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Interim Decision #3252

Interim Decision #3252

In re D-V-, Applicant

Decided May 25, 1993

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Well-founded fear of persecution in Haiti was established by a 27-year-old married female

activist member of a pro-Aristide church group who was gang-raped and beaten in her home by

soldiers and who was targeted by her attackers because of her political opinion and religion.

FOR APPLICANT: Caridad Amores, Esquire, Miami Springs, Florida

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: John R. Frenkel, General

Attorney

BEFORE: Board Panel: DUNNE, Acting Chairman; HEILMAN, Board Member; NEJELSKI,

Temporary Board Member

In a decision dated December 17, 1992, an Immigration Judge found the

applicant excludable under sections 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of

the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(6)(C)(i) and

1182(a)(7)(A)(i)(I), denied her applications for asylum and withholding of

deportation under sections 208 and 243(h) of the Act, 8 U.S.C. §§ 1158 and

1253(h), and ordered her excluded and deported from the United States. The

applicant has appealed from that decision with respect to the denial of asylum

and withholding of deportation. The appeal will be sustained.

To qualify for withholding of deportation, an alien must demonstrate that

his or her “life or freedom would be threatened in such country on account of

race, religion, nationality, membership in a particular social group, or politi-

cal opinion.” Section 243(h)(1) of the Act, 8 U.S.C. § 1253(h)(1). In order to

make this showing, the alien must establish a “clear probability” of persecu-

tion on account of one of the enumerated grounds. INS v. Stevic, 467 U.S.

407, 413 (1984). This clear probability standard requires a showing that it is

more likely than not that an alien would be subject to persecution. Id. at

429-30. The relief of withholding of deportation is mandatory, in that once an

alien has established that he or she qualifies for it and is not ineligible for it

under section 243(h)(2) of the Act, 8 U.S.C. § 1253(h)(2), such relief must be

granted. Although an alien qualifying for withholding of deportation cannot

be returned to the country where he or she would face persecution, the alien

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can be sent to another country under certain circumstances. See Refugee Act

of 1980, Pub. L. No. 96-212, 94 Stat. 197. In this important regard, withhold-

ing of deportation differs from asylum, which may be denied to an alien in the

exercise of discretion even though the alien has established statutory eligibil-

ity for that relief. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Matter

of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

To qualify for asylum, an alien must demonstrate that he or she is a “refu-

gee” as defined under section 101(a)(42)(A) of the Act, 8 U.S.C.

§ 1101(a)(42)(A). See also section 208(a) of the Act, 8 U.S.C. § 1158(a).

That definition includes the requirement that an alien demonstrate that he or

she is unwilling or unable to return to his or her country because of persecu-

tion or a “well-founded fear” of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion. A

well-founded fear of persecution may be established upon a lesser showing

than that required for a clear probability of persecution under section 243(h)

of the Act. INS v. Cardoza-Fonseca, supra; see also Matter of Mogharrabi,

supra. We have held that an asylum applicant has established a well-founded

fear if he or she shows that a reasonable person in his or her circumstances

would fear persecution for one of the five grounds specified in the Act. See

Matter of Mogharrabi, supra; see also Guevara-Flores v. INS, 786 F.2d

1242 (5th Cir. 1986).

The applicant, a 27-year-old married female, is a native and citizen of

Haiti who arrived in the United States on July 15, 1992. She bases her claim

on brutal treatment that she suffered at the hands of soldiers because she was

a supporter of former President Jean Bertrand Aristide. According to the

applicant, she had worked for 6 months as a secretary for a government office

under Aristide. She quit her job after she had problems with a co-worker, an

Aristide opponent who repeatedly threatened her and told her that when

Aristide fell she would pay. She had been an active member of a church

group which was formed by and supported by Aristide. A brother of her

co-worker also belonged to the group. The applicant and another member of

the church committee were delegated to the larger group. The members col-

lected money from the United States and forwarded it to the Aristide govern-

ment. After the fall of Aristide, her co-worker continued to threaten the

applicant and other members of the church group. On one occasion the appli-

cant’s church was surrounded by government soldiers, whom the applicant

referred to as chiefs. The soldiers took one member of the church group

away, and the church members learned the next day that he had died.

