No. 98-576
In the Supreme Court of the United States
OCTOBER TERM, 1998
GUEHENNO LABORDE, PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE
AND UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
DONALD E. KEENER
LINDA S. WENDTLAND
ELIZABETH A. WELSH
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals correctly upheld the Board of Immigration Appeals'
conclusion that petitioner failed to meet his burden of proving eligibility
for asylum and withholding of deportation.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-576
GUEHENNO LABORDE, PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE
AND UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-15a) is unpublished, but
the decision is noted at 145 F.3d 1325 (Table). The opinions of the Board
of Immigration Appeals (Pet. App. 16a-29a) and the immigration judge (Pet.
App. 30a-40a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on May 6, 1998. A petition
for rehearing was denied on July 6, 1998 (Pet. App. 41a-42a). The petition
for a writ of certiorari was filed on October 5, 1998 (a Monday). The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Petitioner challenges the court of appeals' denial of his petition for review
of a decision of the Board of Immigration Appeals (Board). Pet. App. 1a-15a.
The Board dismissed petitioner's appeal from a decision of an immigration
judge (IJ) denying his application for asylum and withholding of deportation.
Id. at 16a-29a.
1. Petitioner, a native and citizen of Haiti, tried to enter the United
States using fraudulent documentation. The Immigration and Naturalization
Service (INS) apprehended him and charged him with being excludable for
(1) fraudulently or willfully misrepresenting a material fact in seeking
to procure entry into the United States, in violation of 8 U.S.C. 1182(a)(6)(C)(i)
(Supp. IV 1992), and (2) being an immigrant who, at the time of application
for admission, was not in possession of a valid unexpired immigrant visa
or other valid entry document, and a valid unexpired passport or other travel
document, in violation of 8 U.S.C. 1182(a)(7)(A)(i)(I). Pet. App. 2a-3a;
Admin. R. 819-820.
After being found excludable, petitioner sought asylum and withholding of
deportation. He claimed to have suffered past persecution, and to have a
well-founded fear of future persecution, in Haiti on account of his political
opinion and membership in various social groups. Pet. App. 3a; Admin. R.
150-152, 708-714. To support his claim, petitioner testified about several
incidents that took place during the fall of 1993, while he was living with
his aunt in Port-au-Prince and working at her grocery store. According to
petitioner, members of the Front for the Advancement of Progress of Haiti
(FRAPH) sent letters to many young men in his neighborhood-including him-explaining
that it wanted to create an office in the area and that it sought the support
of the youth. Pet. App. 4a; Admin. R. 173, 176, 179-180. Two weeks later,
members of FRAPH came to the store, seeking petitioner's response to the
letter. Pet. App. 4a-5a; Admin. R. 182-183. Petitioner said he responded
by giving the FRAPH members a sealed envelope containing $30; he explained
that by giving the men money, he implicitly refused to join FRAPH. Pet.
App. 5a; Admin. R. 183, 204-205, 220. The men left the store without opening
the envelope and never returned. Admin. R. 183.
The next week, two unidentified men appeared at petitioner's aunt's house
on two consecutive evenings looking for him, but he was not home. Pet. App.
5a; Admin. R. 183-184. Petitioner believed the men were members of FRAPH,
although he admitted he was not certain. Pet. App. 5a; Admin. R. 184. Fearing
what would happen if FRAPH found him, petitioner went into hiding and moved
from place to place for three months. Finally, he decided to enter the United
States using fraudulent documents. Pet. App. 5a; Admin. R. 184-187. Petitioner
also testified that after he left Haiti, FRAPH members went to his parents'
residence, asked for him, and then "ransacked" the house. Pet.
App. 5a; Admin. R. 190-191. Based on those experiences, petitioner claimed
that he suffered past persecution and has a well-founded fear of future
persecution on account of his political opinion.
Petitioner filed his asylum application in May 1994, along with hundreds
of pages of general documentary evidence regarding the political conditions
in Haiti. Admin. R. 708-714, 236-777. Significantly, in his asylum application,
petitioner stated that he refused to join FRAPH for religious reasons. Id.
at 709. He also stated that, while in Haiti, the only politically motivated
action he took was to vote for President Aristide; he did not claim that
FRAPH members were aware of his vote. Pet. App. 4a; Admin. R. 201. After
petitioner left Haiti, President Aristide returned to power. Pet. App. 6a;
Admin. R. 168, 217.
