United States Court of Appeals
For the First Circuit
No. 05-2724
EMMANUEL JEAN,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Susanna L. Shafer on brief for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, Peter D. Keisler, Assistant Attorney
General, and Terri J. Scadron, Assistant Director, Civil Division,
on brief for respondent.
August 31, 2006
LYNCH, Circuit Judge. Petitioner Emmanuel Jean, a native
and citizen of Haiti, appeals from a final order of removal of the
Board of Immigration Appeals (BIA), which denied his petitions for
asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). An Immigration Judge (IJ) found that Jean
was not credible, and that he had not met his burden of
establishing past persecution or a well-founded fear of future
persecution. The IJ also found that even if Jean had established
past persecution, circumstances in Haiti had changed fundamentally
such that Jean no longer had a well-founded fear of persecution
there. In a per curiam order, the BIA affirmed and adopted the
IJ's ruling. We affirm the BIA and deny the petition.
I.
On or about October 23, 2002, Jean entered the United
States as a non-immigrant visitor. He was authorized to remain in
the United States until April 22, 2003. Jean did not depart by
that date, and thereafter his presence in the United States was
unauthorized. On October 22, 2003, Jean filed an application
requesting political asylum and withholding of removal based on his
political opinion and membership in a particular social group.
Jean also requested protection under the CAT.
In support of his application, Jean offered documentary
and testimonial evidence that he had experienced persecution in
Haiti on account of his political opinion. The facts as presented
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by Jean were as follows. Jean claimed that he was known in Haiti
to oppose Aristide and his government. He claimed that as a
result, he was harassed and threatened by Aristide supporters. The
first such incident occurred in 1991, after Aristide first came to
power. Aristide supporters demonstrating in the streets stopped
Jean's car and asked why he displayed no symbol of support for
Aristide. They threatened to burn his car with him inside unless
he kissed a picture of Aristide, which he did do. In addition,
Jean testified that numerous times in 1991, members of Lavalas --
Aristide's political party -- threw feces at his home.
A coup in 1992 displaced Aristide, and Jean reported that
he experienced no further persecution until Aristide returned to
power in 1994. At that point, Jean claimed, members of Lavalas, in
addition to members of les Chimères -- a group of radical Aristide
supporters -- once again began harassing him. This harassment
continued until Jean's final departure from Haiti in 2002. Jean
testified that during this time, he and his wife received repeated
threatening phone calls. In addition, Jean alleged that members of
les Chimères would visit his store and home and demand money from
him. In 1994, one of Jean's stores was looted, and Jean suspected
Lavalas. He claimed that although he reported the incident to the
police, they failed to investigate it. Jean also stated that in
2002, his store and home were burned down by people he believed to
be supporters of Aristide. Jean testified that he left Haiti for
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the United States in October of 2002 because the Haitian government
had issued a warrant directing him to appear in court. He reported
that a friend had told him that "people [who] receive[] these
warrants are often killed." After Jean left Haiti, members of
Lavalas apparently went to his brother's store and asked for Jean.
When Jean's father told the men that Jean was not there and refused
to provide further information, the men shot Jean's father in the
leg.
Jean also offered evidence that he had a well-founded
fear of persecution based on his membership in a particular social
group -- his family. He claimed that Lavalas wished to kill him
because of his prior association with his wife's brother and
cousin, both of whom were killed by members of Lavalas because of
their opposition to the party.
Between 2000 and 2002, Jean traveled to the United States
several times. At no time during these visits did he apply for
asylum. Each time, he voluntarily returned to Haiti. Jean
testified that during those prior visits to the United States he
felt he could "go back to [his] country at any time because [he]
didn't have any problem with the government."
In a decision issued June 24, 2004, the IJ denied Jean's
applications for asylum, withholding of removal, and CAT
protection, but granted Jean the privilege of voluntary departure
until August 9, 2004. In her opinion, the IJ stated that she found
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the petitioner and his wife -- who testified in support of his
application -- not credible. In particular, she found that
"[Jean's] testimony was materially inconsistent with his written
asylum claim and was contradicted by certain aspects of his
supporting documents." The IJ also found it incredible that Jean
and his wife would have voluntarily returned to Haiti several times
after having received threats from members of Lavalas.
