United States Court of Appeals
For the First Circuit
No. 07-1109
CLAUDY JOURNAL,
Petitioner,
v.
PETER D. KEISLER,*
ACTING 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.
Harvey J. Bazile and Bazile & Associates, on brief for
petitioner.
Margaret A. O'Donnell, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Peter D.
Keisler, Assistant Attorney General, and Aviva L. Poczter, Senior
Litigation Counsel, on brief for respondent.
October 29, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General
Alberto R. Gonzáles as respondent.
TORRUELLA, Circuit Judge. Claudy Journal, a native and
citizen of Haiti, petitions for relief from an order of the Board
of Immigration Appeals ("BIA") affirming the decision of the
Immigration Judge ("IJ") denying his applications for asylum,
withholding of removal, and protection under the Convention Against
Torture ("CAT"). After careful consideration, we deny the petition
for review and affirm the decision of the BIA.
I. FACTUAL BACKGROUND
On February 19, 2001, Journal entered the United States
at Charlotte Amalie, U.S. Virgin Islands without valid entry
documents. One month later, he filed an application for asylum and
withholding of removal with the Immigration and Naturalization
Service ("INS"). The INS issued a Notice to Appear, charging that
Journal was subject to removal pursuant to 8 U.S.C. § 1182(a)
(6)(A)(I). A removal hearing was scheduled for April 10, 2003 in
the U.S. Virgin Islands. Journal failed to appear and the IJ
ordered him removed in absentia.
Journal, through counsel, successfully moved to reopen
his case. He admitted to the factual allegations in the Notice to
Appear, conceded removability as charged, and sought asylum. He
also moved for a transfer of venue and the case was transferred to
the District of Massachusetts. On November 3, 2005, Journal
appeared before another IJ and testified that he had fled Haiti
-2-
because he was threatened by Lavalas, the political party
associated with then-President Jean-Bertrand Aristide.
The events at issue in this case allegedly occurred in
the months leading up to the November 2000 presidential election.
At the hearing, Journal testified about his political activities in
speaking out against Aristide's candidacy and Lavalas generally.
As a result of those actions, he allegedly received threats from
Lavalas supporters. Specifically, Journal testified that on
November 7, 2000, Lavalas members came to his home and spoke with
his mother while he was away at work. His mother later warned him
that they were looking for him. The next day, Journal and a group
of eight to ten other people were distributing anti-Lavalas
leaflets when two Lavalas supporters allegedly arrived and
assaulted several of the group members. Journal testified that he
was hit on the head and shoulders before he was able to escape into
the crowd and hide. With the assistance of others, he was able to
travel, in disguise, away from his hometown of Torbeck Cayes to
Port-au-Prince, five hours away. Two days later he fled Haiti,
bound for the United States via the Dominican Republic.
Upon questioning by the IJ, Journal maintained that he
was unable to stay in Port-au-Prince because he feared that the
members of Lavalas would be able to find and hurt him. His mother
and three sisters, who had resided with him in Torbeck Cayes, were
also allegedly threatened as a result of Journal's political
-3-
activities and eventually moved to Port-au-Prince. Journal
testified that they continue to reside in Port-au-Prince without
any further threats or problems.
On November 3, 2005, the IJ denied Journal's claims for
asylum, withholding of removal, and relief under the CAT. Although
the IJ found Journal to have an "honestly held fear of being harmed
if he were to return to Haiti," she concluded that he had
established neither that those fears were well-founded nor that he
faced a clear probability of future persecution in Haiti. She also
noted that even at the time of his flight from Haiti, his departure
did not appear to be imperative to his ability to find safe haven,
"[Journal] does not appear to have been so active politically that
individuals would have known him had he simply chosen to remain in
Port-au-Prince."
On December 19, 2006, the BIA reviewed the findings of
the IJ and affirmed the IJ's conclusion that Journal had failed to
meet his burden of proof for asylum or withholding of removal.
Dismissing his appeal, the BIA concluded that Journal was never
harmed and that his family moved to another city in which they have
continued to live without incident. Journal now appeals.1
1
Journal's argument for protection under the CAT is not properly
before this Court because it was not made before the BIA. See
Berrio-Barrera v. Gonzáles, 460 F.3d 163, 167-68 (1st Cir. 2006)
(citing Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004); 8
U.S.C. § 1252(d)(1)).
-4-
II. DISCUSSION
On petition for review of a decision of the BIA, this
Court reviews factual findings under the deferential "substantial
evidence" standard.2 Orelien v. Gonzáles, 467 F.3d 67, 70 (1st
Cir. 2006). Under this standard, we must uphold determinations by
the BIA "unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
In a claim for asylum, the petitioner carries the burden
of proving that he qualifies as a refugee by showing either that he
has suffered past persecution or has a well-founded fear of future
persecution on the basis of "race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1101(a)(42). To constitute past persecution, the conduct
must extend beyond "unpleasantness, harassment, and even basic
suffering." Topalli v. Gonzáles, 417 F.3d 128, 133 (1st Cir. 2005)
(quoting Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000))
(internal quotation marks omitted). A sufficient showing of past
persecution entitles an applicant to a rebuttable presumption of a
well-founded fear of future persecution. 8 C.F.R. § 208.13(b).
