Silais v. Sessions

• Citation: 855 F.3d 736
• Decision Date: 28 April 2017
• Docket Number: No. 15-3277,15-3277
• Parties: Hernel SILAIS, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

855 F.3d 736

Hernel SILAIS, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.

No. 15-3277

United States Court of Appeals, Seventh Circuit.

Argued April 11, 2017

Decided April 28, 2017

Rehearing and Rehearing En Banc Denied June 27, 2017

Geoffrey Heeren, Attorney, VALPARAISO UNIVERSITY LAW CLINIC, Valparaiso, IN, for Petitioner.

Janette L. Allen, OIL, Attorneys, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, for Respondent.

Before Wood, Chief Judge, and Flaum and Easterbrook, Circuit Judges.

Flaum, Circuit Judge.

Hernel Silais, a Haitian citizen and opposition political party member, petitioned the United States for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The Immigration Judge, and later the Board of Immigration Appeals (collectively, the "Agency"), denied his petition. We do the same.

I. Background

On February 5, 2011, Silais arrived in the United States without an immigrant visa or other valid entry document. The Department of Homeland Security ("DHS") charged Silais with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i). In response, Silais conceded his inadmissibility, based on his lack of valid documents, but requested asylum, withholding of removal, and protection under CAT.

A. Removal Hearing

On April 30, 2013, an Immigration Judge ("IJ") conducted Silais's removal hearing. Silais testified and submitted documentary evidence. The IJ then continued the removal hearing to May 15, when Silais's country-conditions expert, Brian Concannon, was available to testify. Concannon is a human-rights attorney and the director of the Institute for Justice and Democracy in Haiti, a non-profit organization based in Boston.

1. Silais's Testimony

Silais testified to the following alleged facts: He was born in Aux Cayes, Haiti. In 2003, he joined a Haitian political party known as the Òganizasyon Pèp Kap Lité (the "OPL"). At that time, the OPL was one of the two largest opposition political parties in Haiti. A group known as the Chimères , who supported then-President Jean-Bertrand Aristide, often disturbed OPL meetings that Silais had organized, beating participants, firing guns, or throwing rocks. Although the Chimères was not a government entity, it allegedly received benefits from various officials and included police officers in their ranks. Silais identified two particular Chimères members he claimed he repeatedly encountered between 2002 and 2010: Ronald Felix and Charles Bertrand.

During a soccer game in 2002 where Silais was distributing political information, for example, both Felix and Bertrand allegedly threw rocks at the spectators and asked Silais about the papers he was distributing. They did not injure Silais at this incident.

At a later event, however, Felix purportedly attacked Silais in his neighborhood, pushing Silais down, placing a revolver in his mouth, and threatening to kill him. When other people approached them, Felix released Silais, who ran away. Felix allegedly threw rocks at Silais as he escaped.

Silais further testified that on February 22, 2004, Felix and Bertrand went to a political meeting Silais was attending and began asking him about his political affiliation. Silais informed them that he only wanted to educate people, and the Chimères did not harm him. During a Mardi Gras celebration soon afterward, though, both Felix and Bertrand allegedly attacked Silais in his neighborhood. Consequently, he fled and hid at his friend James Lete's house. Silais then testified that when the Chimères found Silais, they hit him with their hands and a pistol and struck his leg with a machete. After Silais began to bleed, Felix and Bertrand stopped, and Silais escaped to another friend's house. The Chimères then went to Silais's family's house and allegedly beat certain family members.¹

Silais then stated that, in September 2004, the Chimères attacked him while he was speaking at a political meeting and forced him to run away.

According to Silais, he left Haiti in November 2004 for the Dominican Republic, where he remained until January 2006,² when he heard that Haiti's condition had improved. Silais testified that he wanted to complete his studies in Haiti on "veterinary and agricultural techniques" that required two years of classroom work and one year of practice. He graduated from the program in January 2007.

Afterward, he worked with an organization that he had cofounded to assist Haiti's orphaned children.³ Silais's organization hosted an event for World AIDS Day on December 1, 2009, and Felix, Bertrand, and other Chimères attended. They allegedly questioned Silais about what he was doing there, beat him, and forced him to leave the event.

