United States Court of Appeals
For the First Circuit
____________________
No. 97-1851
NICKEN FERGISTE,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Selya, Stahl and Lynch,
Circuit Judges.
____________________
David S. Clancy with whom Deborah E. Anker 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,
were on brief for respondent.
____________________
March 12, 1998
____________________ 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 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.
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
"attach‚s" 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
attach‚s 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 attach‚s
approached Fergiste and told him to cease associating with a
fellow Aristide supporter and to become an attach‚. 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 attach‚s
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.
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, 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. 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 (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 484. 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.
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 constitutes
legal error.
Second, even if we accept the INS's argument that the Board
implicitly applied a presumption of future persecution, the
Board's administrative notice of changed country conditions
did not suffice to show that Fergiste himself no longer had a
reasonable fear of future persecution. Abstract "changed
country conditions," do not automatically trump the specific
evidence presented by the applicant. Rather, changes in
country conditions must be shown to have negated the
particular applicant's well-founded fear of persecution. See8 C.F.R. 208.13(b)(1)(i); Vallecillo-Castillo v. INS, 121
F.3d 1237, 1240 (9th Cir. 1996); Osorio v. INS, 99 F.3d 928,
932-33 (9th Cir. 1996).
The only evidence in the record in support of the INS's
position were a 1994 advisory opinion letter from the State
Department, and a 1994 State Department Profile of Asylum
Claims and Country Conditions that discussed Haiti's
political and social conditions in generalized terms. For
his part, Fergiste presented a great deal of evidence
relating to his own specific circumstances. Such evidence
included a 1995 letter from the Deputy Representative of the
United Nations High Commissioner for Refugees stating that at
least seventy Aristide supporters had been murdered in the
two months following the United States intervention in Haiti;
a 1995 Reuters newswire story stating that a member of the
FNCD had been shot to death; and a 1995 report of the New
England Observers' Delegation to Haiti stating that political
assassinations and intimidation of Aristide supporters
persist. Indeed, Fergiste presented hundreds of pages of
documentary evidence that either contradicted the Board's
conclusions or placed them into question. Yet the Board
mentioned none of them in its analysis, nor did it discuss
how or whether Fergiste's particular situation may be
affected by the changed country conditions that it
recognized. That the Board ignored Fergiste's individual
situation is further supported by the fact that the Board's
majority opinion takes the heart of its analysis virtually
verbatim from the language of an earlier opinion, In Re E-P-,
No. 3311 (BIA Mar. 17, 1997), in which the Board denied the
petitioner's application for asylum on a finding of no past
persecution and changed country conditions. Thus, even
assuming that the Board implicitly applied a presumption of
future persecution, the Board's reliance on general changed
country conditions did not support its conclusion that
Fergiste's fear of personal persecution is no longer well-
founded.
Therefore, without determining whether the Board's rote
recitation of the earlier opinion and its failure to consider
Fergiste's individual situation in the context of the changed
country conditions violated Fergiste's procedural due process
rights, we conclude as a matter of law that, because the INS
did not rebut the presumption of future persecution once a
majority of the Board had found past persecution, Fergiste is
statutorily eligible for asylum. See Vallecillo-Castillo,
121 F.3d at 1240; Prasad v. INS, 101 F.3d 614, 617 (9th Cir.
1996) (determining that the INS had not rebutted the
presumption of future persecution, even though the Board had
not reached that issue). It remains to be determined,
however, whether Fergiste is entitled to asylum as a matter
of the discretion of the Attorney General. See Ravindran v.
INS, 976 F.2d 754, 758 (1st Cir. 1992); see also 8 U.S.C.
1158(b)(1) (granting discretion to the Attorney General). We
thus remand to the IJ to determine, in the exercise of
discretion on behalf of the Attorney General, whether to
grant Fergiste's application for asylum.
We next address Fergiste's withholding of deportation claim.
Section 243(h)(1) of the INA, 8 U.S.C. 1253(h)(1), provides
that "[t]he Attorney General shall not deport or return any
alien . . . if . . . such alien's life or freedom would be
threatened." An applicant's deportation must be withheld if
he or she establishes that "it is more likely than not that
he or she would be persecuted on account of race, religion,
nationality, membership in a particular social group, or
political opinion." 8 C.F.R. 208.16(b)(1); see INS v.
Stevic, 467 U.S. 407, 429-30 (1984). To be entitled to
withholding of deportation, then, an applicant must
demonstrate "a clear probability of persecution," see Stevic,
467 U.S. at 413, a stricter standard than the "well-founded
fear of persecution" required to obtain asylum eligibility.
However, some forms of past persecution trigger a regulatory
presumption that the applicant is entitled to withholding of
deportation. In particular, if the applicant is determined
to have "suffered persecution in the past such that his life
or freedom was threatened," the INS assumes the burden of
proving, by a preponderance of the evidence, that conditions
in that country have changed to the extent that "it is no
longer more likely than not that the applicant would be so
persecuted there." Id. 208.16(b)(2); Singh v. INS, 94 F.3d
1353, 1361 (9th Cir. 1996). Thus, although a finding of
general "past persecution" is sufficient to shift the burden
of proof under 8 C.F.R. 208.13(b)(1)(i) (the regulatory
standard for asylum eligibility), the Board must find that
the applicant's life or freedom has been threatened to shift
the burden of proof under 8 C.F.R. 208.16(b)(2) (the
regulatory standard for withholding of deportation).
Here, the Board's finding that Fergiste suffered past
persecution indicates that Fergiste is entitled to
withholding of deportation. To be sure, the concurring Board
member did not mention specifically anything about the nature
of the harm that he found Fergiste to have suffered.
