Laborde v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GUEHENNO LABORDE,
Petitioner,
v.
No. 96-2812
U.S. IMMIGRATION & NATURALIZATION
SERVICE; UNITED STATES OF AMERICA,
Respondents.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A72-848-808)
Argued: March 5, 1998
Decided: May 6, 1998
Before WILKINS and HAMILTON, Circuit Judges, and
BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.
_________________________________________________________________
Petition for review denied and order of board affirmed by unpublished
per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Kathleen Mary Cronin, ANDERSON, KILL & OLICK,
P.C., New York, New York, for Petitioner. Elizabeth A. Welsh,
Senior Litigation Counsel, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Respondents. ON BRIEF: Linda M. Weinberg,
VERNER, LIIPFERT, BERNHARD, MCPHERSON & HAND,
CHARTERED, Washington, D.C., for Petitioner. Frank W. Hunger,
Assistant Attorney General, Charles E. Pazar, Senior Litigation Coun-
sel, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Guehenno Laborde (Laborde) petitions for review of a final order
of the Board of Immigration Appeals (the Board) denying him politi-
cal asylum and withholding of deportation under the Immigration and
Nationality Act (the Act), 8 U.S.C.A. §§ 1101-1537 (West 1970 &
West Supp. 1998). Because substantial evidence supports the Board's
order, we deny the petition for review and affirm the Board's order.
I.
Laborde, a native and citizen of Haiti, was born on February 9,
1969, is single, and has no children. He attended school in Haiti
through the high school level and arrived in the United States on
December 30, 1993, carrying fraudulent entry documentation. The
Immigration and Naturalization Service (INS) immediately detected
the fraudulent nature of Laborde's entry documentation and charged
him with being excludable for attempting to enter the United States
with fraudulent entry documentation and for attempting to enter the
United States without valid entry documentation. See 8 U.S.C.A.
§§ 1182(a)(6)(C)(i), (a)(7)(A)(i)(I) (West Supp. 1998).
Laborde conceded excludability, but applied for asylum and with-
holding of deportation. His application stated that he had suffered per-
secution in Haiti on account of his political opinions at the hands of
a group known as Front for the Advancement and Progress of Haiti
2
(FRAPH).1 His application also stated that he fears future persecution
in Haiti also at the hands of FRAPH on account of his political opin-
ions.
On April 14, 1995, an immigration judge (IJ) held a hearing on
Laborde's application for asylum and withholding of deportation.
Before the IJ, Laborde also sought asylum and withholding of depor-
tation because he feared future persecution from FRAPH on account
of his membership in the following alleged social groups: (1) persons
who refused to join FRAPH; (2) educated, Christian young men from
a particular neighborhood who were also Aristide supporters; and (3)
returning Haitians.
Laborde testified at the hearing, with the majority of his testimony
focusing on his claim that he feared persecution by FRAPH on
account of his pro-Aristide political opinions. Laborde testified that
neither he nor his family had actively participated in Haitian politics,
but that he voted in favor of Aristide in the 1990 presidential election.
Laborde did not present any evidence suggesting that FRAPH knew
that he had voted for Aristide.
According to Laborde, he first encountered FRAPH in September
or October 1993 when he received a FRAPH recruitment letter at his
aunt's store in a Port-au-Prince neighborhood generally considered
pro-Aristide. At the time, Laborde managed his aunt's store and lived
with her in a different neighborhood also generally considered pro-
Aristide.2 Several other young men in the neighborhood of the store
also received the same letter, which explained that FRAPH wanted to
create an office in that neighborhood and wanted the support of the
youth. Laborde testified that he was afraid after receiving the letter,
_________________________________________________________________
1 FRAPH is a paramilitary organization, first organized in September
1993 in opposition to the plan for Jean Bertrand Aristide (Aristide) to
return as Haiti's President on October 30, 1993. Aristide had been ousted
by a military coup in September 1991. The evidence in the record is
undisputed that FRAPH's operation consisted mainly of crimes and mur-
ders.
2 Laborde was twenty-four-years-old at the time. He had lived with his
aunt since age fifteen. Prior to living with his aunt, Laborde lived with
his parents and siblings in a small town three hours from Port-au-Prince.
