Joseph Georges Anacassus v. Eric H. Holder, Jr., United States Attorney General

United States Court of Appeals
For the First Circuit
No. 09-1463
JOSEPH GEORGES ANACASSUS,
Petitioner,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin, and Howard,
Circuit Judges.
Harvey J. Bazile and Bazile & Associates, on brief for
petitioner.
Tim Ramnitz, Attorney, U.S. Department of Justice, Civil
Division, Office of Immigration Litigation, Tony West, Assistant
Attorney General, Civil Division, and Shelley R. Goad, Senior
Litigation Counsel, on brief for respondent.
April 15, 2010

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These facts are drawn from Anacassus's testimony before the IJ. 1
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TORRUELLA, Circuit Judge. Joseph Georges Anacassus
("Anacassus"), a native and citizen of Haiti, petitions for review
of a Board of Immigration Appeals' ("BIA") decision affirming an
immigration judge's ("IJ") denial of his application for asylum,
withholding of removal, and protection under the Convention Against
Torture ("CAT"). Anacassus contends that the record shows
sufficient evidence to establish past persecution and/or a well-
founded fear of future persecution, and that the BIA abused its
discretion in finding otherwise. After careful consideration, we
find that the BIA's decision is supported by substantial evidence.
We deny the petition for review.
I. Background1
Anacassus attempted to enter the United States on
April 15, 2003. He arrived at Miami International Airport with a
fraudulent passport and visa. Immigration authorities detained and
interviewed him regarding his attempted entry. Anacassus told the
interviewing official that he sought political asylum and feared
persecution if he should return to Haiti. The immigration officer
referred Anacassus to an asylum officer, who determined that
Anacassus had established a credible fear of persecution and
referred his application to an immigration judge.

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The NTA charged Anacassus with removability under the 2
Immigration and Nationality Act ("INA") for attempting to procure
admission to the United States via fraud or material
misrepresentations, INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)
(i), and for seeking admission without valid entry documents, INA
§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I).
The acronym reflects the political party's name in French, the 3
Mouvement pour La Developement National.
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The Department of Homeland Security ("DHS") served
Anacassus with a Notice to Appear ("NTA") and removal proceedings 2
commenced. Anacassus appeared before the Miami Immigration Court
and conceded removability, but sought asylum, withholding of
removal, and relief under the CAT. After successfully moving for
a change of venue to Boston, Massachusetts, Anacassus testified
before the immigration judge in support of his asylum application.
Anacassus testified that he had suffered persecution at
the hands of former Haitian President Jean-Bertrand Aristide's
political party, Lavalas, due to his membership in the opposition
party, the Movement for National Development ("MDN") . Lavalas had 3
a militant wing, the Chimere Lavalas, which Anacassus stated often
violently disrupted MDN meetings by physically attacking MDN
members and throwing rocks or bottles in the air. Anacassus was a
regional leader in MDN who assisted in the organization of bi-
weekly meetings. He claimed that his role in the MDN garnered
Lavalas' attention when, on November 17, 2002, a previously
recorded speech was aired on television. In this speech, Anacassus
discussed political problems in Haiti, including human rights

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violations. When Anacassus attended an anti-Lavalas demonstration
on December 3, 2002, weeks after the speech, he was attacked by
Chimere Lavalas members.
According to Anacassus, Chimere Lavalas members beat him
at the demonstration, hitting him on the forehead, nose, and cheek
with batons and leaving scars on his face and wrists. Fifteen
minutes after arriving, police officers took demonstrators who had
been beaten, including Anacassus (although Anacassus later stated
he was the only demonstrator beaten), to a police station for
protection from further attack. Afterwards, the police, with
Chimere Lavalas members following close behind, took Anacassus to
his home.
Anacassus called MDN and informed them of the attack at
the demonstration. MDN broadcast the news to various radio
stations later that day. Meanwhile, a doctor treated Anacassus at
his home for his injuries. At approximately 9:00 p.m., while
Anacassus was resting in bed, he heard a banging on the front door
and a voice asking his mother where he was. His mother told the
visitor that he was not at home while Anacassus slipped out the
back window. Anacassus later stated that before escaping, he heard
his mother being beaten.
Anacassus testified that he first ran to his friend's
house, then to his sister's. On calling home, he learned that his
girlfriend and son were "severely beaten." When asked why his

