Pieterson v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 02-2200

PEGGY A. PIETERSON,

Petitioner,

v.

JOHN ASHCROFT,

Respondent.

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

Before

Boudin, Chief Judge,
Lynch, Circuit Judge,
and Lipez, Circuit Judge.

Jacqueline L. Gomes on brief for petitioner.

Edward C. Durant, Attorney, Office of Immigration Litigation,
Linda S. Wendtland, Assistant Director, and Peter D. Keisler,
Assistant Attorney General, Civil Division, on brief for
respondent.

April 13, 2004
 LYNCH, Circuit Judge. Petitioner Peggy Pieterson is a

native and citizen of Sierra Leone. She was admitted to the United

States in July 1998 and overstayed her nonimmigrant fiancée visa;

the INS commenced removal proceedings against her in March 1999.

Pieterson conceded removability and sought asylum, withholding of

removal, and protection under the Convention Against Torture

("CAT"). An Immigration Judge denied each form of relief in June

1999, and the Board of Immigration Appeals affirmed in August 2002.

Substantial evidence supports the BIA's conclusions; accordingly,

we affirm.

I.

Pieterson was the sole witness at her removal hearing

before the IJ. The IJ found Pieterson credible when recounting

factual events, but less credible when speculating as to the

reasons underlying events. Pieterson's case relied on her claims

that her mother was a political activist; that she assisted her

mother and had suffered persecution and would suffer future

persecution as a result of that assistance; that her Creole

ethnicity meant that she had suffered persecution and would suffer

future persecution; and that she would, in any event, suffer future

persecution in the form of being raped and otherwise tortured.

Her testimony recounted the following facts and events.

Pieterson, who is of Creole ethnicity, lived in Freetown, Sierra

Leone. The Creoles are the smallest ethnic group in Sierra Leone;

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they were the government administrators of the country during the

British colonial period, which ended in 1961.

Pieterson's parents separated when she was four years

old, and she has not seen or heard from her father since that time.

Pieterson's mother lived with her in Sierra Leone until 1992 when

she apparently emigrated to England. Pieterson did not leave with

her mother. Her youngest sister was sent to a sponsor in England

around 1985 and has been out of contact ever since. Pieterson's

other sister was with her in Sierra Leone until 1997, when they

left the country together. Pieterson received a Bachelor of Arts

degree from the University of Sierra Leone in 1996 and speaks three

languages. While in Sierra Leone, she worked for a hotel before

going to college, and for a travel agency and then an airline after

college.

Pieterson described her mother as a "political activist"

in the National Democratic Party ("NDP"), a Creole-based party that

sought more political power for Creoles. Her mother was an

executive member of the party's campaign committee and held

political meetings at her house before she left in 1992. Pieterson

herself was not a member of the NDP, but she "actively

participated" in it. She accompanied her mother during political

activities such as campaigns and rallies, knew all of the party's

executive members, and served refreshments at the meetings held in

her home.

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 Various political parties had ruled Sierra Leone from

1961 until 1992. In 1992, the National Provisional Ruling Council

("NPRC") came to power. Pieterson claimed that once the NPRC

gained control, the NDP was banned and the Creoles became subject

to discrimination. She testified:

We [Pieterson and her family] constantly faced
discrimination. We had to live in a section of town
where only mostly Creoles lived, and when I was at
college, for example, I couldn't stay on campus, because
I got threats all the time, partly because of my
[m]other's affiliation with the Democratic Party, and
partly because of our ethnic group, Creole, because there
was this disgruntlement about them being the
educationists and everything, and 90 percent of the
country is illiterate, so they felt threatened by this,
and they always thought that the only way they could back
to the Creoles would be by power, by being in power.
. . . . we definitely had to live a life of, in,
cowered in fear, because neighbors or even extended
family with different political opinions always threw
threats at us, and our house had been broken into lots of
times, threats were made to us . . . .

Pieterson said that the threats to her and her family were

ethnically and politically based and explained that the threats

came from extended family members, neighbors, schoolmates, and her

mother's co-workers. She claimed that "they always said that if at

any small time they had a chance to harm us, they were going to do

it."

Pieterson's mother supervised the women's soccer team,

which was sponsored by local businesses. In 1992, her mother was

jailed and questioned for two days for allegedly prostituting the

women on the team. Pieterson testified that her mother was

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"framed." According to Pieterson, her mother claimed that she was

jailed because of her ties to the NDP. Pieterson's mother did not

discuss with her the details of the time she spent in jail.

