Delva v. Ashcroft

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2605
PAUL ELIE DELVA,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Michael D. Greenberg on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Linda S. Wendtland, Assistant Director, Office of Immigration
Litigation, and Luis E. Perez, Attorney, Office of Immigration
Litigation, on brief for respondent.
September 21, 2004
Per Curiam. Paul Elie Delva, a citizen of Haiti and
a former member of the Haitian National Police, seeks judicial
review of a Board of Immigration Appeals' order finding him
ineligible for asylum.1 Delva argues that the Board erred in
concluding that his alleged persecution was motivated solely by
his activities as a police officer rather than, at least in
part, by his political opinion.
This court's review of the Board's decision is narrowly
circumscribed. To the extent that Delva challenges the Board's
factual findings, those findings "can be reversed only if the
evidence [he] presented . . . was such that a reasonable
factfinder would have to conclude [to the contrary]." INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). In other words, to
reverse, we "must find that the evidence not only supports that
conclusion, but compels it." Id. at 481 n.1; see also 8 U.S.C.
§ 1252(b)(4)(B). To the extent that Delva challenges the Board's
application of the relevant legal standards to his factual
circumstances, that application is entitled to substantial
deference as well. INS v. Cardoza-Fonseca, 480 U.S. 421, 448
(1987); Alverez-Flores v. INS, 909 F.2d 1, 3-4, 5 (1st Cir. 1990).
Under those standards, the Board's decision in this
case easily survives review. To be eligible for asylum, Delva
1
Before the Board, Delva also sought withholding of removal
and relief under the United Nations Convention Against Torture, but
he does not contest the denial of that relief on appeal.
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had to prove that he "is unable or unwilling to return to . . .
[his] 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), 1158(b)(1); see also 8 C.F.R. § 1208.13(b);
Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992). The evidence
in the record does not compel the conclusion that Delva either
was persecuted in the past or has a genuine and well-founded fear
of being persecuted in the future on account of any of the
enumerated grounds.
Past Persecution
In support of his claim of past persecution, Delva
claims that politically connected gangsters, whom he was
investigating and trying to arrest, threatened him; twice
attacked his sister's home, destroying her personal property and
scaring her and his cousin; and once shot at his car. Even
assuming that those events occurred and that they rose to the
level of "persecution," the Board concluded that any persecution
suffered by Delva was solely on account of his activities as a
police officer, not on account of his actual or imputed political
opinion, the only protected ground relied upon by Delva.2
2
In his application for asylum, Delva claimed persecution on
account of both his political opinion and his membership in a
particular social group (presumably, the Haitian National Police).
Before the Board, however, he claimed persecution only on the basis
of his political opinion. To the extent that he now claims to fear
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In reaching that conclusion, the Board did not find
Delva to be per se ineligible for asylum based solely on his
status as a policeman. Cf. Velarde v. INS, 140 F.3d 1305, 1312
(9th Cir. 1998) (faulting Board for finding applicant ineligible
for asylum based solely on her status as a security guard without
considering strong evidence that she was persecuted on political
grounds). Rather, the Board took into account Delva's membership
in the KID Party and his investigation of politically connected
individuals but found no evidence of a connection between his
actual or imputed political opinions and the threats and attacks
that he reported. That analysis is legally correct. Just as it
is wrong to infer the absence of a political motive based solely
on the victim's status as a police officer, id., it would be
equally wrong to infer the presence of a political motive based
solely on that status. See Samoya Cabrera v. Ashcroft, 367 F.3d
10, 14 (1st Cir. 2004) (holding that "[p]articipation in a civil
defense patrol does not by itself compel a conclusion that an
individual is subject to politically-inspired persecution").
The absence of a political motive is borne out by the
record. There is no evidence that Delva was a political
activist. Cf. Fergiste v. INS, 138 F.3d 14, 16-17 (1st Cir. 1998)
persecution on account of his membership in the social group of
former police officers, that claim is forfeited, both because he
did not raise it before the Board, Ravindran, 976 F.2d at 761, and
because he did not adequately brief it on appeal, United States v.
Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997).
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(finding political motive established where applicant was a
political activist who attended party meetings, helped to
campaign and raise money, and worked with a neighborhood
committee). Nor is there any evidence that the Lavalas Family
Party, whose members allegedly threatened Delva, was directly
opposed to the KID Party, to which Delva belonged. Cf. id.(applicant, who was active in pro-Aristide party, was shot by
member of anti-Aristide party). To the contrary, even though the
two parties may "not have the same political visions," as Delva
testified, they were both pro-Aristide. Finally, there is no
evidence that those who threatened Delva and invaded his sister's
home knew or cared about Delva's membership in the KID.
On the other hand, the record is replete with evidence
that Delva was targeted because of his police activities. Delva
himself acknowledged that "there was a direct connection between
[his] job and [his] persecution." That connection was
corroborated by Delva's sole witness (a Boston police officer who
had served as a United Nations monitor and trainer of Delva's
unit of the Haitian National Police), who testified that police
officers were targeted by their former detainees. The State
Department also reported attacks on members of the Haitian
National Police. Furthermore, those who threatened Delva
repeatedly referred to him as a "policeman."
Well-Founded Fear of Future Persecution
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Absent a finding of past persecution on a protected
ground, the burden is on the petitioner to show that he has a
well-founded fear of future persecution on that ground. 8 C.F.R.
§ 1208.13(b)(1). The Board's conclusion that Delva had not met
that burden is amply supported by the evidence.
"The standard for proving a well-founded fear of future
persecution has both objective and subjective components."
Laurent v. Ashcroft, 359 F.3d 59, 65 (1st Cir. 2004); see also
Cardoza-Fonseca, 480 U.S. at 430-31. "[T]o establish asylum
eligibility, an applicant must not only harbor a genuine fear of
future persecution, but also must establish an objectively
reasonable basis for that fear." Laurent, 359 F.3d at 65.
As to the subjective component, both the immigration
judge and the Board doubted the sincerity of Delva's fear of
future persecution, based on his repeated returns to Haiti after
trips to Canada and the Dominican Republic. That inference, which
is supported by undisputed facts and not challenged on appeal, is
entitled to judicial deference. See Aguilar-Solis v. INS, 168
F.3d 565, 571 (1st Cir. 1999).
To establish the objective component of a well-founded
fear of persecution, Delva had to show "by credible, direct, and
specific evidence," Ravindran, 976 F.3d at 758 (internal
citations and quotation marks omitted), that "a reasonable person
in [his] circumstances would fear persecution," Aguilar-Solis,
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168 F.3d at 572. Delva presented no such evidence at the
administrative level. And in his appellate brief, he relies
solely on the presumption of future persecution that would arise
if he had established past persecution, which, as discussed
above, he did not do. Indeed, at the end of his brief, Delva
concedes that "it is impossible to determine what effect
[Delva's] past actions [as a police officer] will have on the
future of [Delva] if ordered removed." Delva therefore failed to
meet his burden of showing "by credible, direct, and specific
evidence," Ravindran, 976 F.3d at 758 (internal citations and
quotation marks omitted), that "a reasonable person in [his]
circumstances would fear persecution." Aguilar-Solis, 168 F.3d
at 572.
To clinch matters, other record evidence supports the
opposite conclusion–-that Delva's fear of future persecution was
not objectively reasonable. The State Department's Profile of
Asylum Claims and Country Conditions, introduced by the INS,
states that "the likelihood of an erstwhile Aristide activist
encountering political harassment upon returning to Haiti appears
to be extremely slight." While the State Department reported
some politically motivated killings, they were of political
candidates and party leaders, not rank-and-file members of
opposing parties.
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Accordingly, the petition for review is denied, and the
order of the Board of Immigration Appeals is summarily affirmed.
See Local Rule 27(c).
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