Silais finally testified that during Haiti's 2010 presidential election, Silais was a representative for the Repons Peyizan political party, supporting then-candidate Michel Martelly. While working as a "poll watcher," Silais witnessed Felix and Bertrand attempt to commit voter fraud by stuffing ballots for Jude Celestin, their preferred candidate. When Silais tried to stop them, Felix purportedly hit and kicked him. As Silais tried to flee, Felix and Bertrand threw rocks at him. The police arrived and detained Felix, but released him after Silais de-parted without filing a report. Silais testified that he currently experiences lingering pain from this incident.

Silais never contacted the Haitian police to report any of the above alleged encounters with the Chimères . After the election, Silais left Haiti by boat to Guatemala.⁴ Eventually, in 2011, Silais sought refuge in the United States.

2. Documentary Evidence

In addition to his testimony, Silais presented written statements and over twenty pieces of documentary evidence, including, in part, (1) documents concerning his identity, political party membership, employment, and education; (2) James Lete's declaration; (3) Dr. Nora Rowley's affidavit opining that Silais's scars were consistent with his alleged abuse; (4) Brian Concannon's affidavit; (5) a letter of support from Lawrence Hock, a church acquaintance; and (6) media reports and articles concerning Haiti's condition.

Silais also unsuccessfully attempted to enter other documentary evidence. During the break between April 30 and May 15, the government had submitted an unsolicited, written closing argument, highlighting that Silais's testimony was vague, inconsistent, and uncorroborated. On May 13, two days before the hearing was scheduled to continue, Silais submitted a response to the government's closing and moved to submit additional evidence "since DHS ha[d] called Mr. Silais' credibility into question." The additional evidence included: (1) Silais's own amended affidavit; (2) a declaration from Silais's brother-in-law addressing the chain of custody of the evidence he had collected in Haiti; (3) an affidavit from Silais's former attorney and interpreter discussing interpretation issues that arose in drafting Silais's original statement; and (4) a media account of a recent armed robbery of an OPL member in Haiti. The IJ denied Silais's motion to submit the additional evidence, because DHS had only recently received the materials and Silais had failed to make the subjects of the evidence available for cross-examination.

3. Brian Concannon's Testimony

On May 15, Silais presented his country-conditions expert, Brian Concannon. Concannon stated that Haiti had experienced escalating conflict between 2000 and 2004. Some groups, including a few associated with the government, had engaged in suppression of anti-government political activity through intimidation, rock throwing, and gun violence. Meanwhile, the Haitian police had struggled with issues of discipline, corruption, and inexperience, rendering the Haitian justice system ineffective in prosecuting political killings. Over time, however, the relationship between Concannon's organization and Haitian justice officials improved, and the violence declined from previous levels. Later, however, during Haiti's 2010 presidential elections, the country suffered from incidents of voter fraud, including ballot stuffing. Moving forward, Concannon noted, Haiti remained vulnerable to political violence, particularly during presidential elections.

B. The Immigration Judge's Decision

On January 21, 2014, the IJ denied Silais's petition for two alternative reasons: (1) he had not met his burden of proof, because (a) his testimony was vague and inconsistent, and (b) he had failed to present sufficient corroboration; and (2) he had not established eligibility for relief on the merits.

First, the IJ highlighted Silais's "vague and inconsistent testimony and the lack of evidence to corroborate events central to his claim." The judge then discussed a number of gaps in Silais's memory and inconsistencies among Silais's testimony, his written statements, and Lete's declaration. The IJ found Silais credible despite these inconsistencies, but found the substantial lack of corroboration fatal to his claim. For example, the IJ observed that Silais "did not submit affidavits or statements from key parties in his case, such as his brother-in-law, who currently lives in the United States and who went to Haiti to retrieve documents for [Silais]." Silais had also failed to present any evidence from any family members or coworkers to corroborate his specific claims of Chimères violence, and had not provided any medical reports related to his alleged injuries, despite reportedly seeking treatment. Further, he had not made any reasonable efforts to obtain this additional corroborative evidence, or explained why it would have been unreasonable to do so. Relatedly, Concannon's testimony, Silais's media articles, and Dr. Rowley's affidavit all failed to corroborate Silais's specific claims. In sum, the IJ concluded, Silais did "not me[e]t his burden of proof to establish eligibility for asylum, withholding of removal, or relief under CAT."

Alternatively, the IJ...