Rose Daniele Brutus v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 17, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-12392
Non-Argument Calendar
________________________
Agency No. A097-934-505
ROSE DANIELE BRUTUS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 17, 2010)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Petitioner Rose Daniele Brutus (“Brutus”), a native and citizen of Haiti,

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seeks review of a decision by the Board of Immigration Appeals (“BIA”) denying
her application for asylum, withholding of removal under the Immigration and
Nationality Act (“INA”), and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”). After careful review of the record, we DENY her petition for review.
I. BACKGROUND
Brutus was admitted from Haiti to the United States in August 2003 as a
nonimmigrant visitor with authorization to remain in the United States until 13
February 2004. She overstayed her visa and was subsequently served with a notice
to appear, charging her with removability under INA § 237(a)(1)(B). After
conceding removability, Brutus filed for asylum and withholding of removal based
on her political opinion.
An evidentiary hearing was held in August 2006 at which Brutus submitted
evidence and testified as follows. Brutus did not affiliate with any political group
while living in Haiti. In 1999, her father joined the Assembly for Patriotic
Citizens, a political party that opposed the Lavalas. In May 2000, the Lavalas1
threw stones at a group of demonstrators, including Brutus’ father, who were
protesting the outcome of a mayoral election. In December 2001, Brutus’ father
The Fanmi Lavalas is a political party that supported former President Jean-Bertrand1
Aristide.
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publicly denounced the Lavalas on national radio. In late January 2002, two
Haitian police officers attacked Brutus’ father and her sister at their home, and
detained both of them. Brutus did not witness this attack as she was at her
grandmother’s house. Brutus’ sister was released the next month, although Brutus’
father remained in custody until June 2002. Brutus believes that her father was
tortured during his detention.
While her father was incarcerated, three people ransacked Brutus’ house and
stole some jewelry in March 2002. Nobody was home at the time but Brutus
learned of the incident from neighbors. Brutus, along with her mother and brother,
went into hiding at her aunt’s house in Carrefour thereafter.
On 15 May 2002, two masked individuals followed Brutus after she left
church in Carrefour, pushed her against a wall, and asked her, “Are you the
daughter of Dr. Brutus, the person who is against the Lavalas?” Administrative
Record (“AR”) at 193-94, 212, 214. Based on that question, Brutus “knew that
they were Lavalas.” Id. at 214. Brutus denied being Dr. Brutus’ daughter. The
assailants slapped her but let her go after about ten minutes. Brutus did not testify
as to what injuries, if any, she sustained, although she admitted that she did not see
a doctor afterwards. Rather, her mother provided her with some “herbal traditional
medicine.” Id. at 223.
Five days later, Brutus relocated with her mother and brother to the
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Dominican Republic. They returned to Haiti a month later after learning that her
father might be released. Following her father’s release in June 2002, Brutus’
family relocated within Haiti from Port-Au-Prince to Thomazeau. Brutus’ father
did not return to politics again after his release from prison.
Almost a year later, in May 2003, Brutus’ brother was killed. Though
Brutus blamed the Lavalas for her brother’s death, she admitted she had no proof
of their involvement. Brutus also acknowledged that her brother had no
involvement with his father’s political group. After Gabriele’s death, Brutus’
family fled Thomazeau and settled in Delmas. Brutus left Haiti for the United
States three months later in August 2003.
Despite Haiti’s change in presidents, Brutus said she distrusts the new
government. She feared the Lavalas will attack her if she returns because of her
father’s former political membership. Brutus’ father and mother still live in Haiti.
Her sister, now married, resides in Connecticut.
The Immigration Judge (“IJ”) rendered an oral decision denying all relief
and ordering Brutus’ removal. On appeal, the BIA found the IJ’s findings of fact
and conclusions of law to be “inadequate” and consequently remanded the record
“for the preparation of a new decision by the Immigration Judge.” Id. at 107.
On remand, a new IJ reviewed the entire record, including additional
materials filed by Brutus consisting of newspaper articles and an affidavit from her
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uncle. The IJ then issued a written decision without holding a second merits
hearing. Specifically, the IJ found that Brutus was not credible due to
inconsistencies between her testimony, asylum application, asylum interview, and
her uncle’s affidavit. Even if Brutus were credible, the IJ concluded that she had
not suffered past persecution or established a well-founded fear of future
persecution. Accordingly, the IJ denied her application for asylum and
withholding of removal under the INA and the CAT.