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asylum application failed to mention his son's beating or injuries,
Anacassus stated he did not learn about it until February 2003. On
being reminded that his asylum application had been filed after
February 2003, Anacassus changed his explanation, stating that he
chose not to include his son's beating because he had not witnessed
it. Anacassus had no explanation, however, as to why his October
2004 affidavit stated that he heard his son being thrown against a
wall the night he escaped through the window.
The day after the demonstration and alleged attack at
Anacassus's home, Anacassus's mother, girlfriend, and son moved to
a different location; Anacassus remained at his sister's.
Anacassus testified that, on the same day as the move, his mother
took his son to a hospital for treatment. Anacassus offered no
medical records to support this testimony. However, other medical
records showed his son receiving hospital treatment seven months
after the alleged December 2002 treatment. When asked about this
discrepancy, Anacassus clarified that his son did not go to the
hospital the day after the alleged attacks; rather, he went to an
"herb doctor."
Anacassus remained in contact with his mother while he
was in hiding. She told him that Chimere Lavalas members came to
her new address on repeated occasions and made threats against
Anacassus. Because he feared for his life, Anacassus sought
assistance from his friend, Symbert, in obtaining a passport and

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visa. Anacassus testified that he never suspected that either the
passport or visa that Symbert gave him were invalid when he
presented them to immigration authorities at the Miami airport on
April 15, 2003.
The IJ denied Anacassus's application for asylum,
withholding of removal, and CAT relief and ordered his removal to
Haiti. The IJ found that Anacassus failed to meet his burden of
proof with credible testimony and failed to establish past
persecution, a well-founded fear of future persecution, or that he
more likely than not would be tortured on returning to Haiti.
The IJ found Anacassus's testimony regarding his
involvement in MDN and the political tensions between MDN and
Chimere Lavalas –- including Chimere Lavalas disruption of MDN
meetings and the December 2002 attack at the demonstration –-
"generally credible." However, the IJ concluded that this "single,
isolated event," even if considered with the Chimere Lavalas's
harassment of MDN meetings, was not sufficient to constitute past
persecution. The IJ found that it also did not establish a well-
founded fear of future persecution because, according to at least
one of Anacassus's accounts, Haitian police intervened to protect
him at the demonstration, indicating that the "authorities in Haiti
are willing and able to protect" Anacassus.
The IJ did not find Anacassus's testimony as to the
alleged Chimere Lavalas attack at his home, including the alleged

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beating of his wife and son, credible. The IJ's credibility
finding turned on inconsistencies in Anacassus's testimony, asylum
application, airport interview, and credible fear interview.
Specifically, the IJ noted the omission of any statement in
Anacassus's asylum application, airport interview, and credible
fear interview referencing the attack on his wife or son. This was
in contrast to his affidavit, which described their beatings as if
he had been present, and to his testimony, which provided that he
learned about the attacks by telephone "either a few hours or a few
months after they occurred." The IJ noted that "[Anacassus]
appears to have added details to his claim over time in order to
embellish it." Further, the IJ stated that "there is no reliable
documentary evidence that Chimere Lavalas members appeared at
[Anacassus's] home, attacked his family, or continue to pursue
him." Because of inconsistencies in his accounts and a lack of
supporting evidence, the IJ determined that Anacassus could not
show past persecution or a well-founded fear of future persecution.
The IJ concluded that, as Anacassus could not meet the "well-
founded fear" asylum standard, he also could not meet the higher,
"more likely than not" standard for withholding of removal or CAT
relief. Thus, the IJ denied his withholding of removal and CAT
claims.
Anacassus appealed to the BIA. He challenged the IJ's
adverse credibility finding, claiming the inconsistencies on which

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the IJ focused were not relevant to his asylum claim; argued that
the IJ failed to consider Anacassus's testimony that he was the
only person attacked at the demonstration; and argued that the
police did not protect him at the demonstration, but conspired with
the Chimere Lavalas as to the demonstration and home attack. The
BIA upheld the lack of credibility finding as to Anacassus's
account of the home attack, noting that the inconsistencies in
Anacassus's account went to the heart of his asylum claim. It
rejected Anacassus's claim that the IJ failed to consider he was
the only one hurt at the demonstration, citing inconsistencies in
his testimony where he referenced other demonstrators' beatings.
Lastly, it noted that Anacassus admitted to receiving police
protection at the demonstration. The BIA affirmed the IJ's ruling
that Anacassus failed to demonstrate either past persecution or a
well-founded fear of future persecution, as well as the IJ's
determination as to withholding and CAT relief. Anacassus
petitioned this court for review.