The IJ went on to note that even if Jean had been
credible, he still would have failed to establish a well-founded
fear of persecution in Haiti. In making this determination, the IJ
considered only those events that purportedly took place after
Jean's last voluntary return to Haiti. She found that these events
-- threatening phone calls, solicitation of money by Aristide
supporters, and the burning down of Jean's home and store -- did
not amount to persecution. Further, she found that even if Jean
had shown past persecution, circumstances in Haiti had
fundamentally changed such that he no longer had a well-founded
fear of persecution there. "Specifically, the forced ouster of
President Aristide, the posting of international troops to Haiti
and the installation of a new, non-Lavalas, government cumulatively
constitute a fundamental change in circumstances in [Haiti]."
In a per curiam order issued on October 17, 2005, the BIA
affirmed without opinion and adopted the IJ's ruling. The BIA also
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extended the time within which Jean was permitted to depart the
United States voluntarily to December 1, 2005.
II.
Jean makes several claims on appeal. First, he argues
that the IJ wrongly found him not credible. Second, he asserts
that the IJ wrongly failed to consider "periodic persecution" and
the persecution of Jean's family in ruling on his asylum claim.
Third, Jean argues that the BIA's failure to reassess country
conditions at the time of his appeal "robbed him of a reasoned
administrative decision." Finally, he claims that the BIA's
issuance of an affirmance without opinion was procedural error. We
consider only Jean's challenges to the IJ's credibility finding and
the BIA's summary affirmance procedure. Because we find that the
IJ's credibility determination is supported by substantial
evidence, we do not reach Jean's other challenges to the IJ's
asylum determination.
Normally, we review the BIA's decision. Romilus v.
Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004). However, when the BIA
adopts the IJ's opinion, we review the opinion of the IJ as if it
were the BIA's. Id. ("When the BIA does not render its own
opinion, . . . and either defers [to] or adopts the opinion of the
IJ, a Court of Appeals must then review the decision of the IJ."
(quoting Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003)
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(internal quotation marks omitted))); see also 8 C.F.R. § 1003.1(e)(4)(ii).
To be eligible for asylum, an alien must demonstrate that
he is a "refugee." 8 U.S.C. § 1158(b)(1)(A). To do so, the alien
must show that he fears persecution "on account of race, religion,
nationality, membership in a particular social group, or political
opinion." Id. § 1101(a)(42)(A); see also Mukamusoni v. Ashcroft,
390 F.3d 110, 119 (1st Cir. 2004). The alien bears the burden of
proof for establishing his eligibility for asylum. 8 U.S.C.
§ 1158(b)(1)(B)(i). Whether or not an alien is credible is a
factual determination that we review under the deferential
substantial evidence standard. Kheireddine v. Gonzales, 427 F.3d
80, 88 (1st Cir. 2005). Thus, we will uphold the agency's
determination "unless any reasonable adjudicator would be compelled
to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).
Here, substantial evidence supports the IJ's finding that
Jean and his wife were not credible. Jean offered inconsistent
testimony about many of the incidents that form the basis of his
claim. In an affidavit accompanying his application for asylum,
Jean stated that his friend informed him that his store had been
burned down by men wearing masks. However, in his testimony before
the IJ, Jean first testified that his friend had not described the
appearance of the attackers. When questioned by the IJ about
whether his friend had been able to see the attackers' faces, Jean
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stated that because it was dark, his friend had been able to
observe only the hair and clothing of the attackers. When the IJ
specifically asked whether the men had been wearing masks, Jean
initially said he didn't know. He then dodged the question why his
testimony differed from his affidavit, and subsequently changed his
testimony to conform to his affidavit. Similarly, on
cross-examination Jean embellished his description of the
attackers, stating that they wore their hair in braids -- as
Aristide supporters were known to do -- and wore t-shirts
indicating their support for Aristide. When asked why he had
failed to include this information in his direct testimony and in
his affidavit, Jean simply stated that he didn't "know how this
[information] could have been omitted."