3
because according to him, FRAPH's object was to"destroy" and
"break everything in Haiti." (A.R. at 179). 3
Laborde further testified that two weeks after he received the
recruitment letter, several members of FRAPH came to his aunt's
store for his response. Specifically, the members showed him their
FRAPH membership cards and asked if he received the letter.
Laborde answered their inquiry by putting thirty dollars in an enve-
lope and handing it to them. According to Laborde, a donation of
money to FRAPH is an indication that one does not want to belong
to the group. After this, the members of FRAPH peacefully left the
store.
According to Laborde, two weeks later two unknown persons came
to his aunt's house asking for him, but he was not there. Laborde sus-
pected they were members of FRAPH, because the same persons
came looking for him at his aunt's house the next night, and, upon
being advised by his aunt that Laborde no longer lived with her, the
unknown persons responded that they would find Laborde.
Laborde testified that these events cumulatively caused him to go
into hiding for three months until his parents made arrangements for
him to leave Haiti. After leaving Haiti, Laborde learned that members
of FRAPH came looking for him at his parents' home. When his
father refused to open the door, the members threatened to knock the
door down. According to Laborde, the members ransacked the house
and pushed around both his father and his sister. Laborde did not offer
any testimony or other evidence regarding any other actions by
FRAPH with respect to him, but did indicate that he wants to return
to Haiti someday, but to return now would put his life in danger.
Laborde admitted at the hearing that neither he nor any member of
his family reported any of the incidents that he described to the Hai-
tian authorities. Furthermore, Laborde acknowledged that he has no
reason to fear the current Haitian government, and that the new Hai-
tian police force is free of FRAPH members and will secure Haiti in
time. Laborde also acknowledged that following his arrival in the
_________________________________________________________________
3 In this opinion, specific citations to the Administrative Record are
introduced by "A.R."
4
United States, the political situation in Haiti changed to such an extent
that the leader of FRAPH, Emmanuel Constant, fled Haiti and is now
living in the United States. Haiti has asked the United States to extra-
dite Constant. Moreover, Laborde acknowledged that no member of
FRAPH, including Constant, has attempted to contact him in the
United States.
The evidence established that members of FRAPH frequently used
violence against those who refused to join their ranks. However, it
also established that FRAPH's power is on the decline. Indeed, evi-
dence at the hearing established that since Laborde entered the United
States in late 1993, major improvements in Haiti's political stability
have occurred. Aristide has since returned to power, and the United
States and multi-national forces sent troops to Haiti to ensure its polit-
ical stability. Indeed, Laborde admitted at the hearing that the climate
in Haiti is now such that a person could report persecution to the
authorities.
After considering all of the evidence, the IJ denied Laborde's
application for asylum and withholding of deportation, and ordered
Laborde excluded and deported. The IJ found that Laborde did not
suffer past persecution and does not have a well-founded fear of
future persecution upon deportation on account of any statutory
ground. Notably, the IJ found that there was insufficient evidence in
the record to conclude that FRAPH's actions toward Laborde after he
contributed $30 to FRAPH were motivated by a perception that he
was a political opponent, rather than simply an unwilling recruit.
Laborde appealed the IJ's decision to the Board, which dismissed
his appeal as being without merit. The Board denied Laborde's asy-
lum and withholding of deportation claims premised on his allega-
tions of past persecution on account of his political opinions on the
twin grounds that FRAPH's actions toward Laborde did not rise to the
level of persecution and that Laborde failed to prove that FRAPH
took any action against him on account of his political opinions. The
Board denied Laborde's claims premised on his alleged fear of future
persecution on account of his political opinions on the twin grounds
that Laborde did not prove that FRAPH would seek to persecute him
on account of his political opinions and that since FRAPH's power
had so declined since Laborde left Haiti, his fear did not have a basis
5
in reality. The Board disposed of Laborde's claims of asylum and
withholding of deportation based on his alleged membership in vari-
ous social groups without determining whether these alleged social
groups constitute "social groups" as contemplated by the Act. The
Board disposed of these claims on the basis that FRAPH's power has
so largely waned since Laborde left Haiti and Aristide returned to
power that Laborde did not have a well founded fear of persecution
by FRAPH upon his return to Haiti. Laborde noted a timely appeal
of the Board's final order to this court.