The BIA dismissed Brutus’ appeal in April 2009. Although it deemed
Brutus credible, the BIA affirmed the IJ’s determination that she had not been
persecuted on account of her actual or imputed political opinion. The BIA
observed that her father had abandoned politics in 2002, she was not politically
active, and there was no objective evidence to show that her brother’s death was
politically motivated. The BIA also found insufficient evidence to establish that
her May 2002 attack or the March 2002 ransacking of her house were due to her
father’s political activities. Moreover, the BIA agreed with the IJ that Brutus could
have relocated with her family, and it concluded that circumstances in Haiti had
fundamentally changed with Mr. Aristide’s resignation. After denying relief on
her claims for asylum, withholding of removal and CAT relief, the BIA rejected
Brutus’ contention that the IJ violated her due process rights by not holding
another hearing. The BIA explained that its prior order did not mandate a new
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hearing or the taking of additional testimony. Given that Brutus failed to specify
what additional information she would have presented at a new hearing, the BIA
concluded that no prejudice had been shown.
In her petition for review, Brutus argues that she demonstrated past
persecution on account of an imputed political opinion, thereby entitling her to a
presumption of a well-founded fear of future persecution. She contends that she
cannot rely on Haiti’s new government for protection because the country remains
insecure and people like her continue to be killed. In addition to her claim for
asylum, Brutus challenges the BIA’s denial of withholding of removal under the
INA and the CAT. Finally, she reasserts her argument that the IJ violated her due
process rights by not holding another evidentiary hearing on remand.
II. DISCUSSION
We review only the BIA’s decision, as the BIA issued its own opinion and
set forth its own reasons for denying Brutus’ application. See Kueviakoe v. U.S.
Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009) (per curiam). The BIA’s legal
conclusions are subject to de novo review but its factual findings must be affirmed
if they are “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1254-55
(11th Cir. 2006) (per curiam) (quotation marks and citation omitted). This highly
deferential standard of review permits reversal of the BIA’s decision only when the
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record compels it. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th
Cir. 2005) (per curiam).
A. Claims for Asylum and Withholding of Removal under the INA and the CAT
An alien may be eligible for asylum if she presents credible evidence of past
persecution on account of her political opinion, or a well-founded fear that her
political opinion will cause future persecution. See id. at 1230-31. The alien’s
political opinion may be her actual opinion or an imputed one. See Al Najjar v.
Ashcroft, 257 F.3d 1262, 1286, 1289 (11th Cir. 2001). Here, Brutus claims that
she was persecuted based on her imputed political opinion. To prevail on her
claim, Brutus must show that “the persecutor falsely attributed an opinion to [her],
and then persecuted [her] because of that mistaken belief about [her] views.” Id.
at 1289 (quotation marks, brackets, and citation omitted).
Substantial evidence supports the BIA’s finding that Brutus failed to
establish that she was persecuted on account of her imputed political opinion.
Brutus contends that she suffered oppressive acts which cumulatively amounted to
persecution. These acts include the stoning of her father at the 2000 political
demonstration, the attack on her sister and father and their subsequent detention,
the ransacking of her home, and her brother’s death. Brutus was not present during
any of these incidents, however, and she admitted that she was not politically
active. The evidence thus does not support a finding that these acts were directed
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at Brutus on account of a mistaken belief as to her political views. See id.
Moreover, Brutus admitted she had no proof tying the Lavalas to the ransacking of
her house or to her brother’s death. The evidence surrounding those unfortunate
events is more consistent with acts of random criminal violence, which are
insufficient to establish persecution against Brutus based on her imputed political
opinion. See Ruiz, 440 F.3d at 1258 (“[E]vidence that either is consistent with acts
of private violence . . . , or that merely shows that a person has been the victim of
criminal activity, does not constitute evidence of persecution based on a statutorily
protected ground.”).
As for her May 2002 encounter with two masked individuals, the evidence
does not compel a reversal of the BIA’s finding that this incident was not due to
her father’s political activities. Brutus acknowledged that her assailants never
identified themselves as the Lavalas and that she only believed they were Lavalas
based on their questions to her. Nevertheless, even if we assumed the Lavalas did
accost her on account of her imputed political opinion, the incident lasted a brief
ten minutes and did not result in any injuries requiring medical attention. As such,
this incident did not rise to the level of persecution required by our precedent. See
Sepulveda, 401 F.3d at 1231 (noting that persecution is an “extreme concept,
requiring more than a few isolated incidences of verbal harassment or
intimidation”) (quotation marks and citation omitted); see also Kazemzadeh v. U.S.
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Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009) (concluding that no persecution
occurred where an alien was arrested, interrogated and beaten for five hours,
detained for four days, subsequently monitored by Iranian authorities, and forced
to appear before a university discipline committee and an Islamic court).
Accordingly, we agree with the BIA that Brutus did not demonstrate past
persecution on account of her imputed political opinion.
Brutus has also failed to establish a well-founded fear of future persecution
based on her imputed political opinion. This fear must be both subjectively
genuine and objectively reasonable. See Ruiz, 440 F.3d at 1257. Any fear Brutus
possessed was not objectively reasonable because, as the BIA observed, her father
has not been politically active since 2002 and Brutus’ parents remain unharmed in
Haiti. See id. at 1259 (concluding that a petitioner’s fear of relocation was
contradicted by his family’s continued safe residence in the country of removal).
