Brunet Valescot 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[DO NOT PUBLISH]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
February 9, 2007
No. 06-14141 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

BIA Nos. A97-191-793 & A97-191-794

BRUNET VALESCOT,
MARIE BEATRICE PIERRE,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(February 9, 2007)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
Lead petitioner, Brunet Valescot, and his wife, Marie Beatrice Pierre, both

natives and citizens of Haiti, petition this Court to review the final order of the

Bureau of Immigration Appeals (“BIA”) affirming the denial of their claims for

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”) and the United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”).1 Petitioners argue the

BIA erred by affirming the denial of their asylum petition based on Valescot’s past

persecution on account of an imputed political opinion or membership in a

particular social group.2 Valescot contends that he suffered past persecution by

agents of the Haitian government, based on an imputed political opinion and

membership in a particular social group, all based on his membership in a group he

1
Petitioners do not raise any challenge in their brief to the denial of withholding of re-
moval or relief under the United Nations Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (“CAT”), and thus have abandoned these claims. When an
appellant fails to offer argument on an issue, that issue is abandoned. See Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
2
To the extent Petitioners challenge the standard of proof applied by the immigration
judge, we lack jurisdiction to consider this claim since Petitioners did not raise it before the BIA and
accordingly have not exhausted it. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1) (providing that this
Court “may review a final order of removal only if . . . the alien has exhausted all administrative
remedies available to the alien as a matter of right.”); see also Fernandez-Bernal v. Attorney General
of the U.S., 257 F.3d 1304, 1317 n. 13 (11th Cir. 2001) (observing that party’s failure to raise an
issue before the BIA means that this Court does not have jurisdiction to consider that issue).
Accordingly, we DISMISS the appeal as to this claim. We are satisfied, however, that Petitioners’
arguments, before both the IJ and the BIA, that Valescot was the target of “political reprisal,”
“political assassins,” and a “politically motivated assassination” preserved the issue of past
persecution based on imputed political opinion or membership in a social group, and we therefore
have jurisdiction to consider that claim.
2
defines as “former police officers targeted by government thugs.” After careful

review, we affirm.

When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). In this case, although the BIA did not expressly

adopt the IJ’s decision, it relied on the IJ’s reasoning and did not present any

additional analysis or bases for affirming the IJ. Therefore, we review both the

BIA and the IJ’s decisions. To the extent that those decisions were based on a

legal determination, our review is de novo. D-Muhumed v. U.S. Att’y Gen., 388

F.3d 814, 817 (11th Cir. 2004). Factual determinations are reviewed under the

substantial evidence test, and we must affirm the BIA’s and the IJ’s findings of fact

“if [they are] supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Al Najjar, 257 F.3d at 1284 (citation and

quotations omitted). The substantial evidence test is “deferential” and does not

allow “re-weigh[ing] the evidence from scratch.” Mazariegos v. Office of U.S.

Att’y Gen., 241 F.3d 1320, 1323 (11th Cir.2001) (quotations omitted). Rather,

“[t]o reverse the . . . fact findings, we must find that the record not only supports

reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th

Cir. 2003).

3
In his application for asylum, Valescot, who formerly was a police officer in

Haiti, asserted that following his involvement in a murder investigation that

implicated a high-ranking government official, his home was ransacked, his

computers were broken, and his neighbors were questioned about his whereabouts.

The immigration judge (“IJ”) concluded that Valescot’s testimony was credible

and consistent with his asylum application materials. The IJ also considered the

declaration of Valescot’s neighbor.

The record also contained an Amnesty International Report, dated June 28,

2004, and a U.S. State Department Press Statement, dated October 12, 2004, on

violence in Haiti. The Amnesty International Report describes ongoing conditions

of violence and unrest in Haiti and states that the Haitian National Police have been

“plagued by politicization, corruption and mismanagement.” The Report also says

that police stations have been “attacked, ransacked and burned down and police

officers [have been] killed or [have] simply fled.” The attacks have led to a break-

down of the police force and allowed insurgents to take over the police function in

some areas. Political violence increased during the presidencies of Rene Preval

and Jean Bertrand-Aristide, and “the official police force responded with

heightened politicization among its ranks . . . .” The Press Statement says that

“pro-Aristide thugs” had “murdered policemen, looted businesses and public

installments, and terrorized civilians.” The Statement further expresses the United
4
States government’s commitment “to assist the rebuilding and reform of the

Haitian National Police.”

