CERESTE LORISME v. IMMIGRATION AND NATURALIZATION SERVICE
No. 96-5451
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
December 2, 1997
Non-Argument Calendar
INS A72-028-494
[ PUBLISH ]
(December 2, 1997)
Before HATCHETT, Chief Judge, BIRCH and CARNES, Circuit Judges.
HATCHETT, Chief Judge:
Before the court is a petition for review of a decision of the Board of Immigration Appeals (BIA) that upheld an immigration judge‘s (IJ) order denying petitioner Cereste Lorisme‘s request for asylum and withholding of deportation under sections 208 and 243(h) of the Immigration and Naturalization Act (INA),
I. BACKGROUND
In February 1992, petitioner Lorisme fled his hometown of Fond Palmiste, Haiti, for
As the Macoutes led Lorisme away from the church, Lorisme convinced them that he needed to relieve himself. Proceeding toward the brush, Lorisme escaped to the coast where he soon boarded a boat for Cuba. Lorisme‘s wife and children remained in Haiti.1
After paroling Lorisme into the United States, the Immigration and Naturalization Service (INS) initiated deportation and exclusion proceedings against Lorisme in mid-1995. Lorisme, through counsel, admitted to the INS‘s charge of excludability but applied for asylum and withholding of deportation. As grounds, Lorisme expressed fear that, if returned to Haiti, he would suffer retaliation for his escape and his reputation as a supporter for Aristide, who returned to power in October 1994.
The IJ conducted a hearing at which only Lorisme testified. Lorisme‘s counsel, however, introduced sixty-six exhibits into evidence, most of which were newspaper articles, editorials, agency reports and press releases regarding the current political and human rights conditions in Haiti.
At the conclusion of the hearing, the IJ orally denied Lorisme‘s application in its entirety. Specifically, the IJ found that Lorisme failed to show past persecution or a well-founded fear of future persecution on account of any of the five statutory grounds for asylum, including political opinion. The IJ expressed concern over Lorisme‘s credibility and the lack of physical harm the Macoutes inflicted upon Lorisme during his arrest. He also rejected the bulk of Lorisme‘s exhibits because they were not specific as to the Haitian region where Lorisme lived.
On administrative appeal, the BIA affirmed the IJ‘s order and dismissed Lorisme‘s appeal. The BIA agreed with the IJ that Lorisme did not suffer past persecution in Haiti. The BIA also concluded that Lorisme did not have a well-founded fear of persecution on account of political opinion or any of the other statutory grounds for asylum. Unlike the IJ, the BIA did not support its conclusion with a determination that Lorisme lacked credibility.2 Rather, the agency reasoned as follows:
We find that the political changes in Haiti, including the dismantling of Haiti‘s military government and Aristide‘s return to power in 1994, which were discussed at [Lorisme‘s] hearing, are sufficient to resolve any questions of a well-founded fear of persecution raised in this case. While the record contains sufficient evidence that Haiti has experienced some general strife even after Aristide‘s return to power, [Lorisme] has not provided any evidence to indicate that the current Haitian government seeks to harm him or that it is unable or unwilling to protect him from any individuals or groups who may seek to harm him.
In re Cereste Lorisme, No. A72 028 494 - Miami, at 2 (B.I.A. Nov. 4, 1996) (unpublished) (per curiam). Finally, like the IJ, the BIA rejected Lorisme‘s request for withholding of deportation because he failed to satisfy the lower burden of proof required for asylum.
One member of the BIA filed a concurring and dissenting opinion. The board member concurred with the majority‘s finding of no past persecution. Unlike the majority, however, she believed that Lorisme did, in fact, have a well-founded fear of persecution on account of political opinion. First, she characterized Lorisme‘s lack of physical harm as non-determinative. She also deemed the IJ‘s
intra-INS memorandum applying a similar policy to Haitian aliens. She also relied on a contemporaneous report that the Department of State issued, advising that efforts to disarm completely the Macoutes were of limited success.
Next, the board member criticized the majority for overlooking Haiti‘s recent political unrest in analyzing the reasonableness of Lorisme‘s fear of persecution. She noted that Lorisme‘s lack of prominence or celebrity status would assure him little protection. Finally, the board member concluded that the majority abused its discretion in failing to “give adequate weight” to documentary evidence, such as a United Nations‘s press release and an “article” in the Miami Herald, which Lorisme had submitted. In re Cereste Lorisme, supra, at 4-5 (Rosenberg, Bd. Mbr., dissenting).
