Michel v. Mukasey

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 07-2166

CELONY MICHEL,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Stafford,* Senior District Judge.

Robert M. Warren on brief for petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, and Anthony Wray
Norwood, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.

July 28, 2008

_______________
*Of the Northern District of Florida, sitting by designation.
 Per Curiam. The petitioner, Celony Michel, is a Haitian

national and a self-proclaimed member of a Haitian political group

known as the Democratic Convergence. He seeks judicial review of

a final order of the Board of Immigration Appeals (BIA) denying his

petition for asylum, withholding of removal, and protection under

the United Nations Convention Against Torture (CAT). Ceding

appropriate deference to the BIA's decision, we deny the petition.

The facts are relatively straightforward. On August 25,

2001, the petitioner entered the United States using an altered

passport and an assumed name. Shortly after his arrival, the

Immigration and Naturalization Service (INS) apprehended him. The

INS then charged him with being an alien subject to removal from

the United States. See 8 U.S.C. §§ 1182(a)(6)(C)(i),

1182(a)(7)(A)(i)(I). The petitioner conceded removability but

cross-applied for asylum, withholding of removal, and protection

under the CAT.

At an ensuing hearing before an immigration judge (IJ),

the petitioner described three instances of mistreatment allegedly

occurring in 1996, 1999, and 2001. He argued that these incidents

established past persecution on account of his political opinion

and, therefore, triggered a presumption of future persecution

should he be repatriated. See 8 C.F.R. § 1208.13(b)(1). In

elaboration, he explained that his association with the Convergence

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party had made him a target for supporters of Haiti's then-

President Jean-Bertrand Aristide.

Of the three incidents, two involved unjustified arrests,

incarceration without charges, and imprisonment in terrible

conditions. Following the first arrest in 1996, the petitioner

left his wife and children in Maissade to seek shelter with other

family members in L'Hermit. The second arrest occurred in 1999

when he returned to Maissade for a visit. The petitioner claims

that he was beaten but he did not seek medical attention.

The petitioner later moved from L'Hermit to Port-au-

Prince. In 2001, after he voted for a Convergence party candidate

in an election, members of the opposition Lavalas party (a group

beholden to President Aristide) beat him. Following this incident,

he left Haiti for the United States. According to the petitioner,

Lavalas adherents from time to time asked his wife, who remained in

the country, about his whereabouts — but nothing in the record

indicates either that these inquiries were threatening or that

violence was imminent if he returned to Haiti.

The IJ found that the petitioner was credible and had

established past persecution on account of his political viewpoint.

The IJ also found, however, that the petitioner could not sustain

the presumption of a well-founded fear of future persecution — the

showing required for a grant of asylum — because Aristide was no

longer in power in Haiti and the circumstances had fundamentally

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changed. See 8 C.F.R. § 1208.13(b)(1)(i)(A). Thus, no relief was

available to him.

After considering the petitioner's appeal, the BIA

affirmed these findings and conclusions. Consequently, the

petitioner could not satisfy the requisite burden of proof for

asylum. That meant that his claim for withholding of removal

necessarily failed. See Attia v. Gonzales, 477 F.3d 21, 24 (1st

Cir. 2007); see also INS v. Stevic, 467 U.S. 407, 430 (1984)

(explaining that the alien's burden for withholding of removal is

a "clear probability of persecution"). The BIA also affirmed the

IJ's determination that the petitioner had not demonstrated that,

more likely than not, he would be tortured with the connivance or

acquiescence of the Haitian government if he were repatriated.

That ended the petitioner's CAT claim. See 8 C.F.R. §

1208.16(c)(4).

In the alternative, the petitioner asked the BIA to

remand the case for the consideration of new evidence. The BIA

denied the motion, finding that the proffered evidence did not

materially augment any of the petitioner's arguments. A remand

was, therefore, pointless. See Raza v. Gonzales, 484 F.3d 125, 128

(1st Cir. 2008); Matter of Coelho, 20 I. & N. Dec. 464, 471-73 (BIA

1992).

