Fergiste v. I.N.S.

Decision Date03 December 1997
Docket NumberNo. 97-1851,97-1851
Citation138 F.3d 14
PartiesNicken FERGISTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
CourtU.S. Court of Appeals — First Circuit

David S. Clancy, Boston, MA, with whom Deborah E. Anker, Cambridge, MA, was on brief, for petitioner.

Karen Ann Hunold, Attorney, with whom Frank W. Hunger, Assistant Attorney General, and Linda S. Wendtland, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC, were on brief, for respondent.

Before SELYA, STAHL and LYNCH, Circuit Judges.

STAHL, Circuit Judge.

Petitioner Nicken Fergiste appeals a Board of Immigration Appeals ("Board" or "BIA") decision affirming a final order of exclusion, denying him political asylum and withholding of deportation. The Board found that changed country conditions in Haiti had obviated any need for political asylum. Because the Board failed to apply, and the Immigration and Naturalization Service ("INS") failed to rebut, a presumption that petitioner had a reasonable fear of persecution in the future if he were to return to Haiti, we reverse and remand the case to the Board.

I. FACTS AND PRIOR PROCEEDINGS

Fergiste seeks political asylum under section 208(a) of the Immigration and Nationality Act ("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 the basis that he has suffered political persecution in his home country of Haiti and that such persecution will resume if he returns to Haiti.

Fergiste's testimony, affidavit, and asylum application showed the following facts. Fergiste was born in Port-au-Prince, Haiti, on April 17, 1966. He worked as a fork lift driver for the port authority, a supervisor on a merchant ship managed by his cousin, and an accountant. From 1979 until the early 1980s, Fergiste attended and participated in activities at the St. Jean Bosco Church, where Jean-Bertrand Aristide preached reform. He also attended meetings of the National Front for Change and Democracy ("FNCD"), Aristide's political party, and helped to campaign and raise money for Aristide's bid to be president of Haiti. In addition, Fergiste worked with a "neighborhood committee" that, apparently, was both devoted to community improvement and involved with politics, and "Family is Your Fergiste believes that, as a result of his open support of Aristide and his friendship with another Aristide supporter, Pierre Charles, he became a target of political persecution by the Ton-Ton Macoutes, a paramilitary group that protected the Duvalier dictatorship until 1986 when the Duvaliers were deposed. He also believes that he was targeted by military "attaches" that protected a series of military dictators from 1986 until Aristide's election in 1990. Fergiste recounts several incidents to support his claim of political persecution. On July 29, 1985, he was shot in the shoulder by a member of the Ton-Ton Macoutes, allegedly because of his association with Pierre Charles. In May 1989, government attaches raided Fergiste's home and, when unable to find Fergiste, murdered his aunt. Following a 1991 coup d'etat during which the military regained power, a political associate of Fergiste was repeatedly threatened and detained and eventually went into hiding, and Pierre Charles was shot and killed. In September 1993, three government attaches approached Fergiste and told him to cease associating with a fellow Aristide supporter and to become an attache. One of them hit him on the back of his shoulder with either his fist or the butt of a rifle. And in December 1993, three attaches went to Fergiste's mother's house, threatened her by putting a gun to her head, and eventually fired several times, hitting her in the shoulder.

Life," an organization dedicated to helping orphans. In 1990, on the day Aristide was elected president, the FNCD assigned Fergiste to monitor for fairness a Port-au-Prince polling booth.

In early 1994, fearing for his safety, Fergiste fled his homeland and came to the United States unlawfully. Although democratic government was restored to Haiti in September 1994, 1 Fergiste remains afraid to return on the grounds that Haiti is still unstable, and that anti-Aristide factions continue to persecute Aristide supporters.

After arriving in the United States and being placed in exclusion proceedings, Fergiste 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 August 23, 1995, an Immigration Judge ("IJ") rejected both of these requests. On June 30, 1997, a three-member panel of the BIA rejected Fergiste's appeal in a highly-fractured decision. 2 It issued a final order of exclusion against him. This appeal followed.

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. As always, we review questions of law de novo.

B. Analysis

Petitioner makes five arguments that the Board's decision should be remanded or reversed; all but the fourth argument are based on his right to procedural due process. First, Fergiste argues that the Board impermissibly applied the doctrine of "changed country conditions" by rote, without adequately considering the effect of changed conditions on his particular case. Second, he contends that the Board failed to consider evidence that anti-Aristide factions continued to persecute Aristide supporters after his 1994 return to power and that such persecutions continue to this day. Third, Fergiste argues that, in making its determination, the Board relied on evidence of political changes in Haiti which took place after the parties had submitted briefs to the Board and to which Fergiste was not given an opportunity to respond. Fourth, he asserts that the Board member who authored the concurring opinion in his appeal, and without whom there would have been no majority decision for denial of asylum, failed to apply the presumption of future persecution required by that Board member's finding of past persecution. Finally, Fergiste contends that, although the Board member who authored the controlling opinion found that Fergiste had failed to establish past persecution, he did not provide any explanation for that finding.

We begin with petitioner's fourth argument: that the Board member who authored the concurring opinion committed a legal error which undermines the Board's decision. Our focus on this argument necessarily leads us to address, without deciding, petitioner's first, second, and fifth arguments.

A finding of past persecution triggers a regulatory presumption that the applicant has a well-founded fear of future persecution, provisionally establishing the applicant's refugee status and eligibility for asylum. See 8 C.F.R. § 208.13(b)(1)(i)(1997). Where the Board finds that past persecution has been established, the INS has the burden of proving, by a preponderance of the evidence, that "since the time the persecution occurred conditions in the applicant's country of nationality ... have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if ... he were to return." Id.

The INS argues that Fergiste failed to establish past persecution and that, even if he had, the Board implicitly recognized and rebutted the presumption of future persecution by relying on the discussion of changed country conditions in In Re E-P-, No. 3311 (BIA Mar. 14, 1997). In essence, the INS's latter argument is that the official notice of changed country conditions taken by the Board in an earlier case counters the specific evidence of persecution that Fergiste has presented and overcomes the presumption of future persecution. We do not agree with either argument.

First, as a legal matter, Fergiste established past persecution. The Board panel that considered Fergiste's appeal consisted of three persons, each of whom wrote a separate opinion, and none of whom joined an opinion by one of the other two members. Although the concurring opinion was so designated because it reached the same outcome--denial of asylum and withholding of deportation--as the so-called majority opinion, it followed the dissenting opinion with regard to its finding of past persecution. Notwithstanding the result of the appeal, the fact remains that two Board members--a majority--found that Fergiste had established past persecution. Thus, as a matter of law, although the author of the "majority" opinion deemed the evidence Fergiste presented to be insufficient to establish past persecution, a presumption of future persecution nonetheless arose from the findings of the remaining Board members. 3

One of the two Board members who found past persecution did not apply a presumption of future persecution, however. Although the dissenting Board member would have applied the presumption, the concurring member did not, stating only that, although he found that Fergiste had established past persecution, he "read[ ] Matter of E-P ... to require denial of the respondent's asylum application on the basis of changed country conditions." Because a majority of the Board reasonably found that Fergiste had established past persecution, there arose a rebuttable presumption of future persecution and the Board's failure to apply it...

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