2. In May 1995, the IJ denied petitioner's application for relief, concluding
that he did not satisfy the statutory requirements for asylum or withholding
of deportation. Pet. App. 33a-39a. The IJ ruled that petitioner suffered
no past persecution and did not have a well-founded fear of future persecution
on account of his political opinion. Id. at 36a. The IJ was "not convinced
that members of FRAPH perceive [petitioner] as an opponent and would wish
to harm him." Id. at 38a. The IJ specifically rejected petitioner's
assertion that providing financial support to FRAPH indicated opposition
to that group. Id. at 36a. The IJ also expressed doubt that the attack on
petitioner's family had anything to do with him, commenting that robbery
is a frequent occurrence in Haiti. Id. at 39a. Finally, the IJ noted the
significant changes in the government of Haiti since petitioner came to
the United States, and concluded that even if petitioner could have shown
he suffered past persecution, he was not entitled to asylum in light of
Haiti's changed country conditions. Ibid.
3. In November 1996, the Board dismissed petitioner's appeal of the IJ's
decision, holding that petitioner did not show either past persecution or
a well-founded fear of future persecution in Haiti. Pet. App. 24a-29a. The
Board applied the holding of INS v. Elias-Zacarias, 502 U.S. 478 (1992),
that forced recruitment and reprisals for resisting recruitment do not by
themselves constitute persecution on account of political opinion. Pet.
App. 24a. The Board rejected petitioner's past persecution claim because
he did not establish that either FRAPH's initial recruitment efforts or
its subsequent actions were motivated by his political opinion, as distinguished
from FRAPH's desire to increase its membership. Ibid. The Board found it
significant that FRAPH sought to recruit all of the local youth; that petitioner
did not allege that the initial overtures that FRAPH made toward him were
any different than those made toward other young people; and that petitioner
did not claim that FRAPH was aware of his political opinion, except for
the fact that he lived in an allegedly pro-Aristide area. Id. at 25a.
The Board also held that petitioner did not demonstrate a well-founded fear
of future persecution should he return to Haiti. Pet. App. 26a-29a. Much
of the evidence indicated significant improvements in human rights conditions
in Haiti since multi-national forces secured President Aristide's return
to power in 1994. Id. at 26a-27a. Although petitioner might have a genuine
subjective fear, the Board held that it was not well-founded given the changed
conditions in Haiti. Id. at 29a. For those reasons, the Board dismissed
the appeal.
4. The court of appeals denied petitioner's petition for review in an unpublished
order, ruling that the Board's decision was supported by substantial evidence.1
Pet. App. 10a-11a. Petitioner argued that the Board ignored evidence that
FRAPH imputed a pro-Aristide political opinion to him because he was an
educated young man working and living in a pro-Aristide neighborhood who
refused to join FRAPH. Id. at 9a. Therefore, he claimed, he suffered past
persecution and has a well-founded fear of future persecution by FRAPH based
on his political opinion. Id. at 9a-11a. The court of appeals rejected that
argument, stating that the record is "particularly lacking of probative
evidence that FRAPH sought to persecute him on account of his political
opinion prior to his fleeing Haiti or that it would seek to persecute, [sic]
him on account of his political opinions if he returned to Haiti."
Id. at 11a. The court pointed to four factors in support of its conclusion:
(1) petitioner admitted that neither he nor his family was politically active
in Haiti; (2) there was no evidence that his family became politically active
after he left; (3) there was no evidence that FRAPH knew that petitioner
voted for Aristide in the 1990 presidential election; and (4) his resistance
to FRAPH's recruitment efforts did not, without more, compel the conclusion
that subsequent adverse actions taken against him were on account of his
political opinion. Ibid. In the absence of evidence that FRAPH sought to
recruit solely Aristide supporters, the court of appeals concluded that
the Board drew the permissible inference that FRAPH's recruitment efforts
were conducted without regard to petitioner's political opinion. Id. at
14a.
5. A petition for rehearing was denied on July 6, 1998. Pet. App. 41a-42a.
ARGUMENT
Petitioner argues that the court of appeals' decision: (1) improperly required
him to present direct evidence of FRAPH's motives, contrary to INS v. Elias-Zacarias,
502 U.S. 478 (1992); Sangha v. INS, 103 F.3d 1482, 1490 (9th Cir. 1997);
and Balasubramanrim v. INS, 143 F.3d 157, 164-165 n.10 (3d Cir. 1998); (2)
disregarded record evidence and required him to disprove all adverse inferences
that could be drawn; and (3) is inconsistent with international norms, and
the United Nations High Commissioner for Refugees, Handbook on Procedure
and Criteria for Determining Refugee Status Under the 1951 Convention and
the 1967 Protocol to the Status of Refugees (Jan. 1988) (UNHCR Handbook).
Those contentions are meritless, and the unpublished decision of the court
of appeals does not warrant review by this Court.
1. Contrary to petitioner's argument, the Fourth Circuit's decision does
not conflict with either INS v. Elias-Zacarias, 502 U.S. 478 (1992), or
subsequent circuit court decisions.