II.
The Act currently provides two means by which an otherwise
deportable alien claiming that he will be persecuted if returned to his
country of origin may avoid deportation. The first is found in § 208(a)
of the Act, 8 U.S.C.A. § 1158(a) (West Supp. 1998). Pursuant to that
section, an alien may apply for asylum. Section 208(b)(1) of the Act,
8 U.S.C.A. § 1158(b)(1) (West Supp. 1998), authorizes the Attorney
General of the United States, in her discretion, to confer asylum on
an alien who has properly applied for asylum if the Attorney General
"determines that such alien is a refugee" as defined by the Act. Id.The Act defines the term "refugee," in pertinent part, as any person
unwilling or unable to return to his native country"because of perse-
cution or a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or political
opinion . . . ." 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1998). The
reasonable person test is the standard for proving a well-founded fear
of persecution. See M.A. v. INS, 899 F.2d 304, 311 (4th Cir. 1990) (en
banc). We have held that "[a]n individual seeking asylum under this
standard must show (1) that a reasonable person in the circumstances
would fear persecution; and (2) that the fear has some basis in the
reality of the circumstances and is validated with specific, concrete
facts." Huaman-Cornelio v. Board of Immigration Appeals, 979 F.2d
995, 999 (4th Cir. 1992) (internal quotation marks omitted).
The second means by which an otherwise deportable alien claiming
that he will be persecuted if returned to his country of origin may
avoid deportation is found at § 241(b)(3) of the Act, 8 U.S.C.A.
§ 1231(b)(3) (West Supp. 1998). Prior to Congress' enactment of the
Illegal Immigration Reform and Immigrant Responsibility Act of
6
1996 (IIRIRA), Pub. L. No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.)
1570-1861, on September 30, 1996, the substance of this section was
found at § 243(h) of the Act, 8 U.S.C. § 1253(h).4 Section 243(h),
commonly referred to as the withholding of deportation provision,
provided, in pertinent part, that "[t]he Attorney General shall not
deport or return any alien . . . to a country if the Attorney General
determines that such alien's life or freedom would be threatened in
such country on account of race, religion, nationality, membership in
a particular social group, or political opinion." 8 U.S.C.A. § 1253(h)
(West Supp. 1996). To qualify for withholding of deportation under
this provision, an applicant must demonstrate a"``clear probability of
persecution'" on account of one of the enumerated factors. INS v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987). This standard is more
stringent than the standard for granting asylum. See id. at 431-32.
Thus, if an alien is unable to meet the less stringent asylum standard,
he or she will be unable to meet the more difficult standard for with-
holding of deportation. See Huaman-Cornelio, 979 F.2d at 1000.
III.
On appeal before us, Laborde continues to press his asylum and
withholding of deportation claims alleging past political persecution
at the hands of FRAPH and a well-founded fear of political persecu-
tion if he is returned to Haiti. In this regard, he first argues that the
Board ignored evidence that FRAPH must have imputed a pro-
Aristide political opinion to him on account of his being an educated
young man working and living in pro-Aristide neighborhoods, who
refused to join FRAPH. Assuming that we agree with his first argu-
ment, Laborde argues that the Board ignored evidence that FRAPH
is not yet under control, and thus presents a serious threat to him if
he is returned to Haiti.5
_________________________________________________________________
4 Because Laborde was in exclusion proceedings prior to April 1, 1997,
the effective date of the IIRIRA, we apply the preamendment version of
the Act's withholding of deportation provision. See IIRIRA,
§ 309(a),(c)(1), Pub. L. No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.)
1697-98.