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 Following the issuance of a removal order, the petitioner

filed this timely petition for judicial review. We have

jurisdiction under 8 U.S.C. § 1252(a)(1).

Our review is centered on the BIA's decision. See

Orelien v. Gonzales, 467 F.3d 67, 70 (1st Cir. 2006). But where,

as here, the BIA has endorsed and elaborated upon the IJ's

findings, we review in tandem the decisions of both the BIA and the

IJ. See Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006).

Our standard of review is familiar. When assessing

findings of fact in immigration proceedings, we must respect those

findings as long as they are "supported by reasonable, substantial,

and probative evidence on the record considered as a whole." INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992); see Pan v. Gonzales,

489 F.3d 80, 85 (1st Cir. 2007). This deferential approach

requires that a factual determination be upheld unless the record

compels a contrary determination. 8 U.S.C. § 1252(b)(4)(B); Elias-

Zacarias, 502 U.S. at 483-84; López de Hincapie v. Gonzales, 494

F.3d 213, 218 (1st Cir. 2007).

The IJ's decision must be clear but not necessarily

comprehensive. He "need not address each and every piece of

evidence" adduced by the petitioner; he must, however, "at least

make findings, implicitly if not explicitly, on all grounds

necessary for decision." Un v. Gonzales, 415 F.3d 205, 209 (1st

Cir. 2005) (citation and internal quotation marks omitted).

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 A special standard of review applies to abstract legal

questions. We review answers to such questions de novo, but give

some deference to the agency's reasonable interpretation of

statutes and regulations that fall within its purview. Pan, 489

F.3d at 85; see also Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843-44 (1984).

Against this backdrop, we turn to the petition for

judicial review. We begin by evaluating the petitioner's asylum

claims and the denial of the motion to remand. We then briefly

address his claim for withholding of removal. The CAT claim has

not been briefed in this court and, accordingly, we deem that claim

abandoned. See Rotinsulu v. Mukasey, 515 F.3d 68, 71 (1st Cir.

2008).

In order to qualify for asylum, an alien must demonstrate

that he is a "refugee" as that term is used in federal law. See 8

U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a); see also Makhoul

v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004). To carry this

burden, the alien must prove that he is unable or unwilling to

repatriate because of persecution related to race, religion,

nationality, membership in a particular social group, or political

opinion. 8 U.S.C. § 1101(a)(42)(A); see Orelien, 467 F.3d at 70.

As part of this showing, the alien must forge a causal link between

the persecution (whether past or feared) and one of those five

statutorily protected grounds. Id. § 1101(a)(42)(A); López de

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Hincapie, 494 F.3d at 217; Raza, 484 F.3d at 128-29. The requisite

showing may be made by traveling along one of two avenues: either

by establishing past persecution and thus triggering a presumption

of future persecution, or by independently demonstrating a well-

founded fear of future persecution. López de Hincapie, 494 F.3d at

217.

In the case at hand, the petitioner's primary

remonstrance is that the BIA undervalued his evidence anent the

current conditions of political unrest and violence in his native

land. To support this argument, he emphasizes the three incidents

of mistreatment that he endured while living in Haiti. These

incidents, however, reflect only past persecution; the latest of

them occurred in 2001. While they suffice to trigger a presumption

of future persecution, see 8 C.F.R. § 1208.13(b)(1), that

presumption is rebuttable — and the incidents themselves have very

little bearing on current conditions in Haiti.

To be sure, when a finding of persecution on account of

one of the five statutorily protected grounds (here, political

opinion) triggers a rebuttable presumption of future persecution,

the burden shifts to the government to prove that the petitioner

could now return safely to his homeland either because threatening

circumstances had abated or because he could safely relocate there.