In Elias-Zacarias, the Court considered whether forced conscription into
a guerrilla group-or suffering retaliation for resisting recruitment-is
sufficient by itself to establish persecution on account of political opinion.
The Court concluded that it is not, because "[e]ven a person who supports
a guerrilla movement might resist recruitment for a variety of [non-political]
reasons." 502 U.S. at 482. The Court ruled that an applicant seeking
asylum must show that the guerrilla group is motivated by his political
opinion, rather than by a desire to fill its ranks. Ibid. Finally, the Court
held that although an applicant need not present direct proof of the persecutor's
motive, "since the statute makes motive critical, he must provide some
evidence of it, direct or circumstantial." Id. at 483. Importantly,
the Court stressed that Board decisions are entitled to great deference,
and that to obtain judicial reversal of a Board decision, an applicant "must
show that the evidence he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution." Id.
at 483-484.
Consistent with Elias-Zacarias, the Fourth Circuit held in this case that
it "[could not] reverse the Board unless the evidence cited by [petitioner]
is such that no reasonable fact finder could fail to find that FRAPH imputed
pro-Aristide political opinions to [petitioner], and sought to persecute
him on account of those political opinions." Pet. App. 14a. The court
acknowledged that petitioner offered evidence that FRAPH tended to view
students of petitioner's education level as Aristide supporters, but ruled
that that evidence "is simply too general to compel such a finding
[of persecution]." Id. at 13a-14a. The court continued: "In the
absence of evidence that FRAPH sought to swell its ranks solely with pro-Aristide
recruits, the Board drew a permissible inference that FRAPH conducted recruitment
efforts without regard to the actual political opinions of a potential individual
recruit. For the same reason, the evidence does not compel a finding that
FRAPH's subsequent actions with respect to [petitioner] were on account
of [his] political opinions rather than simply his unwillingness to join
FRAPH." Id. at 14a.
Petitioner contends that the court of appeals required him to present "specific
and direct evidence of the FRAPH's motivation" (Pet. 13), and that
such a requirement conflicts with Elias-Zacarias's holding that either direct
or circumstantial evidence is sufficient. 502 U.S. at 483. Specifically,
petitioner argues that by asking him to present evidence that FRAPH "sought
to swell its ranks solely with pro-Aristide recruits," the Fourth Circuit
required specific (and, presumably, direct) proof of FRAPH's motives. Pet.
13-14. Petitioner misreads the court of appeals' opinion. The court of appeals
was commenting about a lack of evidence of any sort compelling reversal
of the Board when it commented on the "absence of evidence that FRAPH
sought to swell its ranks solely with pro-Aristide recruits." Pet.
App. 14a. The Fourth Circuit did not hold that petitioner was required to
present "direct" evidence of FRAPH's motives for recruiting him
in particular. Rather, the court carefully followed the Court's guidance
in Elias-Zacarias and considered petitioner's circumstantial evidence.
Petitioner complains (Pet. 15) that the Fourth Circuit should have given
more weight to third-party reports indicating that FRAPH often imputed pro-Aristide
sentiments to people like petitioner, and thus should have inferred that
petitioner was forcibly recruited based on that imputed political opinion.
However, "petitioner must prove something more than violence plus disparity
of views." Sangha, 103 F.3d at 1487. And Elias-Zacarias makes clear
that petitioner must do more than prove that he had a political opinion-he
must offer evidence that FRAPH "will persecute him because of that
political opinion, rather than because of his refusal to fight with them."
502 U.S. at 483.
Furthermore, even if the evidence were adequate to support the conclusion
he would draw, petitioner would not be entitled to reversal. Given the applicable
deferential standard of review, the evidence must "not only support[]
that conclusion, but compel[] it." Elias-Zacarias, 502 U.S. at 481
n.1; see also id. at 483-484 (petitioner "must show that the evidence
he presented was so compelling that no reasonable factfinder could fail
to find the requisite fear of persecution."). Here, the court of appeals
properly held that the evidence-including the circumstantial evidence-did
not compel a finding that FRAPH's recruitment efforts were motivated by
petitioner's political opinion rather than by a general desire to fill its
ranks. See id. at 483 (finding failure to establish requisite motivation
"with the degree of clarity necessary to permit reversal of a [Board]
finding to the contrary.").
Petitioner suggests that the decision below conflicts with Sangha, supra,
and Balasubramanrim, supra. In Sangha, the Ninth Circuit held that a finding
of political persecution could be justified "when there is no other
logical reason for the persecution." 103 F.3d at 1490. Presumably,
petitioner believes that there is no logical reason for FRAPH to seek his
recruitment other than because of his political opinion. This Court rejected
that exact conclusion in Elias-Zacarias. See 502 U.S. at 482 (guerrilla
groups may forcibly recruit members for the purpose of filling their ranks).
