Appendix — Laborde v. Immigration & Naturalization Service

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

DECIDED MAY 6, 1998

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2812

GUEHENNO LABORDE.,

Petitioner,

U.S. IMMIGRATION & NATURALIZATION SERVICE;

UNITED STATES OF AMERICA,

Respondents.

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A72-848-808)

Argued: March 5, 1998

Decided: May 6, 1998

Before WILKINS and HAMILTON, Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia, sitting by designation.

Petition for review denied and order of board affirmed by

unpublished per curiam opinion.

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Appendix A

COUNSEL

ARGUED: Kathleen Mary Cronin, ANDERSON, KILL &

OLICK, P.C., New York, New York, for Petitioner. Elizabeth

A. Welsh, Senior Litigation Counsel, Office of Immigration

Litigation, Civil Division, UNITED STATES DEPARTMENT

OF JUSTICE’, Washington, D.C., for Respondents, ON BRIEF:

Linda M. Weinberg, VERNER, LIIPFERT, BERNHARD,

MCPHERSON & HAND, CHARTERED, Washington, D.C.,

for Petitioncr. Frank W. Hunger, Assistant Attorney General,

Charles E. Pazar, Senior Litigation Counsel, Office of

Immigration Litigation, Civil Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondents.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

OPINION

PER CURIAM:

Guehenno Laborde (Laborde) petitions for review ofa final

order of the Board of Immigration Appeals (the Board) denying

him political asylurn and withholding of deportation under the

Immigration and Nationality Act (the Act), 8 U.S.C.A.

§§ 1101-1537 (West 1970 & West Supp. 1998). Because

substantial evidence supports the Board’s order, we deny the

petition for review and affirm the Board’s order.

I.

Laborde, a native and citizen of Haiti, was born on February

9, 1969, is single, and has no children. He attended school in

RAIL A BN alan ibmcate SA Lin OR tn eel yt hae 6 aes

OM OE Ria tity i Be

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Appendix A

Haiti through the high school level and arrived in the United

States on December 30, 1993, carrying fraudulent entry

documentation. The Immigration and Naturalization Service

(INS) immediately detected the fraudulent nature of Laborde’s

entry documentation and charged him with being excludable

for attempting to enter the United States with fraudulent entry.

documentation and for attempting to enter the United States

without valid entry documentation. See 8 U.S.C.A.

§§ 1182(a)(6)(C)(i), (a)(7)(A)(i)(D) (West Supp. 1998).

Laborde conceded excludability, but applied for asylum

and withholding of deportation. His application stated that he

had suffered persecution in Haiti on account of his political

opinions at the hands of a group known as Front for the

Advancenicnt and Progress of Haiti (FRAPH).' His application

also stated that be fears future persecution in Haiti also at the

hands of FRAPH on account of his political opinions.

On April 14, 1995, an immigration judge (IJ) held a hearing

on Laborde’s application for asylum and withholding of

deportation. Before the IJ, Laborde also sought asylum and

withholding of deportation because he feared future persecution

from FRAPH on account ofhis membership in the following

alleged social groups: (1) persons who refused to join FRAPH;

(2) educated, Christian young men from a particular

neighborhood who were also Aristide supporters; and

(3) returning Haitians.

1. FRAPH is a paramilitary organization, first organized in

September 1993 in opposition to the plan for Jean Bertrand Aristide

(Aristide) to return as Haiti’s President on October 30, 1993. Aristide

had been ousted by a military coup in September 1991. The evidence in

the record is undisputed that FRAPH’s operation consisted mainly of

crimes and murders.

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Laborde testified at the hearing, with the majority of his

testimony focusing on his claim that he feared persecution by

FRAPH on account of his pro-Aristide political opinions.

Laborde testified that neither he nor his family had actively

participated in Haitian politics, but that he voted in favor of

Aristide in the 1990 presidential election. Laborde did not

present any evidence suggesting that FRAPH knew that he had

voted for Aristide.

According to Laborde, he first encountered FRAPH in

September or October 1993 when he received a FRAPH

recruitment letter at his aunt’s store in a Port-au-Prince

neighborhood generally considered pro-Aristide. At the time,

Laborde managed his aunt’s store and lived with her in a

different neighborhood also generally considered pro-Aristide.’

Several other young men in the neighborhood of the store also

received the same letter, which explained that FRAPH wanted

to create an office in that neighborhood and wanted the support

of the youth. Laborde testified that he was afraid after receiving

the letter, because according to him, FRAPH’s object was to

“destroy” and “break everything in Haiti.” (A.R. at 179).

Laborde further testified that two weeks after he received

the recruitment letter, several members of FRAPH came to his

aunt’s store for his response. Specifically, the members showed

him their FRAPH membership cards and asked if he received

2. Laborde was twenty-four-years-old at the time. He had lived

with his aunt since age fifteen. Prior to living with his aunt, Laborde

lived with his parents and siblings in a small town three hours from

Port-au-Prince.

3. In this opinion, specific citations to the Administrative Record

are introduced by “A.R.”

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Appendix A

the letter. Laborde answered their inquiry by putting thirty

dollars in an envelope and handing it to thern. According to

Laborde, a donation of money to FRAPH is an indication that

one does not want to belong to the group. After this, the

members of FRAPH peacefully left the store.

According to Laborde, two weeks later two unknown

persons came to his aunt’s house asking for him, but he was

not there. Laborde suspectcd they were members of FRAPH,

because the same persons came’ looking for him at his aunt’s

house the next night, and, upon being advised by his aunt that

Laborde no longer lived with her, the unknown persons

responded that they would find Laborde.

Laborde testified that these events cumulatively caused him

to go into hiding for three months until his parents made

arrangements for him to leave Haiti. After leaving Haiti,

Laborde learned that members of FRAPH came looking for

him at his parents’ home. When his father refused to open the

door, the members threatened to knock the door down.

According to Laborde, the members ransacked the house and

pushed around both his father and his sister. Laborde did not

offer any testimony or other evidence regarding any other

actions by FRAPH with respect to him, but did indicate that he

wants to return to Haiti someday, but to return now would put

his life in danger.

Laborde admitted at the hearing that neither he nor any

member of his family reported any of the incidents that he

described to the Haitian authorities. Furthermore, Laborde

acknowledged that he has no reason to fear the current Haitian

government, and that the new Haitian police force is free of

FRAPH members and will secure Haiti in time. Laborde also

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Appendix A

acknowledged that following his arrival in the United States,

the political situation in Haiti changed to such an extent that

the leader of FRAPH, Emmanuel Constant, fled Haiti and is

now living in the United States. Haiti has asked the United

States to extraditc Constant. Moreover, Laborde acknowledged

that no member of FRAPH, including Constant, has attempted

to contact him in the United States.

