Woodison Germain v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 19, 2005
No. 04-13642 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

BIA No. A76-946-832

WOODISON GERMAIN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

Petition for Review of an Order of the
Board of Immigration Appeals
_________________________

(July 19, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

Woodison Germain petitions for review of the Board of Immigration

Appeals’s (“BIA”) denial of his motion to reopen its final order affirming the
Immigration Judge’s (“IJ”) decision denying asylum, withholding of removal

under the Immigration and Nationality Act (“INA”), and relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or punishment (“CAT”). Because Germain’s removal proceedings

commenced after April 1, 1997, the permanent rules of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.

3009 (Sept. 30, 1996) (“IIRIRA”), apply. On appeal, Germain argues that the

BIA’s one-paragraph denial of his motion to reopen constituted an abuse of

discretion because the BIA failed to provide him with a reasoned explanation of its

decision. Germain argues further that the BIA abused its discretion in denying his

motion because he established a prima facie case for asylum since he established

both past persecution and a well-founded fear of future persecution based on (1)

his father and grandfather having been brutally murdered, his sister having been

almost kidnaped, his mother having been arrested without legal basis, and his

having to live in hiding for nine years; (2) his family association with the military

and Duvalier regimes; and (3) the instability of the Haitian government.

We review only the BIA’s decision, except to the extent that it expressly

adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). Because we have held that “the Attorney General has broad discretion to

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grant or deny [motions to reopen],” we employ “a very deferential abuse of

discretion standard in reviewing the BIA's decision on a motion to reopen

regardless of the underlying basis of the alien's request for relief.” Al Najjar, 257

F.3d at 1302 (internal citations omitted).

The Supreme Court has analogized the burden on an applicant seeking to

reopen immigration proceedings to that imposed on a criminal defendant seeking a

new trial “on the basis of newly discovered evidence as to which courts have

uniformly held that the moving party bears a heavy burden.” INS v. Abudu, 485

U.S. 94, 110, 108 S.Ct. 904, 914, 99 L.Ed.2d 90 (1988). “The implication of this

analogy . . . and the fact that the regulations plainly disfavor motions to reopen all

support the BIA's imposition of a ‘heavy burden.’” Al Najjar, 257 F.3d at 1302.

At a minimum, there are at least three independent grounds upon which the

BIA may deny a motion to reopen: “1) failure to establish a prima facie case; 2)

failure to introduce evidence that was material and previously unavailable; and 3)

a determination that despite the alien's statutory eligibility for relief, he or she is

not entitled to a favorable exercise of discretion.” Al Najjar, 257 F.3d at 1302.

Under 8 C.F.R. § 1003.2(c)(1), “motion to reopen proceedings shall not be

granted unless it appears to the Board that evidence sought to be offered is

material and was not available and could not have been discovered or presented at

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the former hearing.” 8 C.F.R. § 1003.2(c)(1). In explaining 8 C.F.R. §

1003.2(c)(1), we have stated that

[t]he provision is framed negatively, by directing the Board not to
reopen unless certain showings are made. It does not affirmatively
require the Board to reopen the proceedings under any particular
condition. Thus, the regulations may be construed to provide the
Board with discretion in determining under what circumstances
proceedings should be reopened

Al Najjar, 257 F.3d at1301(citations and internal quotes omitted).

Moreover, as the Fifth Circuit has persuasively held, in any decision the

BIA “has no duty to write an exegesis on every contention. What is required is

merely that it consider the issues raised, and announce its decision in terms

sufficient to enable a reviewing court to perceive that it has heard and thought and

not merely reacted.” Osuchukwu v. INS, 744 F.2d 1136, 1142-1143 (5th Cir.

1984).

To establish asylum eligibility, the petitioners must, with specific and

credible evidence, establish (1) past persecution on account of a statutorily listed

factor, such as political opinion or (2) a “well-founded fear” that the statutorily

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

257 F.3d at 1287. If petitioners demonstrate past persecution, they are presumed

to have a well-founded fear of future persecution unless the government can rebut

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this presumption by showing a fundamental change in circumstances in the

country or the ability to avoid future persecution by relocating within the country.

8 C.F.R § 208.13(b)(1). If petitioners cannot show past persecution, then they

must demonstrate a well-founded fear of future persecution that is both

subjectively genuine and objectively reasonable. See Al Najjar, 257 F.3d at 1289.

The subjective component can be proved “by the applicant’s credible testimony

that he or she genuinely fears persecution,” while the objective component “can be

fulfilled either by establishing past persecution or that he or she has a good reason

to fear future persecution.” Id. (quotation omitted).

Although the INA does not expressly define “persecution” for purposes of

qualifying as a “refugee,” see 8 U.S.C. § 1101(a)(42), we have stated that

“persecution is an extreme concept, requiring more than a few isolated incidents of

verbal harassment or intimidation.” Sepulveda v. United States Att’y Gen., 401

F.3d 1226, 1231 (11th Cir. 2004) (quotations omitted). “Persecution on account

of . . . political opinion . . . is persecution on account of the victim's political

opinion, not the persecutor's.” INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct.

812, 816, 117 L.Ed.2d 38 (1992) (internal quotations omitted). We have

recognized that an imputed political opinion is a valid ground upon which the “on

account of” requirement for a well-founded fear of persecution may be based. Al

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Najjar, 257 F.3d at 1289. We have held, however, that it is insufficient to show

merely that a political opinion would be imputed to the refugee; instead, the

refugee must also show a well-founded fear of persecution based specifically on

the imputed political opinion, and not upon some other ground. Id.; see also Elias-

Zacarias, 502 U.S. at 483, 112 S.Ct. at 816 (holding that an asylum applicant may

not show merely that he has a political opinion, but must show that he was

persecuted because of that opinion).

To establish the necessary causal connection between the political opinion

and the feared persecution, the alien must present “specific, detailed facts showing

a good reason to fear that he or she will be singled out for persecution on account

of such an opinion.” Sepulveda, 401 F.3d at 1231 (quotation omitted) (emphasis

in original). Furthermore, we have approved of a “country-wide requirement” in

which a refugee must first pursue an “internal resettlement alternative” in their

own country, or establish that this is not possible, before seeking asylum here.

Mazariegos v. United States Att’y Gen., 241 F.3d 1320, 1326-27 (11th Cir. 2001).

The BIA’s decision denying Germain’s motion to reopen gives a proper and

sufficient basis for review because the BIA considered the issues raised and

announced its decision in terms sufficient to enable a reviewing court to perceive

that the BIA heard and thought and not merely reacted. The BIA’s opinion

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demonstrates that it considered the issues raised when it stated that “[t]he

respondent moves the Board pursuant to 8 C.F.R. § 1003.2 to reopen our decision

dated February 12, 2004. The respondent’s motion is based on a claim of changed

country conditions in Haiti following the departure of Jean-Bertrand Aristide.”

The BIA explained its reasoning when it stated that Germain had failed to

establish a prima facie case of eligibility because he did not establish that he had a

well-founded fear of being harmed on account of a protected ground or that he

would more likely than not face torture.

Additionally, Germain failed to establish a prima facie case for asylum

because he did not prove that he suffered past persecution or had a well-founded

fear of future persecution based on his being singled out because of the imputed

political associations of his father and grandfather. Although these terrible things

happened to his family members, he testified that he had never personally been

singled out for persecution and also that he had never been a participant in any

political movements. Furthermore, his mother and sisters have lived in Haiti

without incident for almost ten years.

Based on the foregoing, we affirm the BIA’s denial of Germain’s motion to

reopen.

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AFFIRMED.1

1
Germain’s request for oral argument is denied.

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