United States Court of Appeals
For the First Circuit
No. 02-2200
PEGGY A. PIETERSON,
Petitioner,
v.
JOHN ASHCROFT,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Lipez, Circuit Judge.
Jacqueline L. Gomes on brief for petitioner.
Edward C. Durant, Attorney, Office of Immigration Litigation,
Linda S. Wendtland, Assistant Director, and Peter D. Keisler,
Assistant Attorney General, Civil Division, on brief for
respondent.
April 13, 2004
LYNCH, Circuit Judge. Petitioner Peggy Pieterson is a
native and citizen of Sierra Leone. She was admitted to the United
States in July 1998 and overstayed her nonimmigrant fiancée visa;
the INS commenced removal proceedings against her in March 1999.
Pieterson conceded removability and sought asylum, withholding of
removal, and protection under the Convention Against Torture
("CAT"). An Immigration Judge denied each form of relief in June
1999, and the Board of Immigration Appeals affirmed in August 2002.
Substantial evidence supports the BIA's conclusions; accordingly,
we affirm.
I.
Pieterson was the sole witness at her removal hearing
before the IJ. The IJ found Pieterson credible when recounting
factual events, but less credible when speculating as to the
reasons underlying events. Pieterson's case relied on her claims
that her mother was a political activist; that she assisted her
mother and had suffered persecution and would suffer future
persecution as a result of that assistance; that her Creole
ethnicity meant that she had suffered persecution and would suffer
future persecution; and that she would, in any event, suffer future
persecution in the form of being raped and otherwise tortured.
Her testimony recounted the following facts and events.
Pieterson, who is of Creole ethnicity, lived in Freetown, Sierra
Leone. The Creoles are the smallest ethnic group in Sierra Leone;
-2-
they were the government administrators of the country during the
British colonial period, which ended in 1961.
Pieterson's parents separated when she was four years
old, and she has not seen or heard from her father since that time.
Pieterson's mother lived with her in Sierra Leone until 1992 when
she apparently emigrated to England. Pieterson did not leave with
her mother. Her youngest sister was sent to a sponsor in England
around 1985 and has been out of contact ever since. Pieterson's
other sister was with her in Sierra Leone until 1997, when they
left the country together. Pieterson received a Bachelor of Arts
degree from the University of Sierra Leone in 1996 and speaks three
languages. While in Sierra Leone, she worked for a hotel before
going to college, and for a travel agency and then an airline after
college.
Pieterson described her mother as a "political activist"
in the National Democratic Party ("NDP"), a Creole-based party that
sought more political power for Creoles. Her mother was an
executive member of the party's campaign committee and held
political meetings at her house before she left in 1992. Pieterson
herself was not a member of the NDP, but she "actively
participated" in it. She accompanied her mother during political
activities such as campaigns and rallies, knew all of the party's
executive members, and served refreshments at the meetings held in
her home.
-3-
Various political parties had ruled Sierra Leone from
1961 until 1992. In 1992, the National Provisional Ruling Council
("NPRC") came to power. Pieterson claimed that once the NPRC
gained control, the NDP was banned and the Creoles became subject
to discrimination. She testified:
We [Pieterson and her family] constantly faced
discrimination. We had to live in a section of town
where only mostly Creoles lived, and when I was at
college, for example, I couldn't stay on campus, because
I got threats all the time, partly because of my
[m]other's affiliation with the Democratic Party, and
partly because of our ethnic group, Creole, because there
was this disgruntlement about them being the
educationists and everything, and 90 percent of the
country is illiterate, so they felt threatened by this,
and they always thought that the only way they could back
to the Creoles would be by power, by being in power.
. . . . we definitely had to live a life of, in,
cowered in fear, because neighbors or even extended
family with different political opinions always threw
threats at us, and our house had been broken into lots of
times, threats were made to us . . . .
Pieterson said that the threats to her and her family were
ethnically and politically based and explained that the threats
came from extended family members, neighbors, schoolmates, and her
mother's co-workers. She claimed that "they always said that if at
any small time they had a chance to harm us, they were going to do
it."
Pieterson's mother supervised the women's soccer team,
which was sponsored by local businesses. In 1992, her mother was
jailed and questioned for two days for allegedly prostituting the
women on the team. Pieterson testified that her mother was
-4-
"framed." According to Pieterson, her mother claimed that she was
jailed because of her ties to the NDP. Pieterson's mother did not
discuss with her the details of the time she spent in jail.