The evidence established that members of FRAPH

frequently used violence against those who refused to join their

ranks. However, it also established that FRAPH’s power is on

the decline. Indeed, evidence at the hearing established that

since Laborde entered the United States in late 1993, major

improvements in Haiti's political stability have occurred.

Aristide has since returned to power, and the United States and

multi-national forces sent troops to Haiti to ensure its political

stability. Indeed, Laborde admitted at the hearing that the

climate in Haiti is now such that a person could report

persecution to the authorities.

After considering all of the evidence, the IJ denied

Laborde’s application for asylum and withholding of

deportation, and ordered Laborde excluded and deported. The

IJ found that Laborde did not suffer past persecution and does

not have a well-founded fear of future persecution upon

deportation on account of any statutory ground. Notably, the IJ

found that there was insufficient evidence in the record to

conclude that FRAPH’s actions toward Laborde after he

contributed $30 to FRAPH were motivated by a perception that

he was a political opponent, rather than simply an unwilling

recruit.

Laborde appealed the IJ’s decision to the Board, which

dismissed his appeal as being without merit. The Board denied

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Appendix A

Laborde’s asylum and withholding of deportation claims

premised on his allegations of past persecution on account of

his political opinions on the twin grounds that FRAPH’s actions

toward Laborde did not rise to the level of persecution and that

Laborde failed to prove that FRAPH took any action against

him on account of his political opinions. The Board denied

Laborde’s claims premised on his alleged fear of future

persecution on account of his political opinions on the twin

grounds that Laborde did not prove that FRAPH would seek to

persecute him on account of his political opinions and that since

FRAPH’s power had so declined since Laborde left Haiti, his

fear did not have a basis in reality. The Board disposed of

Laborde’s claims of asylum and withholding of deportation

based on his alleged membership in various social groups

without determining whether these alleged social groups

constitute “social groups” as contemplated by the Act. The

Board disposed of these claims on the basis that FRAPH’s

power has so largely waned since Laborde left Haiti and Aristide

returned to power that Laborde did not have a well founded

fear of persecution by FRAPH upon his return to Haiti. Laborde

noted a timely appeal of the Board’s final order to this court.

II.

The Act currently provides two means by which an

otherwise deportable alien claiming that he will be persecuted

if returned to his country of origin may avoid deportation. The

first is found in § 208(a) of the Act, 8 U.S.C.A. § 1158(a) (West

Supp. 1998). Pursuant to that section, an alien may apply for

asylum. Section 208(b)(1) of the Act, 8 U.S.C.A. § 1158(b)(1)

(West Supp. 1998), authorizes the Attorney General of the

United States, in her discretion, to confer asylum on an alien

who has properly applied for asylum if the Attorney General

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Appendix A

“determines that such alien is a refugee” as defined by the Act.

Id. The Act defines the term “refugee,” in pertinent part, as

any person unwilling or unable to return to his native country

“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.A.

§ 1101 (a)(42)(A) (West Supp. 1998). The reasonable person

test is the standard for proving a well-founded fear of

persecution. See M.A. v. INS, 899 F.2d 304, 311 (4th Cir. 1990)

(en banc). We have held that “[a]n individual seeking asylum

under this standard must show (1) that a reasonable person in

the circumstances would fear persecution; and (2) that the fear

has some basis in the reality of the circumstances and is

validated with specific, concrete facts.” Huaman-Cornelio v.

Board of Immigration Appeals, 979 F.2d 995, 999 (4th Cir.

1992) (internal quotation marks omitted).

The second means by which an otherwise deportable alien

claiming that he will be persecuted if returned to his country of

origin may avoid deportation is found at § 241(b)(3) of the

Act, 8 U.S.C.A. § 1231(b)(3) (West Supp. 1998). Prior to

Congress’ enactment of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L No.

104-208, 1996 U.S.C.C.A.N. (110 Stat.) 1570-1861, on

September 30, 1996, the substance of this section was found at

§ 243(h) of the Act, 8 U.S.C. § 1253(h).* Section 243(h),

commonly referred to as the withholding of deportation

provision, provided, in pertinent part, that “[t]he Attorney

4. Because Laborde was in exclusion proceedings prior to April 1,

1997, the effective date of the IIRIRA, we apply the preamendment

version of the Act’s withholding of deportation provision. See IIRIRA,

§ 309(a),(c)(1), Pub. L No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.)

1697-98.

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General shall not deport or return any alien... to a country if

the Attorney General determines that such alien’s life or

freedom would be threatened in such country on account of

race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C.A. § 1253(h) (West Supp.

1996). To qualify for withholding of deportation under this

provision, an applicant must demonstrate a “ ‘clear probability

of persecution’ ” on account of one of the enumerated factors.

INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987). This

standard is more stringent than the standard for granting asylurn.

See id. at 431-32. Thus, if an alien is unable to mect the less

stringent aylum standard, he or she will be unable to meet the

more difficult standard for withholding of deportation. See

Huaman-Cornelio, 979 F.2d at 1000.

If.

On appeal before us, Laborde continues to press his asylum

and withholding of deportation claims alleging past political

persecution at the hands of FRAPH and a well-founded fear of

political persecution if he is returned to Haiti. In this regard,

he first argues that the Board ignored evidence that FRAPH

must have imputed a pro-Aristide political opinion to him on

account of his being an educated young man working and living

in pro-Aristide neighborhoods, who refused to join FRAPH.

Assuming that we agree with his first argument, Laborde argues

that the Board ignored evidence that FRAPH 1s not yet under

control, and thus presents a serious threat to him if he is returned

to Haiti.’

5. Because Laborde failed to brief or argue whether he should

prevail on his claims for asylurn and withholding of deportation premised

(Cont’d)

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Appendix A

We must uphold the Board’s dismissal of Laborde’s appeal

of the IJ’s order denying him asylum and withholding of

deportation and ordering him excluded and deported if it is

supported by “reasonable, substantial, and probative evidence

on the record considered as a whole ....” 8 U.SC.A.

§ 1105a(a)(4) (West Supp. 1998).° In particular, we cannot

reverse the Board’s determination that Laborde is not entitled

to political asylum unless we conclude that the evidence

prescntcd by Laborde “was so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution.”

Elias-Zacarias, 502 U.S. at 483-84.

