Tropnas v. Gonzales

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2784
JEAN WINER TROPNAS,
Petitioner,
v.
MICHAEL B. MUKASEY,* Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Howard A. Silverman and Ross, Silverman & Levy, LLP on brief
for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, and Kathryn L. Deangelis,
Trial Attorney, Office of Immigration Litigation, United States
Justice Department, on brief for respondent.
July 2, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael B.
Mukasey has been substituted for former Attorney General Alberto R.
Gonzales.
Per Curiam. Petitioner Jean Winer Tropnas, a native and
citizen of Haiti, sought asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Tropnas
maintained that he feared persecution on account of his political
activities in Haiti. An Immigration Judge (IJ) concluded that his
fear of future persecution was not well-founded and consequently
denied his application and ordered removal. The Board of
Immigration Appeals (BIA), writing separately, affirmed and adopted
the IJ's ruling and issued a final order of removal. Tropnas
petitions for judicial review. Because there is substantial
evidence in the record to support the BIA's decision, we deny the
petition.
I.
On or about July 20, 2001, Jean Winer Tropnas entered the
United States through Canada. He was apprehended in Vermont and
placed in removal proceedings. See 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Tropnas filed an application requesting asylum, withholding of
removal, and protection under CAT. In support of his application,
he claimed to hold a well-founded fear of future persecution on
account of his political opinion. At his hearing, Tropnas offered
documentary and testimonial evidence, summarized as follows.
Tropnas became politically active in 1992. He joined an
opposition political party, the Christian Nationalist Party of
Haiti (PNCH) and as a member he was responsible for teaching people
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in the community about education and advocacy. Tropnas also was
responsible for coordinating activities with other progressive
organizations and he eventually became personally active in some of
these organizations, promoting, among other causes, literacy and
political activity.
The organizations with which Tropnas was involved were
critical of Haiti's then-president, Jean-Bertrand Aristide, and
Tropnas himself openly expressed his opposition to Aristide and his
Fanmi Lavalas Party. Specifically, Tropnas, an artist, created
political drawings critical of Aristide and the government that
were displayed and disseminated throughout the community.
Largely because of his political artwork, Tropnas was
personally threatened in both 1995 and 1999. In 1995, after
Tropnas returned from hanging political posters, shots were fired
at his aunt's house where he was staying. A friend told Tropnas
more "difficulties" would come if he did not cease his political
activities. Later, in 1999, after being similarly warned by a
friend, some individuals banged on the door of the aunt's house,
telling Tropnas that if he did not stop his political activities
they would kill him and his family would be in danger. A month
later, when Tropnas was on his way home from school, neighbors
warned him not to return to his aunt's house because Lavalas
supporters had set a trap. He stayed at his father's house and his
aunt later confirmed that Lavalas supporters had come to her home
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and threatened to harm Tropnas. Tropnas claimed that he did not
report these incidents to the police for fear of reprisal but also
testified that no member of the government had ever threatened,
harmed, or arrested him. He also testified that "[n]obody has ever
come to his father's house or sought to find him at that location."
Additionally, there was evidence that during this period he made
several trips to the Dominican Republic to sell his paintings,
voluntarily returning to Haiti after each.
The incidents in 1999 prompted Tropnas to obtain a visa
and travel to Jamaica. There he began studies at the Jamaica
School of Preaching, a theological school. After one year of
school he returned to Haiti in 2000 for six weeks. During his stay
in Haiti the electricity was out and three opposition party members
in his community were killed. As a result, Tropnas testified, he
decided to leave Haiti to finish his studies in Jamaica.
After a short stay in Jamaica, Tropnas left for Canada.
Soon after arriving in Canada, Tropnas crossed over the Canadian
border into the United States. After he was apprehended, he
applied for asylum and appeared in Immigration Court for his
hearing. At the hearing, in addition to testifying about his
political activities and the incidents in Haiti, Tropnas mentioned
that he had a brother in the United States.
At the close of proceedings, the IJ denied Tropnas'
application for asylum, withholding of removal, and protection
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under CAT. Although stating both that Tropnas appeared to testify
truthfully about his political activities and the incidents in
Haiti, and that his testimony overall was "credible, consistent and
detailed," the IJ nonetheless found his fear of future persecution
neither subjectively genuine nor objectively reasonable.1 In
rejecting Tropnas' claim that his fear of persecution was
objectively reasonable, the IJ focused on both Tropnas' admission
that members of the Haitian government had never threatened,
arrested, or harmed him and on his testimony that he had spent six
weeks in Haiti on his last visit without incident. The IJ further
suggested that Tropnas could safely relocate to his father's home
upon his return.
The BIA, in a separate opinion, affirmed and adopted the
IJ's findings. Tropnas focuses his petition entirely on the BIA's
denial of his asylum claim.2
II.