Nonetheless, "[a] key factor in finding evidence sufficient
for withholding of deportation is whether harm or threats of
harm were aimed against petitioner specifically," Gonzales-
Neyra v. INS, 122 F.3d 1293, 1297 (9th Cir. 1997) (internal
citation omitted). We thus determine that the concurring
opinion's finding of past persecution, supplemented by the
evidence in the record of particularized harm, demonstrate
that Fergiste's life or freedom, or both, had been
threatened. This conclusion is supported by the fact that
the distinction between the asylum eligibility and
withholding of deportation standards regarding past harm has
played no role in cases that have considered both provisions.
See, e.g., Vallecillo-Castillo, 121 F.3d at 1240 ("Because we
find that petitioner has suffered past persecution, we also
find that petitioner is entitled to a presumption 'that his
life or freedom would be threatened' if deported . . . .");
Singh v. Ilchert, 69 F.3d 375, 381 (9th Cir. 1995); Singh v.
Ilchert, 63 F.3d 1501, 1510 (9th Cir. 1995).
The INS thus had the burden of showing that it is no longer
more likely than not that the persecution would resume if
Fergiste were to return to Haiti. See 8 C.F.R.
208.16(b)(2). As discussed above, the general evidence that
the INS presented does not rebut this presumption. We
therefore hold that petitioner was entitled to withholding of
deportation.
Finally, in response to our brother's disagreement with our
decision to reverse, rather than to remand, the asylum and
withholding of deportation issues, we note that, although
courts have seen fit to order a remand for further
factfinding in cases in which the Board failed to apply the
presumption of future persecution, see Osorio, 99 F.3d at
932-33; Singh, 94 F.3d at 1361, that course is not necessary
in this case. In Osorio and Singh, the Board had erroneously
concluded that the applicants had not suffered past
persecution. See Osorio, 99 F.3d at 931-33; Singh, 94 F.3d
at 1360-61. In Singh, the Board failed to reach the issue of
whether the INS had rebutted the presumption because it had
incorrectly found that the applicant had not suffered past
persecution; the remand allowed the Board to consider this
issue for the first time. See 94 F.3d at 1360-61. In
Osorio, a remand was necessary both to address what the court
viewed as an insufficiently reasoned credibility
determination against the applicant and to reconsider the
issue of the presumption if it found the applicant credible.
See 99 F.3d at 932-33.
In Fergiste's case, by contrast, the Board did find past
persecution, but erroneously regarded itself as bound to
reject his application for asylum on the basis of changed
country conditions. If the Board had instead applied the
regulation, the regulation would have required the Board to
grant Fergiste's application for withholding of deportation
and to find him eligible for asylum because the INS had
failed to present individualized evidence rebutting the
presumption. This court would have affirmed such a decision,
for which there was "substantial evidence." A remand at this
stage would permit the INS to argue its case against Fergiste
a second time only because the Board failed to comply with
its own regulations. Such an opportunity would allow the
agency to benefit from its own error at the expense of
Fergiste, and we do not feel that the government is entitled
to a second bite of the apple in the circumstances of this
case.
In light of the foregoing discussion, we reverse the Board's
denial of asylum and withholding of deportation. Because
asylum is granted at the Attorney General's discretion, we
remand that portion of the case for such a determination.
- dissent follows - SELYA, Circuit Judge (concurring in part and dissenting in
part). I concur wholeheartedly in the majority's conclusion
that the Board member who authored the pivotal opinion
committed a legal error that undermines the Board's decision.
If the majority opinion stopped there vacating the Board's
decision and remanding for a further hearing I would be
content. But the majority presses on, deciding for itself
that Fergiste has a well-founded fear of future persecution
should he return to his homeland. That determination is both
fact-sensitive and time-sensitive, and, in my view, ought to
be made by the Board on a full record, not gleaned by an
appellate court from bits and pieces of an administrative
record that has produced an inharmonious cacophony of rulings
by three members of the BIA. The case law, while less than
crystalline, supports this position. See, e.g., Osorio v.
INS, 99 F.3d 928, 932-33 (9th Cir. 1996) (holding that
"[f]ailure to recognize the existence of a presumption in
[petitioner's] favor much less to rebut that presumption in
an individualized manner constitutes an abuse of discretion
requiring remand") (emphasis supplied); Singh v. INS, 94 F.3d
1353, 1361 (9th Cir. 1996) (holding that "because the BIA
never applied the regulatory presumptions, we think it
appropriate to remand"); Tarvand v. INS, 937 F.2d 973, 977
(4th Cir. 1991) ("When an alien's request for asylum has been
erroneously evaluated by application of the [wrong legal
standard], remand is appropriate.").
To be sure, in some cases the record may be so pellucid that
remand would be an empty exercise. But, I see no indication
that this is such a case. Though the petitioner probably
could not put forth any additional proof, I have every reason
to believe that, in this very fluid situation, the INS might
well bring forward material evidence to rebut the presumption
that operates in Fergiste's favor. In my judgment, this
uncertainty necessitates a more open-ended remand than the
majority is willing to grant.
The majority notes that a more open-ended remand would give
the INS an opportunity to muster evidence to rebut the
presumption in favor of the petitioner. Fair enough but it
will also serve to document the true state of affairs. In
the last analysis, the fact that the parties will have a
second bite of the apple is a byproduct of virtually all
remand orders that entail further factfinding, and thus, not
entitled to much weight. If the BIA believes the record is
adequate to permit a principled decision, that is their call
to make - not ours.
Because the court takes too much upon itself, and leaves too
little to the Board, I respectfully dissent from so much of
the opinion as forecloses the INS from attempting to show
that Fergiste has no legally sufficient basis for a well-
founded fear of future persecution should he be returned to
Haiti.