Caroul Cesar v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 1, 2006
No. 05-17211 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

BIA No. A95-230-133

CAROUL CESAR,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(September 1, 2006)

Before ANDERSON, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

Haitian native and citizen Caroul Cesar, proceeding pro se, petitions for
review of the Bureau of Immigration Appeals’ (“BIA”) affirmation of the

Immigration Judge’s (“IJ”) order denying his claim for asylum, 8 U.S.C. § 1158,

and withholding of removal under the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”), 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c).1 We deny the petition for

the reasons set forth below.

I.

Cesar illegally entered the United States on or about September 12, 2001,

and applied for asylum. The former Immigration and Naturalization Service

initiated removal proceedings against Cesar, issuing a Notice to Appear charging

him with removability as an alien present in the United States who had not been

admitted or paroled.

Through his application for asylum and testimony given at his removal

hearing, Cesar explained that he was born in Limonade, Haiti, and became a

member of the church of Maranatha in 1991. The church had some relation to

Mochrena (Mouvement Chretien pour Batir une Nouvelle Haiti, or Christian

Movement for a New Haiti), a political party, which, at the time Cesar emigrated

1
As an initial matter, Cesar has abandoned his CAT claim by failing to argue the issue on
appeal. Huang v. U.S. Attorney Gen., 429 F.3d 1002, 1007 n.2 (11th Cir. 2005).
2
from Haiti, was one of the largest opposition groups to the ruling Fanmi Lavalas

party. Although Cesar stated in his application that he never went to a Mochrena

meeting, he initially testified that he began his affiliation with the Mochrena party

in 1999. He later said that he had worked for them for four or five years. He also

said that he encouraged people to join the Mochrena movement and vote for

Mochrena candidates, and that at the church, he “was always teaching about the

elections in order to make [the people] aware that some candidates could be trouble

and that certain things needed to be done.” He testified, however, that he had not

voted since 1991 “because the elections in Haiti are constantly replete with

problems.” When asked when Mochrena was founded and when the last national

elections were held before he left the country, Cesar could only respond that he had

forgotten many things.

Cesar testified that a May 21, 2001 meeting organized by his pastor was

interrupted when the police and chimeres2 broke down the door and threatened to

kill the attendees for their opposition to the Fanmi Lavalas party. Cesar stated that

he fled and never went back, explaining that opposition members threatened to kill

both Cesar and his wife. Cesar spent the rest of May, June, July, and part of

August living in the brush. In early August, he met his former classmate, Eddy

Auguste, and was reunited with his wife. Cesar appeared to suggest that he and his

2
“Chimeres” were pro-Aristide militants.
3
family spent part of the month of August with Auguste.

At some point, Cesar and his family returned home, and on September 1,

2001, seven or eight men, armed with hammers, knives, and guns, broke into

Cesar’s home, attacked Cesar, and raped his wife in front of their children. During

the attack, Cesar was struck on the head with a hammer. He claimed that the

reason for the attack was his membership in Mochrena. Cesar escaped the attack

by himself and initially testified that he went to Madillian, where Auguste was

living. Cesar later testified that, following the attack, he slept in the brush. Cesar

subsequently explained that he stayed for one day at Auguste’s house and, on

September 2, was with his sister in the brush.

On September 3, two days after the attack, Cesar visited Dr. Jacques Blaise

for treatment of his injuries. Cesar testified that he also left Haiti on September 3.

In support of his application, Cesar submitted a series of documents. The

first was a letter from Dr. Paul Rockley, a dermatologist, which stated that Cesar

reported hearing loss from being hit on the head with a hammer, and had two scars

on his scalp and two scars on his right eyebrow. Cesar testified, however, that his

only problem after being hit on the head was chronic headaches. Cesar submitted

two certificates from Dr. Jacques Blaise, one of which stated that he treated Cesar

on September 3, 2001, for injuries, including a scalp wound, and anxiety as the

result of “physical aggression” by “armed individuals” “two days later.” The other
4
certificate stated that Dr. Blaise also treated Cesar’s wife for injuries, including

ones due to sexual violence, “as a result of physical aggression two days later.”

Marie Pierre, a resident of Cap-Haitien, declared that she dressed Cesar’s scalp

wound for two weeks after he received treatment by Dr. Blaise. Cesar’s wife

declared that, on September 1, 2001, she was the victim of sexual violence in front

of her family and was slapped in the face. Finally, Eddy Auguste declared that he

accommodated Cesar’s family for fifteen days after they were attacked on

September 2, 2001, by “unidentified armed individuals.”

The IJ denied asylum, withholding of removal, and CAT relief. The IJ

found Cesar not credible, citing a number of reasons including the lack of clarity of

Cesar’s testimony, Cesar’s general testimony about what he did for his church

group, inconsistencies between Cesar’s testimony and his documentary evidence,

Cesar’s varying explanations of what happened after the September 1, 2001 attack,

and Cesar’s demeanor. The IJ also found it not credible that Cesar would

encourage people to vote for Mochrena candidates, but had not voted since 1991.

The IJ further found that Cesar’s corroborative evidence tended to undermine his

asylum claim. The IJ then determined that Cesar failed to establish past

persecution or a well-founded fear of persecution on a protected ground. Because

Cesar could not establish asylum eligibility, the IJ concluded that he had not met

the standard for withholding of removal. Finally, the IJ determined that Cesar did
5
not show that it was more likely than not that he would be tortured if returned to

Haiti. The BIA affirmed without opinion.

II.

