Civil v. I.N.S.

• Decision Date: 05 February 1998
• Docket Number: No. 97-1836,97-1836
• Citation: 140 F.3d 52
• Parties: Lucienne Yvette CIVIL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 52

140 F.3d 52

Lucienne Yvette CIVIL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-1836.

United States Court of Appeals, First Circuit.

Heard Feb. 5, 1998.

Decided May 15, 1998.

Eleanor J. Newhoff, Cambridge, MA, with whom Harvard Immigration and Refugee Clinic of Greater Boston Legal Services was on brief, for Appellant.

Terri J. Lavi, Attorney, with whom Frank W. Hunger, Assistant Attorney General, and Karen Fletcher Torstenson, Assistant Director, Washington, DC, were on brief, for Appellee.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Appellant Lucienne Yvette Civil appeals a Board of Immigration Appeals ("Board" or "BIA") decision affirming an Immigration Judge's denial of her application for political asylum. Adopting the factual findings of the Immigration Judge ("IJ"), the Board found that petitioner did not have a well-founded fear of persecution. Because we find that substantial evidence supports the Board's conclusion, we affirm.

I. FACTS AND PRIOR PROCEEDINGS

Petitioner Lucienne Yvette Civil sought political asylum under section 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(a), on the basis that she had a well-founded fear that she would be persecuted for her political beliefs if she returned to Haiti.

Civil's asylum application, affidavit, and testimony stated the following. Born on July 12, 1976, in Croix-des-Missions, Haiti, Civil lived with her parents until the mid-1980s, when they emigrated to the United States. After her parents left Haiti, Civil lived with her grandmother, brother, aunt, and three cousins. She was fourteen years old when Jean-Bertrand Aristide was elected president of Haiti. Following Aristide's inauguration, Civil and members of her family celebrated with others in the streets, and her grandmother displayed a quilt that had an emblem on it outside of their house to show the family's support for Aristide. Subsequently, Civil graduated from a private Catholic school in 1991, and planned to attend Franco-Haitian University in Port-au-Prince. Because of demonstrations following the coup d'etat that forced Aristide from office in September 1991, the university's opening was delayed. Throughout this period, Civil did not participate in any political campaigns or marches in support of Aristide. In January 1992, she began attending classes at the university. She testified that she and other students were fearful because violent crime was rampant and because they had heard that the Ton Ton Macoutes, a paramilitary organization, were entering schools and kidnapping students. Civil also testified that a woman in her neighborhood and a fellow student--both Aristide supporters--had been raped by members of the Macoutes.

Petitioner's decision to flee Haiti was prompted by an incident that led her to believe that she was being persecuted because of her pro-Aristide views. In December 1992, as she and six friends were standing outside her home discussing President Aristide and expressing their desire to see him restored to power, a man who apparently had overheard their conversation told them that "Children shouldn't be talking about such things. There are a lot of people who don't like Aristide and they can kill you. Aristide can't do anything for you now." Civil recognized that the man, who appeared to be in his twenties, was one of the regular customers at her grandmother's bread and coffee store, which was located in the front of their home. Civil and her friends suspected that the man was a Macoute because he was wearing the type of boots that Macoutes purportedly wore, and because he warned them about expressing their views on Aristide. That same night, petitioner and her family were awakened by persons banging on the door and demanding entrance to the house. Although the persons did not identify themselves or mention Aristide, Civil and her family believed that they were Macoutes, reasoning that thieves would not bother knocking. The family remained flat on the floor for about two hours, during which time their house was stoned. The next morning, they discovered that the family's pet dog had been stoned to death.

Fearing that the Macoutes would return, Civil and her brother left their home to stay with a friend of their grandmother in Carrefour Clercine. Civil remained afraid, however, because the Macoutes were "making their way" to the part of the village where she was staying, and she thought that they might recognize her.

On January 17, 1993, fearing for her safety, Civil left Haiti and came to the United States unlawfully. Although democratic government was restored to Haiti in September 1994, ¹ Civil continues to fear returning to Haiti because, she asserts, Haiti remains unstable, and anti-Aristide factions continue to persecute Aristide supporters.