Sometime after this incarceration, Pieterson's mother left Sierra

Leone. Pieterson suggested that her mother might have left the

country to avoid being "incriminated," because a person could be

killed or held in jail for years without trial in Sierra Leone.

Her mother's departure also came shortly after the leader of the

NDP was jailed over an article he had authored that was critical of

the government. Pieterson has heard that her mother ended up in

England, but she has had no contact with her since she left in

1992. Pieterson said that she did not leave the country with her

mother because she did not "have the facilities" to do so at that

time and was saving money. In the five-year period between her

mother's departure and her own, Pieterson could point to no

specific acts of persecution against her.

For a brief time in 1997, the Revolutionary United Front

("RUF"), an armed and disgruntled group of army affiliates, carried

out a coup, overthrew the government, and embarked on a campaign of

terror. Members of RUF and of the Armed Forces Revolutionary

Council (AFRC) attacked Pieterson's town and raped and killed

civilians in her Creole neighborhood. Pieterson watched the rebels

loot homes and shops and she saw dead bodies in the streets. She

stated that she had friends who were raped by RUF soldiers.

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Pieterson and her sister became afraid to stay in their home as the

violence intensified, so they hid in a cemetery for two nights to

escape the danger and avoid being raped. She said that her

neighborhood was particularly targeted by the RUF and AFRC soldiers

because it contained many Creoles.

About a week after these attacks, Pieterson fled Sierra

Leone with her sister. There was a mass exodus of people from

Sierra Leone to Guinea, and the United Nations High Commission for

Refugees had to intervene to make it possible for the refugees to

cross the border to Guinea. Pieterson's sister eventually went her

own way with her fiancé and son, and Pieterson does not know where

she is now.

Pieterson initially stayed at a refugee camp in Guinea

but discovered that RUF soldiers were entering the camp pretending

to be refugees. The RUF soldiers were looking for people who had

fled from Sierra Leone and were also taking food and supplies from

the camp. Pieterson called Melsome Nelson-Richards, a naturalized

citizen of the United States whom she had befriended and had a

relationship with while he was doing research in Sierra Leone for

the United Nations. She asked him to send her money so that she

could go to a refugee camp on the Ivory Coast. Richards sent her

money and, after a week at the Guinea camp, Pieterson moved to the

refugee camp on the Ivory Coast, where she stayed for a year.

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 Pieterson testified that she learned from the new

arrivals to the refugee camps that some of those who had tried to

return to Sierra Leone (because of the deplorable conditions in the

camps) had been killed by rebels and that most of those who did

return found their homes destroyed. Petitioner learned that her

own home had been burned down when a girl who had lived in her

neighborhood showed her a picture of the destroyed house a few

months later. Pieterson said that she has heard a lot of stories

about people who were "harassed and tortured and held under arrest

without any . . . reason" upon returning to Sierra Leone.

Pieterson and Richards decided to marry, and Richards

filed for her to come to the United States as his fiancée. She

entered this country in July 1998 but left Richards just three

weeks later. Pieterson explained that he kept her in the house

against her will and abused her, sexually and otherwise. She fled

from him and applied for asylum on August 11, 1998.

In her application for asylum, Pieterson asserted that

she would be vulnerable to rape or torture upon return to Sierra

Leone because of her mother's association with the NDP. She

testified that she fears persecution in Sierra Leone because of her

ethnicity and her mother's political affiliation, and she claims

that RUF soldiers will target her if she returns there. Pieterson

admits that she was never physically harmed, detained, or arrested

in Sierra Leone.

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 II.

In her oral decision, the IJ denied Pieterson's

applications for asylum and withholding of removal, concluding that

Pieterson had failed to establish past persecution or a well-

founded fear of future persecution on account of her political

opinions or ethnicity.1 The IJ emphasized that there was no

corroboration for Pieterson's claim that her mother had, for

political reasons, been framed on the charge of prostituting soccer

players. The IJ also noted that Pieterson's mother had not even

been present in Sierra Leone since 1992. As a result, the IJ found

it unlikely that Pieterson would be targeted on account of her

mother's political activities. As for Pieterson's own political

activities, the IJ found that they were limited, low profile, and,

since her mother's departure, nonexistent.

Citing a 1996 Profile of Asylum Claims, the IJ concluded

that the civil unrest in Sierra Leone did not appear to be

motivated by ethnic or political conflict. The evidence suggested

that no particular group of persons was being singled out; the

looting and burning of houses and shops did not target persons of

1
The IJ noted that because Pieterson entered the United
States after November 4, 1997, she was not eligible for the
temporary protected status that is available to certain nationals
of Sierra Leone. The IJ had determined at an earlier proceeding
that Pieterson would be ineligible for voluntary departure if she
proceeded to an asylum hearing because she had not been in the
United States for more than one year. On appeal, Pieterson
challenges neither of these rulings.