Moreover, while a 2008 news article indicates that Haiti’s poor living conditions
remain among “the worst in the world,” the article also reports that “advances in
security and reducing crime have been notable, particularly in the capital, Port-au-
Prince.” AR at 93. According to the article, Haiti’s current president since 2006,
Rene Garcia Preval, has successfully reduced the “chronic instability and violence
in Haiti” with the help of thousands of international peacekeepers. Id. Other news
organizations similarly document that “kidnappings appear to have decreased,” and
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that the United Nations peacekeeping force has “begun to make headway in
controlling the insecurity there.” AR at 99, 102. Substantial evidence thus
supports the BIA’s findings that Haiti has undergone a fundamental change in
circumstances and that Brutus could have relocated with her family to another part
of her country.
Brutus rebuts these findings by arguing that her prior relocations within
Haiti only resulted in violence towards herself and family members. As previously
discussed, though, none of the incidents she testified about constituted persecution
against her based on her imputed political opinion. Accordingly, these same
incidents do not form a valid basis for an objectively reasonable fear of future
persecution. See Sepulveda, 401 F.3d at 1232 (concluding that petitioner could not
rely on a restaurant bombing and telephone threats to support an objectively
reasonable fear of persecution because those acts did not establish her persecution
on account of her political activity).
Based on the foregoing, we conclude that the record does not compel the
conclusion that Brutus was entitled to asylum. Because she failed to satisfy the
lower standard for asylum claims, we find no grounds to reverse the BIA’s
determination that she failed to establish her higher burden of proof for
withholding of removal under the INA or the CAT. See Al Najjar, 257 F.3d at
1292-93, 1303.
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B. Due Process Claim
Brutus also challenges the IJ’s failure to hold a second evidentiary hearing
upon remand. She contends that this violated her due process right to have a
meaningful opportunity to be heard. Because the BIA’s order remanded the case
“for further proceedings,” AR at 108, she submits that a second hearing was
required, especially given that the IJ made an adverse credibility finding in the
revised opinion. Brutus maintains that she was prejudiced by her inability to
present additional evidence showing why she could not return to Haiti.
We find this claim to be meritless. We agree with Brutus that aliens have a2
constitutional due process right to “a full and fair” opportunity to be heard prior to
their removal. Ibrahim v. U.S. Immigration and Naturalization Serv., 821 F.2d
1547, 1550 (11th Cir. 1987); see also Fernandez-Bernal v. Att’y Gen. of the U.S.,
257 F.3d 1304, 1310 n.8 (11th Cir. 2001). Brutus had this opportunity in her 2006
hearing, however, wherein she testified extensively as to her claims. Notably,
Brutus does not challenge the fairness of that hearing. Contrary to her contention,
the BIA’s remand order did not require a second hearing, as the BIA itself
explained in its 2009 decision. Rather, the BIA emphasized that “our decision to
remand this matter is tied to deficiencies in the Immigration Judge’s decision”
We review due process claims de novo. See Ali v. U.S. Att’y Gen., 443 F.3d 804, 8082
(11th Cir. 2006) (per curiam).
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related to the IJ’s insufficient factual findings and legal conclusions. AR at 107.
The remand “for further proceedings” thus did not mandate a new hearing but was
instead “necessary for the preparation of a new decision by the Immigration
Judge.” Id. at 107-08.
Moreover, we agree with the BIA that no prejudice has been shown by the
absence of another hearing. To prevail on a due process challenge, an alien must
show substantial prejudice – namely, that the outcome would have differed “in the
absence of the alleged procedural deficiencies.” Patel v. U.S. Att’y Gen., 334 F.3d
1259, 1263 (11th Cir. 2003). In this case, the IJ on remand considered all the
evidence admitted at the 2006 evidentiary hearing, plus further background
materials and an uncle’s affidavit that Brutus submitted in 2008. Brutus does not
specify what additional evidence she would have presented on remand, other than a
vague reference to her own “testimony . . . to update her claim of a well-founded
fear of future persecution.” Principal Brief for Petitioner at 26-27. This
speculative assertion is insufficient to demonstrate that the outcome of the
proceedings would have changed had a second hearing been held. Moreover,
given that the BIA did not affirm the IJ’s adverse credibility finding, that finding
had no consequence on the outcome of the case. Absent a showing of substantial
prejudice, Brutus’ due process claim must fail. See Patel, 334 F.3d at 1263;
Ibrahim, 821 F.2d at 1550.
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III. CONCLUSION
The record supports the BIA’s determination that Brutus was not entitled to
asylum based on her claims of persecution on account of her imputed political
opinion. Substantial evidence also supports the BIA’s denial of withholding of
removal under the INA or the CAT. Finally, we find no due process violation
occurred as a result of the IJ’s failure to hold another evidentiary hearing upon
remand of her case. We therefore DENY Brutus’ petition for review.
PETITION DENIED.
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