The applicant stated that the soldiers subsequently came to her family

home where they gang-raped and severely beat her. When the soldiers

knocked on the gate to her house, they asked for her by her nickname. The

soldiers entered the house after the applicant opened the door and her mother

opened the outer gate. The applicant’s husband was away on business at the

time. The soldiers knew that she belonged to the church group. As they

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passed through the doorway, they said the other church group member had

already been killed “so [she] was next, [she] was behind.” The soldiers wore

stockings on their heads and red scarves tied around their wrists. The scarves

were like those worn by the Ton Ton Macoutes, which had signified blood

and had meant that people and places would be ravaged. Although the appli-

cant tried to tell the soldiers that the person they asked for was not at home,

they identified her by the hair on her feet. One of the soldiers said to her,

“[Y]ou’re the one that supported a fanatic for Aristide.” The soldiers then

held a weapon next to the applicant’s ear. Her mother gave them some

money, pleading with them to spare the daughter’s life. Three of the soldiers

raped the applicant and beat her. The applicant’s mother gave them a case

with some American money to get them to leave. Before the soldiers went

away, they warned the applicant that if she talked about them or reported

them to the radio station they would be back. After the rape incident, the

applicant went into hiding in different locations in Haiti until she was able to

leave the country. While still in Haiti she was examined by a doctor, who told

her that she would not be able to have children because she had sustained

some type of internal shock. Since then, she has been pregnant but has mis-

carried after about 2 months.

In his decision, the Immigration Judge found the applicant credible, in that

the information in her testimony, her Form I-589 asylum application filed on

November 3, 1992, and her sworn statement dated July 15, 1992, was gener-

ally consistent. Nevertheless, the Immigration Judge determined that the

applicant had failed to demonstrate a well-founded fear of persecution on the

basis of her political opinion because the evidence did not show her to be a

prominent supporter of Aristide. According to the Immigration Judge, the

applicant’s fear of returning to Haiti was based on the general conditions of

violence in that country, and it was pure speculation on her part that the same

attackers would rape and beat her again or kill her.

Unlike the Immigration Judge, we find that the applicant has proven that

she has a well-founded fear of persecution based on her political opinion and

religion if she were returned to Haiti. The applicant’s direct and uncontra-

dicted testimony establishes that she has suffered grievous harm in direct

retaliation for her support of and activities on behalf of Aristide. In the file is

an advisory opinion from the United States Department of State’s Bureau of

Human Rights and Humanitarian Affairs (BHRHA) issued pursuant to 8

C.F.R. § 208.11 (1992). See Matter of Exilus, 18 I&N Dec. 276 (BIA 1982);

Matter of Saban, 18 I&N Dec. 70 (BIA 1981); cf. Jean v. INS, 564 F.2d 155

(3d Cir. 1987); Asghari v. INS, 396 F.2d 391 (9th Cir. 1968); Matter of

Francois, 15 I&N Dec. 534 (BIA 1975). According to the BHRHA opinion

dated November 20, 1992, “persons who were prominent supporters of Presi-

dent Aristide or are currently open and activist supporters of Aristide are

likely to remain at risk, especially if they engage in public political activi-

ties.” Clearly, the applicant was an active member of a church group, which

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provided funds for projects endorsed by Aristide. She thus could be consid-

ered one of Aristide’s activist supporters. The evidence reflects that her

attackers, who knew her by name and knew of her membership, targeted her

previously because of her political and religious opinion and that they well

might do so again if she were back in Haiti. There is apparently no significant

adverse factor contravening a favorable exercise of discretion regarding her

asylum application.

Accordingly, we will sustain the appeal and grant the applicant’s asylum

request. Inasmuch as the applicant’s asylum application has been approved,

we need not address the issue of her eligibility for withholding of deportation

under the more stringent standard of section 243(h) of the Act. See Matter of

Mogharrabi, supra.

ORDER: The appeal from the denial of asylum is sustained.

FURTHER ORDER: The applicant’s application for asylum

under section 208(a) of the Act is approved, and the proceedings are

terminated.

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