Charles v. Holder

FILED
NOT FOR PUBLICATION MAY 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUDE CHARLES, No. 07-72895
Petitioner, Agency No. A098-542-580
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2011 **
San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and ST. EVE, District Judge.***
Petitioner Jude Charles petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) and an Immigration Judge (“IJ”) that denied his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.
applications for asylum and withholding of removal.1 We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition.
The BIA correctly rejected the IJ’s ambiguous adverse credibility finding.
Nevertheless, the BIA affirmed the IJ’s decision denying the applications. The BIA
reasoned that, even accepting the testimony as true, Charles did not demonstrate
eligibility for asylum or withholding of removal. We agree.
The BIA erred in part when it concluded that Charles failed to show that his
claimed persecutor was the government of Haiti or forces it was unable or
unwilling to control. Charles had testified before the IJ that the armed men who
raided the December 28, 2003, meeting included uniformed police officers. The
government introduced no evidence contradicting this testimony, and the BIA
credited Charles’s testimony as true. The BIA’s conclusion that Charles did not
show that his claimed persecutor was the Haitian government or a force that the
government was unwilling or unable to control is not supported by substantial
evidence.
But this does not resolve our inquiry. The BIA also held that Charles did not
show that any harm he suffered rose to the level of persecution. “[P]ersecution is
1
Charles also applied for relief under the Convention Against Torture,
but that application was not briefed in his petition for review and we do not
consider it here.
2
an extreme concept that does not include every sort of treatment our society
regards as offensive.” Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir. 2004)
(alteration in original) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)).
Persecution requires more than harassment. Nagoulko v. INS, 333 F.3d 1012, 1016
(9th Cir. 2003). Unfulfilled threats, without more, generally do not constitute past
persecution. Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). Substantial evidence
supports the BIA’s conclusion that, even crediting his testimony as true, Charles
did not suffer past persecution. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.
2004) (“We review for substantial evidence the agency’s factual findings.”).
Instead, his testimony that police officers fired shots in the air and that men later
came looking for him better fits “within that category of past experience more
properly viewed as indicative of the danger of future persecution.” Lim, 224 F.3d at
936 (quoting Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997)).2
2
Before the IJ, Charles also testified that he was beaten on one
occasion, though he did not describe the incident in any detail nor does he discuss
this incident in his Opening Brief. But even crediting his limited testimony about
the beating as true, we cannot say that the evidence compels the conclusion that the
beating constituted past persecution. See Halim v. Holder, 590 F.3d 971, 975–76 &
n.4 (9th Cir. 2009) (noting that testimony about a beating, without more, does not
compel a finding of past persecution); Gu v. Gonzales, 454 F.3d 1014, 1019–21
(9th Cir. 2006) (holding that, where a petitioner was arrested, interrogated, and
beaten on one occasion, the record did not compel a conclusion that petitioner’s
treatment rose to the level of persecution).
3
Charles contends that even if the challenged government conduct did not rise
to the level of persecution, he still has a well-founded fear of future persecution in
Haiti. But Charles does not address the IJ’s conclusion that the Aristide
government, in power at the time Charles fled Haiti, is no longer in power. Given
the changed conditions in Haiti, the IJ found that there was no reasonable
possibility that Charles would face persecution by the individuals who were
looking for him after the December 28 incident.3 The evidence does not compel a
conclusion to the contrary. See Halaim, 358 F.3d at 1131 (“We must uphold
[factual] findings unless the evidence compels a contrary result.”).
PETITION DENIED.
3
The IJ in his oral decision took administrative notice of the changed
regime in Haiti. Charles did not argue before the BIA, and does not contend in his
petition for review, that the IJ’s decision, which was based on administratively
noticed facts, violated Charles’s due process rights under our holding in Circu v.
Gonzales. 450 F.3d 990, 993 (9th Cir. 2006) (en banc) (“[A]n IJ may take
administrative notice of a change of government, but where it is plausible that the
change does not eliminate the danger to the individual petitioner, the IJ must give
the petitioner an opportunity to be heard on the question of the individual
impact.”). Accordingly, we do not consider that question here.
4