We conclude that the evidence presented by Laborde was

not so compelling that a reasonable fact finder could fail to

(Cont'd)

upon his membership in the various individual social groups that he

identified, we consider Laborde to have abandoned those claims. See

11126 Baltimore Blvd. v. Prince George’s County, Md., 58 F.3d 988,

993 n.7 (4th Cir. 1995) (relying on Federal Rule of Appellate Procedure

28(a)(6) and holding that issues not briefed or argued in federal appeal

are deemed abandoned). Accordingly, we do not address those claims.

Furthermore, we do not address Laborde’s claims, not previously raised

below, that lie is entitled to asylum and withholding of deportation on

account of his membership in the social group he identifies as draft age

men. Having failed to exhaust his administrative remedies with respect

to these clainis, we lack subject matter jurisdiction to consider them.

See Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990).

6. Scction 306(b) of the ITRIRA, Pub. L. No. 104-208, 1996

U.S.C.C.A.N. (110 Stat.) 1668, repealed 8 U.S.C. § 1105a(a)(4) and

replaced it with 8 U.S.C. § 1252(b)(4). However, because the Board

issued its final order of exclusion with respect to Laborde after October

30, 1996, the transitional rules contained in the IIRIRA provide for

judicial review pursuant to 8 U.S.C. § 1105a(a)(4) as that section existed

prior to the enactment of the IIRIRA on September 30, 1996. See IIRIRA,

§ 309(c)(4), Pub. L. No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.) 1699.

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Appendix A

find the requisite fear of persecution. Laborde’s proof is

particularly lacking of probative evidence that FRAPH sought

to persecute him on account of his political opinions prior to

his fleeing Haiti or that it would seek to persecute, him on

account of his political opinions if he returned to Haiti. First,

Laborde admits that neither he nor his family was politically

active in Haiti. Second, there is no evidence to suggest that

Laborde’s family has become politically active since Laborde

entered the United States. Third, there is no evidence that

FRAPH knew that Laborde had voted for Aristide in the 1990

presidential election. Fourth and finally, a person’s resistance

to forced recruitment by a politically motivated organization,

without more, does not compel the conclusion that any

subsequent adverse actions taken against the person by that

organization were taken on account of that person’s political

opinions. See INS v. Elias-Zacarias, 502 U.S. 478, 482-485

(1992).

The facts of Elias-Zacarias are strikingly similar to the

present case. In Elias-Zacarias, Jario Jonathan Elias-Zacarias,

a native of Guatemala, applied for asylum and withholding of

deportation. See id. at 479. He claimed to have suffered

persecution and to have a wellfounded fear of persecution on

account of his political opinions based on his refusal to join an

anti-government guerrilla organization that attempted to recruit

him. Jd. at 479-80. As with Laborde, the members of the

organization attempted to recruit Elias-Zacarias during an

unannounced face-to-face visit. Jd. at 479. Like Laborde, Elias-

Zacarias refused the organization’s recruitment efforts without

explanation. /d. Afraid that the guerrillas would return,

Elias-Zacarias fled Guatemala and illegally entered the United

States. Jd. at 480.

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The IJ denied Elias-Zacarias’ application on the basis that

EliasZacarias failed to demonstrate persecution or a

well-founded fear of persecution on account of any of the

statutorily enumerated grounds. Jd. at 480. The Board agreed,

but the Ninth Circuit reversed. See JNS v. Elias-Zacarias, 921

F.2d 844 (9th Cir. 1990). The Ninth Circuit held that an

anti-government guerrilla organization’s attempt to conscript

a person into its military forces necessarily constitutes

persecution on account of political opinion, because “the person

resisting forced recruitment is expressing a political opinion

hostile to the persccutor and because the persecutor’s motive

in carrying out the kidnaping is political.” /d. at 850.

The Supreme Court reversed the Ninth Circuit. The Court

rejected as untrue the premise that a person resisting forced

recruitment is necessarily expressing a political opinion hostile

to the persecutor. See Elias-Zacarias, 502 U.S. at 481-82. The

Court noted that “[e]ven a person who supports a guerrilla

movement might resist recruitment for a variety of reasons —

fear of combat, a desire to remain with one’s family and friends,

a desire to earn a better living in civilian life, to mention only

a few.” Jd. at 482. The Court rejected as irrelevant the fact that

a persecutor’s general motive in carrying out forced recruitment

efforts is political. Jd. at 481-82. The Court stressed that

eligibility for asylum and withholding of deportation turns on

whether the persecution is “on account of the victim's political

opinion, not the persecutor’s.” Jd. at 482.

Applying these precepts to the facts before it, the Court

held that the Board’s determination that Elias-Zacarias failed

to establish his eligibility for asylum should have been upheld

in all respects. In this regard, the Court concluded that

Elias-Zacarias’ evidence on the issue of whether the

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anti-government guerrilla organization sought to persecute him

on account of his political opinions was not “so compelling

that no reasonable factfinder could fail to find the requisite

fear of persecution.” Jd. at 483-84.

Laborde contends that his case is distinguishable from

Elias-Zacarias, pointing to evidence that he contends

establishes that FRAPH imputed pro-Aristide politica! opinions

to him on account of his being an educated young man who

worked and lived in neighborhoods known for loyalty to

President Aristide. Laborde first points to the following

statements by William G. O’Neil, a consultant to the National

Coalition for Haitian Refugees and to the United Nations/

Organization Of American States International Civilian Mission

to Haiti, made in an affidavit dated January 9, 1995:

FRAPH conducted a campaign of terror, especially

in neighborhoods known for their loyalty to

[Aristide] like Carrefour-Feuilles and its environs

where Mr. Laborde lived and the Quartier Bolosse

where he worked. These neighborhoods were

especially targeted by the military and FRAPH; men

of Mr. Laborde’s age group were particularly at risk

since they were viewed as prime Aristide supporters.

(A.R. at 262). Laborde also relies on a portion of an August

1993 report prepared by the United States Department of Justice

that can reasonably be construed as stating that students of

Laborde’s education level were generally considered by the

military government in power at the time to be pro-Aristide.

The report also stated that the military targeted student leaders

and student organizations for particularly fierce treatment and

recognized that massive political violence had been deployed

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Appendix A

against children and young adolescents in retribution for

participation in social movements.

We cannot reverse the Board unless the evidence cited by

Laborde is such that no reasonable fact finder could fail to find

that FRAPH imputed pro-Aristide political opinions to Laborde,

and sought to persecute him on account of those political

opinions. See Elias-Zacarias, 502 U.S. at 483-84. The evidence

cited by Laborde is simply too gencral to compel such a finding

in light of the undisputed evidence in the record that FRAPH

sought to recruit Laborde during its initial organization. In the

absence of evidence that FRAPH sought to swell its ranks solely

with pro-Aristide recruits, the Board drew a permissible

infercnce that FRAPH conducted recruitment efforts without

regard to the actual political opinions of a potential individual

recruit. For the same reason, the evidence does not compel a

finding that FRAPH’s subsequent actions with respect to

Laborde were on account of Laborde’s political opinions rather

than simply his unwillingness to join FRAPH.

