Rose Lourdes Dolce v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16316 SEPTEMBER 6, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A79-400-223
ROSE LOURDES DOLCE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(September 6, 2005)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Rose Lourdes Dolce, the petitioner, is a native and citizen of Haiti. She left
Haiti for the Dominican Republic on April 10, 2001, and arrived at Miami
International Airport on May 15, 2001, with a fraudulent United States passport
and an alias. Suspecting that her travel documents were fake, officials of the
Immigration and Naturalization Service (“INS”) detained her at the airport; after
questioning, they took her into custody and afforded her a “credible fear”
interview.
On May 18, 2001, the INS filed a Notice to Appear, alleging that Dolce was
subject to removal and ordering her to appear before an Immigration Judge (“IJ”).
On April 24, 2002, Dolce filed an application for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”) and for protection
under the Convention Against Torture (“CAT”). Appearing before the IJ, Dolce
conceded that she was subject to removal. The IJ then entertained Dolce’s case
for asylum, withholding of removal and CAT relief. What Dolce presented was
her own testimony, nothing more.
At the close of the hearing, the IJ denied her application and ordered her
removal. The IJ found that Dolce “failed to show past persecution or a well-
grounded fear of persecution . . . and to meet her burden of proof that anyone in
Haiti is interested in her” on account of her political opinion.1 The IJ so concluded
1
Dolce did not seek asylum due to persecution on account of her race, religion,
nationality, or membership in a particular social group.
2
because Dolce’s testimony was “too meager and generalized” to meet her burden.
In particular, her testimony about the visit to her home by four people who
purportedly intended to kill her was “too sketchy” and “insufficient.” In short, her
testimony regarding the persecution issue lacked credibility. In addition, she
presented “nothing” to corroborate her testimony.
The Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s
decision without opinion; therefore, the IJ’s decision became the final agency
determination. Dolce now petitions this court for review.
As noted supra, Dolce based her application on a claim that she was, and if
returned to Haiti would continue to be, persecuted on account of her political
opinion. She asks that we reverse the agency’s decision because the IJ erred in
finding that her testimony lacked credibility, and in concluding that she (1) failed
to meet her burden of showing past persecution or a well-founded fear of future
persecution on account of her political opinion, (2) was not entitled to withholding
of removal under the INA, and (3) was not entitled to CAT relief. We find no
basis for granting Dolce’s petition, and accordingly deny it.2
2
To the extent that the agency’s decision was based on a legal determination, our review
is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). The IJ’s factual
determinations are reviewed under the substantial-evidence test, and we “must affirm the
[agency decision] if it is ‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001)
(citation omitted). The substantial evidence test is “deferential” and does not allow
“re-weigh[ing] the evidence from scratch.” Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d
1320, 1323 (11th Cir. 2001). “To reverse the IJ’s fact findings, we must find that the record not
3
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is defined in the INA as
any person who is outside any country of such person’s nationality. . .
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.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). To establish asylum eligibility, the alien must, with
specific and credible evidence, establish (1) past persecution on account of a
statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor
will cause such future persecution. 8 C.F.R. § 208.13(a), (b); see Al Najjar, 257
F.3d at 1287. “Demonstrating such a connection requires the alien to present
specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution on account of [a statutory factor].” Id. at 1287 (internal
only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003) (considering withholding-of-removal claim). The fact that evidence in the record may
also support a conclusion contrary to the administrative findings is not enough to justify a
reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004), cert. denied, 125 S. Ct.
2245 (2005).
4
quotations and citation omitted) (emphasis in original). An asylum applicant may
not show merely that she has a political opinion, but must show that she was
persecuted because of that opinion. INS v. Elias-Zacarias, 502 U.S. 478, 483, 112
S. Ct. 812, 816, 117 L. Ed. 2d 38 (1992). While documentary evidence is not
required to prove an applicant’s eligibility for asylum, the weaker an alien’s
testimony, the greater the need for corroborative evidence, see Y-B-, 21 I. & N.
Dec. at 1139, as the IJ noted in the case at hand.
