Anacassus v. Holder

• Decision Date: 15 April 2010
• Docket Number: No. 09-1463.,09-1463.
• Citation: 602 F.3d 14
• Parties: Joseph Georges ANACASSUS, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

602 F.3d 14

Joseph Georges ANACASSUS, Petitioner,
v.
Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09-1463.

United States Court of Appeals, First Circuit.

Submitted December 10, 2009.

Decided April 15, 2010.

602 F.3d 15

Harvey J. Bazile and Bazile & Associates, on brief for petitioner.

Tim Ramnitz, Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Shelley R. Goad, Senior Litigation Counsel, on brief for respondent.

Before TORRUELLA, BOUDIN, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Joseph Georges Anacassus ("Anacassus"), a native and citizen of Haiti, petitions for review of a Board of Immigration Appeals' ("BIA") decision affirming an immigration judge's ("IJ") denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Anacassus contends that the record shows sufficient evidence

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to establish past persecution and/or a well-founded fear of future persecution, and that the BIA abused its discretion in finding otherwise. After careful consideration, we find that the BIA's decision is supported by substantial evidence. We deny the petition for review

I. Background¹

Anacassus attempted to enter the United States on April 15, 2003. He arrived at Miami International Airport with a fraudulent passport and visa. Immigration authorities detained and interviewed him regarding his attempted entry. Anacassus told the interviewing official that he sought political asylum and feared persecution if he should return to Haiti. The immigration officer referred Anacassus to an asylum officer, who determined that Anacassus had established a credible fear of persecution and referred his application to an immigration judge.

The Department of Homeland Security ("DHS") served Anacassus with a Notice to Appear ("NTA")² and removal proceedings commenced. Anacassus appeared before the Miami Immigration Court and conceded removability, but sought asylum, withholding of removal, and relief under the CAT. After successfully moving for a change of venue to Boston, Massachusetts, Anacassus testified before the immigration judge in support of his asylum application.

Anacassus testified that he had suffered persecution at the hands of former Haitian President Jean-Bertrand Aristide's political party, Lavalas, due to his membership in the opposition party, the Movement for National Development ("MDN")³. Lavalas had a militant wing, the Chimere Lavalas, which Anacassus stated often violently disrupted MDN meetings by physically attacking MDN members and throwing rocks or bottles in the air. Anacassus was a regional leader in MDN who assisted in the organization of bi-weekly meetings. He claimed that his role in the MDN garnered Lavalas' attention when, on November 17, 2002, a previously recorded speech was aired on television. In this speech, Anacassus discussed political problems in Haiti, including human rights violations. When Anacassus attended an anti-Lavalas demonstration on December 3, 2002, weeks after the speech, he was attacked by Chimere Lavalas members.

According to Anacassus, Chimere Lavalas members beat him at the demonstration, hitting him on the forehead, nose, and cheek with batons and leaving scars on his face and wrists. Fifteen minutes after arriving, police officers took demonstrators who had been beaten, including Anacassus (although Anacassus later stated he was the only demonstrator beaten), to a police station for protection from further attack. Afterwards, the police, with Chimere Lavalas members following close behind, took Anacassus to his home.

Anacassus called MDN and informed them of the attack at the demonstration. MDN broadcast the news to various radio stations later that day. Meanwhile, a doctor treated Anacassus at his home for his injuries. At approximately 9:00 p.m., while Anacassus was resting in bed, he

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heard a banging on the front door and a voice asking his mother where he was. His mother told the visitor that he was not at home while Anacassus slipped out the back window. Anacassus later stated that before escaping, he heard his mother being beaten

Anacassus testified that he first ran to his friend's house, then to his sister's. On calling home, he learned that his girlfriend and son were "severely beaten." When asked why his asylum application failed to mention his son's beating or injuries, Anacassus stated he did not learn about it until February 2003. On being reminded that his asylum application had been filed after February 2003, Anacassus changed his explanation, stating that he chose not to include his son's beating because he had not witnessed it. Anacassus had no explanation, however, as to why his October 2004 affidavit stated that he heard his son being thrown against a wall the night he escaped through the window.

The day after the demonstration and alleged attack at Anacassus's home, Anacassus's mother, girlfriend, and son moved to a different location; Anacassus remained at his sister's. Anacassus testified that, on the same day as the move, his mother took his son to a hospital for treatment. Anacassus offered no medical records to support this testimony. However, other medical records showed his son receiving hospital treatment seven months after the alleged December 2002 treatment. When asked about this discrepancy, Anacassus clarified that his son did not go to the hospital the day after the alleged attacks; rather, he went to an "herb doctor."

Anacassus remained in contact with his mother while he was in hiding. She told him that Chimere Lavalas members came to her new address on repeated occasions and made threats against Anacassus. Because he feared for his life, Anacassus sought assistance from his friend, Symbert, in obtaining a passport and visa. Anacassus testified that he never suspected that either the passport or visa that Symbert gave him were invalid when he presented them to immigration authorities at the Miami airport on April 15, 2003.

The IJ denied Anacassus's application for asylum, withholding of removal, and CAT relief and ordered his removal to Haiti. The IJ found that Anacassus failed to meet his burden of proof with credible testimony and failed to establish past persecution, a well-founded fear of future persecution, or that he more likely than not would be tortured on returning to Haiti.

The IJ found Anacassus's testimony regarding his involvement in MDN and the political tensions between MDN and Chimere Lavalas — including Chimere Lavalas disruption of MDN meetings and the December 2002 attack at the demonstration— "generally credible." However, the IJ concluded that this "single, isolated event," even if considered with the Chimere Lavalas's harassment of MDN meetings, was not sufficient to constitute past persecution. The IJ found that it also did not establish a well-founded fear of future persecution because, according to at least one of Anacassus's accounts, Haitian police intervened to protect him at the demonstration, indicating that the "authorities in Haiti are willing and able to protect" Anacassus.

The IJ did not find Anacassus's testimony as to the alleged Chimere Lavalas attack at his home, including the alleged beating of his wife and son, credible. The IJ's credibility finding turned on inconsistencies in Anacassus's testimony, asylum application, airport interview, and credible fear interview. Specifically, the IJ noted the omission of any statement in Anacassus's asylum application, airport interview,

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and credible fear interview referencing the attack on his wife or son. This was in contrast to his affidavit, which described their...