of the petitioner's arguments. A remand
was, therefore, pointless. See Raza v. Gonzales, 484 F.3d 125, 128
(1st Cir. 2008); Matter of Coelho, 20 I. & N. Dec. 464, 471-73 (BIA
1992).
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Following the issuance of a removal order, the petitioner
filed this timely petition for judicial review. We have
jurisdiction under 8 U.S.C. § 1252(a)(1).
Our review is centered on the BIA's decision. See
Orelien v. Gonzales, 467 F.3d 67, 70 (1st Cir. 2006). But where,
as here, the BIA has endorsed and elaborated upon the IJ's
findings, we review in tandem the decisions of both the BIA and the
IJ. See Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006).
Our standard of review is familiar. When assessing
findings of fact in immigration proceedings, we must respect those
findings as long as 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); see Pan v. Gonzales,
489 F.3d 80, 85 (1st Cir. 2007). This deferential approach
requires that a factual determination be upheld unless the record
compels a contrary determination. 8 U.S.C. § 1252(b)(4)(B); Elias-
Zacarias, 502 U.S. at 483-84; López de Hincapie v. Gonzales, 494
F.3d 213, 218 (1st Cir. 2007).
The IJ's decision must be clear but not necessarily
comprehensive. He "need not address each and every piece of
evidence" adduced by the petitioner; he must, however, "at least
make findings, implicitly if not explicitly, on all grounds
necessary for decision." Un v. Gonzales, 415 F.3d 205, 209 (1st
Cir. 2005) (citation and internal quotation marks omitted).
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A special standard of review applies to abstract legal
questions. We review answers to such questions de novo, but give
some deference to the agency's reasonable interpretation of
statutes and regulations that fall within its purview. Pan, 489
F.3d at 85; see also Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984).
Against this backdrop, we turn to the petition for
judicial review. We begin by evaluating the petitioner's asylum
claims and the denial of the motion to remand. We then briefly
address his claim for withholding of removal. The CAT claim has
not been briefed in this court and, accordingly, we deem that claim
abandoned. See Rotinsulu v. Mukasey, 515 F.3d 68, 71 (1st Cir.
2008).
In order to qualify for asylum, an alien must demonstrate
that he is a "refugee" as that term is used in federal law. See 8
U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a); see also Makhoul
v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004). To carry this
burden, the alien must prove that he is unable or unwilling to
repatriate because of persecution related to race, religion,
nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1101(a)(42)(A); see Orelien, 467 F.3d at 70.
As part of this showing, the alien must forge a causal link between
the persecution (whether past or feared) and one of those five
statutorily protected grounds. Id. § 1101(a)(42)(A); López de
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Hincapie, 494 F.3d at 217; Raza, 484 F.3d at 128-29. The requisite
showing may be made by traveling along one of two avenues: either
by establishing past persecution and thus triggering a presumption
of future persecution, or by independently demonstrating a well-
founded fear of future persecution. López de Hincapie, 494 F.3d at
217.
In the case at hand, the petitioner's primary
remonstrance is that the BIA undervalued his evidence anent the
current conditions of political unrest and violence in his native
land. To support this argument, he emphasizes the three incidents
of mistreatment that he endured while living in Haiti. These
incidents, however, reflect only past persecution; the latest of
them occurred in 2001. While they suffice to trigger a presumption
of future persecution, see 8 C.F.R. § 1208.13(b)(1), that
presumption is rebuttable — and the incidents themselves have very
little bearing on current conditions in Haiti.
To be sure, when a finding of persecution on account of
one of the five statutorily protected grounds (here, political
opinion) triggers a rebuttable presumption of future persecution,
the burden shifts to the government to prove that the petitioner
could now return safely to his homeland either because threatening
circumstances had abated or because he could safely relocate there.
See Orelien, 467 F.3d at 71; see also 8 C.F.R. §
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1208.13(b)(1)(i)(A)-(B). The government must prove its rebuttal by
a preponderance of the evidence. 8 C.F.R. § 1208.13(b)(ii).
The BIA determined that the government had successfully
rebutted the presumption of future persecution because the evidence
indicated a regime change: Aristide had been deposed in February of
2004. See U.S. Dep't of State, 2006 Country Reports on Human
Rights Practices - Haiti § 3. That shift in power constituted a
fundamental change in circumstances sufficient to vitiate any well-
founded fear of persecution in Haiti on account of the petitioner's
pro-Convergence leanings. If supported by preponderant evidence,
that explanation was enough to satisfy the government's burden.
See, e.g., Jorgji v. Mukasey, 514 F.3d 53, 59 (1st Cir. 2008)
(explaining that persecution could not reasonably be anticipated
when "the regime that fostered [the past persecution] has long
since been supplanted"); Ang v. Gonzales, 430 F.3d 50, 57 (1st Cir.
2005) (noting that a regime change "effectively eliminates any
argument that [petitioner] would be persecuted"); see also Laurent
v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004) (holding that the
BIA's findings must be honored unless the evidence "points
unerringly in the opposite direction").
This is the crux of the matter. The BIA accepted the
government's explanation and, to set aside that determination, the
petitioner must show that the record evidence compels rejection of
that explanation. See Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st
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Cir. 1999) (explaining that "the administrative record, viewed in
its entirety, must compel the conclusion that the alien is asylum-
eligible"). We turn, then, to that question.
A review of the record leaves no doubt that this
determination is supported by substantial and preponderant
evidence. The historical predicate for the BIA's decision —
President Aristide's ouster — cannot be gainsaid. When Aristide
left, his Lavalas supporters lost their influence in national
affairs. With the levers of power having been wrested from the
hands of his antagonists, there is no realistic possibility that
the petitioner's pro-Convergence sympathies will place him in the
Haitian government's cross-hairs. See Sok v. Mukasey, 526 F.3d 48,
53 (1st Cir. 2008) ("[P]ersecution always implies some connection
to government action or inaction.") (internal quotation marks
omitted). So viewed, the record cannot be said to compel a finding
that the petitioner harbored an objectively reasonable fear that
his allegiance to the Democratic Convergence will be a source of
future persecution.