When the BIA summarily affirms the IJ without an opinion, we review the

IJ’s opinion. See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1284 n.1 (11th

Cir. 2003). We review factual determinations, including credibility

determinations, using the substantial evidence test. Forgue v. U.S. Attorney Gen.,

401 F.3d 1282, 1286 (11th Cir. 2005). We will affirm if the decision “is supported

by reasonable, substantial, and probative evidence on the record considered as a

whole.” Id. (internal citation and quotation marks omitted). We review the record

evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision. Id. “[F]indings of fact made by

. . . the [Immigration Judge] may be reversed by this [C]ourt only when the record

compels a reversal.” Silva v. U.S. Attorney Gen., 448 F.3d 1229, 1236 (11th Cir.

2006) (internal citation and quotation marks omitted) (alteration in original).

“[T]he mere fact that the record may support a contrary conclusion is not enough to

justify a reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d

1022, 1027 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1035 (2005). To the

extent the IJ’s decision was based on a legal determination, review is de novo.

Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001).
6
 First, Cesar argues that the district court erred in finding that he lacked

credibility.3 He contends that his head injuries likely resulted in brain damage,

which accounts for his inability to describe events and their chronology with

clarity, and that to the extent that he was able to testify, his testimony was credible.

“Once an adverse credibility finding is made, the burden is on the applicant

alien to show that the IJ’s credibility decision was not supported by ‘specific,

cogent reasons’ or was not based on substantial evidence.” Forgue, 401 F.3d at

1287. “The trier of fact must determine credibility, and this court may not

substitute its judgment for that of the [IJ] with respect to credibility findings.” D-

Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 818 (11th Cir. 2004).

The IJ explicitly found Cesar’s testimony not credible, and Cesar’s argument

does not demonstrate that the record compels reversal of the IJ’s adverse credibility

finding. There is no evidence that Cesar suffered brain damage that would

interfere with his cognitive abilities. Furthermore, Cesar’s descriptions of the

aftereffects of his injury are inconsistent — he told Dr. Rockley that it caused

hearing loss, but testified that his only problem was chronic headaches. Moreover,

3
The government argues that Cesar abandoned any challenge to the IJ’s adverse
credibility determination because he failed to make any argument, with supporting authority, on
the issue in his brief. Although Cesar’s argument is limited and cites no authority, liberally
construing his brief, we conclude that it is clear that he is challenging the IJ’s adverse credibility
determination and that Cesar did not abandon the claim. Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
7
Cesar only tries to explain the lack of clarity in his testimony and fails to make any

arguments regarding the IJ’s reliance on his demeanor, lack of detail,

inconsistencies between his testimony and documentary evidence, or the IJ’s

disbelief that Cesar encouraged people to vote for Mochrena candidates, but did

not himself vote.

Additionally, there are a number of inconsistencies relating to the basis of

Cesar’s alleged persecution. In his application, Cesar claimed that he never went

to Mochrena meetings, but testified that he was at a meeting on May 21, 2001, that

was broken up by the police and the chimere. He also testified inconsistently that

he became affiliated with the Mochrena party in 1999 and that he worked for them

for four or five years. Finally, Cesar’s testimony that he saw the doctor and left

Haiti on September 3, 2001, is inconsistent with Pierre’s statement that she treated

his wound for two weeks following his visit to the doctor. In light of the

foregoing, Cesar has not met his burden of showing that the IJ’s adverse credibility

finding was not based on specific, cogent reasons or supported by substantial

evidence, and the record does not compel reversal of the IJ’s adverse credibility

finding.

Second, Cesar argues that the district court erred in denying his application

for asylum and withholding of removal. To establish eligibility for asylum, the

alien must, with specific and credible evidence, establish (1) past persecution on
8
account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily

listed factor will cause future persecution. 8 C.F.R. § 208.13(a), (b); Sepulveda v.

U.S. Attorney Gen., 401 F.3d 1226, 1230-31 (11th Cir. 2005). In the absence of

past persecution, “the petitioner must demonstrate a well-founded fear of future

persecution that is both subjectively genuine and objectively reasonable.” Ruiz v.

U.S. Attorney Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). We require the

applicant to present “specific, detailed facts showing a good reason to fear that he

or she will be singled out for persecution on account of” a protected ground. Al

Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2001) (quotation marks and

citation omitted).

Cesar appears to rely largely on his testimony to demonstrate past

persecution. As the record does not compel reversal of the IJ’s adverse credibility

determination, Cesar cannot rely upon his testimony to establish persecution.

Moreover, there is a serious paucity of evidence outside of his own testimony

linking any injuries sustained by Cesar to a protected ground, as Cesar does not

argue that the IJ erred in according no weight to Dr. Blaise’s statements. There is

also a problem with Cesar’s documentary evidence, as Pierre could not have cared

for Cesar for two weeks after his visit to Dr. Blaise if Cesar left Haiti on the same

day as the doctor’s visit. Although there is evidence that Lavalas supporters

attacked political opponents, in the absence of credible evidence demonstrating
9
that Cesar was persecuted on a protected ground, the record does not compel a

finding that Cesar established past persecution.

Cesar makes no argument, that, in the absence of past persecution, he

established a well-founded fear of future persecution, and even implies that country

conditions have changed such that a well-founded fear of future persecution no

longer exists.4 Accordingly, the record does not compel a finding that Cesar

established a well-founded fear of future persecution.

Finally, because Cesar cannot establish a well-founded fear of future

persecution, he cannot meet the more stringent standard required for withholding

of removal under the INA. Forgue, 401 F.3d at 1288 n.4; Al Najjar, 257 F.3d at

1292-93.

Accordingly, we DENY the petition.

PETITION DENIED.

4
Numerous articles and reports in the administrative record documented the political
instability and violence in Haiti arising from the 2000 elections, which continued into 2004,
eventually evolving into a rebellion against the Aristide government. By February 24, 2004,
armed rebels had taken over Cap-Haitien and other towns, and planned to march on the capital,
Port-au-Prince.
10