Sometime after this incarceration, Pieterson's mother left Sierra
Leone. Pieterson suggested that her mother might have left the
country to avoid being "incriminated," because a person could be
killed or held in jail for years without trial in Sierra Leone.
Her mother's departure also came shortly after the leader of the
NDP was jailed over an article he had authored that was critical of
the government. Pieterson has heard that her mother ended up in
England, but she has had no contact with her since she left in
1992. Pieterson said that she did not leave the country with her
mother because she did not "have the facilities" to do so at that
time and was saving money. In the five-year period between her
mother's departure and her own, Pieterson could point to no
specific acts of persecution against her.
For a brief time in 1997, the Revolutionary United Front
("RUF"), an armed and disgruntled group of army affiliates, carried
out a coup, overthrew the government, and embarked on a campaign of
terror. Members of RUF and of the Armed Forces Revolutionary
Council (AFRC) attacked Pieterson's town and raped and killed
civilians in her Creole neighborhood. Pieterson watched the rebels
loot homes and shops and she saw dead bodies in the streets. She
stated that she had friends who were raped by RUF soldiers.
-5-
Pieterson and her sister became afraid to stay in their home as the
violence intensified, so they hid in a cemetery for two nights to
escape the danger and avoid being raped. She said that her
neighborhood was particularly targeted by the RUF and AFRC soldiers
because it contained many Creoles.
About a week after these attacks, Pieterson fled Sierra
Leone with her sister. There was a mass exodus of people from
Sierra Leone to Guinea, and the United Nations High Commission for
Refugees had to intervene to make it possible for the refugees to
cross the border to Guinea. Pieterson's sister eventually went her
own way with her fiancé and son, and Pieterson does not know where
she is now.
Pieterson initially stayed at a refugee camp in Guinea
but discovered that RUF soldiers were entering the camp pretending
to be refugees. The RUF soldiers were looking for people who had
fled from Sierra Leone and were also taking food and supplies from
the camp. Pieterson called Melsome Nelson-Richards, a naturalized
citizen of the United States whom she had befriended and had a
relationship with while he was doing research in Sierra Leone for
the United Nations. She asked him to send her money so that she
could go to a refugee camp on the Ivory Coast. Richards sent her
money and, after a week at the Guinea camp, Pieterson moved to the
refugee camp on the Ivory Coast, where she stayed for a year.
-6-
Pieterson testified that she learned from the new
arrivals to the refugee camps that some of those who had tried to
return to Sierra Leone (because of the deplorable conditions in the
camps) had been killed by rebels and that most of those who did
return found their homes destroyed. Petitioner learned that her
own home had been burned down when a girl who had lived in her
neighborhood showed her a picture of the destroyed house a few
months later. Pieterson said that she has heard a lot of stories
about people who were "harassed and tortured and held under arrest
without any . . . reason" upon returning to Sierra Leone.
Pieterson and Richards decided to marry, and Richards
filed for her to come to the United States as his fiancée. She
entered this country in July 1998 but left Richards just three
weeks later. Pieterson explained that he kept her in the house
against her will and abused her, sexually and otherwise. She fled
from him and applied for asylum on August 11, 1998.
In her application for asylum, Pieterson asserted that
she would be vulnerable to rape or torture upon return to Sierra
Leone because of her mother's association with the NDP. She
testified that she fears persecution in Sierra Leone because of her
ethnicity and her mother's political affiliation, and she claims
that RUF soldiers will target her if she returns there. Pieterson
admits that she was never physically harmed, detained, or arrested
in Sierra Leone.
-7-
II.
In her oral decision, the IJ denied Pieterson's
applications for asylum and withholding of removal, concluding that
Pieterson had failed to establish past persecution or a well-
founded fear of future persecution on account of her political
opinions or ethnicity.1 The IJ emphasized that there was no
corroboration for Pieterson's claim that her mother had, for
political reasons, been framed on the charge of prostituting soccer
players. The IJ also noted that Pieterson's mother had not even
been present in Sierra Leone since 1992. As a result, the IJ found
it unlikely that Pieterson would be targeted on account of her
mother's political activities. As for Pieterson's own political
activities, the IJ found that they were limited, low profile, and,
since her mother's departure, nonexistent.
Citing a 1996 Profile of Asylum Claims, the IJ concluded
that the civil unrest in Sierra Leone did not appear to be
motivated by ethnic or political conflict. The evidence suggested
that no particular group of persons was being singled out; the
looting and burning of houses and shops did not target persons of
1
The IJ noted that because Pieterson entered the United
States after November 4, 1997, she was not eligible for the
temporary protected status that is available to certain nationals
of Sierra Leone. The IJ had determined at an earlier proceeding
that Pieterson would be ineligible for voluntary departure if she
proceeded to an asylum hearing because she had not been in the
United States for more than one year. On appeal, Pieterson
challenges neither of these rulings.
