Romilus v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1538

JEAN RANDAL ROMILUS,

Petitioner,

v.

JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,

Rosenn,* Senior Circuit Judge,

and Howard, Circuit Judge.

Ilana Greenstein, Jeremiah Friedman, Harvey Kaplan, Maureen
O'Sullivan, and Kaplan, O'Sullivan & Friedman, LLP, on brief, for
petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
David V. Bernal, Assistant Director, Office of Immigration
Litigation, and Jamie M. Dowd, Attorney, Office of Immigration
Litigation, Civil Division, on brief, for respondent.

September 14, 2004

*
Of the United States Court of Appeals for the Third Circuit,
sitting by designation.
 HOWARD, Circuit Judge. Jean Randal Romilus, a native and

citizen of Haiti, petitions for review of the decision of the Board

of Immigration Appeals (“BIA”) denying him asylum, withholding of

removal, and relief under the United Nations Convention Against

Torture (“CAT”). We deny the petition.

I. Background

Romilus, a farmer from the village of Ghantier, attempted

to enter the United States with a falsified passport on March 5,

1999. The INS issued a Notice to Appear, charging Romilus as

removable under 8 U.S.C. §§ 1182(a)(6)(C)(i) and

1182(a)(7)(A)(i)(I).1 Romilus admitted the factual allegations in

the notice and conceded removability, but sought relief in the form

of asylum and withholding of removal under the Immigration and

Nationality Act (“INA”). He also applied for relief under Article

3 of the Convention Against Torture.2

The basis for the claims is persecution on account of

political opinion. In hearings before the Immigration Judge

1
In March 2003, after removal proceedings were initiated in
this case, the relevant functions of the Immigration and
Naturalization Service (“INS”) were reorganized and transferred
into the new Department of Homeland Security. For ease of
reference, we continue to refer to the agency as the INS.
2
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, signed and ratified by the
United States, was implemented by the Foreign Affairs Reform and
Restructuring Act of 1998 § 2242, Pub. L. No. 105-277, Div. G., 112
Stat. 2681-761 (1998) (codified at 8 U.S.C. § 1231). Article 3
prohibits states from returning individuals to other states where
there are substantial grounds for believing they would be tortured.

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(“IJ”), Romilus testified about four incidents in support of his

claims. The first two incidents involved an oral agreement he made

in 1992 with Jean Marie, a military officer, to care for Marie's

cow in return for an equal share of the profits from the sale of

the cow. Marie's later failure to share the proceeds was followed

by two physical confrontations between the two men, with Marie

initiating physical contact on both occasions. Romilus has had no

confrontations with Marie since then.

The third incident occurred in 1997. Romilus testified

that armed men dressed in civilian clothes broke into his house

while he and his wife were asleep. The armed intruders pointed a

gun at his wife and demanded that she give them money she had

earned as a street vendor. One of them demanded that Romilus hand

over the money, also at gunpoint. Fearing for his life, Romilus

surrendered the money he had hidden under his pillow. The armed

men took the money and left.

The fourth incident involved a grassroots community

organization called the Organization for the Progress of the Young

People ("OPJP"). Romilus joined the OPJP in 1998 and was made a

delegate of the organization. The OPJP consisted of 15 founding

members, all from Ghantier, and was led by a man named Louis

Blaise. According to Romilus, the OPJP is a "progressive movement

for young people seeking to make democratic changes in Haiti,” and

its goals include improving the local community by building new

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schools, healthcare facilities, and making clean water available

for drinking and farming. Romilus testified that the OPJP seeks

government cooperation and the participation of local residents,

although not all the townspeople support the organization.

Romilus testified that an OPJP meeting was held at the

Ghantier schoolhouse on January 31, 1999. Blaise was addressing a

crowd of approximately 250 to 300 people when an unspecified number

of armed men, dressed in civilian clothes, entered the school and

began physically assaulting the people in attendance. The

assailants beat attendees with their weapons and fists and shot

Blaise in the arm. Romilus himself was struck in the jaw and lost

two teeth. The intruders also seized OPJP documents. Romilus was

unable to identify any of the men who broke up the meeting because

many of them wore masks and none wore a uniform.

Romilus fled the scene and ran toward his home. En route

he was stopped by his neighbors who told him that his house had

been set on fire and that armed men were waiting for him. Fearing

for his life, Romilus hid in the woods. He remained in hiding,

sleeping in churches and schoolhouses, until he departed Haiti in

March. Nobody informed the police about the attack on the

schoolhouse, and no newspaper reported the incident.

