Guillaume v. Gonzales

504 F.3d 68, 2007 U.S. App. LEXIS 22823, 2007 WL 2792902
CourtCourt of Appeals for the First Circuit
DecidedSeptember 27, 2007
Docket06-1547
StatusPublished
Cited by13 cases

This text of 504 F.3d 68 (Guillaume v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guillaume v. Gonzales, 504 F.3d 68, 2007 U.S. App. LEXIS 22823, 2007 WL 2792902 (1st Cir. 2007).

Opinion

LIPEZ, Circuit Judge.

Appellant Frantz Guillaume entered the United States illegally and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). After both the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) rejected his claims, Guill-aume appealed. After careful consideration of the record, we conclude that we lack jurisdiction over his asylum claim, the CAT claim was abandoned, and the BIA’s rejection of the withholding of removal claim was supported by substantial evidence.

I.

Appellant, a Haitian citizen, lived with his wife and children outside of Port-au-Prince and worked as a school teacher until 2000. He claims that he continued living there through May 2003, and operated a small convenience store out of his home, but he has no documentation of his residence dated after 2000. In 1999, appellant joined a political party, MOCHRENA, that opposed the then-governing Lavalas party. 1 He served as a local delegate for MOCHRENA and participated in party meetings.

Appellant claims that he suffered numerous instances of “persecution” as a result of having switched his party affiliation. The day after an anti-Aristide demonstration on December 17, 2001, appellant’s house was partially burned. Appellant and his family escaped the fire without injury, and the fire department was able to quell the flames in time to save two rooms of the house. Appellant attributes the fire to Aristide sympathizers. On March 22, 2002, appellant participated in another demonstration which led to violence, where he claims he was beaten and badly injured. A friend, who participated in the same demonstration, was killed. As a result of this violence, appellant was afraid to return to his home and opted instead to spend seven months at a friend’s house in the town of Gonaives.

Upon his return to Port-au-Prince, appellant resumed his political activities. He alleges that two police officers, with whom he had been friends prior to joining MOCHRENA, threatened him repeatedly and told him to leave the country. He says that he took these threats seriously because he believed the same officers had participated in the murder of his friend. He does not claim that either officer ever physically harmed him, but contends that had he returned home, they would have likely done so.

In May 2003, appellant claims that he received two warrants instructing him to appear before a judge. Believing that compliance would likely result in his arrest, he chose to leave Haiti instead. Af *71 ter returning to his friend’s house in Go-naives, he boarded a boat he believed was headed to Miami. The boat took him to St. Thomas, in the U.S. Virgin Islands, where he claims he stayed for about a month. In St. Thomas, he was introduced to a man who assisted him with an application for political asylum. He then traveled to Boston in July 2003.

Appellant appeared before an IJ in October 2004 and testified to the facts described above. He provided a number of documents showing his residence in Haiti prior to 2000, including his marriage certificate and his children’s birth certificates. However, he presented only one document purporting to show that he remained in Haiti after 2000. This was a letter from his church stating that he had attended a church meeting in Haiti on May 31, 2003. A friend also testified that he had spoken to appellant via telephone in June 2003, and that he could tell that the call originated in Haiti.

Under the Immigration & Naturalization Act (“INA”), an asylum applicant is required to “demonstrate!] by clear and convincing evidence that the application has been filed within 1 year after the date of the [applicant’s] arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). The only means of avoiding this requirement is to persuade the Attorney General that “extraordinary circumstances” or changed conditions justified the delay. Id. § 1158(a)(2)(D). The IJ ruled that appellant had failed to carry his burden of proof as to his arrival date in the United States. Relatedly, the IJ found that appellant was time-barred from applying for asylum because he deemed appellant’s testimony regarding his travel to the United States excessively vague and inconsistent; he was unpersuaded by the corroborating witness’ testimony; and he found the church letter to be a fabrication.

Alternatively, the IJ held that appellant had failed to demonstrate that a reasonable person in his situation would have a well-founded fear of persecution upon returning to Haiti. The IJ did not credit appellant’s claims about past persecution, finding no evidence that the fire was connected to his political beliefs, that appellant was injured at the March 2002 rally, or that the two warrants he received in May 2003 were politically motivated. The IJ stated that these claims of past persecution were insufficient to create a rebutta-ble presumption of future persecution.

Additionally, the IJ found that appellant had not shown why he could not return to Haiti and live outside of Porb-au-Prince. This finding was based on appellant’s testimony that on two separate occasions, after feeling unsafe at his home in Port-au-Prince, he stayed with a friend in Go-naives, where he experienced no threats or violence. The IJ also found that there was insufficient evidence that any of the past harms suffered by appellant were caused by his political party affiliation. Finally, the IJ stated that appellant had not sufficiently demonstrated that the changes in country conditions in Haiti had been inadequate to mitigate his fears of persecution. On all of these bases, the IJ held that “the evidence is lacking to establish a well-founded fear of persecution, a clear probability of persecution, [or] that the authorities would ever detain this respondent and subject him to torture.” Therefore, all three claims for relief were denied. 2

*72 On appeal, the BIA affirmed and adopted the IJ’s decision, adding only that appellant had not provided evidence of any exceptional circumstances that would excuse his failure to timely file an application for asylum.

Where the BIA adopts an IJ’s decision, we review the relevant portion of the IJ’s opinion as though it were the decision of the BIA. Stroni v. Gonzales, 454 F.3d 82, 86-87 (1st Cir.2006). We reverse findings of fact only if they are unsupported by substantial evidence, meaning that a reasonable fact finder reviewing the entire record would be compelled to conclude to the contrary. Id. at 87.

II.

The INA bars any court from exercising jurisdiction over a determination by the Attorney General regarding the satisfaction of the timeliness requirement for asylum applications. 8 U.S.C. § 1158(a)(3); see also Stroni, 454 F.3d at 87; Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005).

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504 F.3d 68, 2007 U.S. App. LEXIS 22823, 2007 WL 2792902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillaume-v-gonzales-ca1-2007.