-8-
particular ethnicities or political beliefs. The IJ pointed out
that civil conflict and anarchy alone do not establish grounds for
asylum, nor do insults or discrimination alone.
The IJ also denied CAT protection, stressing that
Pieterson was never harmed or detained. The IJ acknowledged
Pieterson's fear of rape, but observed that rape was one of the
ravages of the civil conflict in Sierra Leone; there was no
indication that Pieterson would be any more vulnerable to rape than
others because of her political opinion, her Creole ethnicity, or
her family affiliation.
The BIA affirmed the IJ's decision in a brief opinion
and noted that it agreed with the reasoning underlying the IJ's
conclusions that the respondent failed to satisfy her burden of
proof for proving eligibility for asylum or withholding of removal.
It further held that Pieterson had not established eligibility for
relief under the CAT because she had not shown that it was more
likely than not that she would be harmed "by or at the instigation
of or with the consent or acquiescence of a public official or
other person acting in an official capacity" if returned to Sierra
Leone. The BIA noted that the existence of a pattern of severe
violations of human rights does not in itself constitute a
sufficient ground for concluding that a particular person would be
in danger of being subjected to torture as defined by the CAT.
-9-
III.
We review the BIA's denial of Pieterson's asylum claim
under the deferential substantial evidence standard.2 INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992); Albathani v. INS, 318
F.3d 365, 372 (1st Cir. 2003). The BIA's finding must be upheld
unless the evidence not only supports a contrary conclusion, but
compels it. Elias-Zacarias, 502 U.S. at 481 & n.1; Albathani, 318
F.3d at 372.
An asylum applicant bears the burden of establishing
that she fits within the statutory definition of refugee, 8 U.S.C.
§ 1101(a)(42)(A), and thus qualifies for asylum consideration. 8
C.F.R. § 208.13(a). Carrying that burden involves proving
"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)(A); see 8
C.F.R. § 208.13(b); Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir.
2003).
To establish a well-founded fear of future persecution
based on one of the five statutory grounds, an asylum applicant
must demonstrate that her fear of persecution is both genuine and
objectively reasonable. Khem, 342 F.3d at 53; Guzman v. INS, 327
2
Where, as here, the BIA issues an opinion that upholds an
IJ's decision and states that the BIA agrees with the reasons
supporting the IJ's determinations, we treat the IJ's reasoning as
if it were articulated by the BIA in the first instance. See Chen
v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996).
-10-
F.3d 11, 16 (1st Cir. 2003) ("Both a subjective and objective
component must underlie a claim of a well-founded fear of future
persecution.") (internal quotation marks omitted). To satisfy the
"objectively reasonable" component of the test, an applicant must
usually "provide evidence that there is a reasonable possibility he
or she would be singled out individually for persecution." 8
C.F.R. § 208.13(b)(2)(iii); see Guzman, 327 F.3d at 16. But an
applicant need not provide such evidence if she instead (1)
"establishes that there is a pattern or practice in . . . her
country . . . of persecution of a group of persons similarly
situated to [her] on account of [one of the five statutory
grounds]" and (2) "establishes . . . her own inclusion in, and
identification with, such group of persons such that . . . her fear
of persecution upon return is reasonable." 8 C.F.R. §§
208.13(b)(2)(iii)(A) and (B).
Pieterson's arguments on appeal boil down to a claim
that the IJ and the BIA did not properly evaluate her evidence of
a well-founded fear of persecution. Pieterson's primary argument
is that even if she did not provide sufficient evidence that she
would be singled out for persecution upon return to Sierra Leone,
she did satisfy prongs (A) and (B) of 8 C.F.R. § 208.13(b)(2)(iii)
by showing a pattern of persecution of Creoles and members of the
NDP in Sierra Leone.
-11-
Substantial evidence supports the IJ's determination
that there was no proven nexus between the violence in Sierra Leone
and Pieterson's ethnicity and political beliefs. The dangers that
Pieterson faced in Sierra Leone were the result of the violent
civil conflict there, and Pieterson did not distinguish the dangers
she faced from the dangers faced by other residents in Freetown and
throughout Sierra Leone. Her claim that Creoles and NDP members
were specifically targeted is substantially undermined by two
reports from the United States Department of State. The
Department's 1996 "Profile of Asylum Claims and Country Conditions"
for Sierra Leone asserts that "[t]he conflict in Sierra Leone . .