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particular ethnicities or political beliefs. The IJ pointed out

that civil conflict and anarchy alone do not establish grounds for

asylum, nor do insults or discrimination alone.

The IJ also denied CAT protection, stressing that

Pieterson was never harmed or detained. The IJ acknowledged

Pieterson's fear of rape, but observed that rape was one of the

ravages of the civil conflict in Sierra Leone; there was no

indication that Pieterson would be any more vulnerable to rape than

others because of her political opinion, her Creole ethnicity, or

her family affiliation.

The BIA affirmed the IJ's decision in a brief opinion

and noted that it agreed with the reasoning underlying the IJ's

conclusions that the respondent failed to satisfy her burden of

proof for proving eligibility for asylum or withholding of removal.

It further held that Pieterson had not established eligibility for

relief under the CAT because she had not shown that it was more

likely than not that she would be harmed "by or at the instigation

of or with the consent or acquiescence of a public official or

other person acting in an official capacity" if returned to Sierra

Leone. The BIA noted that the existence of a pattern of severe

violations of human rights does not in itself constitute a

sufficient ground for concluding that a particular person would be

in danger of being subjected to torture as defined by the CAT.

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 III.

We review the BIA's denial of Pieterson's asylum claim

under the deferential substantial evidence standard.2 INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992); Albathani v. INS, 318

F.3d 365, 372 (1st Cir. 2003). The BIA's finding must be upheld

unless the evidence not only supports a contrary conclusion, but

compels it. Elias-Zacarias, 502 U.S. at 481 & n.1; Albathani, 318

F.3d at 372.

An asylum applicant bears the burden of establishing

that she fits within the statutory definition of refugee, 8 U.S.C.

§ 1101(a)(42)(A), and thus qualifies for asylum consideration. 8

C.F.R. § 208.13(a). Carrying that burden involves proving

"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); see 8

C.F.R. § 208.13(b); Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir.

2003).

To establish a well-founded fear of future persecution

based on one of the five statutory grounds, an asylum applicant

must demonstrate that her fear of persecution is both genuine and

objectively reasonable. Khem, 342 F.3d at 53; Guzman v. INS, 327

2
Where, as here, the BIA issues an opinion that upholds an
IJ's decision and states that the BIA agrees with the reasons
supporting the IJ's determinations, we treat the IJ's reasoning as
if it were articulated by the BIA in the first instance. See Chen
v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996).

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F.3d 11, 16 (1st Cir. 2003) ("Both a subjective and objective

component must underlie a claim of a well-founded fear of future

persecution.") (internal quotation marks omitted). To satisfy the

"objectively reasonable" component of the test, an applicant must

usually "provide evidence that there is a reasonable possibility he

or she would be singled out individually for persecution." 8

C.F.R. § 208.13(b)(2)(iii); see Guzman, 327 F.3d at 16. But an

applicant need not provide such evidence if she instead (1)

"establishes that there is a pattern or practice in . . . her

country . . . of persecution of a group of persons similarly

situated to [her] on account of [one of the five statutory

grounds]" and (2) "establishes . . . her own inclusion in, and

identification with, such group of persons such that . . . her fear

of persecution upon return is reasonable." 8 C.F.R. §§

208.13(b)(2)(iii)(A) and (B).

Pieterson's arguments on appeal boil down to a claim

that the IJ and the BIA did not properly evaluate her evidence of

a well-founded fear of persecution. Pieterson's primary argument

is that even if she did not provide sufficient evidence that she

would be singled out for persecution upon return to Sierra Leone,

she did satisfy prongs (A) and (B) of 8 C.F.R. § 208.13(b)(2)(iii)

by showing a pattern of persecution of Creoles and members of the

NDP in Sierra Leone.

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 Substantial evidence supports the IJ's determination

that there was no proven nexus between the violence in Sierra Leone

and Pieterson's ethnicity and political beliefs. The dangers that

Pieterson faced in Sierra Leone were the result of the violent

civil conflict there, and Pieterson did not distinguish the dangers

she faced from the dangers faced by other residents in Freetown and

throughout Sierra Leone. Her claim that Creoles and NDP members

were specifically targeted is substantially undermined by two

reports from the United States Department of State. The

Department's 1996 "Profile of Asylum Claims and Country Conditions"

for Sierra Leone asserts that "[t]he conflict in Sierra Leone . .