While Romilus was in hiding, his parents helped to obtain

a French passport and a plane ticket for him. Romilus departed

Port-au-Prince, Haiti, and entered the United States at Miami

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International Airport. After his arrival in the United States,

Romilus received an audio cassette tape from his wife. According

to Romilus, his wife states in the tape that since he left Haiti

she has experienced "problems,” she has been "persecuted,” and

that, as a result of her persecution, she was forced to leave the

house where she was living. Romilus testified that his parents

also continue to live in Haiti, and that they have not been harmed

since he left.

Romilus submitted background documentary evidence

concerning country conditions and the often unstable political

climate in Haiti.3 Romilus's expert witness, Marlye Gelin-Adams,

provided background information concerning Haiti's many local

grassroots organizations. She did not, however, have any personal

knowledge of the OPJP. She stated that there are some members of

the government who view these grassroots organizations as a threat

to their power because they exert pressure on the government to

remain democratic and to honor Haiti's constitution. Additionally,

she testified that there are non-governmental groups operating in

3
This evidence outlines Haiti's recent turbulent political
history: from the overthrow of the repressive Duvalier regime in
1986, to the installation of Haiti's first democratically elected
chief executive, Jean-Bertrand Aristide, in 1990, to Aristide's
ouster seven months later in a bloody coup headed by General Raoul
Cedras, to the military's decline in power and Aristide's eventual
return to power in late 1994. Country condition and human rights
reports reflect that, despite the introduction of democracy to
Haiti in the 1990s, elements of the repressive regimes lingered and
human rights abuses, committed by both government and non-
government actors, continued throughout the decade.

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Haiti that oppose the pro-democracy grassroots organizations.

According to Adams, “armed thugs” from some of these non-

governmental factions have attacked and threatened members of the

pro-democracy organizations, and the national police has had

trouble controlling the violence because its numbers are small and

its officers are inexperienced or violent themselves.

In an oral decision, the IJ denied Romilus's application

for asylum and withholding of removal. The IJ found that the two

incidents involving the military officer, Jean Marie, were simply

the consequence of a personal dispute and were not prompted by any

of the statutorily protected grounds. Similarly, the IJ found that

the robbery at Romilus's home was economically motivated and not

linked to any protected ground.

Regarding the fourth incident, the IJ found no evidence

that the OPJP was a political player in Haiti. Based on Romilus's

testimony, the IJ viewed the OPJP as a community organization

created to improve living conditions for the local populace, and

that it was merely Romilus's personal perception that the

organization might also support his beliefs in establishing

democracy in Haiti. With regard to the attack on the OPJP meeting,

the IJ found it critical that Romilus could neither identify the

attackers nor testify to what, if anything, the attackers said

during their raid. Therefore, the IJ declined to impute any

political motive to the raid.

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 Based on these findings, the IJ concluded that Romilus

had failed to show past persecution on account of a protected

ground. The IJ also found that Romilus had not established a well-

founded fear of future persecution because his testimony was not

credible. Having failed to establish eligibility for asylum, the

IJ found that Romilus could not meet the burden for withholding of

removal. Finally, the IJ found that Romilus did not present any

evidence that a government official or any other person acting in

an official capacity "has any interest in [him].” Therefore,

Romilus had failed to meet his burden of proof under the CAT.

Romilus timely appealed to the BIA. In a per curiam

decision, the BIA agreed with Romilus that the IJ's adverse

credibility determination was erroneous. Nevertheless, the BIA

affirmed the denial of asylum and withholding of removal, agreeing

with the IJ that Romilus had “not shown a nexus between the harm he

suffered and one of the five [protected] grounds.” The BIA also

affirmed, without discussion, the IJ's denial of relief under the

Torture Convention.

II. Standard of Review

We review the BIA's findings of fact under the

“substantial evidence” standard. Guzman v. INS, 327 F.3d 11, 15

(1st Cir. 2003) (citation omitted). “This standard applies both to

asylum and withholding claims as well as to claims brought under

CAT.” Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). The

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BIA's determinations “must be upheld if 'supported by reasonable,

substantial, and probative evidence on the record considered as a

whole.'” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citation

omitted). Under this deferential standard of review, “we will not

reverse unless 'the record evidence would compel a reasonable

factfinder to make a contrary determination.'” Guzman, 327 F.3d at

15 (quoting Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.