Where, as here, the BIA has written separately while
adopting and affirming an IJ's decision, we review portions of the
IJ's decision as part of the final decision of the board.
Herandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004). We
1
The IJ did question the veracity of an explanation offered by
Tropnas for his entry into the United States from Canada.
2
Because he makes no argument regarding the BIA's denial of his
withholding of removal and CAT claims, those claims have been
waived. See Tai v. Gonzales, 423 F.3d 1, 6 (1st Cir. 2005).
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apply the deferential "substantial evidence" standard, Carcamo-
Recinos v. Ashcroft, 389 F.3d 253, 256 (1st Cir. 2004), and we will
uphold the decision if it is supported by "reasonable, substantial,
and probative evidence on the record considered as a whole." Ang
v. Gonzales, 430 F.3d 50, 54-55 (1st Cir. 2005) (citation omitted).
We will upset the BIA's decision only if "[t]he record evidence
would compel a reasonable factfinder to make a contrary
determination." 8 U.S.C. § 1252(b)(4)(B); Pan v. Gonzales, 445
F.3d 60, 61 (1st Cir. 2006).
In order to obtain asylum, the petitioner bears the
burden of establishing that he is a "refugee." Afful v. Ashcroft,
380 F.3d 1, 3 (1st Cir. 2004). A petitioner may establish refugee
status by demonstrating past persecution, or a well-founded fear of
future persecution, on the basis of one of five statutory grounds:
race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1101(a)(42)(A).
To be "well-founded" a fear of future persecution must be
both (1) subjectively genuine and (2) objectively reasonable.
Toloza-Jimenez v. Gonzales, 457 F.3d 155, 161 (1st Cir. 2006). As
to the second prong, a petitioner must provide "credible, direct,
and specific evidence" that would objectively support a reasonable
fear of individualized persecution. Guzman v. INS, 327 F.3d 11, 16
(1st Cir. 2003) (quoting Ravindran v. INS, 976 F.2d 754, 758 (1st
Cir. 1992)). The cases suggest that meeting the objective
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reasonableness requirement requires establishing a "reasonable
possibility of persecution." See e.g., Aguilar-Solis v. INS, 168
F.3d 565, 572 (1st Cir. 1999) (citing INS v. Cardoza-Fonseca, 480
U.S. 421, 450 (1987)).
We conclude that "reasonable, substantial, and probative"
evidence supports the BIA's determination that Tropnas did not
establish a well-founded fear of future persecution. Although
Tropnas did establish that he was politically active in Haiti,
substantial evidence supports the conclusion that his fear of
future persecution is not objectively reasonable.3
Although Tropnas was personally threatened in 1995 and
1999, nine years have passed since the latest incident. See Palma-
Mazariegos v. Gonzales, 428 F.3d 30, 37 n.2 (1st Cir. 2005) (noting
significant passage of time following fear-triggering incident may
serve to rebut even a presumption of future persecution). The
events in 2000 that prompted Tropnas' most recent departure from
Haiti, specifically the loss of electrical power and the killing of
three individuals in his community, were not personally connected
to him in any way.
Moreover, Tropnas produced no evidence that the
government or other groups continued actively looking for him. His
3
Because substantial evidence supports the BIA's determination that
Tropnas' fear was objectively unreasonable, we need not address its
determination regarding the subjective genuineness of Tropnas'
fear.
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failure to do so is especially damaging, given that he has family
in Haiti who would likely communicate any such threats and friends
who have warned him about threats in the past.
Finally, as the IJ recognized, even assuming that
individuals in Haiti are still looking for Tropnas, that would not
necessarily create an objectively reasonable basis for his fear
because in the past Tropnas has safely relocated to his father's
house -- a place where he himself indicated his persecutors have
never sought him out. See 8 C.F.R. § 1208.13(b)(1)(i)(B),
(b)(2)(ii); Susanto v. Gonzales, 439 F.3d 57, 61 (1st Cir. 2006)
(denying asylum where one of petitioners testified that she and her
family had safely relocated to uncle's home during periods of
strife); El Moraghy v. Ashcroft, 331 F.3d 195, 199 (1st Cir. 2003)
(noting evidence of ability to relocate may undercut well-founded
fear of future persecution).
In addition to challenging the BIA's conclusions
regarding his well-founded fear of persecution, Tropnas claims that
we must reverse the BIA's ruling on the ground that the
administrative tribunal failed to address certain matters in its
opinion. See El Moraghy, 331 F.3d at 203. Specifically, he
alleges that the BIA "made no specific analysis of the country
conditions, and failed to address the country conditions evidence
as it related to [his] claim." But the IJ did specifically state
that, "the conditions in Haiti have changed, although they do
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remain violent, chaotic, and politically confusing." The BIA
adopted those findings in its opinion.
III.
For the reasons discussed above, the petition for review
must be denied.
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