There also were discrepancies in Jean's written and oral
testimony about his reporting the arson to authorities. Jean
testified that when he reported the incident to a Justice of the
Peace, he did not mention his suspicions that Lavalas had been
involved for fear that otherwise the Justice of the Peace would not
investigate the fire. The report prepared by the Justice of the
Peace, however, indicates that Jean had told him that Lavalas was
involved. When questioned about the discrepancy, Jean testified
first that he had hinted to the Justice of the Peace that Lavalas
had burned his house. He then changed his testimony again and
stated that he told the Justice of the Peace that the arson had
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been committed by Lavalas, but he did not think that the Justice of
the Peace would include this information in his report.
Jean also testified inconsistently about the month in
which his father was shot. One might expect the date of such a
traumatic event to have stuck in Jean's mind, but only
two-and-a-half months later, Jean gave testimony that was at
variance with the documentary evidence he later submitted. In
April 2004, Jean testified that his father had been shot in
February of that year. But in June 2004, Jean revised his
testimony and stated that his father had been shot in January, on
the date shown on hospital records he submitted.
Further, Jean offered into testimony an affidavit
supposedly made by his father the day he was shot. When Jean was
first questioned about the affidavit, he testified that it was not
made by his father, but was made by someone else and given to his
father. However, once made aware that the affidavit itself
indicated otherwise, Jean revised his testimony so that it was
consistent with his father's affidavit. When asked why his father
would need to make a sworn statement the same day he was shot, Jean
did not offer an intelligible answer.
During his removal proceedings, Jean testified to
additional incidents of harassment not included in his written
application. These incidents included members of Lavalas's
throwing feces at his home. Jean testified that he did not include
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these incidents in his initial report because "it wasn't really
necessary" and because he "did not remember the dates and . . . had
no proof." This explanation is unconvincing. Jean included
several incidents in his written application that he did not report
to police and of which he had no proof, including the threatening
calls to his home.
Finally, despite Jean's assertion to the contrary, his
and his wife's willingness to return voluntarily to Haiti on
multiple occasions undermines the contention that Jean experienced
persecution and has a well-founded fear of persecution there.
Jean offers several explanations for the inconsistencies
in his testimony. He argues that he could not fully understand his
application affidavit because it was in English. But when the IJ
asked him during his removal proceedings whether someone had
explained to him in Creole those parts of his affidavit that he
could not understand, Jean replied, "Yes, they did . . . explain it
to me." Likewise, Jean's attempt in his brief to minimize the
discrepancies between his asylum application and his testimony are
disingenuous. The IJ's opinion did not state, as Jean claims, that
Jean had never mentioned in his asylum application that Aristide
supporters wear their hair in braids or wear t-shirts indicating
their political affiliation. Rather, the IJ noted that Jean had
not indicated in his application that the men who burned down his
store wore their hair in braids and wore t-shirts displaying
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pictures of Aristide. Jean argues that his expansion of his
testimony on cross examination was an inadequate basis for an
adverse credibility finding. But Jean's testimony on cross
examination was not merely embellished; at times it was completely
contradictory to his testimony on direct examination or in his
affidavit. Jean also argues that the testimony about his father's
having been shot varied because he was not in Haiti at the time and
was forced to rely on family members to transmit information to
him. Again, Jean misrepresents the facts. In April 2004, when he
first testified about his father's shooting, Jean had already
received documents indicating that his father had been shot in
January, rather than February. Indeed, in June, Jean testified
that in April he had "forgot[ten] the date" that his father had
been shot. The information in his possession with regard to the
date his father was shot did not change between April and June.
The IJ's adverse credibility determination is amply
supported by the record.1 We therefore decline to consider Jean's
other challenges to the IJ's denial of asylum.
As for Jean's objection to the BIA's summary affirmance
procedure, we have long since rejected arguments challenging that
procedure. See, e.g., Albathani, 318 F.3d at 377-79.
1
The assertion that the IJ's determination deserves little
deference because she was unable to observe Jean's demeanor is
without merit. The IJ specifically asked Jean to position himself
so that she could observe him on the video-conference screen.
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The petition for review is denied.
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