1999)); see also 8 U.S.C. § 1252(b)(4)(B). We review questions of

law de novo, “including alleged errors related to due process

claims.” Settenda, 377 F.3d at 93 (citations omitted).

Ordinarily, this court reviews the decision of the BIA.

“When the BIA does not render its own opinion, however, and either

defers [to] or adopts the opinion of the IJ, a Court of Appeals

must then review the decision of the IJ.” Albathani v. INS, 318

F.3d 365, 373 (1st Cir. 2003) (quoting Gao v. Ashcroft, 299 F.3d

266, 271 (3d Cir. 2002)). In this case, where the BIA's decision

adopts portions of the IJ's opinion, we review those portions of

the IJ's opinion that the BIA has adopted. See Chen v. Ashcroft,

376 F.3d 215, 222 (3d Cir. 2004) (“[W]hen the BIA both adopts the

findings of the IJ and discusses some of the bases for the IJ's

decision, we have authority to review the decisions of both the IJ

and the BIA.”) (citations omitted).

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III. Discussion

Romilus argues that the BIA committed four reversible

errors: (1) concluding that the OPJP is not a political

organization; (2) concluding that the harm he suffered was not on

account of his political opinion; (3) affirming the IJ's denial of

asylum and withholding of removal; and (4) depriving Romilus of due

process by neglecting to adjudicate his claim for relief under the

CAT. Regarding the first issue, because we find the classification

of the OPJP is not dispositive in this case, we will assume, for

purposes of analysis and without deciding, that the OPJP is a

political organization.

A. Asylum and Withholding of Removal

Section 208(a) of the INA authorizes the Attorney General

to exercise his discretion to grant asylum to eligible refugee

aliens. 8 U.S.C. § 1159(a). The alien bears the burden of

establishing eligibility for asylum by proving that he qualifies as

a refugee. 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). A

“refugee” is any person who is unable or unwilling to return to his

country of nationality or avail himself of that country's

protection because he has suffered past persecution in that country

or has a well-founded fear of future persecution in that country.

8 U.S.C. § 1101(a)(42)(A). To prove past persecution, an applicant

must provide “conclusive evidence” that he has suffered persecution

on one of five protected grounds: race, religion, nationality,

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membership in a particular social group, or political opinion.

Albathani, 318 F.3d at 373; see also 8 C.F.R. § 208.13(b)(1). “To

establish a well-founded fear of future persecution, applicants can

offer specific proof, or they can claim the benefit of a regulatory

presumption based on proof of past persecution.” Khalil v.

Ashcroft, 337 F.3d 50, 55 (1st Cir. 2003) (citations omitted).

Romilus's asylum application relies on four incidents:

the two confrontations with Jean Marie, the robbery, and the raid

on the OPJP meeting and subsequent burning down of Romilus's house.

Substantial evidence supports the BIA's conclusion that Romilus

failed to show a sufficient nexus between the harm he suffered on

these occasions and one of the five grounds protected by the INA.

Since the BIA's discussion of the nexus requirement implicitly

adopts the IJ's findings on that issue, we will review the BIA's

decision in conjunction with the IJ's findings.

With regard to the first two incidents, the record

supports the IJ's conclusion that the hostilities between Romilus

and Marie arose from a purely personal dispute. Marie breached an

oral agreement with Romilus and, when confronted by Romilus,

reacted with violence. There is no evidence that Marie threatened

Romilus because of his political opinion. In fact, these incidents

occurred years before Romilus joined the OPJP. The INA is not

intended to protect aliens from violence based on personal

animosity. See Aguilar-Solis, 168 F.3d at 572.

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 With regard to the 1997 incident, the IJ did not err in

concluding that the robbery was economically motivated: Romilus's

wife was a local street vendor who collected money daily from her

sales, the money was kept in their house, the robbers wore civilian

clothes, when Romilus surrendered the money the armed robbers went

away, and the robbers said nothing apart from demanding the money.

Romilus claims that his house was "targeted,” but nothing in the

record compels the conclusion that the targeting was based on

Romilus's political affiliation. Indeed, a logical reading of the

record leads to the conclusion that Romilus's house was targeted

because it was public knowledge that his wife had money from her

market business. See Albathani, 318 F.3d at 373 (the two alleged

incidents of persecution “may well have been, as the IJ suggested,

nothing more than the robbery of someone driving a Mercedes with

cash in his pocket”). And again, this robbery occurred before

Romilus joined the OPJP.

