United States Court of Appeals
For the First Circuit
No. 08-1128
SOLANGE LEVEILLARD RAVIX, ET AL.,
Petitioners,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Selya and Stahl, Circuit Judges.
Susanna L. Shafer and Law Office of Susanna L. Shafer on brief
for petitioners.
Richard Zanfardino, Office of Immigration Litigation, Civil
Division, Department of Justice, Gregory G. Katsas, Assistant
Attorney General, Civil Division, and Anthony W. Norwood, Senior
Litigation Counsel, on brief for respondent.
January 12, 2009
Per Curiam. Solange Leveillard Ravix, her husband Emile,
and their two children, who are natives and citizens of Haiti, seek
review of the decision of the Board of Immigration Appeals ("BIA")
dismissing their appeal from the decision of an immigration judge
("IJ") denying their claims for asylum, withholding of removal, and
relief under the Convention Against Torture ("CAT") and reinstating
an order of voluntary departure.
The relevant facts underpinning their claims, as
recounted by Solange and Emile Ravix in their testimony before the
IJ and their affidavits supporting the application, are as follows:
Both were members of the Parti Louvri Barye ("PLB"), which was
opposed to the then-ruling Lavalas party. Emile ran as the PLB
candidate for Deputy of his hometown, Mirebalais, in the 2000
national election. Several incidents occurred that the Ravixes
believe to be related to their political activity.
On October 28, 1999, on the way home from a political
meeting in Port-au-Prince, the bus Emile was riding stopped because
of a disturbance in the street. Emile got out to see what was
happening and was struck in the head by a stone. A friend who was
with him at the time told Emile that he believed the attack was
politically motivated after hearing a pro-Lavalas gang say that "we
missed him, but we will get him." Emile reported the incident, but
the police commissioner, who was a friend, said that he could not
help or he would place himself at risk.
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In March 2000, Emile was fired from his job at Haiti
TeleCom after making a speech during his campaign critical of the
Lavalas government. Solange testified that she was verbally abused
because of Emile's role in the PLB. On May 21, 2000, Solange acted
as an election observer for the PLB. She reported election
irregularities to her husband, who then publicly denounced the
results. That night pro-Lavalas group members showed up at the
Ravixes' house. Emile fled, later learning that they had been
there to assassinate him.
After the 2000 election, Emile and Solange both left
their home, fearful of political reprisals. Solange went to live
with her parents while Emile traveled around the country engaging
in political activities. Emile visited the United States on behalf
of the PLB on two occasions, in September 2000 and January 2001,
returning to Haiti both times. A cousin living in the Ravix home
while they were absent told them that some people had come looking
for Emile and had rifled through his belongings. Lavalas party
members also pushed their way into a PLB party member's house
looking for Emile.
When Jean-Bertrand Aristide--the head of the Lavalas
party--took office as president in February 2001, the Ravixes moved
back into their home. On April 3, 2001, two men from a local pro-
Lavalas group came and threatened Emile with a gun, warning him to
stop speaking out about Haitian politics. On May 29, 2001, Emile
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left Haiti for the United States after consulting with his wife and
party members, who advised him to leave. He was admitted to the
United States as a visitor permitted to remain until November 28,
2001; he has not returned to Haiti but did not file for asylum.
Solange traveled to the United States with Emile on May
29, 2001, but returned home two weeks later, and again visited
Emile from December 2001 to January 2002. On September 13, 2002,
Solange received a call at the hospital where she worked from a man
demanding to know Emile's whereabouts. The man said that if
Solange failed to tell him where to find Emile, her family would be
killed; he also referred to an incident in which the family of a
Lavalas political activist was killed earlier that year.
On September 15, 2002, a friend of Solange, who was the
girlfriend of a pro-Lavalas group member, called to tell Solange
that she and her family were in danger. The next day, Solange and
the children moved to Port-au-Prince and stayed with her sister,
arranging travel to the United States. On October 1, 2002, Solange
and the two children went to the United States, being admitted as
nonimmigrant visitors until March 30, 2003. Solange filed a timely
application for asylum, naming Emile and the children on the
application.