After consideration of Valescot’s testimony and the other submitted

materials, the IJ concluded:

The problems that [Valescot] had in Haiti arose in a general sense out
of the scope of [his] employment as a police officer in the Haitian
national police in Haiti, and in a more specific sense, out of an
investigation that he initiated into the death of a student leader, which
implicated a high ranking government official. While what happened
to Valescot was clearly unfortunate, it appears to have occurred during
the time that he was an active member of the police force in Haiti. As
such, I cannot find in this case that [Valescot’s] problems were as a
result of his political opinion. Rather, they appear to have arisen from
the nature of his employment as a police officer.

Accordingly, the IJ denied Petitioners’ applications and the BIA subsequently

affirmed. This petition for review followed.

An alien who arrives in or is present in the United States may apply for

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has

discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”

See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is

unwilling to return to her home country or to avail himself of that country’s

protection “because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A).

5
The asylum applicant carries the burden of proving statutory “refugee”

status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant

satisfies this burden by showing, with specific and credible evidence: (1) past

persecution on account of a statutorily listed factor, or (2) a “well-founded fear”

that her statutorily listed factor will cause future persecution. Al Najjar, 257 F.3d

at 1287; 8 C.F.R. § 208.13(a), (b). “To establish asylum based on past

persecution, the applicant must prove (1) that she was persecuted, and (2) that the

persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448

F.3d 1229, 1236 (11th Cir. 2006) (citations omitted). We have recognized that

persecution is an “extreme concept,” which “requires more than a few isolated

incidents of verbal harassment or intimidation, unaccompanied by any physical

punishment, infliction of harm, or significant deprivation of liberty.” Gonzalez v.

Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (citations omitted).

In order to show eligibility for asylum based on political opinion, the

petitioner must show that the persecution has taken place or will take place because

of his political opinion, not the persecutor’s. INS v. Elias-Zacarias, 502 U.S. 478,

482 (1992). A petitioner also may qualify for political-opinion asylum if he can

show that he was persecuted because of an opinion that the persecutor attributed to

him. Al Najjar, 257 F.3d at 1289.

6
Members of a particular social group share a common, immutable

characteristic. Castillo-Arias v. United States Attorney General, 446 F.3d 1190,

1196 (11th Cir. 2006), cert. denied, No. 06-642 (Jan. 8, 2007). However, that

alone is not sufficient to establish a social group for purposes of asylum protection.

Id. at 1197. Although former police officers may qualify, in certain circumstances,

for asylum protection as members of a particular social group, the general rule is

that “those who engage in risks similar to those of the police or military, do not

receive protection as a particular social group under the INA.” Id. at 1198

(emphasis added).

Here, substantial evidence supports the BIA’s finding that Valescot did not

suffer persecution on account of imputed political opinion or membership in a

particular social group. First, the IJ and the BIA reasonably could have concluded

that the isolated incidents, which followed Valescot’s involvement in a police

investigation, related to Valescot’s work rather than a political opinion and thus

that any alleged persecution was not “on account of a protected ground.” Silva,

448 F.3d at 1236. Second, to the extent that Valescot’s status as a former police

officer accorded his statutorily protected membership in a social group, the IJ and

the BIA found that the incidents Valescot described resulted solely from his

involvement in a particular police investigation and were not attributable, in a more

general sense, to his membership in a police organization. Moreover, the IJ and
7
the BIA concluded that the incidents were isolated in nature, and did not rise to the

level of extreme mistreatment required for a finding of past persecution. On this

record, we cannot say that this finding was unreasonable.3 Accordingly, we deny

the petition for review as to this claim.

PETITION DENIED IN PART, DISMISSED IN PART.

3
On appeal, Petitioners raise no arguments concerning the BIA’s conclusion concerning
future persecution -- that any fear of future harm was based on Valescot’s police work rather than
political opinion or membership in a particular social group. In any event, our review of the record
has revealed no evidence to compel a contrary conclusion.