After arriving in the United States, Civil was detained and placed in exclusion proceedings. She requested political asylum under section 208(a) of the INA, 8 U.S.C. § 1158(a), and withholding of deportation under section 243(h) of the INA, 8 U.S.C. § 1253(h). On February 21, 1995, an Immigration Judge ("IJ") found her excludable under section 212(a)(6)(C)(i) of the INA, 8 U.S.C. § 1182(a)(6)(C)(i), for attempting to procure entry into the United States by fraud or willful misrepresentation, and rejected her requests for asylum and withholding of deportation on the basis that petitioner had failed to demonstrate that she has a well-founded fear of persecution. On June 26, 1997, a three-member panel of the BIA rejected Civil's appeal from the IJ's finding of excludability and denial of asylum. Civil now appeals the Board's decision on her asylum claim.

II. DISCUSSION

A. Standard of Review

"The Board's determination of statutory eligibility for relief from deportation is conclusive if 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.' " Gebremichael v. INS, 10 F.3d 28, 34 (1st Cir.1993) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 815-16, 117 L.Ed.2d 38 (1992)); 8 U.S.C. § 1105a(a)(4). Reversal of the Board's determination thus depends on whether the petitioner has shown "that the evidence he presented was so compelling that no reasonable factfinder could fail to find [that he was eligible]." Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. at 817. We review questions of law de novo.

B. Analysis

Petitioner argues that she established eligibility for political asylum by presenting to the IJ consistent, detailed, and credible testimonial and documentary evidence which confirmed that her fears of persecution are well-founded. In addition, she argues that the BIA deprived her of due process by taking administrative notice of changes in Haiti's social and political conditions since she fled Haiti.

An applicant for political asylum bears the burden of showing that he or she has been persecuted, or has a well-founded fear of future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion. ² See 8 C.F.R. § 208.13(b). In order to establish a well-founded fear of future persecution, a petitioner must have shown both a genuine subjective fear and an objectively reasonable fear of persecution on a protected ground. See, e.g., Ravindran v. INS, 976 F.2d 754, 758 (1st Cir.1992); Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir.1990). The objective component requires a showing "by credible, direct, and specific evidence ... facts that would support a reasonable fear that the petitioner faces persecution." Ravindran, 976 F.2d at 758 (internal citations omitted). An applicant need not establish that he or she would be singled out individually for persecution if the applicant establishes that "there is a pattern or practice in his or her country of nationality ... of persecution of persons similarly situated to the applicant," and if the applicant "establishes his or her own inclusion in and identification with such group of persons such that his or her fear of persecution upon return is reasonable." 8 C.F.R. § 208.13(b)(2); see, e.g., Gebremichael, 10 F.3d at 35 (holding that an applicant may establish asylum eligibility "if membership in a social group is at the root of persecution, such that membership itself generates a specific threat to the applicant") (internal quotation omitted).

Although the Board devoted the bulk of its analysis of Civil's asylum application to reciting virtually verbatim a discussion of changed country conditions set forth in an earlier opinion, In Re E-P-, No. 3311 (BIA, Mar. 14, 1997), it also expressly adopted that part of the IJ's opinion that held that Civil had failed to meet her burden of proving a well-founded fear of persecution on account of her political opinion. In his decision, the IJ placed weight on the fact that Civil had participated in no demonstrations or any outward manifestations of her support for Aristide. He also opined that the fact that petitioner's house was stoned on the same day that a man who was alleged to be a member of the Ton Ton Macoutes overheard petitioner and her friends discussing their support for Aristide did not constitute evidence that petitioner had been targeted because of her political beliefs. The IJ further observed that, according to the State Department, although eavesdropping by the Ton Ton Macoutes, uniformed military, or "plainclothes stool pigeons" could happen, and is sometimes alleged by Haitian asylum applicants, retribution on the basis of such incidents is "less certain." He emphasized, in addition, that the State Department had reported that, frequently, attacks attributed to the Macoutes were more likely attributable to rampant crime activity in Haiti. Concluding that "it is almost inconceivable to believe that the Ton Ton Macoutes could be fearful of the conversations of 15-year-old children,"...