Absent that presumption, a petitioner must demonstrate that his
fear is both genuine and reasonably objective. Toloza-Jiménez v.
Gonzáles, 457 F.3d 155, 161 (1st Cir. 2006).
2
The petitioner's brief erroneously asserts that the Court
reviews decisions of the BIA under an abuse of discretion standard.
-5-
In this case, to establish past persecution, Journal
carries the burden of demonstrating that he was persecuted on the
basis of his political opinions. See 8 C.F.R. § 208.13(a)-(b). In
determining whether alleged incidents rise to the level of
persecution, one important factor is whether "the mistreatment can
be said to be systematic rather than reflective of a series of
isolated incidents." Bocova v. Gonzáles, 412 F.3d 257, 263 (1st
Cir. 2005). During his testimony, Journal alleged only one
incident of violence in which he was struck on the head and arms.
Although the full extent of his injuries is unclear, he testified
that he was able to flee without seeking medical treatment.3
Substantial evidence supports the IJ's conclusion that the few
events testified to by Journal were insufficient to support a claim
of past persecution. See, e.g., Attia v. Gonzáles, 477 F.3d 21,
23-24 (1st Cir. 2007) ("two altercations in a nine-year period and
a general climate of discrimination" do not suffice as past
persecution); Topalli, 417 F.3d at 132 (seven arrests accompanied
by brief detentions and beatings over a two year period do not rise
to the level of persecution); Bocova, 412 F.3d at 263 (two beatings
by the police accompanied by death threats over a two year period
do not amount to persecution).
3
Journal's own filings belie the seriousness of his injuries. In
his brief to the BIA, he stated that "[a]t the time of attack, [he]
was very fortunate to have not been hurt physically, although he
was very frightened about the situation."
-6-
Looking next to whether Journal demonstrated a well-
founded fear of future persecution, we apply a two-part test
entailing both subjective and objective elements. See Velásquez v.
Ashcroft, 342 F.3d 55, 58-59 (1st Cir. 2003), abrogated on other
grounds by Bocova, 412 F.3d at 266. In this case, the IJ concluded
that while Journal had testified credibly that he genuinely felt
fearful, he failed to meet the objective test which "requires a
showing by credible and specific evidence that this fear is
reasonable." Mukamusoni v. Ashcroft, 390 F.3d 110, 120 (1st Cir.
2004). With respect to the threats leveled against Journal and his
family, all of those threats occurred in his hometown and he
conceded that his mother and sisters have not encountered any
further threats since their move to Port-au-Prince. Their ability
to relocate and continue to live in Haiti safely and without
harassment significantly undercuts his contention that he would not
be safe there. See Nikijuluw v. Gonzáles, 427 F.3d 115, 122 (1st
Cir. 2005) (finding that petitioner could not establish a
reasonable fear of future persecution where her family lived safely
in the country of deportation and there was no other record
evidence of risk of future harm). Moreover, although he testified
that he felt compelled to leave Haiti because his "fears did not
subside" after fleeing Torbeck Cayes, he neither provides an
explanation for his continued fears nor references other additional
threatening incidents occurring when he was in Port-au-Prince.
-7-
Journal's ability to obtain an official Haitian passport,
issued October 19, 2005 -- more than four years after his flight
from Haiti -- further undermines the reasonableness of his fear.
See Kheireddine v. Gonzáles, 427 F.3d 80, 87 (1st Cir. 2005)
(petitioners' ability to obtain passports in their own names
"undercuts their claim of persecution"). Thus, the particular
harms and threats suffered by Journal fail to support his argument
that his fear of future persecution is reasonable.
Finally, we address Journal's claim for withholding of
removal. To qualify for relief, the petitioner must meet a more
stringent burden of proof than that required for an asylum claim.
See INS v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999) (petitioner
must establish that it is "more likely than not that [he] would be
subject to persecution" (quoting INS v. Stevic, 467 U.S. 407, 429-
30 (1984)) (internal quotation marks omitted)); Ang v. Gonzáles,
430 F.3d 50, 58 (1st Cir. 2005) (explaining that withholding of
removal requires an alien to establish a clear probability, rather
than a well-founded fear, of persecution). Having failed to meet
the less stringent asylum standard, Journal necessarily fails to
meet the higher standard for withholding of removal.
III. CONCLUSION
For the foregoing reasons, we deny the petition for
review and affirm the decision of the BIA.
Affirmed.
-8-