II. ISSUE
The issue we discuss is whether reasonable, substantial and probative evidence supports the BIA‘s decision to uphold the IJ‘s order denying petitioner Lorisme‘s request for asylum for failure to establish a well-founded fear of persecution on account of political opinion.
III. CONTENTIONS
Lorisme, proceeding without counsel before this court, adopts and incorporates the arguments of the dissenting board member as his own.3 Thus, he does not challenge the
BIA‘s conclusions regarding past persecution or withholding of deportation. Rather, Lorisme appeals only that portion of the majority opinion addressing fear of future persecution.
The INS contends that the BIA did not take “administrative notice” of changed conditions in Haiti. Rather, the INS argues that substantial evidence in the record, including a Department of State profile, supports the BIA‘s finding that political conditions for Aristide supporters significantly improved after his return to power. These changes, the INS claims, included the disarming and dismissing of the Macoutes and local arms of the Haitian government loyal thereto.
IV. DISCUSSION
The INA provides, in pertinent part, that “[t]he Attorney General may grant asylum to an alien . . . if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of [Title 8].”
After a review of the record before the BIA, we conclude that substantial evidence supports its decision. First, the implication that the BIA placed dispositive weight on Lorisme‘s lack of physical harm lacks merit. The IJ is the only adjudicator to mention this factor, and it is one of many in his order.
Next, contrary to the dissenting board member‘s view, the majority did not take administrative notice of improving conditions in Haiti after Aristide‘s return. The phrase
“administrative notice” does not appear anywhere in the majority‘s opinion. Rather, the opinion states, and the record reflects, that the parties “discussed” Haiti‘s condition at the hearing before the IJ. In re Cereste Lorisme, supra, at 2. If the BIA had truly taken administrative notice, the parties would have had little need to discuss anything since the subject matter would not have been subject to reasonable dispute. Cf.
Even if the BIA took some measure of administrative notice, it is not inappropriate. The record contains substantial, corroborative evidence of Haiti‘s improving conditions. Nearly all of the documents that Lorisme submitted make reference to this notion. While many of these documents focus on the political unrest in Haiti, even after the return of Aristide, it is not for this court to re-weigh the evidence. See Martinez-Benitez v. INS, 956 F.2d 1053, 1055 (11th Cir. 1992). We do, however, note that the dissenting board member‘s belief that the majority relied on “popular media accounts” appears disingenuous in light of her reliance on an editorial, which she labeled an “article.” In re Cereste Lorisme, supra, at 5 (Rosenberg, Bd. Mbr., dissenting). Additionally, as the dissenting board member recognized, other circuits have expressly authorized the use of administrative notice. E.g., Kapcia v. INS, 944 F.2d 702, 705-706 (10th Cir. 1991) (approving the BIA‘s administrative notice of the Solidarity becoming a part of the Polish coalition government); Kaczmarczyk v. INS, 933 F.2d 588, 593-97 (7th Cir.) (approving the BIA‘s administrative notice of political changes in Poland so “as to render unsupportable the petitioners’ fears of future persecution“), cert. denied, 502 U.S. 981 (1991). But cf. Vallencillo-Castillo v. INS, --- F.3d ---, No. 95-70020 (9th Cir. July 30, 1997) (holding that administrative notice of changed conditions alone will not rebut the presumption of well-founded fear of future persecution once the alien has proven past persecution). Indeed, in another Haitian asylum case, the former Fifth Circuit arguably approved of the BIA‘s ability to take administrative notice of the country‘s political conditions. See Coriolan v. INS, 559 F.2d 993, 1002-1003 (5th Cir. 1977) (instructing the INS, on remand, to evaluate the opinion of Amnesty International because “newspaper clippings . . . can be admissible to demonstrate probable persecution” and the BIA “is even prepared to take administrative notice of a nation‘s political conditions“).
Although we find substantial evidence to support the BIA‘s decision, we disagree with its finding that Lorisme did not provide any
V. CONCLUSION
For the foregoing reasons, we conclude that the BIA properly upheld the IJ‘s order (1) denying Lorisme‘s application for asylum and (2) denying Lorisme‘s request to withhold deportation. Accordingly, we affirm the BIA‘s decision and deny Lorisme‘s petition for review.
PETITION DENIED.