The Third Circuit's decision in Balasubramanrim likewise does not conflict
with the Fourth Circuit's decision in this case. Petitioner relies on a
footnote in Balasubramanrim stating that "persecution may be on account
of a political opinion the applicant actually holds or on account of one
the foreign government has imputed to him." Pet. 10 (citing 143 F.3d
at 164-165 n.10). But the court in this case did not reject the concept
of "imputed" political opinion. Moreover, even the court in Balasubramanrim
noted that an applicant to whom a political opinion is imputed must show
that the group at issue targeted him on account of that imputed opinion.
See 143 F.3d at 164-165 n.10.
The court of appeals' decision is consistent with Elias-Zacarias and subsequent
circuit authority, since it did not exclude circumstantial evidence and
it applied the proper, deferential standard of review to the Board's decision.
Further review by this Court therefore is unwarranted.
2. Petitioner argues that the court of appeals disregarded record evidence
and required him to disprove all adverse inferences that could be drawn.
Pet. 13-15. Determining whether petitioner produced sufficient record evidence
of FRAPH's motivation involves the sifting and weighing of evidence, and
does not present a novel or unsettled question of federal law worthy of
this Court's review. In any event, petitioner is mistaken; the court of
appeals did consider the third-party reports. See Pet. App. 13a. The Fourth
Circuit, moreover, did not require petitioner to disprove all adverse inferences;
it merely held that he did not present compelling evidence that would allow
it to reverse the "permissible inference" drawn by the Board.
Id. at 14a.
3. According to petitioner, the court of appeals' supposed requirements
that "all inferences must be drawn against the applicant," and
that he must produce "direct evidence" to satisfy his burden,
conflict with "the international norms as expressed by the UNHCR"
Handbook. Pet. 16, 17. Petitioner's argument fails on several grounds. First,
as explained above, the court of appeals did not create a "requirement
of direct evidence." Pet. 17. Also, the court did not hold that all
inferences must be drawn against the applicant. Instead, the court simply
held that petitioner failed to offer evidence that would suffice to compel
a reversal of either the Board's inferences or its ultimate conclusion.
The court of appeals is not bound by the UNHCR Handbook in any event. See
INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987) ("We do not suggest,
of course, that the explanation in the U.N. Handbook has the force of law
or in any way binds the INS with reference to the asylum provisions of §
208(a). Indeed, the Handbook itself disclaims such force, explaining that
'the determination of refugee status under the 1951 Convention and the 1967
Protocol . . . is incumbent upon the Contracting State in whose territory
the refugee finds himself.'"). Here, the court of appeals properly
relied on the holding of Elias-Zacarias, 502 U.S. at 482-483, that an alien
must demonstrate that the persecution he faced was on account of his political
opinion, rather than on account of a guerrilla group's general desire to
fill its ranks. Pet. App. 11a-14a. To the extent the UNHCR Handbook contradicts
that holding, it must be disregarded. See Cardoza-Fonseca, 480 U.S. at 439
n.22.2
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
DONALD E. KEENER
LINDA S. WENDTLAND
ELIZABETH A. WELSH
Attorneys
DECEMBER 1998
1 In the court of appeals, petitioner abandoned his claims of persecution
based on his membership in the various social groups cited to the Board;
he did argue that he feared persecution based on his membership in the "social
group" of "draft age men." Pet. App. 10a n.5, 22a. However,
because he had not raised that claim before the Board, the court of appeals
held that it lacked jurisdiction to consider it. Id. at 10a n.5. Only petitioner's
claim of persecution on account of political opinion is before this Court.
2 As the court of appeals noted in its decision, petitioner is a beneficiary
of the directive signed by President Clinton on December 23, 1997, deferring
for one year the enforced departure of certain Haitians who were paroled
into the United States or applied for asylum in the United States prior
to December 31, 1995. Pet. App. 15a n.7. Also, on October 21, 1998, President
Clinton signed into law the Omnibus Budget Bill, Pub. L. No. 105-277. See
144 Cong. Rec. H11,044, H11,190 (daily ed. Oct. 19, 1998). Title IX, 144
Cong. Rec. H11,190-H11,191, entitled "The Haitian Refugee Immigration
Fairness Act of 1998" (HRIFA), establishes procedures for granting
amnesty to certain Haitians who can prove, inter alia, that they are otherwise
admissible to the United States. The new law grants an exception from several
grounds of inadmissibility, including one that is applicable to petitioner,
Immigration and Nationality Act (INA), § 212(a)(7)(A), 8 U.S.C. 1182(a)(7)(A).
144 Cong. Rec. H11,044, H11,190. Petitioner does not appear to be eligible
for HRIFA relief, however, because he is also inadmissible under INA §
212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(c)(i) (Supp. IV 1992).