Brezilien v. Holder

• Decision Date: 12 May 2009
• Docket Number: No. 06-73693.,06-73693.
• Citation: 569 F.3d 403
• Parties: Jean Yves BREZILIEN, aka Jean Yves Brezilieh, Petitioner, v. Eric H. HOLDER, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

569 F.3d 403

Jean Yves BREZILIEN, aka Jean Yves Brezilieh, Petitioner, v. Eric H. HOLDER, Attorney General, Respondent.

No. 06-73693.

United States Court of Appeals, Ninth Circuit.

Argued July 15, 2008.

Submitted May 5, 2009.

Filed May 12, 2009.

Amended June 18, 2009.

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner.

Peter D. Keisler, Richard M. Evans, and David E. Dauenheimer, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A071-894-056.

Before RICHARD A. PAEZ and MARSHA S. BERZON, Circuit Judges, and HAROLD BAER, JR.,^* District Judge.

ORDER

Respondent's motion to amend the court's opinion is GRANTED. The opinion, Brezilien v. Holder, 565 F.3d 1163 (9th Cir.2009), is revised as follows. Delete footnote three, and substitute the following footnote in its place:

Effective September 25, 2002, the Department of Justice implemented new rules reforming the BIA process. These rules provide, inter alia, that: (1) the Board will not engage in de novo review of findings of fact determined by the immigration judge; and (2) except for the taking of administrative notice of commonly known facts, the Board will not engage in factfinding in the course of deciding appeals. See 8 C.F.R. § 1003.1(d)(i)(iv). In contrast to these substantive limitations on factfinding, "[t]he Board may review questions of law, discretion, and judgment on all other issues in appeals from decisions of immigration judges de novo." 8 C.F.R. § 1003.1(d)(3)(ii).

The filing of this order shall not extend the time to file a petition for rehearing. Fed. R.App. Pro. 40.

OPINION

PAEZ, Circuit Judge:

Petitioner Jean Yves Brezilien, a native and citizen of Haiti, petitions for review of the final decision of the Board of Immigration Appeals ("BIA") sustaining the government's appeal of an Immigration Judge's ("IJ") grant of asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The IJ initially found Brezilien removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien who had been convicted of a crime involving moral turpitude. Brezilien, appearing pro se, conceded removability but applied for asylum, withholding of removal, and CAT relief. He asserted a fear of future persecution on account of his ties to former Haitian president Jean-Bertrand Aristide and the Lavalas political party, and a fear of torture on account of his criminal status in the United States, which he argued would subject him to indefinite detention in deplorable conditions in Haiti.

On three separate occasions, the IJ granted Brezilien relief from removal. The government appealed the IJ's rulings to the BIA, and each time the BIA reversed the IJ's decision. The BIA held that Brezilien's fear of future persecution was speculative, that he could avoid harm through internal relocation, and that there was no pattern or practice of persecution of Aristide or Lavalas supporters in Haiti.

All of the BIA's decisions leading up to its final decision are properly before us in this proceeding. Brezilien raises a number of challenges to the BIA's rulings, some of which are unexhausted or the BIA failed to address, and therefore we do not reach the merits of those arguments. We agree, however, with Brezilien's main argument that the BIA violated its own regulation — 8 C.F.R. § 1003.1(d)(3)(i)-(iii) — when it engaged in factfinding to deny Brezilien's asylum, withholding, and CAT claims. The BIA also improperly reversed the IJ's factual finding, without applying the "clearly erroneous" standard of review, that Brezilien and his family suffered persecution because of their ties to the Lavalas party. The BIA's errors of law require that we grant the petition and remand for further proceedings. In light of our disposition on this issue, we need not address Brezilien's remaining challenges to the BIA's disposition of his asylum and withholding claims.

I. Flight from Haiti

Brezilien is a native and citizen of Haiti. From 1989 until he fled Haiti in 1991, Brezilien was an active supporter of former Haitian president Aristide.¹ He distributed leaflets and attended rallies for Aristide, wore an Aristide T-shirt that had been personally autographed by Aristide, and posted many pictures of Aristide in his neighborhood, including one in front of his family home. He also canvassed the countryside and urban neighborhoods before and on the day of the 1990 election, garnering support for Aristide. When Brezilien stood at the polls on election day and showed voters how to vote for Aristide's party, several government soldiers observed his activities.