Because Laborde’s second argument that the Board ignored

evidence that FRAPH is not yet under control depends upon its

agreeing with his first argument, we need not address this

second argument. Furthermore, the Board’s determination that

Laborde did not mect the asylum standard “necessarily means”

that he “did not meet his burden on the more difficult

withholding of deportation claim.” Huaman-Cornelio, 979 F.2d

at 1000.

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Appendix A

IV.

For the foregoing reasons, we deny Laborde’s petition for

review and affirm the Board’s order.’

PETITION FOR REVIEW

DENIED AND ORDER OF

BOARD AFFIRMED

7. We note that Laborde may be eligible for a deferral of his

deportation until December 23, 1998 pursuant to a presidential directive

signed by President William J. Clinton on December 23, 1997. The

subject of the memorandum containing the directive is “Measures

Regarding Certain Haitians in the United States.”

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APPENDIX B — DECISION OF THE BOARD

OF IMMIGRATION APPEALS, DATED

NOVEMBER 18, 1996

U.S: Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A72 848 808 - Washington, DC Date: Nov. 18 1996

In re: GUEHENNO LABORDE

IN EXCLUSION PROCEEDINGS

APPEAL

ON BEHALF OF APPLICANT:

Kathleen M. Cronin, Esquire

Verner, Liipfert, Bernhard,

McPherson & Hand

901 15th Street, N.W., Suite 700

Washington, DC 20005

ON BEHALF OF SERVICE:

Deborah K. Todd

Assistant District Counsel

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Appendix B

EXCLUDABLE:

Sec. 21-2(a)(6)(C)(i), I&N Act, [8 U.S.C.

§ 1182(a)(6)(C)(i)] - Fraud or willful

misrepresentation of material fact

Sec. 212(a)(7)(A), I&N Act, [8 U.S.C.

§ 1.1-82(a)(7)(A)] - No valid immigrant visa

APPLICATION: Asylum; withholding of exclusion and

deportation

I. PROCEDURAL HISTORY

The applicant is a 26-year-old native and citizen of Haiti.

On December 30, 1993, the Immigration and Naturalization

Service placed him in exclusion proceedings under section

212(a)(6)(C)(i), of the Immigration and Nationality Act, 8

U.S.C. § 1182(a)(6)(C)(i) (1994), as someone who sought to

procure entry into the United States by fraud or willful

misrepresentation of material fact, and under section

212({a)(7)(A)(i)(1) of Act, 8 U. S. C. § 118 2 (a) (7) (A) (i)

(1994), as someone who did not have a valid immigrant visa

(Exh. 1).

The applicant admitted the factual allegations made by

the Service and sought asylum and withholding of deportation

(Tr. at 7- 9). A hearing on the application was held, and, after

taking the case under advisement and reviewing the extenstive

documentation, the Immigration Judge issued a decision in

which she found the applicant excludable, denied his

applications for asylum and withholding, and ordered him

excluded and deported. The applicant appeals the denial of his

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Appendix B

applications for asylum and withholding of deportation. The

appeal will be dismissed. The request for oral argument before

the Board is denied. See 8 C.F.R § 3.1(e) (1996).

Il. EVIDENCE

The applicant testified that in 1993 he had completed 12

years of schooling in Haiti and was studying at home in Port-

au-Prince to prepare for additional academic work. He was also

managing a grocery store for his aunt, with whom he lived (Tr.

at 28-31). At that time an organization known as the Front for

the Advancement and Progress of Haiti (FRAPH) was

committing murders, and other crimes in Haiti (Tr. at 31-32).

In September 1993 FRAPH sent the applicant and other

young people in the neighborhood a letter stating that they

intended to establish a local office and that they wanted the

support of the neighborhood’s youth. The applicant testified

that he became afraid when he received the letter, because he

did not support FRAPH (Tr. at 34-35). About 2 weeks after he

received the letter, FRAPH members visited him at his aunt’s

store. They identified themselves, asked if he had received their

letter, and stated that they had come for his answer to their

invitation. He responded by placing $30 in an envelope and

handing it to them (Tr. at 37-38). The applicant stated that a

donation of money is an indication that one does not want to

belong to the group. It was common knowledge that if FRAPH

members asked you to join them and you did not wish to do so,

you could give them money and they would leave you alone

for a while (Tr. at 59-60).

The applicant went to a party that night with his cousin.

The next day his aunt told him that two people had come at 10

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Appendix B

p.m. while he was at the party. They asked for the applicant

but did not identify themselves. The applicant testified that he

became very frightened: “In Haiti when someone comes to the

house and refuse to identify himself, you know already it’s not

a good visit” (Tr. at 39). He removed his possessions from the

house and hid. The next night the people returned at 11 p.m.

When his aunt told them that the applicant no longer lived there,

they replied that they would find him. The applicant testified

that he remained in hiding from that moment until he left Haiti

(/d.).

The applicant testified that while in hiding he moved from

house to house, never staying in one house too long. He was

not able to leave any house during the day, and therefore he

could not work or attend church (Tr. at 39-42). He had been iss

hiding for approximately 3 months when he heard that FRAPH

had killed many people in another neighborhood. Fearing that

he would be among FRAPH’s victims, he learned from his

family that they wanted to arrange for him to leave the country.

Since he did not want to run the risk of applying personally for

an exit visa, the family arranged for an illegal departure. He

felt that it had become a matter of life or death for him (Tr. at

42-43).

He left Haiti shortly thereafter, travelling to Miami with a

false passport. He learned from his family that FRAPH members

had searched for him both in Port-au-Prince and in the village

where his father lived. They came to his father’s house at

midnight, and when he opened the door, they pushed the

applicant’s father and sister around and ransacked the house

(Tr. at 45-46). The applicant testified that he spoke recently

with his father. His father said that FRAPH members no longer

boast openly of their murders, but they continue to cause chaos

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Appendix B

in the country (Tr. at 47-48). The applicant also testified that

in a letter dated March 10, 1995, his father said that Haiti was

not secure enough for the applicant to return (Tr. at 49-50).

The applicant testified that he voted for President Aristide.

He hae never travelled outside Haiti before coming to the United

States. He stated that he has nothing to fear from legitimate

Haitian authorities, and that he does not know if his parents

have reported his problems with FRAPH to the restored

government (Tr. at 58-60).

