Ravix v. Mukasey (1^st Circuit Court of Appeals, 3/16/09)

Petitioner, her husband, and their two children, are natives of Haiti, and seek review of the decision of the Board of Immigration Appeals (BIA) dismissing their appeal from the decision of an immigration judge (IJ) denying their claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) and reinstating an order of voluntary departure.

Petitioner and her husband were member of the Parti Louvri Barye (PLB), which was opposed to Haiti’s then-ruling Lavalas party.  Petitioner’s husband ran as the PLB candidate in the 2000 national election.  On October 28, 1999, petitioner’s husband, returning from a political meeting, had his bus stopped.  He got out and was struck in the head by a stone.  He was told by friends that the attack was politically motivated by a pro-Lavalas gang.  In March 2000, Petitioner’s husband was fired from his job after making an anti-Lavalas speech.  Petitioner testified that around this time, she was subject to verbal abuse.  On May 21, 2000, after the 2000 election, pro-Lavalas members showed up to Petitioners’ house.  The family fled their home; Petitioner went to live with her parents while her husband travelled to continue his political career.  Petitioner visited the US on behalf of the PLB on two occasions in September 2000 and January 2001, returning to Haiti both times. 

In February 2001, petitioner’s family moved back home; during the same month, a Lavalas member was elected president.   After receiving more threats upon their safety, petitioner’s husband fled to the US as a visitor permitted to remain until November 28, 2001.  Although the petitioner returned to Haiti two weeks later, her husband has yet to leave the US & has not filed for asylum.  Upon her return, petitioner continuously received threats upon her, her husband’s, and her children’s lives.  On October 1, 2002, petitioner and her children entered the US, admitted as nonimmigrant visitors until March 30, 2003.  Petitioner filed a timely application for asylum, naming her and the children on the application. 

Petitioner and her family were charged with remaining in the US longer than permitted, under 8 USC §1227(a)(1)(B).  Petitioner’s family conceded their removability status, but sought asylum, withholding of the removal, relief under the CAT, or in the alternative, voluntary departure.  The IJ denied all relief save voluntary departure, but issued a supplemental decision withdrawing his grant of voluntary departure as the petitioner rescinded the request for it.  The BIA affirmed and reinstated the voluntary departure rescind.

Regarding the asylum claim, to show entitlement to asylum, petitioner had to establish “a well-founded fear of future persecution on account of…political opinion,” under 8 USC §1101(a)(42)(A), and that a “showing of persecution gives rise to a rebuttable presumption of future persecution.”  The court found the petitioner’s persecution to be credible, but that the events they recounted did not rise to the level of past persecution.  Specifically, the threats to the petitioner were not due to her own political activities but to those of her husband, and that she was never personally harmed.

The court further found that the petitioner did not have a well-founded fear of persecution that was objectively reasonable.  The facts show that her husband could be regarded as in hiding following the May 2000 election since he continued to publicly participate in political activity.  Further, after the election, her husband traveled to the US but did not seek asylum.  In addition, while political conditions in Haiti remained unstable for the duration of the factual background, the Lavalas party is no longer in power and democratic elections have been held.

Being ineligible for asylum, petitioner’s family could not meet the higher withholding of removal standard.  The CAT claim was properly rejected by the IJ for lack of evidence of any threat of torture.  On appeal, the BIA concedes that the voluntary removal direction was erroneous because “[v]oluntary departure may not be granted unless the alien requests such voluntary departure and agrees to its terms and conditions,” under 8 CFR §240.25(c).