See Orelien, 467 F.3d at 71; see also 8 C.F.R. §

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1208.13(b)(1)(i)(A)-(B). The government must prove its rebuttal by

a preponderance of the evidence. 8 C.F.R. § 1208.13(b)(ii).

The BIA determined that the government had successfully

rebutted the presumption of future persecution because the evidence

indicated a regime change: Aristide had been deposed in February of

2004. See U.S. Dep't of State, 2006 Country Reports on Human

Rights Practices - Haiti § 3. That shift in power constituted a

fundamental change in circumstances sufficient to vitiate any well-

founded fear of persecution in Haiti on account of the petitioner's

pro-Convergence leanings. If supported by preponderant evidence,

that explanation was enough to satisfy the government's burden.

See, e.g., Jorgji v. Mukasey, 514 F.3d 53, 59 (1st Cir. 2008)

(explaining that persecution could not reasonably be anticipated

when "the regime that fostered [the past persecution] has long

since been supplanted"); Ang v. Gonzales, 430 F.3d 50, 57 (1st Cir.

2005) (noting that a regime change "effectively eliminates any

argument that [petitioner] would be persecuted"); see also Laurent

v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004) (holding that the

BIA's findings must be honored unless the evidence "points

unerringly in the opposite direction").

This is the crux of the matter. The BIA accepted the

government's explanation and, to set aside that determination, the

petitioner must show that the record evidence compels rejection of

that explanation. See Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st

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Cir. 1999) (explaining that "the administrative record, viewed in

its entirety, must compel the conclusion that the alien is asylum-

eligible"). We turn, then, to that question.

A review of the record leaves no doubt that this

determination is supported by substantial and preponderant

evidence. The historical predicate for the BIA's decision —

President Aristide's ouster — cannot be gainsaid. When Aristide

left, his Lavalas supporters lost their influence in national

affairs. With the levers of power having been wrested from the

hands of his antagonists, there is no realistic possibility that

the petitioner's pro-Convergence sympathies will place him in the

Haitian government's cross-hairs. See Sok v. Mukasey, 526 F.3d 48,

53 (1st Cir. 2008) ("[P]ersecution always implies some connection

to government action or inaction.") (internal quotation marks

omitted). So viewed, the record cannot be said to compel a finding

that the petitioner harbored an objectively reasonable fear that

his allegiance to the Democratic Convergence will be a source of

future persecution.

The second avenue for conferring asylum requires an

independent showing, unaided by any presumption, of a well-founded

fear of future persecution based on a statutorily protected ground.

Makhoul, 387 F.3d at 79. To show a well-founded fear of future

persecution, an alien must establish that his fear was both genuine

and objectively reasonable. Orelien, 467 F.3d at 71; Aguilar-

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Solis, 168 F.3d at 572. The objective component must be "nestled

on a plausible factual predicate." Orelien, 467 F.3d at 71. This

necessitates a showing that "a reasonable person in the asylum

applicant's circumstances would fear persecution on account of a

statutorily protected ground." Aguilar-Solis, 168 F.3d at 572.

Based on essentially the same reasoning elucidated above,

the BIA determined that the petitioner had not made the requisite

showing. In its view, the regime change eliminated any objectively

reasonable basis for the petitioner's avowed fear of future

persecution on account of his political views. This is an

eminently supportable assessment of the record: there is simply no

evidence of a pattern or practice of persecution of Convergence

party members following President Aristide's fall from power. See

8 C.F.R. § 1208.13(b)(2)(iii). Without evidence of a

particularized threat to the petitioner or other members of the

Democratic Convergence, we are not at liberty to reverse the BIA's

decision.1 See Segran v. Mukasey, 511 F.3d 1, 5-6 (1st Cir. 2007)

(explaining that deference is due not only to findings of fact but

1
The petitioner makes no explicit appeal that we review the
BIA's denial of his motion to remand, nor need we linger long over
the new evidence he proffered in connection with that motion. It
is settled beyond peradventure that general conditions of violence
in a country cannot alone support a claimed fear of persecution.
See López de Hincapie, 494 F.3d at 219-20; Mendoza Perez v. INS,
902 F.2d 760, 761-62 (9th Cir. 1990); Matter of S-V-, 22 I. & N.
Dec. 1306, 1310 (BIA 2000). The new evidence that the petitioner
proffered here was evidence of general conditions of violence.
Thus, the BIA's denial of the motion to remand was well within its
discretion.