The 1999 raid of the OPJP meeting, and the subsequent

burning of Romilus's house, present a closer question. The BIA

found it critical that Romilus had failed to identify the attackers

or to articulate any motive for the attack. In response Romilus

argues, correctly, that he is not required to identify his

persecutors. See Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998);

Cordero-Trejo v. INS, 40 F.3d 482, 488 (1st Cir. 1994). Nor is he

required to establish their exact motivations. Elias-Zacarias, 502

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U.S. at 483. But he is required to “provide some evidence of

[their motivations], direct or circumstantial.” Id. (emphasis in

original). The BIA found that Romilus failed to produce sufficient

evidence in this regard, and we cannot say that a contrary finding

was compelled by the record evidence.

Romilus argues that his case is akin to Cordero-Trejo.

In that case, we held that an asylum applicant could not be

discredited for failing to identify his persecutors when they were

part of a group that was “unofficial and 'clandestine'” and were

“by definition 'unknown.'” 40 F.3d at 488. But that opinion went

on to explain that “the only way [such clandestine persecutors] are

knowable, i.e., distinguishable from mere bandits and criminals, is

by the threats and indications of motive that typically precede or

accompany their violence.” Id. In contrast to Cordero-Trejo, here

there is no evidence that the attackers demanded Romilus to

“discontinue his activities with” the OPJP, nor that he received

“warnings of future violence should he disregard” those demands.

Id. In our view, the present case is more comparable to Aguilar-

Solis, where we held that the petitioner's evidence of persecution

“lacked the requisite degree of specificity” necessary to establish

“a sufficient nexus between the events that [the petitioner]

described and any” statutorily protected ground. 168 F.3d at 571.

Accepting Romilus's testimony as true, and assuming that the OPJP

is a political organization, the record does not establish that the

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attackers of the OPJP meeting were motivated by a desire to

suppress the OPJP's political aspirations. There is no evidence

that the attackers were even aware of the OPJP. See id. Perhaps

the best evidence in support of Romilus's argument is the seizure

of the OPJP documents. The BIA might have inferred that the

attackers seized those documents because they sought to disrupt the

OPJP. This evidence, however, is far from conclusive. “Where, as

here[,] the constellation of facts and circumstances alleged by an

asylum applicant, together with the other record evidence, supports

two or more competing inferences, the IJ's choice among those

inferences cannot be deemed erroneous.” Id. (citation omitted).

Since Romilus failed to establish past persecution, he is

not entitled to the statutory presumption of a well-founded fear of

future persecution. Nelson v. INS, 232 F.3d 258, 264 (1st Cir.

2000). Nevertheless, Romilus could establish a well-founded fear

of persecution if he could prove that “a reasonable person in [his]

circumstances would fear persecution on account of a statutorily

protected ground.” Khalil, 337 F.3d at 56 (quoting Aguilar-Solis,

168 F.3d at 572). Accordingly, a well-founded fear analysis

contains both a subjective and objective component: Romilus's

asserted fear must be both subjectively genuine and objectively

reasonable. Guzman, 327 F.3d at 16 (citations omitted).

By reversing the negative credibility determination and

affirming the IJ solely on the ground that there was no nexus to a

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protected ground, the BIA implicitly accepted that Romilus had a

subjectively genuine fear. Thus, we focus on whether a reasonable

person in Romilus's circumstances would fear persecution on account

of a protected ground. The record does not compel this conclusion.

Romilus claims that his wife faces continuing persecution

in Haiti. His testimony on this topic, however, was ambiguous, not

“specific” as required. Id. Romilus testified on direct

examination that his wife had sent him an audio cassette in which

she stated that she has had “a lot of problem[s]” since he left the

country, and that she has been “persecuted.” But, when asked

follow-up questions, Romilus provided no details other than to

repeat that she has had some kind of undefined problems. Even

assuming Romilus's spouse has faced persecution, his conclusory

testimony is insufficient to provide any link between the

persecution and a protected ground. See Aguilar-Solis, 168 F.3d at

573 (rejecting the probative value of letters written by persons

living in the country of removal because the correspondence

contained no “specifics as to the nature of any danger, the

identity of any potential malefactors, or the reasons why people

might wish to harm the petitioner”). Moreover, Romilus testified

that his parents still live in Ghantier and they have suffered no

harm since he left the country. See id. (“[T]he fact that close

relatives continue to live peacefully in the alien's homeland

undercuts the alien's claim that persecution awaits his return.”).

