Fruto Exavier v. Loretta E. Lynch, United States Attorney General

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1258
FRUTO EXAVIER,
Petitioner,
v.
LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, *
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Selya, and Barron,
Circuit Judges.
Stephen M. Born, and Mills and Born, LLP, on brief for
petitioner.
Richard Zanfardino, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Terri J.
Scadron, Assistant Director, and Joyce R. Branda, Acting Assistant
Attorney General, Civil Division, on brief for respondent.
August 5, 2015
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.

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BARRON, Circuit Judge. Petitioner Fruto Exavier, a
native and citizen of Haiti, seeks review of the denial of his
asylum application. The Immigration Judge (IJ), in a decision
affirmed by the Board of Immigration Appeals (BIA), denied
Exavier's applications for asylum, 8 U.S.C. § 1158, for withholding
of removal, id. § 1231(b)(3), and for protection under the
Convention Against Torture. Finding substantial evidence supports
the decision of the BIA, we deny the petition for review.
I.
To obtain relief, an asylum applicant must show that he
is outside his country of nationality and cannot or will not return
to his country of nationality "because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1101(a)(42)(A); id. § 1158(b)(1).
In the present case, the BIA accepted for purposes of
its analysis that Exavier had suffered past persecution, which
warrants a rebuttable presumption that an asylum applicant has a
well-founded fear of future persecution. 1 See 8 C.F.R.
§ 1208.13(b)(1); Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 21
(1st Cir. 2004). That presumption can be rebutted, however, if
1 Like the BIA, we assume for the purposes of this appeal that
Exavier is not barred from pursuing asylum due to firm
resettlement.

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the government shows, by a preponderance of the evidence, "that
conditions in the country of the applicant's nationality have
changed 'such that the applicant no longer has a well-founded fear
of persecution.'" Yatskin v. I.N.S., 255 F.3d 5, 9 (1st Cir. 2001)
(quoting 8 C.F.R. § 208.13(b)(1)(i)(A)). And substantial evidence
supports the BIA's ruling that conditions in Haiti have changed.
See Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004) ("[T]he
BIA's findings of fact [must] be upheld 'unless any reasonable
adjudicator would be compelled to conclude to the contrary.'"
(quoting 8 U.S.C. § 1252(b)(4)(B))).
As Exavier conceded before the IJ, the Duvalier
government and the Ton Ton Macoutes, the parties Exavier described
as responsible for his persecution over thirty years ago, are no
longer in power. The government also introduced a 2010 Department
of State Human Rights report to prove Haiti's current country
conditions. See Uruci v. Holder, 558 F.3d 14, 21 (1st Cir. 2009).
The report explains that the country is now a constitutional
republic, with a multiparty political system based on presidential
and legislative elections. According to the report, in 2010 "[t]he
[current] government or its agents did not commit any known
politically motivated killings," and there were "no reports of
political prisoners or detainees" and "no reports of politically
motivated disappearances by the government agents."

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Exavier does argue in response that "members of his
political party" -- the Christian Democratic Party -- "continue to
face persecution by those who [currently] hold political power in
Haiti." But while Exavier testified that Sylvio Claude, the
party's leader, was assassinated in 2011, Exavier did not testify
as to who killed Sylvio Claude or why. And though Exavier also
testified that another party supporter, Jean Marie Filo, had been
arrested by the current regime, Exavier then testified that he was
not sure if Filo was still imprisoned, and did not provide any
information on why Filo was arrested.
Thus, although Exavier argues that these incidents prove
that political persecution in Haiti is ongoing, Exavier did not
put forward any evidence before the IJ showing that the current
government either participates in or sanctions violence on account
of what he contends are his political beliefs. For that reason,
we conclude that Exavier's testimony provided little basis to
question the BIA and IJ's reasonable reliance on the changed
conditions in Haiti in concluding that Exavier had not demonstrated
that he currently has a well-founded fear of persecution based
upon his political beliefs.
The BIA's supportable conclusion that Exavier had not
established a well-founded fear of persecution on his asylum claim
also determines the outcome of his claims for withholding of
removal and relief under the Convention Against Torture (CAT). An

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asylum applicant proves that he has a well-founded fear of
persecution on account of a protected ground by showing there is
a "reasonable possibility" of persecution were he to return to his
home country. An applicant for withholding of removal must make
the more demanding showing that it is more likely than not that
such persecution would occur, see Segran v. Mukasey, 511 F.3d 1,
5-7 (1st Cir. 2007), and for the CAT claim, must show that it is
more likely than not that he would be tortured upon return to his
country, see Settenda v. Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004).
Thus, because "the BIA's rejection of [Exavier's] asylum claim
withstands review," so does its rejection of Exavier's other
claims. Laurent, 359 F.3d at 61 n.1.
II.
For these reasons, the petition for review is denied.

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