Th applicant testified that he wants to return to Haiti

someday, but he is afraid to do so now. Some of his friends

have visited Haiti, but have returned to the United States

because of the situation there. If he were forced to return he

would again go into hiding (Tr. at 52-53). He thinks that in

view of his donation of money and his subsequent

disappearance, the FRAPH members would view him as

pro-Aristide and anti-FRAPH (Tr. at 63-64).

In addition to his Request for Asylum in the United States

(Form I-589) (Exh. 2), the applicant submitted extensive

documentation in support of his claim (Exh. 4). Included in

this exhibit were an affidavit by the applicant (Exh. 4-A) and

an affidavit by William G. O'Neill, a consultant to the National

Coalition for Haitian Refugees, prepared after reviewing the

applicant’s asylum application and supporting documentation

(Exh. 4-B). Also included were articles and background

information on country conditions in Haiti (Exh. 4-C-1 through

4-C-44). The record also contains a copy of an August 31, 1994,

report on the applicant’s asylum claim prepared by the Bureau

of Human Rights and Humanitarian Affairs, U.S. Department

of State (Exh. 3).

2la

Appendix B

Ill. DECISION OF IMMIGRATION JUDGE

In her decision, the Immigration Judge concluded that the

applicant had not established past persecution in Haiti or a

well-founded fear of future persecution if he were to return

there. Concerning past persecution, she found that the applicant

had not shown that he had suffered harm at the hands of any

person or group in particular (I.J. at 6). She also did not accept

the applicant’s conclusion that by providing financial support

to members of FRAPH he was signifying his opposition to the

group. Likewise, she was not convinced that FRAPH members

were looking for the applicant on this account, or that they had

harmed, his father and sister because of this perceived

opposition. Therefore, she did not conclude that he had a

reasonable basis for fearing persecution from them in the future

(Tr. at 6, 8-9).

The Immigration Judge acknowledged that there is

instability and some continuing violence in Haiti, but concluded

that these conditions were not enough to permit a finding that

the applicant’s stated fear is well-founded. The Haitian

government is willing to control the destabilizing forces, and

the fact that violence could not be totally eliminated did not

mean that the Haitian government was unable to control the

country. Noting that terrorist acts occur in this country as well,

and acknowledging that Haiti had a long way to go in

establishing an effective system for law and justice, the

Immigration Judge nevertheless concluded that the Haitian

government was taking action when criminal acts were reported

to them (I.J. at 6-7).

Emphasizing that there was no longer any complicity

between the Haitian government and the members of FRAPH,

22a

Appendix B

the Immigration Judge concluded that this change removed the

primary basis for the applicant’s contention that he fears

persecution if he returns to Haiti. Therefore, even if she were

to conclude that the applicant had suffered persecution in the

past, he would not be entitled to a discretionary grant of asylum

because of these changed country conditions. Concluding that

the applicant had failed to establish a well-founded fear of

persecution, she also found that he had not established a clear

probability of persecution. Accordingly, she denied his

applications for asylum and withholding of deportation and

ordered him excluded and deported (I.J. at 9).

IV. ARGUMENTS ON APPEAL

On appeal the applicant argues that the evidence establishes

that he suffered past persecution by FRAPH and has a

well-founded fear of future persecution by them. He contends

that his testimony and affidavit establish that his fear is

subjectively genuine. He also asserts that the Immigration Judge

failed to consider the affidavits and additional evidence that

he submitted.

His refusal to join FRAPH was politically motivated, he

asserts, and FRAPH’s actions in pursuing him and punishing

his family proves that they perceived it as such. He also argues

that he fears persecution by FRAPH on account of his

membership in three particular social groups: 1) people who

refused to join FRAPH; 2) educated young men from poor

neighborhoods who support Aristide; 3) returning Haitians. In

making these arguments he asserts that the restored government

of President Aristide is unable to protect him from persecution

by FRAPH members.

23a

Appendix B

The applicant also argues that the Immigration Judge’s

decision evidences bias against his claim. Noting that the

Service presented no witnesses and introduced no evidence

other than that developed on cross examination, the applicant

argués that his unrebutted evidence establishes his eligibility

for asylum and for withholding of deportation.

V. ANALYSIS

A. Requirement for asylum and withholding of deportation

The applicant bears the burden of proof in his application

for withholding of deportation under section 243(h) or asylum

under section 208 of the Act. Matter of Acosta, 19 I&N Dec.

213 (BIA 1985), overruled on other grounds, Matter of

Mogharrabi, 19 I&N Dec. 439 (BIA 1987); 8 C.F.R. § 208.13

(1995).

To be eligible for withholding of deportation pursuant to

section 243(h) of the Act, 8 U.S.C. § 1253(h) (1994), the

applicant must show a clear probability of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion. JNS v. Stevic, 467 U.S. 407

(1984). This means that his facts must establish that it is more

likely than not he would be subject to persecution for one of

the grounds specified. /d.

To be eligible for asylum under section 208 of the Act, he

must meet the definition of a “refugee,” which requires him to

show persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion. Sections 101(a)(42)(A),

208(a) of the Act, 8 U.S.C. §§ 1301(a)(42)(A), 3.158(a) (1994).

24a

Appendix B

The burden of proof required to establish eligibility for asylum

is lower than that required for withholding of deportation. JNS

v. Cardona-Fonseca, 480 U.S. 421 (1987). An applicant for

asylum has established a well-founded fear if he shows that a

reasonable person in his circumstances would fear persecution

for one of the five grounds specified in the Act. Matter of

Mogharrabi, supra.

The applicant may also establish statutory eligibility for

asylum by demonstrating that he was persecuted in the past on

account of political opinion or any of the other grounds

enumerated in the Act for which asylum may be granted. Matter

of Chen, Interim Decision 3104 (BIA 1989).

B. Forced recruitment by FRAPH as past persecution

It is well settled that neither forced recruitment nor the

threat of reprisals for resisting such recruitment constitutes

persecution on account of political opinion. JNS v Elias-

Zacarias, 502 U.S. 478 (1992); Matter of R-O-, Interim

Decision 3170 (BIA 1992); Matter of Virgil, 19 I&N Dec. 572

(BIA 1988). The applicant must show that in seeking to recruit

him into their ranks or to punish him for his refusal to join,

FRAPH did so because of his political opinion, and not simply

because of a desire to increase their membership or to intimidate

others into joining.