If the alien establishes past persecution, it is presumed that her life or
freedom would be threatened upon a return to that country unless the government
shows by a preponderance of the evidence that the country’s conditions have
changed such that the applicant’s life or freedom would no longer be threatened
upon her removal or that the alien could relocate within the country and it would
be reasonable to expect her to do so. 8 C.F.R. §§ 208.13(b), 208.16(b). An alien
who has not shown past persecution may still be entitled to asylum or withholding
of removal if she can demonstrate a future threat in his country to her life or
freedom on a protected ground. Id. §§ 208.13(b)(2), 208.16(b)(2). To establish a
well-founded fear, “an applicant must demonstrate that his or her fear of
persecution is subjectively genuine and objectively reasonable.” Al Najjar, 257
F.3d at 1289. However, if the IJ finds that the alien could avoid a future threat by
relocating to another part of his country, he cannot demonstrate a well-founded
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fear of persecution. See 8 C.F.R. §§ 208.13(b)(1)-(2), 208.16(b)(1)-(2).3
Dolce could have established a “well-founded fear” of persecution by
showing (1) past persecution that created a presumption of a “well-founded fear”
of future persecution, (2) a reasonable probability of persecution that could not be
avoided by relocating within Haiti, or (3) a pattern or practice in Haiti of
persecuting members of a statutorily defined group of which Dolce is a part, 8
C.F.R. §§ 208.13(b)(1) & (2), 208.16(b)(2), i.e., those harboring Dolce’s political
opinion. If Dolce had shown past persecution, the burden then would have shifted
to the government to show by a preponderance of the evidence that (1) there is a
fundamental change in circumstance such that Dolce no longer has a well-founded
fear of persecution or (2) Dolce could avoid future persecution by relocating to
another party of Haiti and it would be reasonable to expect her to do so. 8 C.F.R.
§§ 208.13(b)(1)(i)(A) & (B), 208.16(b)(2), (3).
Substantial evidence supports the IJ’s decision that Dolce was not entitled to
asylum, as she did not show that she was persecuted or had a well-founded fear of
persecution on account of her political opinion. Dolce’s testimony concerning her
3
“‘[P]ersecution’ is an ‘extreme concept,’ requiring ‘more than a few isolated incidents
of verbal harassment or intimidation,’ and that ‘[m]ere harassment does not amount to
persecution.’” Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (citation
omitted). In Sepulveda, we held that menacing telephone calls and threats to the alien, her
family members, and colleagues did not rise to the level of past persecution. Id.
6
political opinion was too general and failed to demonstrate a specific connection
between the alleged persecution and her political opinion, or a good reason to fear
being singled out for persecution on account of such.
Assuming that she is not entitled to asylum, Dolce says that the IJ should
have granted her withholding of removal under the INA and CAT relief. To
qualify for withholding of removal, Dolce had to show that her life or freedom
would be threatened on account of her political opinion. INA § 241(b)(3), 8
U.S.C. § 1231(b)(3). “An alien bears the burden of demonstrating that he more-
likely-than-not would be persecuted or tortured upon his return to the country in
question.” Mendoza, 327 F.3d at 1287.
To be entitled to relief under the CAT, Dolce had to establish that it is “more
likely than not that [she] would be tortured if removed to [Haiti].” 8 C.F.R.
§ 208.16(c)(2). “Torture” is defined as
any act by which severe pain or suffering, whether
physical or mental is intentionally inflicted on a person
for such purposes as obtaining from him or her or a third
person information or a confession, punishing him or her
for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason
based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other
person acting in an official capacity.
8 C.F.R. § 208.18(a)(1). The burden of proof for an applicant seeking relief under
7
the CAT, like that for an applicant seeking withholding of removal under the INA,
is higher than the burden imposed on an asylum applicant. Al Najjar, 257 F.3d
at 1303.
Dolce failed to carry her burden of establishing past persecution or a
well-founded fear of future persecution; hence, she is precluded from being granted
asylum. In sum, the IJ, and by operation of law the BIA, properly found that Dolce
likewise could not satisfy the greater “more-likely-than-not” burden applicable to
requests for withholding of removal and CAT relief.
PETITION DENIED.
8