. does not appear to be based on ethnic, territorial or political

factors. . . . . [N]o particular group appears to be singled

out." And the Department's "Sierra Leone Country Report on Human

Rights Practices for 1998" states that "[e]thnic differences . . .

did not appear to contribute appreciably to the RUF rebellion, the

1997 coup, or the civil conflict during the year. There was no

identifiable ethnic or regional base of voluntary popular support

for the rebels, who controlled territory by terror and coercion

rather than by popular consent." Thus, although Creoles and

members of the NDP were among those terrorized by RUF, the reason

appears to have been because they were part of a much larger group

of people who did not support RUF, rather than because of any

group-specific characteristic.

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 Absent evidence of more specific targeting of a

particular group on account of one of the five statutory grounds,

8 C.F.R. § 208.13(b)(2)(iii) is not satisfied. The IJ correctly

held that the existence of civil conflict alone does not establish

grounds for asylum. Velasquez-Valencia v. INS, 244 F.3d 48, 51

(1st Cir. 2001) ("Congress has chosen to define asylum as limited

to certain categories; . . . it has not generally opened the doors

to those merely fleeing from civil war."); Aguilar-Solis v. INS,

168 F.3d 565, 572 (1st Cir. 1999) ("Danger resulting from

participation in general civil strife, without more, does not

constitute persecution."). The IJ also correctly held that the

Sierra Leone government's alleged discrimination against Creoles

does not, in and of itself, establish grounds for asylum.

Discrimination is not the equivalent of persecution; "[t]o qualify

as persecution, a person's experience must rise above

unpleasantness, harassment, and even basic suffering." Khalil v.

Ashcroft, 337 F.3d 50, 55 (1st Cir. 2003) (quoting Nelson v. INS,

232 F.3d 258, 263 (1st Cir. 2000)).

Pieterson's efforts to show that she would be

individually targeted for persecution on account of her own

political beliefs or on account of her mother's political

affiliation also fall short. First, the IJ's determination that

Pieterson's political activities were limited and low profile and

thus unlikely to lead to persecution is well-supported. Pieterson

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did little more than accompany her mother at NDP events and serve

refreshments at her mother's NDP meetings. And significantly,

there is no evidence that Pieterson engaged in any political

activity or was associated with the NDP in any way once her mother

left the country in 1992, five years before she herself left.

Second, and relatedly, the record does not compel the

conclusion that Pieterson would be targeted for persecution on the

basis of her mother's NDP affiliation and political activities.

The only evidence that Pieterson's mother was ever targeted for

persecution -- the allegedly contrived charge that she prostituted

soccer players -- was deemed unreliable speculation by the IJ, who

reasonably noted that there was no corroboration for the theory

that she was framed. Cf. Aguilar-Solis, 168 F.3d at 571 ("[W]hen

a hearing officer who saw and heard a witness makes an adverse

credibility determination and supports it with specific findings,

an appellate court ordinarily should accord it significant

respect."). Pieterson was never persecuted while her mother was in

Sierra Leone, and her mother has not even been in the country for

the last twelve years.

Third, and important to Pieterson's burden of proving

the likelihood of being individually targeted, is the fact that she

herself was never physically harmed, detained, or arrested while in

Sierra Leone. The alleged threats and name-calling directed at her

and her family by some classmates, co-workers, and others do not

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equate to persecution, and certainly do not compel the conclusion

that she would likely be subject to persecution upon return to

Sierra Leone.

In sum, the record does not compel a rejection of the

IJ's determination that Pieterson's fear is not objectively

reasonable and thus that she did not establish a well-founded fear

of persecution.

IV.

For the same reasons, we conclude that the evidence does

not compel the conclusion that petitioner is entitled to

withholding of deportation. See Alvarez-Flores v. INS, 909 F.2d 1,

4 (1st Cir. 1990) ("[A] petitioner unable to satisfy the asylum

standard fails, a fortiori, to satisfy" the standard for

withholding of deportation.); Khem, 342 F.3d at 54. Similarly, the

BIA's denial of CAT protection is supported by substantial

evidence. See 8 C.F.R. § 208.16(c)(2); Guzman v. INS, 327 F.3d 11,

16 (1st Cir. 2003) (under the CAT, a petitioner has the burden of

demonstrating that torture is more likely than not upon removal).

V.

The BIA's denials of Pieterson's applications for

asylum, withholding of removal, and protection under the CAT are

affirmed.

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