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also to determinations about whether particular facts support a

claim of persecution).

In an effort to blunt the force of the BIA's reasoning,

the petitioner argues that the BIA failed to apply the standard

announced in Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987),

in determining that he had not established a well-founded fear of

persecution. In Mogharrabi, the BIA recognized that "an applicant

for asylum has established a well-founded fear if he shows that a

reasonable person in his circumstances would fear persecution."

Id. at 445. The petitioner's argument fails because the BIA, like

the IJ, presented President Aristide's ouster as the reason why no

objectively reasonable person would thereafter fear persecution on

account of pro-Convergence sentiments. No more was exigible.2 See

Orelien, 467 F.3d at 72. On this basis, we find the argument that

the BIA did not abide by its Mogharrabi standard unconvincing.

Relatedly, the petitioner calumnizes the BIA for a

failure adequately to assess his evidence of persecution. Citing

Sotto v. INS 748 F.2d 832, 837 (3d Cir. 1984), he insists that the

BIA's decision must be remanded due to a failure to refer to

relevant evidence.

2
In this regard, we think it is instructive that, in
Mogharrabi, the petitioner's fear of persecution stemmed from his
"clearly expressed . . . political views" and the fact that "his
opinions were extremely derogatory to the regime in power." 19 I.
& N. Dec. at 448 (emphasis supplied).

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 This is a bogus argument. The BIA's decision here must

be understood as adopting the IJ's findings. See Laurent, 359 F.3d

at 64 n.3. That the BIA did not itself rehearse each and every IJ

finding does not allow an inference of superficial review.3 See,

e.g., Raza, 484 F.3d at 128 ("An agency is not required to dissect

in minute detail every contention that a complaining party

advances.").

Finally, the petitioner argues that the Haitian

government is unable or unwilling to control the Lavalas party and

that this inability justifies a grant of asylum. This argument is

little more than a rehash of the arguments previously rejected.

There is no hard evidence that the government is unable to control

whatever may remain of the Lavalas party. In the last analysis,

then, the salient principle is that generalized conditions of

political unrest cannot constitute a basis for a claim of political

asylum. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004)

(holding evidence of generalized problems insufficient); Matter of

S-V-, 22 I. & N. Dec. 1306, 1310 (BIA 2000) (same).

To sum up, we are not without some sympathy for the

petitioner's position. Haiti remains a nation in which violence is

part of the political climate. But a general state of disarray

within a country is not in itself enough of a foundation to support

3
In all events, this case is at a commendable remove from
Sotto, in which both the IJ and the BIA entirely ignored an
affidavit without explaining why. See Sotto, 748 F.2d at 837.

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a claim for asylum. We therefore uphold the BIA's denial of asylum

here.

That effectively ends the matter. Because the petitioner

cannot establish eligibility for asylum, he cannot establish

eligibility for withholding of removal. After all, the showing

that is required for withholding of removal is parallel to, but

more demanding than, that required for a counterpart claim for

asylum. See Ang, 430 F.3d at 58 (explaining that withholding of

removal requires an alien to establish a clear probability of

persecution, rather than a well-founded fear of persecution). In

view of our holding that the BIA supportably denied the

petitioner's asylum claim, his claim for withholding of removal

becomes a dead letter. Orelien, 467 F.3d at 73.

We need go no further. For the reasons elucidated above,

the petition for judicial review must be denied.

So Ordered.

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