5 Because Laborde failed to brief or argue whether he should prevail on
his claims for asylum and withholding of deportation premised upon his
7
We must uphold the Board's dismissal of Laborde's appeal of the
IJ's order denying him asylum and withholding of deportation and
ordering him excluded and deported if it is supported by "reasonable,
substantial, and probative evidence on the record considered as a
whole . . . ." 8 U.S.C.A. § 1105a(a)(4) (West Supp. 1998).6 In particu-
lar, we cannot reverse the Board's determination that Laborde is not
entitled to political asylum unless we conclude that the evidence pre-
sented by Laborde "was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution." Elias-Zacarias,
502 U.S. at 483-84.
We conclude that the evidence presented by Laborde was not so
compelling that a reasonable fact finder could fail to find the requisite
fear of persecution. Laborde's proof is particularly lacking of proba-
tive evidence that FRAPH sought to persecute him on account of his
political opinions prior to his fleeing Haiti or that it would seek to
persecute him on account of his political opinions if he returned to
Haiti. First, Laborde admits that neither he nor his family was politi-
_________________________________________________________________
membership in the various individual social groups that he identified, we
consider Laborde to have abandoned those claims. See 11126 Baltimore
Blvd. v. Prince George's County, Md., 58 F.3d 988, 993 n.7 (4th Cir.
1995) (relying on Federal Rule of Appellate Procedure 28(a)(6) and
holding that issues not briefed or argued in federal appeal are deemed
abandoned). Accordingly, we do not address those claims. Furthermore,
we do not address Laborde's claims, not previously raised below, that he
is entitled to asylum and withholding of deportation on account of his
membership in the social group he identifies as draft age men. Having
failed to exhaust his administrative remedies with respect to these claims,
we lack subject matter jurisdiction to consider them. See Farrokhi v. INS,
900 F.2d 697, 700 (4th Cir. 1990).
6 Section 306(b) of the IIRIRA, Pub. L. No. 104-208, 1996
U.S.C.C.A.N. (110 Stat.) 1668, repealed 8 U.S.C.§ 1105a(a)(4) and
replaced it with 8 U.S.C. § 1252(b)(4). However, because the Board
issued its final order of exclusion with respect to Laborde after October
30, 1996, the transitional rules contained in the IIRIRA provide for judi-
cial review pursuant to 8 U.S.C. § 1105a(a)(4) as that section existed
prior to the enactment of the IIRIRA on September 30, 1996. See
IIRIRA, § 309(c)(4), Pub. L. No. 104-208, 1996 U.S.C.C.A.N. (110
Stat.) 1699.
8
cally active in Haiti. Second, there is no evidence to suggest that
Laborde's family has become politically active since Laborde entered
the United States. Third, there is no evidence that FRAPH knew that
Laborde had voted for Aristide in the 1990 presidential election.
Fourth and finally, a person's resistance to forced recruitment by a
politically motivated organization, without more, does not compel the
conclusion that any subsequent adverse actions taken against the per-
son by that organization were taken on account of that person's politi-
cal opinions. See INS v. Elias-Zacarias, 502 U.S. 478, 482-485
(1992).
The facts of Elias-Zacarias are strikingly similar to the present
case. In Elias-Zacarias, Jario Jonathan Elias-Zacarias, a native of
Guatemala, applied for asylum and withholding of deportation. See id.
at 479. He claimed to have suffered persecution and to have a well-
founded fear of persecution on account of his political opinions based
on his refusal to join an anti-government guerrilla organization that
attempted to recruit him. Id. at 479-80. As with Laborde, the members
of the organization attempted to recruit Elias-Zacarias during an
unannounced face-to-face visit. Id. at 479. Like Laborde, Elias-
Zacarias refused the organization's recruitment efforts without expla-
nation. Id. Afraid that the guerrillas would return, Elias-Zacarias fled
Guatemala and illegally entered the United States. Id. at 480.
The IJ denied Elias-Zacarias' application on the basis that Elias-
Zacarias failed to demonstrate persecution or a well-founded fear of
persecution on account of any of the statutorily enumerated grounds.
Id. at 480. The Board agreed, but the Ninth Circuit reversed. See INS
v. Elias-Zacarias, 921 F.2d 844 (9th Cir. 1990). The Ninth Circuit
held that an anti-government guerrilla organization's attempt to con-
script a person into its military forces necessarily constitutes persecu-
tion on account of political opinion, because "the person resisting
forced recruitment is expressing a political opinion hostile to the per-
secutor and because the persecutor's motive in carrying out the kid-
naping is political." Id. at 850.