The applicant failed to show that FRAPH’s initial recruiting

efforts were motivated by his manifested political opinion or

by an opinion that they imputed to him. He stated he was

approached by FRAPH in September or October 1993. Evidence

shows that this was at the time that FRAPH was first organized

in Haiti (Tr. at 34; Applicant’s affidavit, Ex. 4-A, at paras. 6,

25a

Appendix B

10; O’ Neill affidavit, Exh. 4-B, at para. 5). He was one of many

in his neighborhood who were recruited by FRAPH, which

wanted the support of the local youth (Tr. at 35). While he

testified that he was popular and well-known from his work in

the store, he did not establish that FRAPH’s initial overtures

toward him were any different from those made toward others

in his neighborhood. Nor did he present evidence that FRAPH

was aware of his political opinion (except that he lived in a

pro-Aristide neighborhood) or that FRAPH recruiters alluded

to politics in their initial attempt to enlist him. Rather, evidence

indicates that FRAPH generally focused on more mundane

benefits — money, protection, neighborhood power — in

seeking recruits (O’Neill affidavit, Exh. 4-B, at para. 7).

There is also insufficient evidence in the record to conclude

that FRAPH’s subsequent actions toward the applicant were

motivated by a perception that he was a political opponent rather

than simply an unwilling recruit. The applicant argues that his

comparatively large cash contribution of $30 branded him as

anti-FRAPH and pro-Aristide (Applicant’s affidavit, Exh. 4-A,

at. paras. 20-21; Tr. at 63-64). He argues that with FRAPH one

was an ally or an enemy (O’Neill affidavit, Exh. 4-13, at para.

7). Although we acknowledge that his disappearance may well

have conveyed to FRAPH that the applicant was unwilling to

enlist, that acknowledgement still does not establish that

FRAPH’s subsequent behavior toward him was motivated by a

perception that he was a political opponent. As the O’Neill

affidavit indicates, FRAPH threatened and employed violence

against those who refused to join (Exh. 4-13 at para. 8) The

attack on the applicant’s father’s home may have been in

response to the applicant’s disappearance and apparent refusal

to join FRAPH. Even so, there is no evidence that FRAPH’s

actions toward the applicant’s family were motivated by

26a

Appendix B

anything other than a desire to coerce him into joining their

organization.

On appeal the respondent cites Arteaga v. INS, 836 F.2d

1233 (9th Cir. 1988), a case in which guerrillas attempted to

recruit an individual, warning that they would return if he did

not join. The court in that case held that forced recruitment

was tantamount to kidnapping, and hence persecution. However,

in light of the Supreme Court’s subsequent decision in /NS v.

Elias-Zacarias, supra, we conclude that the court’s holding tn

Arteaga v. INS, supra, has been effectively overruled.

We do not discount FRAPH’s record of violence or the

harm that it inflicted on many citizens in Haiti. However,

FRAPH’s actions toward the applicant did not rise to the level

that could be considered persecution. Additionally, on the

evidence presented in this case, we cannot conclude that

FRAPH’s overtures toward the applicant and their actions

against his family were motivated by their perception that he

was a political enemy. Therefore, their recruitment efforts did

not constitute persecution on account of his pro-Aristide

political opinion.

C. Well-founded fear of future persecution by FRAPH

The applicant argues that he has a well-founded fear of

persecution by FRAPH both as an Aristide supporter and as a

returning Haitian. He argues that FRAPH still operates in Haiti,

despite the return to office of President Aristide, and he cites

considerable documentary evidence of continuing violence in

the country. Although we acknowledge that conditions in Haiti

are subject to conflicting forces, we believe that there has been

significant progress in human rights since the multi-national

27a

Appendix B

intervention that returned President Aristide. That record of

improvement, combined with the applicant’s lack of prior

political activity, makes it unlikely that he would be in peril

from anti-Aristide forces if he were to return to Haiti. Therefore,

although the applicant may have a genuine subjective fear, we

do not find that in his case it is well founded in light of

conditions in Haiti today.

The record contains a copy of the Department of State’s

report on human rights practices in Haiti for 1994 (Exh. 4-12).

Issued in February 1995, the report notes, as do numerous

other exhibits in the record, the emergence of FRAPH at the

end of 1993 as a destabilizing political force that spread

throughout Haiti and infiltrated many of the country’s poorer

neighborhoods. The report also summarized the actions of the

multi-national force that restored President Aristide to office

in 1994, and noted that by the end of 1994 a secure and stable

environment had been established in Haiti. Paramilitary groups

such as FRAPH had been outlawed, and political violence had

been drastically reduced. At the same time, however, the report

acknowledged that in a number of places people stated they

were afraid to resume political activity because of continued

activity by FRAPH members.

Other documents in the record also attest to Haiti’s progress

in restoring democracy, although they ioo contain reminders

that political violence has not been totally eliminated. For

example, by April 1995 the situation in Haiti, while hardly

perfect, was stable enough to permit the U.S. forces to tum

over peacekeeping responsibility to a United Nations security

force. (Exhs. 4-9, 4-10). With the help of the international

community, Haiti is establishing a new national police force to

replace the former corrupt security officials. While that

28a

Appendix B

permanent force is being established, an interim police force

has been put in place. However, some observers have criticized

the selection and training of members of the interim force. (Exh.

4-11). Also troublesome is the fact that all of the weapons have

not been confiscated from former FRAPH members. (Exhs.

4-25; 4-38; 4-39; O’Neill affidavit, Exh. 4-11, at paras. 9-10).

Additional documents describing conditions in Haiti were

submitted by the applicant with his appeal. Written after the

Immigration Court hearing, these documents offer some more

recent information on country conditions. One document

entitled Haiti: Darkness Remains is an April 1995 report written

by the National Coalition for Haitian Refugees (Attachment

A). While it criticizes the Department of State report for being

overly optimistic in its assessment of conditions in Haiti, this

report also acknowledges that conditions in Haiti have improved

significantly since the return of President Aristide. It cautions,

however, against blanket assumptions that all Haitians can be

safely returned and urges that each case be examined carefully

in light of its own factual circumstances.

As we examine the factual circumstances of the applicant’s

case, we conclude that they do not support a well-founded fear

of persecution upon his return to Haiti. He was recruited by

FRAPH during its initial recruitment period, and there is no

evidence in the record to indicate that he was of special interest

to them. He presented no evidence of political activity other

than voting in the presidential election. Although he fled his

home rather than join FRAPH, his donation of funds and the

absence of any anti-FRAPH actions on his part lead us to

conclude that there would be little if any continuing interest in

him by FRAPH partisans after almost 3 years.

29a

Appendix B

In concluding that the applicant does not have a

well-founded fear of persecution by underground FRAPH

members upon his return to Haiti we do not mean to minimize

the overall difficulties facing the Haitian population as the

country emerges from the legacy of oppression by prior regimes.