. does not appear to be based on ethnic, territorial or political
factors. . . . . [N]o particular group appears to be singled
out." And the Department's "Sierra Leone Country Report on Human
Rights Practices for 1998" states that "[e]thnic differences . . .
did not appear to contribute appreciably to the RUF rebellion, the
1997 coup, or the civil conflict during the year. There was no
identifiable ethnic or regional base of voluntary popular support
for the rebels, who controlled territory by terror and coercion
rather than by popular consent." Thus, although Creoles and
members of the NDP were among those terrorized by RUF, the reason
appears to have been because they were part of a much larger group
of people who did not support RUF, rather than because of any
group-specific characteristic.
-12-
Absent evidence of more specific targeting of a
particular group on account of one of the five statutory grounds,
8 C.F.R. § 208.13(b)(2)(iii) is not satisfied. The IJ correctly
held that the existence of civil conflict alone does not establish
grounds for asylum. Velasquez-Valencia v. INS, 244 F.3d 48, 51
(1st Cir. 2001) ("Congress has chosen to define asylum as limited
to certain categories; . . . it has not generally opened the doors
to those merely fleeing from civil war."); Aguilar-Solis v. INS,
168 F.3d 565, 572 (1st Cir. 1999) ("Danger resulting from
participation in general civil strife, without more, does not
constitute persecution."). The IJ also correctly held that the
Sierra Leone government's alleged discrimination against Creoles
does not, in and of itself, establish grounds for asylum.
Discrimination is not the equivalent of persecution; "[t]o qualify
as persecution, a person's experience must rise above
unpleasantness, harassment, and even basic suffering." Khalil v.
Ashcroft, 337 F.3d 50, 55 (1st Cir. 2003) (quoting Nelson v. INS,
232 F.3d 258, 263 (1st Cir. 2000)).
Pieterson's efforts to show that she would be
individually targeted for persecution on account of her own
political beliefs or on account of her mother's political
affiliation also fall short. First, the IJ's determination that
Pieterson's political activities were limited and low profile and
thus unlikely to lead to persecution is well-supported. Pieterson
-13-
did little more than accompany her mother at NDP events and serve
refreshments at her mother's NDP meetings. And significantly,
there is no evidence that Pieterson engaged in any political
activity or was associated with the NDP in any way once her mother
left the country in 1992, five years before she herself left.
Second, and relatedly, the record does not compel the
conclusion that Pieterson would be targeted for persecution on the
basis of her mother's NDP affiliation and political activities.
The only evidence that Pieterson's mother was ever targeted for
persecution -- the allegedly contrived charge that she prostituted
soccer players -- was deemed unreliable speculation by the IJ, who
reasonably noted that there was no corroboration for the theory
that she was framed. Cf. Aguilar-Solis, 168 F.3d at 571 ("[W]hen
a hearing officer who saw and heard a witness makes an adverse
credibility determination and supports it with specific findings,
an appellate court ordinarily should accord it significant
respect."). Pieterson was never persecuted while her mother was in
Sierra Leone, and her mother has not even been in the country for
the last twelve years.
Third, and important to Pieterson's burden of proving
the likelihood of being individually targeted, is the fact that she
herself was never physically harmed, detained, or arrested while in
Sierra Leone. The alleged threats and name-calling directed at her
and her family by some classmates, co-workers, and others do not
-14-
equate to persecution, and certainly do not compel the conclusion
that she would likely be subject to persecution upon return to
Sierra Leone.
In sum, the record does not compel a rejection of the
IJ's determination that Pieterson's fear is not objectively
reasonable and thus that she did not establish a well-founded fear
of persecution.
IV.
For the same reasons, we conclude that the evidence does
not compel the conclusion that petitioner is entitled to
withholding of deportation. See Alvarez-Flores v. INS, 909 F.2d 1,
4 (1st Cir. 1990) ("[A] petitioner unable to satisfy the asylum
standard fails, a fortiori, to satisfy" the standard for
withholding of deportation.); Khem, 342 F.3d at 54. Similarly, the
BIA's denial of CAT protection is supported by substantial
evidence. See 8 C.F.R. § 208.16(c)(2); Guzman v. INS, 327 F.3d 11,
16 (1st Cir. 2003) (under the CAT, a petitioner has the burden of
demonstrating that torture is more likely than not upon removal).
V.
The BIA's denials of Pieterson's applications for
asylum, withholding of removal, and protection under the CAT are
affirmed.
-15-