The Supreme Court reversed the Ninth Circuit. The Court rejected
as untrue the premise that a person resisting forced recruitment is nec-
essarily expressing a political opinion hostile to the persecutor. See
Elias-Zacarias, 502 U.S. at 481-82. The Court noted that "[e]ven a
9
person who supports a guerrilla movement might resist recruitment
for a variety of reasons--fear of combat, a desire to remain with one's
family and friends, a desire to earn a better living in civilian life, to
mention only a few." Id. at 482. The Court rejected as irrelevant the
fact that a persecutor's general motive in carrying out forced recruit-
ment efforts is political. Id. at 481-82. The Court stressed that eligibil-
ity for asylum and withholding of deportation turns on whether the
persecution is "on account of the victim's political opinion, not the
persecutor's." Id. at 482.
Applying these precepts to the facts before it, the Court held that
the Board's determination that Elias-Zacarias failed to establish his
eligibility for asylum should have been upheld in all respects. In this
regard, the Court concluded that Elias-Zacarias' evidence on the issue
of whether the anti-government guerrilla organization sought to perse-
cute him on account of his political opinions was not "so compelling
that no reasonable factfinder could fail to find the requisite fear of
persecution." Id. at 483-84.
Laborde contends that his case is distinguishable from Elias-
Zacarias, pointing to evidence that he contends establishes that
FRAPH imputed pro-Aristide political opinions to him on account of
his being an educated young man who worked and lived in neighbor-
hoods known for loyalty to President Aristide. Laborde first points to
the following statements by William G. O'Neil, a consultant to the
National Coalition for Haitian Refugees and to the United
Nations/Organization Of American States International Civilian Mis-
sion to Haiti, made in an affidavit dated January 9, 1995:
FRAPH conducted a campaign of terror, especially in neigh-
borhoods known for their loyalty to [Aristide] like
Carrefour-Feuilles and its environs where Mr. Laborde lived
and the Quartier Bolosse where he worked. These neighbor-
hoods were especially targeted by the military and FRAPH;
men of Mr. Laborde's age group were particularly at risk
since they were viewed as prime Aristide supporters.
(A.R. at 262). Laborde also relies on a portion of an August 1993
report prepared by the United States Department of Justice that can
reasonably be construed as stating that students of Laborde's educa-
tion level were generally considered by the military government in
power at the time to be pro-Aristide. The report also stated that the
10
military targeted student leaders and student organizations for particu-
larly fierce treatment and recognized that massive political violence
had been deployed against children and young adolescents in retribu-
tion for participation in social movements.
We cannot reverse the Board unless the evidence cited by Laborde
is such that no reasonable fact finder could fail to find that FRAPH
imputed pro-Aristide political opinions to Laborde, and sought to per-
secute him on account of those political opinions. See Elias-Zacarias,
502 U.S. at 483-84. The evidence cited by Laborde is simply too gen-
eral to compel such a finding in light of the undisputed evidence in
the record that FRAPH sought to recruit Laborde during its initial
organization. In the absence of evidence that FRAPH sought to swell
its ranks solely with pro-Aristide recruits, the Board drew a permissi-
ble inference that FRAPH conducted recruitment efforts without
regard to the actual political opinions of a potential individual recruit.
For the same reason, the evidence does not compel a finding that
FRAPH's subsequent actions with respect to Laborde were on
account of Laborde's political opinions rather than simply his unwill-
ingness to join FRAPH.
Because Laborde's second argument that the Board ignored evi-
dence that FRAPH is not yet under control depends upon us agreeing
with his first argument, we need not address this second argument.
Furthermore, the Board's determination that Laborde did not meet the
asylum standard "necessarily means" that he"did not meet his burden
on the more difficult withholding of deportation claim." Huaman-
Cornelio, 979 F.2d at 1000.
IV.
For the foregoing reasons, we deny Laborde's petition for review
and affirm the Board's order.7
PETITION FOR REVIEW DENIED
AND ORDER OF BOARD AFFIRMED
_________________________________________________________________
7 We note that Laborde may be eligible for a deferral of his deportation
until December 23, 1998 pursuant to a presidential directive signed by
President William J. Clinton on December 23, 1997. The subject of the
memorandum containing the directive is "Measures Regarding Certain
Haitians in the United States."
11