The exhibits submitted by the applicant provide effective

documentation of the crime, insecurity and other problems

besetting Haiti today. It is possible to find in many of these

reports language that would suggest that the overall situation

is bleak. At the same time, other passages and other reports

could be cited to bolster a conclusion that the prospects are

more encouraging. We determine in this case that despite the

overall uncertainties in Haiti, the circumstances of the

applicant’s situation do not permit a conclusion that he has a

well-founded fear of persecution by the remnants of FRAPH

upon his return. Accordingly, we conclude that he did not

establish his eligibility for asylum and for withholding of

deportation.

ORDER: The appeal is dismissed.

/s/ [illegible]

FOR THE BOARD

30a

APPENDIX C — MEMORANDUM OF DECISION AND

ORDER OF THE UNITED STATES DEPARTMENT OF

JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW, OFFICE OF THE IMMIGRATION JUDGE

DATED MAY 8, 1995

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

901 N. STUART ST., SUITE 708

ARLINGTON, VA 22203

SITTING AT ARLINGTON, VIRGINIA

FILE: A 72-848-808 IN EXCLUSION PROCEEDINGS

IN THE MATTER OF: PURSUANT TO 8 US.C.

1100 et. seq. (The Immigration

and Nationality Act)

LABORDE, GUEHENNO

RESPONDENT/APPLICANT

MEMORANDUM OF DECISION AND ORDER

This memorandum is a summary of the oral decision

rendered at ARLINGTON, VIRGINIA. If the decision is

appealed, the full text of the decision and order will be

transcribed and provided to the parties.

* * x

¥ Applicant has been ordered excluded and deported.

* * *

3la

Appendix C

v_ The Respondent/Applicant was granted/denied Asylum/

Withholding deportation under Section 208(a)/243(h) of the

Act.

v_ The Service/Respondent/Applicant has/have waived/

reserved appeal. If appeal has been reserved, appeal must be

filed by May 18, 1995.

Date: May 8, 1995

s/ Joan V. Churchill

Immigration Judge

JOAN V. CHURCHILL

AML

32a

Appendix C

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

Washington, D.C.

File No.: A 72 848 808 May 8, 1995

In the Matter of

GUEHENNO LABORDE,

Applicant

IN EXCLUSION PROCEEDINGS

CHARGES: | Section 212 (a) (6) (C) (1) — Seeks to procure

entry into the United States by fraud 2424a}44

tA }+44+44-That-s-traud or misrepresentation;

212 (a) (7) (A) (i) (1) — Immigrant-no-valid

immigrant visa or other valid travel document.

APPLICATIONS: Asylum/withholding of deportation under

Section 243(h).

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:

Kathleen M. Cronin, Esquire Deborah K. Todd, Esquire

Verner, Liipfert, Bernhard, Trial Attorney, INS

McPherson and Hand Suite 500

901 15th Street, NW 4420 North Fairfax Drive

Suite 700 Arlington, VA 22203

Washington D.C. 20005

33a

Appendix C

ORAL DECISION OF THE IMMIGRATION JUDGE

The applicant is a 26-year-old single male, alien, who is a

native and citizen of Haiti. He arrived with a false passport on

December 29, 1993. As it did not appear that he was clearly

admissible to the United States, these proceedings were

initiated. He has conceded inadmissibility as charged as one

who lacks a valid Immigrant visa or other travel document and

who sought to procure entry by fraud. Based on these

concessions and the prior finding we find that inadmissibility

has been established on this record.

The applicant seeks asylum. By regulation, all applications

for asylum are deemed to be applications for withholding of

deportation as well, even in exclusion proceedings. 8 C.F.R.

208.3(b).

Section 208 of the Immigration and Nationality Act

provides for asylum in the exercise of discretion for persons

who fit the definition of refugee. A refugee is defined in the

Act as an alien unwilling to return to his or her 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.

A well-founded fear of persecution is one which a reasonable

person would fear in the circumstances, Matter of Mogharrabi,

19 I&N Dec. 439 (BIA 1987). A well-founded fear of

persecution is something less than a clear probability there of,

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). A clear

probability of persecution is required to establish eligibility

for withholding of deportation, JNS v. Stevic, 467 U.S. 407

(1984).

34a

Appendix C

The respondent testified that he stayed with an aunt in

Port-au-Prince while he attended school there. He helped out

in her small grocery store which was in a slum neighborhood.

He managed the grocery store until he had to leave Haiti. He

was preparing for the second part of high school, but was not

attending school after he obtained a diploma in 1992 from

studying electronics. He was visited by persons who belonged

to an organization whose initials are FRAPH. Members of the

FRAPH sent him a letter with their insignia inviting him to

join the organization. Shortly after he received the letter, two

members of the FRAPH visited him at the grocery store,

presented their FRAPH membership cards to him, and requested

his answer. He testified that he went into another room, put

some money in an envelope, sealed it, and handed the money

to these individuals who then left. The applicant testified that

he understood that if you provide money to the FRAPH

organization, they will leave you alone for a while. The

applicant has a very bad opinion of F’ APH considering that it

is a subversive organization that was ruining Haiti, see Exhibit

4-A, page 4.

It is the applicant’s contention that his donation of money

to the organization would be viewed as a sign of opposition by

the organization, and that, therefore, he faces retribution in Haiti

because of what would be perceived by FRAPH members as

opposition to their group. According to the applicant, and some

of the background information, the FRAPH organization has

not been entirely disbanded. Members of it are continuing to

commit violence against others, persons perceived to be

opponents. Members of FRAPH are wanted for various kinds

of murders. The head of the organization, a Mr. Constant, was

able to slip out of Haiti. He is believed to be in the United

States.

35a

Appendix C

Thereafter, unknown persons came by asking about him

or for him, describing themselves as “authorities.” The applicant

heard about this through relatives. He concluded that members

of FRAPH were looking for him. He became frightened and

decided not to return to his aunt’s home. He then went “into

hiding,” changing locations many different times. Family

members, through well-placed connections, arranged for him

to get a phoney passport and to be transported to the United

States. His family had kept in touch with him in the period he

was in hiding through strangers who came to the house. He did

not go to get his own passports instead he was provided a

fake-passport that contained his photograph.

The applicant claims that he has heard from others and in

talking to his father, that after the applicant was in the United

States, members of FRAPH went to his father’s house and

ransacked it. His family lives in a rural area, a considerable

distance from Port-au-Prince called Las Illes. According to the

applicant, he heard that they beat his father and 19-year-old

sister and took whatever they wanted from the house, see Group

Exhibit 4-A at page 14. The applicant claims to have a letter

from his father describing these events. The applicant has not

had the letter interpreted into English however, notwithstanding

that, this case was continued for several weeks.