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Following the tragic earthquake that struck Haiti on January 12, 4
2010, the United States government issued a rule designating Haiti
for temporary protected status ("TPS") for a period of eighteen
months. Designation of Haiti for Temporary Protected Status, 75
Fed. Reg. 3476 (Jan. 21, 2010). Anacassus may fulfill the criteria
for TPS. However, Anacassus's TPS eligibility is not before us,
and so we do not address the possible effect of the TPS statute on
his removal status.
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II. Discussion4
A. Standard of Review
We review de novo the BIA's legal rulings, but defer to
its "findings of fact and the determination as to whether the facts
support a claim of persecution." Jorgi v. Mukasey, 514 F.3d 53, 57
(1st Cir. 2008). The BIA's fact-bound determinations, including
credibility findings, will be upheld, provided that they are
supported "by reasonable, substantial, and probative evidence on
the record considered as a whole," Attia v. Gonzales, 477 F.3d 21,
23 (1st Cir. 2007) (internal quotation marks omitted), such that no
"reasonable adjudicator would be compelled to conclude to the
contrary," Rasiah v. Holder, 589 F.3d 1, 4 (1st Cir. 2009)
(internal quotation marks omitted). Where "the BIA adopts the IJ's
opinion and discusses some of the bases for the IJ's decision, we
have authority to review both the IJ's and BIA's opinions." Decky
v. Holder, 587 F.3d 104, 109 (1st Cir. 2009) (internal quotation
marks omitted).

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Because Anacassus's arguments on appeal focus entirely on his 5
asylum claim, and he develops no arguments to support either his
claim for withholding of removal or his claim for relief under the
CAT, we deem these claims abandoned. See Nikijuluw v. Gonzales,
427 F.3d 115, 120 n.3 (1st Cir. 2005); Topalli v. Gonzales, 417
F.3d 128, 131 n.3 (1st Cir. 2005) ("[Petitioner's] challenge is to
the BIA's dismissal of his appeal as a whole, but he offers no
arguments with respect to his claims for withholding of removal or
protection under the CAT. He has therefore waived any challenge to
the BIA's denial of these claims."); see also Usman v. Holder, 566
F.3d 262, 268 (1st Cir. 2009) ("An argument that the petitioner is
entitled to asylum does not properly raise the issue of withholding
of removal.").
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B. Asylum
Anacassus's essential claim on appeal is that the IJ and
BIA improperly denied his application for asylum. To establish 5
eligibility for asylum, Anacassus bears the burden of proving that
he is a refugee under the Immigration and Nationality Act. See 8
U.S.C. § 1158(b)(1)(B)(i); see also Weng v. Holder, 593 F.3d 66, 71
(1st Cir. 2010). To qualify as a refugee, Anacassus must show
"either that he has suffered past persecution or has a well-founded
fear of future persecution on the basis of 'race, religion,
nationality, membership in a particular social group, or political
opinion.'" Decky, 587 F.3d at 110 (quoting Journal v. Kiesler, 507
F.3d 9, 12 (1st Cir. 2007)). "A showing of past persecution gives
rise to a presumption of future persecution unless rebutted."
Jorgi, 514 F.3d 53 at 57 (citing 8 C.F.R. § 208.13(b)(1)).
1. Past Persecution
Persecution "'encompasses more than threats to life or
freedom, but less than mere harassment or annoyance.'" Sok v.

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"'Because the immigration judge is in the best position to 6
evaluate an alien's testimony, his or her credibility
determinations are to be given much weight.'" Syed v. Ashcroft, 389
F.3d 248, 251 (1st Cir. 2004) (quoting Estrada v. I.N.S., 775 F.2d
1018, 1021 (9th Cir. 1985)).
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Mukasey, 526 F.3d 48, 53 (1st Cir. 2008) (quoting Aguilar-Solís v.
I.N.S., 168 F.3d 565, 570 (1st Cir. 1999)). Further, it "does not
include all treatment that our society regards as unfair, unjust,
or even unlawful or unconstitutional." Sharari v. Gonzáles, 407
F.3d 467, 474 (1st Cir. 2005) (quoting Fatin v. I.N.S., 12 F.3d
1233, 1240 (3d Cir. 1993)). To establish past persecution, "the
totality of a petitioner's experiences [must] add up to more than
mere discomfiture, unpleasantness, harassment, or unfair
treatment." Nikijuluw, 427 F.3d at 120.
"In determining whether alleged incidents rise to the
level of persecution, one important factor is whether 'the
mistreatment can be said to be systematic rather than reflective of
a series of isolated incidents.'" Journal, 507 F.3d at 12 (citing
Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005)). Here,
Anacassus' credible testimony provided a single incident of 6
personal violence, specifically, the beating at the anti-Lavalas
political demonstration. The IJ also found Anacassus's testimony
concerning "the level and type of his involvement with the MDN
[and] the harassment . . . MDN members endured at their meetings"

