Edner Pierre v. Atty Gen USA

Filing

MANDATE ISSUED, filed.

Edner Pierre v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-4065

Document: 003110284800

Page: 1

Date Filed: 09/16/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-4065 ___________ E D N E R PIERRE, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, R e sp o n d e n t ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A088-244-476) Im m ig ra tio n Judge: Honorable Annie Garcy ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J u ly 22, 2010 B e f o re : SLOVITER, JORDAN and GREENBERG, Circuit Judges (O p in io n filed: July 26, 2010) ___________ O P IN IO N ___________ P E R CURIAM E d n e r Pierre petitions for review of a decision of the Board of Immigration A p p e a ls (BIA). For the reasons below, we will deny the petition for review. P ie rre , a citizen of Haiti, entered the United States in December 2006. He applied

Dockets.Justia.com

Case: 09-4065

Document: 003110284800

Page: 2

Date Filed: 09/16/2010

fo r asylum, withholding of removal, and relief under the Convention Against Torture (C A T ). He stated that he would be persecuted in Haiti based on nationality, political o p in io n , and membership in a social group. In March 2007, he was charged as removable a s an alien present in the United States without being admitted or paroled. He conceded r e m o v a b i l i t y. P ie rre testified at his hearing that in July 2006, he was attacked in his home by ten n e i g h b o r s who were members of the Lavalas group.1 Armed with batons, machine guns, a n d a whip, they beat Pierre, his wife, and their children. He recognized the leader of the a tta c k as a man named Smith Jeunes. He reported the attack to the police but did not n a m e Smith Jeunes as a perpetrator. Pierre stated that the group was always trying to get h i m to join them for demonstrations in the street but that he did not join them because th e y destroyed property and beat people. He asserted that he received threatening phone ca lls from Jeunes after the attack. In September 2006, the group came looking for Pierre a g a in . When they did not find him at home, they attacked his wife and children and th re a te n e d to kill Pierre. Pierre did not report this attack to the police. In November 2 0 0 6 , Jeunes came to his front door and called to him and Pierre ran out the back door. The group beat his family again. A.R. at 193-201.

There is no clear description of Lavalas in the record. In his asylum application, P ie rre stated that Aristide, the former president, was the leader of the members of L a v a la s . A.R. at 278. He also stated that Lavalas was part of the coalition government. A.R. at 271. At his hearing, he testified that the group wanted the return of Aristide. A.R. at 213. 2

1

Case: 09-4065

Document: 003110284800

Page: 3

Date Filed: 09/16/2010

T h e IJ thoroughly discussed the evidence submitted and concluded that Pierre had n o t provided corroborative evidence or evidence of country conditions to support his c la im . The IJ determined that Pierre had not established that the government of Haiti was u n w illin g or unable to control the man Pierre named as his persecutor. The IJ noted that P ie rre had not given the police the name of his persecutor even though he knew him. The IJ also found that Pierre had failed to show that the persecution would exist throughout H aiti. The IJ believed that the attack on Pierre was not a political act and that Pierre's re f u sa l to join them was not an expression of political opinion. The IJ concluded that P ie rre had not claimed that he feared torture by any public official. Thus, the IJ denied P ie rre relief. T h e BIA dismissed Pierre's appeal. It agreed with the IJ that Pierre had not shown that the attack was on account of a protected ground. It concluded that his fear of future p e rs e c u tio n was undermined by the fact that his family remained in Haiti unharmed. As f o r his CAT claim, the BIA determined that Pierre had not shown it was more likely than n o t that he would be tortured by or with the acquiescence of the government. Pierre filed a timely petition for review. W e have jurisdiction under 8 U.S.C. § 1252. To establish eligibility for asylum, P ierre must demonstrate either past persecution or a well-founded fear of future p e rs e c u tio n in Haiti on account of race, religion, nationality, membership in a particular so cial group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.

3

Case: 09-4065

Document: 003110284800

Page: 4

Date Filed: 09/16/2010

2 0 0 5 ). For withholding of removal, he must demonstrate that it was more likely than not th a t his life would be threatened in Haiti on account of one of these protected grounds. T a rra w a lly v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003); 8 U.S.C. § 1231(b)(3)(A). To b e eligible for withholding of removal under the Convention Against Torture, he needs to d e m o n s tra te that it is more likely than not that he would be tortured if removed to Haiti. 8 C .F .R . § 1208.16(c)(2). We review the BIA's factual determinations under the s u b s ta n tia l evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en b a n c ). The BIA's findings are considered conclusive unless "any reasonable adjudicator w o u ld be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We exercise d e novo review over the BIA's legal decisions. Toussaint v. Att'y Gen., 455 F.3d 409, 4 1 3 (3d Cir. 2006). Pierre challenges the IJ's determination that he did not give police the name of his a ss a ila n ts and that this hindered the police in investigating the assault. He contends that th e police officer did not ask Pierre for this information and Pierre should not be held re sp o n s ib le for the police officer's failure. He points to his testimony that had he given th e police the name of the lead perpetrator, he would have to provide the names of the o th e r attackers whom he did not know. Because the BIA issued its own decision on the m e rits , we review its decision and not that of the IJ. Kaplun v. Att'y Gen., 602 F.3d 260, 2 6 5 (3d Cir. 2010). The BIA did not rely on the IJ's determination. Moreover, we agree w ith the IJ that Pierre's failure to name Smith Jeunes would hinder any investigation.

4

Case: 09-4065

Document: 003110284800

Page: 5

Date Filed: 09/16/2010

P ie rre also challenges the BIA's determination that he was not persecuted for p o litica l reasons. He contends there is no evidence to support the conclusion that his a tta c k ers were merely a gang. However, Pierre testified that he didn't want to join the g ro u p because of what they did: break and steal property, beat people, and create disorder a n d uprisings. A.R. at 195. While, in the most general sense, a preference for law and o rd e r over anarchy can be called a political viewpoint, Pierre has not shown that the re c o rd compels a finding that his political opinion was a primary reason he chose to avoid S m ith Jeune's group and was thus allegedly attacked. P ier re argues that the BIA erred in determining that his fear of returning to Haiti is d im in is h e d because his family has not been harmed since he left. He notes that he had b ee n gone from Haiti for less than two years at the time of his hearing while the alien's f a m ily in In re A-E-M-, 21 I. & N. Dec. 1157 (BIA 1998), the case cited by the BIA, had b ee n safe for over four years. He further asserts that the Lavalas group members were s e e k in g only him. However, Pierre testified that before he left Haiti, his family was b e a te n twice when the group came looking for Pierre and did not find him. We agree w ith the BIA that his family's continued safety undermines his claim of future p e rse c u tio n . Pierre has not shown that the record compels a finding that he has a wellf o u n d e d fear of future persecution. Furthermore, because he has not met the standard for a sylu m , Pierre cannot meet the higher standard for withholding of removal. Ghebrehiwot v . Att'y Gen., 467 F.3d 344, 351 (3d Cir. 2006).

5

Case: 09-4065

Document: 003110284800

Page: 6

Date Filed: 09/16/2010

W ith respect to his CAT claim, Pierre argues that the police effectively acquiesced to Pierre's torture by failing to take any action on the threats against Pierre. However, as n o te d above, Pierre failed to provide the police with information­Smith Jeune's name and ro le in the attack­that would have been helpful to an investigation. Pierre has not shown th a t the record compels a finding that he will likely be tortured if removed to Haiti. F o r the above reasons, we will deny the petition for review.

6