Solange, Emile, and the two children were charged with
remaining in the United States longer than permitted. 8 U.S.C. §
1227(a)(1)(B). The Ravixes conceded removability, but sought
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asylum, withholding of removal, and relief under the CAT, or, in
the alternative, voluntary departure. The IJ denied all relief
save voluntary departure, but he issued a supplemental decision
withdrawing his grant of voluntary departure as the Ravixes
rescinded their request for it. The BIA affirmed and reinstated
the voluntary departure order.
The BIA essentially adopted the IJ's decision, so we
treat the IJ's facts and conclusions as those of the BIA. Herbert
v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003). Such factual
findings are upheld when "supported by reasonable, substantial, and
probative evidence on the record considered as a whole," INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. §
1105a(a)(4)), and are reversed only if a reasonable factfinder
would be compelled to conclude the contrary. Id. at 483-84
(codified at 8 U.S.C. § 1252(b)(4)(B)).
To show entitlement to asylum, the Ravixes had to
establish a well-founded fear of future persecution on account of
race, religion, nationality, membership in a social group, or
political opinion. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. §
208.13(b). A showing of past persecution gives rise to a
rebuttable presumption of future persecution. 8 C.F.R. §
208.13(b)(1). The acts of persecution need not be personal to the
one seeking asylum if they create a well-founded fear of
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persecution in that person. See Jorgji v. Mukasey, 514 F.3d 53, 57
(1st Cir. 2008).
The IJ found the Ravixes to be credible, but ruled that the
events they recounted did not rise to the level of past
persecution. He noted that the threats to Solange were not due to
her own political activities but to those of her husband,1 that she
was never personally harmed and that the Ravixes had made several
trips to the United States and returned to Haiti. Their extended
families remain in Haiti unharmed today. As to the phone threat,
the caller was unidentified and nothing more happened.
The IJ also found that Solange did not have a well-founded
fear of future persecution that was objectively reasonable. See Da
Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005). He did not
regard the rock throwing incident as shown to have been directed at
Emile. He also doubted that Emile could be regarded as in hiding
following the May 2000 election since he continued to participate
in political activity. Further, thereafter Emile traveled to the
United States but did not seek asylum. In addition, while
political conditions in Haiti remained unstable, the Lavalas party
was no longer in power and democratic elections had been held.
1
To the extent the IJ's opinion could be read as finding that
Solange could not as a matter of law base a claim for asylum on her
husband's political activity, it is incorrect. Gebremichael v.
INS, 10 F.3d 28, 36-37 (1st Cir. 1993). However, the IJ's decision
does not depend on that conclusion, but rather on the finding that
she was not persecuted at all.
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The IJ's findings were supported by substantial evidence.
Even if the Ravixes genuinely believed that the stone throwing
incident was politically motivated, a gang would hardly know that
Emile would step off the bus in response to a disturbance. And
even if the gang had targeted Emile, one isolated violent incident
is generally insufficient to constitute past persecution. See
Bocova v. Gonzales, 412 F.3d 257, 263-64 (1st Cir. 2005).
Aside from this one incident, the Ravixes' claims amount to a
series of isolated threats and harassment. Credible, imminent
threats can rise to the level of persecution, Un v. Gonzales, 415
F.3d 205, 210 (1st Cir. 2005), but the IJ could reasonably find
that the threats, while undoubtedly frightening, were not
sufficiently credible or imminent to rise to the level of
persecution. That Emile waited almost two months after the April
3, 2001, threat before leaving Haiti suggests that he did not view
any potential harm as imminent.
As to a fear of future persecution, the time lapse since the
threats and the subsequent fall from power of Lavalas were
reasonable factors to take into account. So too was the fact that
the Ravixes' families still reside in Haiti undisturbed. See
Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999).
Conceivably, the IJ could have decided in favor of the applicants,
but the weighing of evidence and the drawing of reasonable
inferences is for the IJ and BIA.
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Being ineligible for asylum, the Ravixes could not meet the
higher withholding of removal standard. Orelien v. Gonzales, 467
F.3d 67, 73 (1st Cir. 2006). The CAT claim was properly rejected
for lack of evidence of any threat of torture. The government
concedes that the voluntary removal direction was erroneous because
"[v]oluntary departure may not be granted unless the alien requests
such voluntary departure and agrees to its terms and conditions."
8 C.F.R. § 240.25(c).
The petition for review is denied except that the provision
ordering voluntary removal is stricken.
It is so ordered.
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