The second avenue for conferring asylum requires an
independent showing, unaided by any presumption, of a well-founded
fear of future persecution based on a statutorily protected ground.
Makhoul, 387 F.3d at 79. To show a well-founded fear of future
persecution, an alien must establish that his fear was both genuine
and objectively reasonable. Orelien, 467 F.3d at 71; Aguilar-
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Solis, 168 F.3d at 572. The objective component must be "nestled
on a plausible factual predicate." Orelien, 467 F.3d at 71. This
necessitates a showing that "a reasonable person in the asylum
applicant's circumstances would fear persecution on account of a
statutorily protected ground." Aguilar-Solis, 168 F.3d at 572.
Based on essentially the same reasoning elucidated above,
the BIA determined that the petitioner had not made the requisite
showing. In its view, the regime change eliminated any objectively
reasonable basis for the petitioner's avowed fear of future
persecution on account of his political views. This is an
eminently supportable assessment of the record: there is simply no
evidence of a pattern or practice of persecution of Convergence
party members following President Aristide's fall from power. See
8 C.F.R. § 1208.13(b)(2)(iii). Without evidence of a
particularized threat to the petitioner or other members of the
Democratic Convergence, we are not at liberty to reverse the BIA's
decision.1 See Segran v. Mukasey, 511 F.3d 1, 5-6 (1st Cir. 2007)
(explaining that deference is due not only to findings of fact but
1
The petitioner makes no explicit appeal that we review the
BIA's denial of his motion to remand, nor need we linger long over
the new evidence he proffered in connection with that motion. It
is settled beyond peradventure that general conditions of violence
in a country cannot alone support a claimed fear of persecution.
See López de Hincapie, 494 F.3d at 219-20; Mendoza Perez v. INS,
902 F.2d 760, 761-62 (9th Cir. 1990); Matter of S-V-, 22 I. & N.
Dec. 1306, 1310 (BIA 2000). The new evidence that the petitioner
proffered here was evidence of general conditions of violence.
Thus, the BIA's denial of the motion to remand was well within its
discretion.
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also to determinations about whether particular facts support a
claim of persecution).
In an effort to blunt the force of the BIA's reasoning,
the petitioner argues that the BIA failed to apply the standard
announced in Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987),
in determining that he had not established a well-founded fear of
persecution. In Mogharrabi, the BIA recognized that "an applicant
for asylum has established a well-founded fear if he shows that a
reasonable person in his circumstances would fear persecution."
Id. at 445. The petitioner's argument fails because the BIA, like
the IJ, presented President Aristide's ouster as the reason why no
objectively reasonable person would thereafter fear persecution on
account of pro-Convergence sentiments. No more was exigible.2 See
Orelien, 467 F.3d at 72. On this basis, we find the argument that
the BIA did not abide by its Mogharrabi standard unconvincing.
Relatedly, the petitioner calumnizes the BIA for a
failure adequately to assess his evidence of persecution. Citing
Sotto v. INS 748 F.2d 832, 837 (3d Cir. 1984), he insists that the
BIA's decision must be remanded due to a failure to refer to
relevant evidence.
2
In this regard, we think it is instructive that, in
Mogharrabi, the petitioner's fear of persecution stemmed from his
"clearly expressed . . . political views" and the fact that "his
opinions were extremely derogatory to the regime in power." 19 I.
& N. Dec. at 448 (emphasis supplied).
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This is a bogus argument. The BIA's decision here must
be understood as adopting the IJ's findings. See Laurent, 359 F.3d
at 64 n.3. That the BIA did not itself rehearse each and every IJ
finding does not allow an inference of superficial review.3 See,
e.g., Raza, 484 F.3d at 128 ("An agency is not required to dissect
in minute detail every contention that a complaining party
advances.").
Finally, the petitioner argues that the Haitian
government is unable or unwilling to control the Lavalas party and
that this inability justifies a grant of asylum. This argument is
little more than a rehash of the arguments previously rejected.
There is no hard evidence that the government is unable to control
whatever may remain of the Lavalas party. In the last analysis,
then, the salient principle is that generalized conditions of
political unrest cannot constitute a basis for a claim of political
asylum. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004)
(holding evidence of generalized problems insufficient); Matter of
S-V-, 22 I. & N. Dec. 1306, 1310 (BIA 2000) (same).
To sum up, we are not without some sympathy for the
petitioner's position. Haiti remains a nation in which violence is
part of the political climate. But a general state of disarray
within a country is not in itself enough of a foundation to support
3
In all events, this case is at a commendable remove from
Sotto, in which both the IJ and the BIA entirely ignored an
affidavit without explaining why. See Sotto, 748 F.2d at 837.
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a claim for asylum. We therefore uphold the BIA's denial of asylum
here.
That effectively ends the matter. Because the petitioner
cannot establish eligibility for asylum, he cannot establish
eligibility for withholding of removal. After all, the showing
that is required for withholding of removal is parallel to, but
more demanding than, that required for a counterpart claim for
asylum. See Ang, 430 F.3d at 58 (explaining that withholding of
removal requires an alien to establish a clear probability of
persecution, rather than a well-founded fear of persecution). In
view of our holding that the BIA supportably denied the
petitioner's asylum claim, his claim for withholding of removal
becomes a dead letter. Orelien, 467 F.3d at 73.
We need go no further. For the reasons elucidated above,
the petition for judicial review must be denied.
So Ordered.
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