The applicant claims that he has friends who have visited

Haiti to see if they could return there to live, but who have

returned here reporting that the situation is not quite secure.

He does not want to return to Haiti now, because it is not secure.

He is afraid that if he returned, he would have to return to a

hiding type situation which he left when he came here.

The applicant is aware that Constant himself, the head of

FRAPH, came to the United States last year, and he knows that

36a

Appendix C

the government of Haiti has asked the United States to return

Constant to extradite him back to Haiti. He is also aware that

the climate is such now in Haiti that one can report persecution

to the authorities. He is aware that Mr. Constant faces pending

murder charges. The applicant fears nothing from the authorities

in Haiti. now that Aristide is back. He continues to fear members

of FRAPH because the current police force in Haiti cannot

control FRAPH.

It is contended that the applicant faces both past persecution

and a well-founded basis to fear persecution in the future. The

past persecution alleged is the perceived threats from members

of FRAPH, as well as the fact that the applicant spent some

time in hiding which is considered by him, it is argued, a form

of persecution. He claims to fear persecution in the future

because of the continuing instability, the inability to control

FRAPH members. He is concerned that there will be violence

connected with the upcoming election scheduled for June, and

the fact that security measures have been turned over to an

international force and are no longer being handled under U.S.

command.

It is our conclusion that the applicant has not established

that he has faced persecution 1n the past, or that he has a well-

founded basis to fear persecution in the future. We do not accept

the applicant’s conclusion that his providing financial support

to members of FRAPH in any way indicated or constituted a

sign of opposition to that group for which he has a reasonable

basis to fear persecution or retribution in the future. His

argument that the time he spent in hiding constitutes past

persecution of him is not logical. The applicant has not

described any incidents that have involved harm that has been

caused to him by anyone tn particular

37a

Appendix C

The applicant claims that his father and sister were harmed.

The information on that is sketchy. The applicant has not even

had the letter, in which it is described, interpreted so that it

could be presented into evidence. In any event, the testimony

regarding this is entirely self-serving and the contents of the

letter regarding it would not be particularly reliable even if

such letter were interpreted and presented into evidence.

The fact that there is instability in the country of Haiti and

continuing criminal violence which has not been brought

completely under control in the few months that the U.S. and

international forces have been assisting with the maintenance

of order in Haiti, does not constitute a well-founded basis to

fear persecution. The government of Haiti, as the applicant

acknowledges, is presently willing to control the forces whom

he fears. The question is whether the authorities are able to

control this violence.

Normally persecution must be at the hands of the

governmental ef authorities. The concept has been extended to

cover harm from an organized group which the government is

unable or unwilling to control, McMullen v. INS, 658 F.2d. 1312

(9th Cir. 1981). In this case, as we just mentioned, it is clear

that the government of Haiti is not unwilling to control the

violence. The argument is that the government and even the

U.N. forces are unable to. The fact that violence cannot be

completely controlled does not establish that the authorities

are “unable to control.” Terrorist or criminal acts can occur

under, any system of government. We have, unfortunately, in

this country experienced a most terrible criminal and terrorist

act within the last couple weeks, the bombing of a federal

building in Oklahoma. The authorities in Haiti are taking action,

however, at this time when criminal acts are reported to them.

38a

Appendix C

The applicant testified that one can now report acts of

persecution to the police authorities. The background

information indicates that Haiti has a long way to go, as was

expected, in having an effective system for law and order and

justice. At present the international community, through the

U.N., United Nations forces, is shouldering much of the

responsibility.

The applicant fears returning to either Port-au-Prince or

Las Illes, because, he testified, his face is well known in Port-

au-Prince and FRAPH members have a strength in Las Illes,

the rural area that from which his family comes. from-

As we have stated, we are not convinced that members of

FRAPH perceive the applicant as an opponent and would wish

to harm him. We are not convinced from his testimony that

members of FRAPH have been looking for him to harm him or

have caused harm to his father and sister because of the

applicant’s perceived opposition to FRAPH. Therefore, we are

not convinced that a return to Haiti, to either Port-au-Prince or

Las Illes would result in him being the object of retribution by

members of FRAPH.

In any event, we are noi convinced that there is not a place

where the applicant could go where he would experience

relative safety. The fact that there is continuing criminal

violence in Haiti does not establish that any danger that the

applicant may face there is necessarily on account of his

political opinion or would be in any way in connection with

his political opinion. The applicant favors Aristide. Aristide

has been restored to power in Haiti. The majority of the country

appears to favor the restoration of Aristide. The fact that there

are some members of the population who continue to engage

39a

Appendix C

in criminal behavior does, not establish that those persons can

be considered persecutors on account of other people’s political

opinions. We are not convinced that the attack on the applicant’s

family had any relationship to him, assuming that it did occur.

There appears to be a lot of robbery going on in Haiti. Other

criminal acts described in the background material include a

recent murder of an Aristide opponent, a person who was rather

prominent.

There has been a significant change in the conditions of

the government of the applicant’s country since he departed.

Even if we were convinced that what he describes as past

persecution could be so classified, we would not find that, as a

matter of discretion, he should be accorded asylum now in the

face of changed conditions which have removed the primary

basis of his fear, that is government complicity with the actions

of the FRAPH members.

The applicant’s application is based primarily on

assumptions which are entirely unsupported on this record. The

primary such assumption is that his donation of money to the

FRAPH organization would be viewed as a sign of opposition.

Normally a donation of money is viewed as a sign of support

and approval. We find the applicant’s reliance on this theory

to be unreasonable.

Having found that the applicant has not established a well-

founded basis to fear persecution in Haiti, it follows that he

cannot meet the greater evidentiary burden to establish a clear

probability of persecution.

40a

Appendix C

ORDER

IT IS ORDERED that the applicant’s applications for

asylum and withholding of deportation (exclusion) be, and

hereby, denied;

IT IS FURTHER ORDERED that the applicant be excluded

and deported from the United States on the charges contained

in the charging document.

s/ Joan V. Churchill

JOAN V. CHURCHILL

Immigration Judge

4la

APPENDIX D — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

DENYING PETITION FOR REHEARING

FILED JULY 6, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2812

A72-848-808

GUEHENNO LABORDE

Petitioner

Vv.

U.S. IMMIGRATION & NATURALIZATION SERVICE;

UNITED STATES OF AMERICA

Respondents

On Petition for Rehearing with

Suggestion for Rehearing In Banc

The petitioner’s petition for rehearing and suggestion for

rehearing in banc were submitted to this Court. As no member

of this Court or the panel requested a poll on the suggestion for

rehearing in banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

42a

Appendix D

For the Court,

/s/ Patricia S. Connor

CLERK