Brezilien's family was associated with Aristide and Aristide's party, Lavalas, primarily through Brezilien's father Remon. Remon had known Aristide from a young age and served as his personal bodyguard during his election campaign and presidency. Two of Brezilien's older brothers, Corlod and Renoll, also worked for Aristide. As a 15-year-old boy, Brezilien sometimes accompanied his father to work and thus was seen with Aristide.

On September 28, 1991, the night before the coup d'etat that displaced Aristide, Brezilien was at home in Port-au-Prince with his father and his younger brother, Gerald. His father was not on duty that day as Aristide's bodyguard. Insurgent soldiers known as Ton Ton Macoutes, who would eventually oust Aristide, shot at Brezilien's house that morning. In the evening, Brezilien's father received phone calls from friends warning him to stay at home. Later that night, the soldiers returned and shot at the house again. When Brezilien's father opened the door to see who was outside, the Ton Ton Macoutes shot and killed him.

Brezilien and Gerald hid in the basement while the Ton Ton Macoutes, who knew the boys were inside, continued firing at the house. After spending a day in the basement, Brezilien came out when he heard a neighbor talking outside. The neighbor allowed Brezilien and Gerald to spend that night at his house, and the next day drove them forty kilometers to Leogane, where they stayed with the neighbor's relative for one month. After about one month of living in fear and hiding from the rebel military's search for Aristide supporters, Brezilien and his brother fled by bus to a remote village, St. Louis.

On November 13, 1991, when Brezilien was 16 years old, he and Gerald left Haiti in a boat with 67 other people. After two or three days, the U.S. Coast Guard intercepted the boat and transported its occupants to the Guantanamo Naval Base in Cuba. Immigration officials interviewed Brezilien and paroled him into the United States. He was subsequently granted asylum on June 12, 1993 and lawful permanent resident status in 1994.

1993-2003: Visits to Haiti

Brezilien subsequently returned to Haiti three times, each time for less than two weeks. In 1998, Brezilien traveled to Haiti because two of his older brothers had been killed by the Ton Ton Macoutes. His mother told him that they had been working in a political office for Rene Preval and Aristide in Port-au-Prince. According to Brezilien's mother, one of his brothers was gunned down as he entered the office, and then the Ton Ton Macoutes went inside the office and shot his other brother. No one was arrested in connection with the murders.

Although he was afraid to do so, Brezilien returned to Haiti for his brothers' funerals. Fearing that someone would recognize and kill him, Brezilien dressed as a woman after his arrival in Haiti. Because the Ton Ton Macoutes knew that Brezilien's mother and his deceased father were affiliated with Aristide, he felt that he could not safely stay at his mother's house. Brezilien stayed instead with his aunt, who was not well-known, and did not travel to Port-au-Prince at all. Brezilien attended his brothers' funerals, both held on the same day, though he felt that it was dangerous for him to do so. When he left Haiti, Brezilien again took precautions so as not to be recognized.

Despite ongoing political turmoil in Haiti, Brezilien returned on two other occasions, in 2000 and 2003, to visit his mother, who was hospitalized with heart problems. Although Brezilien did not want to return to Haiti, his mother thought she was going to die, and asked him to come see her. During both trips, Brezilien disguised himself at the airport. He stayed with his aunt and uncle and did not go out, fearing that his life was in danger.

Arizona Criminal Conviction

On February 23, 2000, following an encounter with Sonya White, who is the mother of Brezilien's United States citizen daughter, Brezilien was charged with aggravated assault under Arizona Revised Statutes Sections 13-1204(A)(11), (B), -1203(A)(1), -1001, -3601(A), -701, -702, -702.01 and -801 (2000). He ultimately pled guilty to attempted aggravated assault and was sentenced to a deferred period of four months in Maricopa County Jail with furlough consideration and three years probation, which he completed in one year and six months. Thereafter, Brezilien's conviction was reduced from a felony to a misdemeanor.

When Brezilien returned from Haiti in July 2003 after visiting his ailing mother, he applied for admission as a returning lawful permanent resident at the Miami International Airport. He was told to report to the Department of Homeland Security ("DHS") office in Phoenix with court-certified copies of his criminal record. When Brezilien reported to DHS, he was taken into custody and issued a Notice to Appear, which charged him as removeable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien who has been convicted of a crime involving moral turpitude. Brezilien admitted the factual allegations in the Notice to Appear, but applied for asylum, withholding of removal, and relief under CAT, arguing that he would be subject to persecution and torture if returned to Haiti.

Additional Facts...