Suze Maindrond v. JOHN ASHCROFT, Attorney General

United States Court of Appeals
For the First Circuit
No. 03-2631
SUZE MAINDROND,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Lynch, Circuit Judges.
Stephen A. Lagana and Lagana & Associates on brief for
petitioner.
Julia Doig Wilcox, Senior Litigation Counsel, Office of
Immigration Litigation, Peter D. Keisler, Assistant Attorney
General, Civil Division, and David M. McConnell, Deputy Director,
on brief for respondent.
October 6, 2004

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LYNCH, Circuit Judge. Suze Maindrond, a Haitian, entered
the United States at Miami, Florida, on November 5, 2000, by
presenting a fraudulent passport. She requested asylum and was
referred to the Immigration Court for an asylum hearing. The
Immigration Judge (IJ) denied asylum, the Board of Immigration
Appeals (BIA) affirmed, and then denied a motion to reopen. She
now petitions for review of the denial of the motion to reopen. We
affirm the BIA.
I.
Maindrond's hearing before an IJ was held in Boston,
Massachusetts, on December 13, 2001. During the hearing, Maindrond
testified, through a translator, that she was born on January 22,
1961, in Lazile, Haiti. She and her brother were members of a
group called "Espace de Concertation" (Space for Consortation).
She testified that at some point in January of 2000 (she gave
conflicting dates), four people came to her house. Two of them
beat her brother while the other two beat her, and her brother was
eventually kidnaped. She testified that she escaped from the house
and ran away to Port-au-Prince, where she hid at her sister's
house. She claimed that the men who were after her were the
"Lavalas Party." She testified that after six months in Port-au-
Prince, she "knew that ... they were after [her] to hurt [her],
kill like [her] brother." She obtained a visa to go to St. Maarten

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and went there on July 4th; from there she then entered the United
States illegally.
The IJ, in an oral decision, denied Maindrond's
applications for asylum and withholding of removal. The IJ found
Maindrond's testimony about the incident in January "conflicting"
and "extraordinarily vague," and determined that she failed to
demonstrate past persecution. The IJ noted that there was no
corroborating evidence for Maindrond's purported activities in
Espace de Concertation and that she "had difficulty defining
exactly what it was she did with the political party." Maindrond's
written pleadings to the Immigration Court also applied for
protection under the Convention Against Torture (CAT). This claim
was not asserted at the hearing, and the IJ did not specifically
address it in the oral decision even though his summary of the oral
decision contained a denial of the CAT claim.
Maindrond appealed the IJ's decision to the BIA. She
sought review of the denial of withholding of removal and of
asylum, but did not raise the CAT claim. On January 8, 2003, the
BIA affirmed the IJ's decision without opinion.
On April 28, 2003, Maindrond filed a motion to reopen
with the BIA, seeking an adjudication of her request for CAT
protection. On November 12, 2003, the BIA denied the motion to
reopen on two grounds: 1) Maindrond had waived the CAT issue by not
raising it on direct appeal, and 2) Maindrond did not establish

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prima facie eligibility for CAT protection. Maindrond now
petitions this court for review of the denial of the motion to
reopen.
II.
The BIA's denial of a motion to reopen is reviewed for
abuse of discretion. Toban v. Ashcroft, No. 03-1058, 2004 WL
2106346, at *3 (1st Cir. 2004); Elien v. Ashcroft, 364 F.3d 393,
395 (1st Cir. 2004). We will find an abuse of discretion "where
the BIA misinterprets the law, or acts either arbitrarily or
capriciously." Toban, 2004 WL 2106346 at *3 (quoting Wang v.
Ashcroft, 367 F.3d 25, 27 (1st Cir. 2004)). Since the BIA offered
two rational explanations for the denial of the motion to reopen,
it has not acted arbitrarily and capriciously, and there was no
abuse of discretion.
A. Waiver
Under the applicable regulations, "in order to avoid
summary dismissal," "the [applicant's Notice of Appeal] must
specifically identify the findings of fact, the conclusions of law,
or both, that are being challenged." 8 C.F.R. § 1003.3(b). As has
been noted, Maindrond made no argument concerning protection under
the CAT at her hearing before the IJ and appeared to have abandoned
the claim. In her notice of appeal to the BIA, Maindrond asked
that "the decision of the Immigration judge be overturned and [that
she] be granted asylum." But no mention was made in the notice or

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her supporting brief of the CAT claim. She also concedes in her
petition before this court that "prior counsel failed to raise [the
CAT] issue in Petitioner's appeal [to the BIA]." The BIA correctly
concluded that the CAT claim was waived. See Matter of Edwards, 20
I. & N. Dec. 191, 196 n.4 (BIA 1990).
Maindrond argues that under established policies set
forth in prior BIA decisions, her failure to raise the CAT issue on
appeal to the BIA was not a knowing waiver of her right and did not
foreclose her from raising it on the motion to reopen. See Matter
of Samai, 17 I. & N. Dec. 242, 243 (BIA 1980) (objection raised for
first time on appeal concerning improper notice was not untimely).
But Samai involved an appeal to the BIA, not a motion to reopen,
and the applicant alien there was unrepresented by counsel, which
led to the BIA's conclusion that his failure to raise a timely
objection at the hearing was not a knowing waiver. See id.; see
also 8 C.F.R. 1003.2(c)(1) (a motion to reopen to consider a new
claim for relief may be granted if it appears that the alien's
right to apply for such relief was not explained fully to him or
her and the alien was not given an opportunity to apply for such
relief at the former hearing). In contrast, Maindrond was
represented by counsel at the original hearing before the IJ and
also on appeal. The BIA did not depart from established policies
and did not abuse its discretion.
B. Failure to Establish Prima Facie Case

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The BIA's alternative ground for its denial of
Maindrond's motion to reopen -- that she failed to establish her
prima facie eligibility for protection under the CAT -- was also
not an abuse of discretion.
An alien is eligible for protection under the CAT if he
or she can prove "that it is more likely than not that he or she
would be tortured if removed to the proposed country of removal."
8 C.F.R. § 1208.16(c)(2). "A motion to reopen proceedings shall
state the new facts that will be proven at a hearing to be held if
the motion is granted and shall be supported by affidavits or other
evidentiary material." Id. § 1003.2(c)(1).
Along with her motion to reopen, Maindrond presented the
2002 Annual Report of Amnesty International on Haiti, a few Human
Rights Watch articles on human rights developments in Haiti, and an
Amnesty International press release dated December 10, 2002. While
there may be situations in which articles on changed country
conditions may establish the new facts necessary to make out a
prima facie case, this is not one of them. None of the articles
specifically addressed the possibility that Maindrond would be
tortured upon return to Haiti or dealt with the events that she
testified about, and there was no affidavit setting forth any
evidence to support her claim. In light of what the IJ supportably
characterized as her "extraordinarily vague" and "conflicting"
testimony at the hearing before the IJ, there was nothing in the

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record to support her claim for protection under the CAT. The BIA
did not abuse its discretion in denying her motion to reopen
because she did not establish prima facie eligibility under CAT.
See Toban, 2004 WL 2106346, at *4 (denial of motion to reopen to
consider CAT claim for failure to present prima facie case was not
abuse of discretion where applicant alien did not present detailed
evidence that he will be tortured in the future or explain who will
torture him and what mistreatment he expects to suffer).
III.
The decision of the BIA is affirmed.

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