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Here, Anacassus sets forth no arguments nor raises any 7
challenges to the IJ and/or BIA's determination that Anacassus's
testimony regarding the Chimere Lavalas attack at his home and
against his family members was not credible. Because "[i]t is
well-established that 'issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived,'" we deem any challenge to the IJ and BIA's credibility
determinations as to the home attack waived. Nikijuluw, 427 F.3d
at 120 n.3 (citing United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)).
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to be "generally credible." Although the IJ found that tensions 7
existed between the respective political parties at issue,
Anacassus's argument on appeal is limited to his beating at the
demonstration, and does not address the general harassment by
Lavalas members at the MDN meetings. Thus, on this appeal, we only
address the attack Anacassus suffered at the demonstration. The IJ
found, and the BIA affirmed, that the beating constituted a single,
isolated incident that was not sufficient to rise to the level of
persecution. Our case law does not compel the opposite conclusion.
See Khan v. Mukasey, 549 F.3d 573, 576 (1st Cir. 2008) ("The record
supports a conclusion that Khan's [single incident of alleged]
mistreatment was an isolated event," supporting a finding of no
persecution); Journal, 507 F.3d at 12 (no persecution where
petitioner "alleged only one incident of violence in which he was
struck on the head and arms"); see also Attia, 477 F.3d at 24 ("two
altercations in a nine-year period and a general climate of
discrimination" not sufficient to establish past persecution);
Nelson v. I.N.S., 232 F.3d 258, 264 (1st Cir. 2000) (no past

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persecution where petitioner physically abused during three
incidents of solitary confinement and victim of surveillance,
harassment, and stops and searches).
We note that although the full extent of Anacassus's
injuries from the attack are unclear -- with Anacassus claiming
that a doctor made an undocumented visit to treat his injuries
following the attack and that any scars from the beating were
healed by his sister's "good soap" -- "isolated beatings, even when
rather severe, do not establish systematic mistreatment needed to
show persecution." Wiratama v. Mukasey, 538 F.3d 1, 7 (1st Cir.
2008). Thus, in light of our case law, we are compelled to
conclude that Anacassus's single, isolated beating does not rise to
the level of persecution. See Decky, 587 F.3d at 111 (no
persecution where, during 1998 riots, ethnic Chinese Indonesian was
physically beaten, his motorcycle was set on fire, and his
persecutors chanted at him, "kill Chinese"); Khan, 549 F.3d at 575-
77 (no persecution where petitioner arrested for attending
political demonstration, detained for ten days, and submitted to
beatings with wooden sticks and electrical shocks); see also
Topalli, 417 F.3d at 132 (no persecution where petitioner arrested
on multiple occasions over two year period, submitted to detentions
lasting less than 24 hours, and suffered beatings that did not
require hospitalization).

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Furthermore, Anacassus's past persecution claim is
"doubly deficient." Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir.
2006). Persecution requires a showing of mistreatment that has
"some connection to government action or inaction," Harutyunyan v.
Gonzales, 421 F.3d 64, 68 (1st Cir. 2005); that is, "the harm
suffered [must be] the direct result of government action,
government-supported action, or government's unwillingness or
inability to control private conduct." Sok, 526 F.3d at 53
(internal quotation marks omitted). Here, Anacassus testified that
police at the demonstration arrested him to protect him from the
attacks; that they placed him in a car and brought him to the
police station to remove him from the crowds; and that they
subsequently escorted him home. Furthermore, in his appellate
brief, Anacassus stated that "he would have been killed on the spot
were it not for the timely intervention of the Haitian police."
Because Anacassus fails to show that the alleged persecutors at the
demonstration, Lavalas, were "in league with the government or
[were] not controllable by the government," Silva v. Ashcroft, 394
F.3d 1, 7 (1st Cir. 2005), his petition also lacks the "necessary
link between persecution and governmental action or inaction" so as
"to establish the well-founded fear of persecution required for
asylum." Burbiene v. Holder, 568 F.3d 251, 255-56 (1st Cir. 2009).

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2. Well-Founded Fear of Future Persecution
Because we affirm the BIA's finding that Anacassus failed
to establish past persecution, he is not entitled to the rebuttable
presumption that his fear of future persecution is well-founded.
See 8 C.F.R. § 208.13(b)(1)(i); Decky, 587 F.3d at 110. Thus,
Anacassus bears the burden of showing a well-founded fear of future
persecution through both subjective and objective factors, that is,
he "must demonstrate not only that [he] harbors a genuine fear of
future persecution but also that [his] fear is objectively
reasonable." Negeya v. Gonzales, 417 F.3d 78, 82-83 (1st Cir.
2005). Anacassus has not met this burden. Anacassus's only argument
to support his claim of future persecution is that, because the
record shows past persecution, he is entitled to a presumption of
future persecution. However, substantial evidence supports the
agency's conclusion that Anacassus's only credible, alleged
incident of persecution was insufficient for purposes of
establishing either past persecution or a well-founded fear of
future persecution if he should return to Haiti. Limani v.
Mukasey, 538 F.3d 25, 31 (1st Cir. 2008).
III. Conclusion
Because substantial evidence in the record supports the
BIA's holding, Anacassus's petition for review is DENIED.

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