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The BIA reasonably concluded that Romilus could be returned to

Haiti without facing future persecution. Romilus has failed to

establish his eligibility to be considered for the discretionary

relief of asylum.

Withholding of removal, which provides mandatory relief,

imposes a higher standard than asylum. INS v. Aguirre-Aguirre, 526

U.S. 415, 419 (1999) (an applicant for withholding of removal must

prove that it is “more likely than not” that he would be subject to

persecution on account of a protected ground). Because Romilus

failed to satisfy the more lenient asylum standard, he a fortiori

cannot satisfy the withholding of removal standard. Albathani, 318

F.3d at 374.

B. Convention Against Torture

The standard for relief under the CAT is different than

for asylum or withholding of removal. The applicant need not prove

the reason for the torture, nor that he has a well-founded fear of

being tortured. Rather, he must establish that it is “more likely

than not” that he will be tortured if he is returned to the

proposed country of removal. Elien v. Ashcroft, 364 F.3d 392, 398

(1st Cir. 2004) (citing 8 C.F.R. §§ 208.16(c)(2), 208.17(a)).

Unlike an asylum claim, then, there is no subjective component. To

establish a prima facie claim under the CAT, an applicant must

offer specific objective evidence showing that he will be subject

to: “(1) an act causing severe physical or mental pain or

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suffering; (2) intentionally inflicted; (3) for a proscribed

purpose; (4) by or at the instigation of or with the consent or

acquiescence of a public official who has custody or physical

control of the victim; and (5) not arising from lawful sanctions.”

Id. (quoting In re J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002)); see

also 8 C.F.R. § 208.18(a). Thus, an applicant must demonstrate

that any torture he will suffer would be at the hands of the

government or with the consent or acquiescence of the government.

Guzman, 327 F.3d at 17.

Romilus contends that the absence of written analysis in

the BIA's disposition of his CAT claim deprived him of due process.

The BIA is not required, however, to provide a written analysis of

every issue contested before the IJ. See Morales v. INS, 208 F.3d

323, 328 (1st Cir. 2000); Chen v. INS, 87 F.3d 5, 8 (1st Cir.

1996). The BIA may adopt all of or portions of the IJ's opinion.

See Albathani, 318 F.3d at 377-78. We read the BIA's opinion as

adopting the IJ's analysis of the CAT claim.4 Thus, we will review

the IJ's opinion with regard to the CAT claim.

4
The BIA rejected the IJ's adverse credibility determination,
yet affirmed the IJ's ultimate conclusions. Since the negative
credibility finding was important to the IJ's well-founded fear
analysis, the BIA was required to clarify that it was affirming the
IJ on the basis of the IJ's finding that there was no nexus between
any such fear and a protected ground. The IJ's analysis of the CAT
claim, however, did not rely on the negative credibility
determination. Therefore, since the BIA agreed with the IJ's CAT
analysis, the BIA was not obligated to provide its own analysis of
that claim.

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 The IJ denied Romilus's CAT claim based on a lack of

evidence showing that he is likely to be tortured by or with the

consent or acquiescence of a public official or other person acting

in an official capacity. Indeed, with the possible exception of

the two incidents with the military officer, Jean Marie, there is

no evidence that any of the above-mentioned incidents were

instigated on behalf of, with the consent of, or with the

acquiescence of the government. See Guzman, 327 F.3d at 17. With

regard to the two incidents with Marie, the IJ reasonably found

that these incidents sprang from a personal dispute. Thus, Marie

was not acting in an official capacity when he assaulted Romilus.

Moreover, as the IJ noted, Romilus did not experience any further

problems with Marie after the two incidents in 1994.

Romilus argues that expert testimony and documentary

evidence establish that the Haitian government sanctions attacks on

democratic organizations such as the OPJP. But this evidence falls

short of meeting the burden required under the CAT. None of this

evidence specifically refers to Romilus or the OPJP. Moreover,

even Romilus's expert witness had difficulty identifying which

groups might be interested in persecuting Romilus upon his return

to Haiti and whether or not those groups were connected to the

government. She did testify that there are some members of the

government who are involved in oppressing groups similar to the

OPJP, but we would be hard pressed to find that her uncertain

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testimony on this point satisfies the “more likely than not”

standard. In any event, it does not “compel” reversal of the IJ.

Romilus has not established that it is more likely than

not that he will be subjected to torture if he is returned to

Haiti.

IV. Conclusion

For the foregoing reasons, the petition for review is

denied.

So ordered.

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